Federal Courts and Nominations

Do Serious Conservatives Really Endorse Sen. Mike Lee’s Extreme Constitutional Views?

The decision by Senate Republicans to place freshman Senator Mike Lee (R-UT) on the Senate Judiciary Committee, breaking their own rule against two Republicans from the same state serving on the same committee (Senator Orrin Hatch (R-UT) is a long-serving member of the Committee), raises the following question: do serious conservatives really want to affiliate themselves with Mike Lee’s wacky views of the Constitution?

Even in a world in which crazy claims about the Constitution are becoming common place, Mike Lee stands out for being far out on the constitutional fringe.   As CAC has reported, Lee has argued that Utah can take federal lands in the state using the Constitution’s “enclave clause,” an argument so ridiculous it would be funny if he weren’t serious about it.  But that is the tip of the iceberg.  In addition, Lee:

  • supports passing legislation that would change the portion of the 14th Amendment that guarantees U.S. citizenship at birth, favors repealing the 16th Amendment (progressive income tax), and calls the 17th Amendment (allowing Americans, rather than state legislatures, to elect their Senators) a “mistake;”
  • has supported and testified in favor of legislation that would allow Utah to “nullify” federal health care reform;
  • aims to phase out Social Security, and has questioned the constitutionality of FEMA, and federal poverty and food safety programs;
  • declared the Departments of Education and Housing and Urban Development to be unconstitutional; and
  • endorsed the Supreme Court’s widely-reviled decision in 1918 to strike down a federal law limiting child labor in Hammer v. Dagenhardt, even though that decision was unanimously reversed by the Supreme Court in United States v. Darby in 1941.

Not only does Lee question the Supreme Court’s unanimous conclusion in cases like Darby, he has also demonstrated disdain for the Judiciary itself by promising his constituents that: “As your U.S. senator, I will not vote for a single bill that I can’t justify based on the text and the original understanding of the Constitution, no matter what the court says you can do.”[Emphasis added.]

In describing why he has rejected some of the same constitutional arguments being advocated by Senator Lee, Justice Antonin Scalia has said: “I’m a conservative, I’m a textualist, I’m an originalist, but I’m not a nut.” Given Lee’s views, it’s disturbing that Senate Republicans not only placed Lee on the Senate Judiciary Committee, but, as noted above, they violated their own rules to do so.  As Ed Whelan wrote for National Review’s Bench Memos:
A huge obstacle to Lee’s joining the committee was posed by a Republican Conference rule that bars two Republicans from the same state from serving on the same committee. That rule exists for understandable reasons—among other things, there’s a lot of potential for conflict and infighting if two senators from the same state are on the same committee. Waivers of the rule are quite rare.

My former boss Senator Hatch—also of Utah and a longtime member of the committee— and Republican leader Mitch McConnell deserve great credit for securing the waiver of the rule. I’m reliably informed that Hatch not only gave his own consent to waiver of the rule but that he also worked hard to persuade his fellow Republicans to do likewise. McConnell also made the matter a real priority.
One would hope, if not expect, that serious conservatives such as Hatch, McConnell, and Whelan would rush to distance themselves from the fringe constitutional ideas of Mike Lee.  There is nothing conservative about the snake oil he is peddling about the Constitution.  That such serious conservatives are instead rushing to embrace Lee provides a troubling indication of how bewitched or cowed conservatives are these days by the “Constitution According to the Tea Party.”

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