Caleb Brown: This is the Cato Daily Podcast for Monday, October 17, 2016. I’m Caleb Brown. In a strange and disappointing election year there is hope in the west. U.S. Senator Mike Lee of Utah argues that it’s now more important than ever that Congress seize its Constitutional powers back from the Executive Branch. Lee and I spoke about the 2016 election, the Electoral College, and the Article I Project this weekend in Park City, Utah.
Senator Mike Lee: To be sure.
Caleb Brown: I guess, where is your head at right now in terms of this election and trying to preserve your party’s hold on the House and Senate?
Senator Mike Lee: My head is where it’s always been and where I hope it will always be. As long as I’m breathing, and especially as long as I’m in public office, I’m going to continue to focus on restoring what I regard as the twin bulwarks against tyranny. The twin, structural protections of the Constitution, federalism and separation of powers. The former separates power and divides power along a vertical axis and the other along the horizontal axis. We’ve neglected both of those principles over the last 80 years, to our own detriment, and it has never been clearer to me than it is right now that that’s exactly where we have to maintain our focus.
Caleb Brown: So your Article I Project, that a lot of folks in the House and Senate have been working on, seems more important than ever right now?
Senator Mike Lee: Yes. Absolutely. And you know the whole reason we started the Article I Project is we wanted to put together a network in both houses of Congress to focus likeminded members on the task of restoring the power of making law to the people’s elected representatives. It sounds simple, and it is simple, and yet I think most Americans are shocked when they realize the degree to which their own lawmakers are no longer accountable to them. And I don’t mean Congress. I mean their elected representatives in Congress aren’t really making the law anymore in many instances. Their elected representatives in Congress are just delegating it off to someone else or, even worse, relying on a many decades old previous delegation of authority to unelected, unaccountable bureaucrats.
Caleb Brown: So there are multiple dimensions of this kind of project that need to be grappled with. One of the big ones, of course, is regulation. But the other is war.
Senator Mike Lee: Sure, sure. Look, anytime we’re going to subject America’s sons and daughters to the terrors of war, anytime we are going to send our own people, our own flesh and blood, into harm’s way, we owe it to them and to their parents, to their siblings, to their loved ones, to at least go through the proper process to make sure that we’re not just going into war haphazardly and that we’re not just going into war without an appropriate constitutional mandate to do so. One of the many reasons why that’s so important is not just that we’ve all taken an oath to uphold and protect and defend this document that requires it, but one of the reasons why that document requires that is for the simple reason that that’s the only way to guarantee that we have the type of robust debate and discussion before we go into war that really needs to happen.
Caleb Brown: You and Dick Durbin sponsored some criminal justice reform…
Senator Mike Lee: Yes.
Caleb Brown: …and there were other, I think it was Rand Paul and Patrick Leahy also had something similar.
Senator Mike Lee: Yes. And we’ve now got a whole bunch of members of both political parties who are part of that effort and we’ve merged our bill with a different bill that was originally being run by Senator Whitehouse from Rhode Island and Senator Cornyn from Texas. The combined bill is called the Sentencing Reform and Corrections Act. The original bill that I ran with Senator Durbin was called the Smarter Sentencing Act. What motivated me to get into this was something that I saw when I was a federal prosecutor. I remember one case in particular, a case called United States vs. Weldon Angelos. Weldon Angelos was a young man in his mid-20s, he was the father of two young children and he made a grave mistake. He decided to sell marijuana on three separate occasions over a 72-hour period. He sold user quantities, basically dime bag quantities of marijuana. He had a gun on his person at the time. The gun was neither brandished nor discharged in connection with the offense but he had it on his person. Because of that fact and because of the way he was charged, he received a minimum mandatory sentence of 55 years in prison. The judge imposing the sentence, former federal district Judge Paul Cassell, took the unusual, almost unprecedented step, of issuing an opinion and making a statement disagreeing categorically with the sentence he was about to impose, saying this is ridiculous. I mean, this guy has committed a crime. That crime is serious and needs to be addressed appropriately, but 55 years. That’s more than a lot of rapists or terrorists or hijackers are going to get for their offenses. Why should this guy, who sold three dime bags of pot, get this amount of minimum mandatory sentence? And then he said something that would stick with me for many years. He said only Congress can fix this problem. I can’t solve it. No federal judge can solve it. Only Congress can fix this problem. So it’s one of the reasons why I got on board this effort and one of the reasons why shortly after I was elected I started looking for ways to reform our minimum mandatory sentences.
Caleb Brown: So it has been argued that sentencing reform as a categorical project is dead for 2016, but is that true and is it possible that a lame-duck session could see some sort of sentencing reform that Barack Obama would like to sign?
Senator Mike Lee: It is possible. I don’t know that I can say it is certain to happen. I’m quite certain that I can’t it’s certain to happen. It’s still possible. Now, this is something that should have happened a long time ago. I mean our bill was passed out of the Senate Judiciary Committee by a vote of 15 to 5. This should have been scheduled for a vote on the Senate floor a long time ago. It should have been scheduled for a House floor vote a long time ago. It hasn’t been thus far. I think there remains a possibility of getting it done during the lame-duck session. I’m not willing to give up yet. President Obama certainly would be willing and eager to sign it into law if he did.
Caleb Brown: You posted a video on Facebook, a Facebook live video, sort of taking issue in pretty strenuous terms against essentially, I think, the candidacy of Donald Trump and the way that he has conducted himself as a human being but of course there are myriad policy differences that people have with him. Immigration, entitlements; I mean, he’s not a Republican in any substantive sense. What does his candidacy, ever before the election, what does it do to the Republican Party, the coalition?
Senator Mike Lee: I don’t know. And the point you raise is a very significant one. It’s hard to know exactly where this takes our party, and I think exactly where we go from here is going to be affected strongly by what happens in November. But I can tell you this. Regardless of which way it turns out, whether Mr. Trump wins, or Hillary wins, or something strange happens and we have an outcome that’s different than either of those, either way it’s going to be important, just as it always has been, but more important now than ever before, for the American people to focus on the fact that we cannot allow the presidency to become a monarchy. We’ve kind of allowed that to happen. We’ve been drifting in that direction for decades. We’ve been accelerating into that mode over the last few years and we’ve got to pull away from it. And I don’t care which letter of the alphabet follows that President’s name. We’ve got to start focusing on the fact that Presidents are not Marx, and Presidents are subject to a Congress elected by the people at regular intervals to make the law. Ours is not a government of one. We’ve been treating it lately like it is.
Caleb Brown: Conor Friedersdorf is a writer at The Atlantic and he has suggested that it is time to detyrannize the White House. Is that possible this year?
Senator Mike Lee: It is always possible. It’s never not possible. If Congress would do its job.
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.
Caleb Brown: Is there any appetite to do that this year?
Senator Mike 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.
Caleb Brown: Is the REINS Act part of that?
Senator Mike Lee: Yes, I think the REINS Act is perhaps the single most important step that needs to be taken in this area. It ought to be one of the first things that happens and really this isn’t either Republican or Democratic, it’s not liberal or conservative, this is just a Constitutional issue. The REINS Act would require that anytime an Executive Branch agency puts forward a major rule as determined by its economic impact, it couldn’t take effect until such time as both houses of Congress had acted, affirmatively passing it into law and it had been signed into law or acquiesced to by the President. Interestingly enough, for the first fifty years or so of the modern federal administrative state, this is kind of how it worked under the old legislative veto framework. From the 30s through the mid-80s, Congress retained legislative veto power where an agency could pass a regulation but usually there was a legislative veto provision saying if Congress doesn’t do this then Congress, acting alone without the President, can undo that regulation. It wasn’t until the mid-1980s, when the Supreme Court decided a case called INS v. Chadha (INS v. Chadha, incidentally, was argued by my late father, but that’s a different story), the Supreme Court concluded that the presentment clause of Article I, Section 7, prohibits the legislative veto process from being undertaken by Congress. A lot of people expected, with good reason, that after INS v. Chadha was decided and these legislative veto provisions were deemed unconstitutional, that Congress would stop delegating away this much power, and instead the opposite happened. Congress accelerated into that problem, for the simple reason I explained a moment ago. It’s easy to escape accountability that way.
Caleb Brown: Do you believe that presidential electors in the Electoral College are bound by anything except their own conscience?
Senator Mike 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.
Caleb Brown: We are here and we’re talking in Park City, Utah, which is a beautiful place. What is Utah going to do in this presidential election? The polling that I’ve seen is very strange.
Senator Mike Lee: One thing that is not going to happen, we’re not going to vote for Hillary Clinton. Look, it’s been since 1964 that Utah voted for a Democrat in a presidential election year. It was seven years before I was born and Utah has been repenting for that mistake ever since then. We’re not going to make that mistake this year. I really don’t know how it’s going to turn out, but in the last few days the numbers have tightened and we’ve seen Donald Trump and Hillary Clinton, in a poll released just a couple of days ago, tied at 26 apiece, with Evan McMullin, who nobody had heard of just a couple of months ago, just four points behind them at 22. Gary Johnson, I think, was at 14 or 15%. So I think McMullin has clearly enjoyed a surge. Word that I’m hearing on the ground is that McMullin is continuing to surge and I think there is a real possibility that Evan McMullin could end up winning the state. But look, we’re still a few weeks away from that and it might as well be an eternity.
Caleb Brown: In the event of an electoral deadlock where no candidate receives 270 electoral votes, Congress has to sort of dust off some old procedures that it hasn’t used for some time, to put it mildly. Do you have any concerns about that process?
Senator Mike Lee: Oh, sure, sure. I’ve got concerns about everything about this process. But the fact that we’ve got the process there gives me some comfort, the fact that we’ve got a way of dealing with what happens if nobody can get to 270. That’s why we have the Twelfth Amendment. And the fact that we’ve got it and the fact that it remains available should be a source of comfort to the American people.
Caleb Brown: Mike Lee is a U.S. Senator from Utah. We spoke this weekend in Park City. Subscribe to this podcast at iTunes, Google Play, and with Cato’s iOS app. And follow us on Twitter, @CatoPodcast.