In a floor speech last week, Senator Mike Lee of Utah attempted to root his opposition to the extension of the Violence Against Women Act in an argument about the constitutionality of the Act. It has become a classic move by conservatives to hide behind alleged constitutional restrictions to avoid accountability for their opposition to popular federal laws: “look,” they say, “it’s not that I support domestic violence (or oppose aid for the disabled, the sick, the impoverished etc., etc.,) it’s just that I don’t think it’s constitutional for the federal government to do this.  My hands are tied.”   Here’s Senator Lee’s version of this statement from last week: 

“Everyone agrees that violence against women is reprehensible.  The Violence Against Women Act (VAWA) reauthorization has the honorable goal of assisting victims of domestic violence, but it oversteps the Constitution’s rightful limits on federal power, it interferes with the flexibility states and localities should have in tailoring programs to meet particular needs of individual communities, and it fails to address problems of duplication and inefficiency.”

The problem is that Senator Lee is once again wrong about the Constitution and the meaning of federalism, as a brief signed by his home state of Utah in the case of U.S. v. Morrison indicates.

The Violence Against Women Act (VAWA) was originally enacted in 1994 with overwhelming bipartisan support (Utah’s senior Senator, Orrin Hatch, was an original cosponsor).  The Act contains a wide range of provisions that were intended to support victims of crimes such as domestic violence and sexual assault, strengthen federal penalties for such crimes, and improve the enforcement of laws that prohibit various forms of violence against women. While most of the bill’s provisions were justified by Congress’ Spending Clause power, which allows the federal government to impose conditions upon the provision of funds to state governments, a part of the VAWA that established federal penalties directly against private individuals (rather than acting through the states) relied on the Commerce Clause power.  In U.S. v. Morrison (2000), the Supreme Court examined this Commerce Clause section, which allowed victims of gender-motivated crimes to sue their attackers in federal court and, on a 5-4 vote along ideological lines, the Court held that this provision was not a constitutional exercise of the Commerce Clause.  The Court’s ruling left the majority of the VAWA’s provisions, which relied on the Spending Clause, untouched. The VAWA was reauthorized and expanded in 2000 by President Clinton and in 2005 by President Bush.

Nonetheless, as indicated above, Senator Lee now purports to oppose the VAWA on constitutional grounds.  As a legal matter, these arguments are frivolous.  Since the 1936 case of U.S. v. Butler, the Supreme Court has unequivocally held that Article I, Section 8, Clause 1 of the Constitution, giving Congress the power to “lay and collect taxes  . . . to provide for the common defense and general welfare of the United States,” provides  Congress with broad powers to impose conditions on federal spending.  And Lee’s policy arguments about federalism are refuted by a brief joined in Morrison by his own state of Utah.  In Morrison, Utah and 35 other states filed a brief explaining to the Court precisely why the states needed the Federal government to play a role in preventing and punishing domestic violence and gender-motivated crimes.  Contrary to Lee’s argument about the VAWA undermining federalism and leading to duplication, Utah’s brief explains how the VAWA “complements state and local efforts to combat violence against women without in any way compromising those efforts, [and] it does not undermine federalism by intruding in an area of traditional state concern.” 

Senator Lee likes to think of himself as a constitutional scholar, but he’s more of a constitutional charlatan who is willing to distort and politicize the Constitution to avoid accountability for opposing federal efforts to address nationwide problems such as violence against women.  He demonstrated this yet again last week.