Federal Courts and Nominations

Senator Mike Lee: Constitutional Charlatan

In justifying his threat to obstruct the confirmation of every single Obama judicial nominee in response to the President’s recess appointment of Richard Cordray to the Consumer Financial Protection Bureau, Senator Mike Lee (R-UT)  had the chutzpah this weekend to lecture President Obama about the fact that the “Constitution is not a partisan document.”  That’s rich, coming from a tea party hero whose very career has been built by weaponizing the Constitution for political purposes.

Indeed, Senator Lee has established a Political Action Committee called the Constitutional Conservatives Fund, with the purpose of “finding, funding, and supporting conservative candidates who are committed to the cause of restoring constitutionally limited government.” That’s right, the guy who has established a Political Action Committee for the purpose of politicizing the Constitution is arguing that the President is politicizing the Constitution.  Please.

What’s worse is that Lee’s “constitutional conservative” pledge – the centerpiece of his PAC — amounts to nothing more than wrapping paper for his partisan policy agenda.  Indeed, the most striking thing about Senator Lee’s “constitutional conservative” pledge is how little attempt is made to justify its provisions with the text of the Constitution itself.  Of the fourteen provisions in the pledge, nearly half are vague calls for policy changes such as “reform entitlements,” “reform the tax code,” and “oppose nation building.” Unless Senator Lee has specific constitutional arguments to make about these policy issues – and it’s hard to imagine any such arguments that would pass the laugh test – such statements have no place in a pledge about the Constitution. 

In the few provisions of the pledge that do directly address the Constitution, Senator Lee picks and chooses the parts of constitutional text and history he likes and ignores those he doesn’t. For example, Lee attempts to lay the groundwork for his conservative agenda by compelling signers to “agree” that federal powers are “few and defined.” In other places, Lee has suggested  that those “few and defined” powers do not give the federal government the power to pass laws protecting retirement security, securing disaster relief, and regulating child labor, positions that put him on the far fringe of the constitutional debate.  While it is true that the federal government possesses only a limited set of enumerated powers, Lee fails to acknowledge that some of these powers are quite broad, and that the Founders drafted the Constitution in order to strengthen the federal government after the Articles of Confederation had failed to provide the federal government with the substantial powers it needs to address national concerns.  Lee compounds this sin of omission by failing to recognize that “We the People” have further expanded the enumerated powers of the federal government in eight separate Amendments.

Senator Lee’s selective view of the Constitution is also reflected in another aspect of his treatment of the Amendments.   While these Amendments profoundly changed the Constitution in many important ways, guaranteeing liberty and equality, ending slavery, expanding the right to vote, increasing the power of the federal government, applying the limits of the Bill of Rights to the actions of the states, Lee mentions precisely only one Amendment, calling upon signers to “protect Second Amendment rights.”  No disrespect to the Second Amendment, but it is one of 27 Amendments, and the love affair for that Amendment on the political right does not allow an elected official such as Senator Lee, who takes an oath of office to support the Constitution – all of it – to elevate that right over all others.

To amplify his ability to use his PAC to politicize the Constitution, Senator Lee  also tried to magnify the constitutional damage done by the Supreme Court’s ruling in Citizens United v. FEC. Last December, Lee requested permission from the Federal Election Commission to operate a Super PAC that would have been allowed to accept unlimited contributions from corporations, unions, and individuals.  The move would have made Lee the first elected politician to operate his own Super PAC and essentially eliminated limits on contributions to candidates. Fortunately, even the perpetually gridlocked FEC – which has 3 Republican and 3 Democratic members who seem never to agree on anything – recognized that this went far beyond what Citizens United mandated, and it unanimously denied Senator Lee’s request.

Finally, even narrowly focusing on the Cordray appointment and the confirmation process, it is Senator Lee who is most clearly violating the letter and spirit of the Constitution and playing partisan games.  Senator Lee made it absolutely clear that he would not comply with his constitutionally-mandated responsibility to give his “advice and consent” on the Cordray nomination.  In an official Senate release in December, he stated that he had no objection to Richard Cordray himself, but that he felt it was his “duty to oppose his confirmation as part of [his] opposition to the creation of CFPB itself.” 

Actually, according to the Constitution, it’s Senator Lee’s duty to vote “no” on legislation he opposes, such as the law that set up the CFPB, and to provide “advice and consent” on the president’s nominees, judicial or otherwise.  Senator Lee’s statement is an abdication of his constitutional duty, and it is that hard-line position taken by the President’s opponents, coupled with the trick of “pro-forma” Senate sessions designed specifically to prevent the President from exercising his constitutional authority to make recess appointments, that led to President Obama’s action on the Cordray appointment.

President Obama’s decision to employ the Recess Appointment power to install Richard Cordray as head of the Consumer Financial Protection Bureau was an aggressive use of his constitutional powers, coming during a period when the Senate itself takes the position that it was not technically in recess.  Everyone from Senator Lee, to President Obama, to Mr. Cordray should appropriately regret that partisan dysfunction in the Senate has advanced to the point that such a step was necessary to ensure the functioning of a government agency created by the Congress in a law passed only eighteen months ago.  Courts may well have to sort this mess out, though as I argue here, it seems likely they will uphold the President’s actions.

But Senator Lee is demonstrating contempt for the document he purports to revere by reacting to this sorry state of affairs by (1) ignoring his complicity in the problem, (2) lecturing the President for politicizing the Constitution – something Senator Lee has turned into an art form – and (3) taking out his anger with the President by compounding the Senate’s partisan dysfunction and punishing the third branch of government.  With friends like Senator Mike Lee, the Constitution needs no enemies.


(This article was written with assistance from Doug Pennington and Ryan Woo, and is cross-posted on Huffington Post)

This article has been reprinted in the following publications

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