Sen. Mike Lee on Executive Power & Conscientious Electors

This weekend, I sat down with Senator Mike Lee (R-UT) for the Cato Daily Podcast. We discussed executive power, criminal justice reform, the Electoral College and this strange, disappointing election year. Here's a portion of our discussion:

Caleb Brown: President Obama has said he's concerned, and I have a bit of a hard time taking some of what he says seriously, he's concerned about leaving a loaded gun around in the White House for the next President, which is, it's almost comical.

Senator Mike Lee: That's wonderful. If that is a deathbed repentance, it's better than no repentance at all. I would like to see what he means by that. I hope he means the same thing that you or I would mean if we made that kind of a statement, which people like you and I do, say things like that all the time. Look, this President has, in fact, taken a lot of steps in the direction of consolidating power in the Executive Branch. And this has been one of the consistent refrains that you've heard from some members of Congress. One of the consistent themes that I've tried to follow, is pointing out to Republicans and Democrats alike, in both Houses of Congress, look, regardless of how you feel about this President's policy, regardless of how you feel about this President's political orientation, this is a bad practice. This is something that ought to scare the daylights out of any Republican or any Democrat or Libertarian or person of any other political stripe, because this is not American. This is not how we do things.

We don't live in a kind of government where Presidents can appropriately say if Congress won't act, I will. That's kind of scary. Scary because of what it says about the consolidation of power in the minds of the chief executive, in the minds of the American public as far as they regard the executive, it's also scary for the simple reason that in many respects the law allows them to do precisely that. Because we've got so much buildup from so many decades of broad, amorphous, quasi lawmaking, where we basically say we shall have good law in area X, and we hereby delegate to department or agency Y the power to make good law in area X. Well guess who controls department Y? The President, and those he chooses, who normally serve at the pleasure of the President. So, in many respects, Congress has enabled this. Congress has created this monster. And it's time for Congress to tame the monster once again.

Brown: Is there any appetite to do that this year?

Lee: There is a strong appetite on the part of some members of Congress to do that. I don't, frankly, sense a lot of appetite from the White House. In fact, aside from this statement which was made very recently and has yet to be followed up by anything substantive that I'm aware of, you don't ever hear that from the White House. And shockingly, you don't hear it very much from very many members of Congress. That is starting to change, and I'm going my best to change that, but most members of Congress have become strangely, bizarrely content with allowing for this delegated lawmaking trend to continue. And in fact I wrote a book called Our Lost Constitution, it just came out in paperback, and in Our Lost Constitution I explain that even though our Founding Fathers thought that each branch of government would have a strong, compelling interest to guard jealously its own power, what we see is that in the last few decades the opposite has been true for Congress. Congress has been eager to delegate more and more.

Why? Well, as I explain in Our Lost Constitution, I think it has a lot to do with the fact that the Holy Grail for most politicians, most members of Congress in particular, is to avoid criticism, avoid negative publicity, and take credit for doing good things, avoid credit for doing hard things. And so when we attack a law by saying we shall have good law in area X and let's delegate the task of deciding what that means to commission Y or agency or department Y, we take credit for what's good and we avoid criticism for what's hard. That's wrong and we've got to turn that around.

On the Electoral College ...

Brown: Do you believe that presidential electors in the Electoral College are bound by anything except their own conscience?

Lee: No. There are some states that have these faithless elector laws. The constitutionality of them has been called into question and the constitutionality of them has not really been upheld or challenged or tested in court. Basically, electors have some discretion. Now, I think they are honor bound to do what's right. I don't think they ought to depart from what they are expected to do for light and transient reasons, but I think one of the reasons why our Founding Fathers put in place the Electoral College was to put an additional layer of protection there in case something really bad was going to happen. That's how I read it.

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