This has got to be the moment Sen. Mike Lee has been waiting for since he was elected to the Senate.
Lee and Sen. Mitt Romney will be put on the spot in the next week or so to vote on a resolution that already passed the House. It takes aim at President Donald Trump’s declaration of a national emergency at our southern border and it takes funds from other areas — disaster recovery funds and Defense Department rebuilding projects — to fulfill his big campaign promise and build a wall.
So far, both men have criticized the president’s emergency order.
“I do not believe declaring a national emergency is the right approach,” Romney has said.
“Congress has been ceding far too much power to the executive branch for decades,” Lee said in a statement. “We should use this moment as an opportunity to start taking that power back.”
But neither senator has said how he will vote on this resolution, which presents a platinum opportunity for Utah’s senators to put their money where their mouths are, not just on the border wall issue but on executive overreach.
Lee, speaking at the annual Conservative Political Action Conference last week roasted Democrats for their newfound concern about the abuse of executive power.
“All of a sudden on the left we see a magical resurgence, a magical reawakening of this idea that there ought to be separation of powers,” Lee said. “That’s great, but I wish they would have talked about it sooner. Where was the outrage over the violation of the constitution and separation of power over the last decade?”
In particular, Lee cited President Barack Obama’s orders to pursue military action in Libya in 2011 and to postpone deportations for the “Dreamers” — young people whose parents brought them to the United States illegally.
In the same speech, he said both parties have “deviated from [the] principles” of separation of powers and checks and balances.
Now the senator has an opportunity to do something about the abdication of constitutional power that he has been decrying since he joined the Senate in 2011.
“There has been a long process by which Congress has voluntarily relinquished its authority,” Lee said at a Hoover Institution appearance in 2016. “Members of Congress like to speak of themselves as if they were somehow victims of an overbearing administrative state, an executive branch run amok that is beating up on the poor old Congress, when in reality Congress is the perpetrator in this offense, not the victim.”
Congress is the perpetrator, Lee believes, because Congress has capitulated, given up its lawmaking authority rather than assert itself. And the best way for Congress to assert itself, Lee has said repeatedly, is the way James Madison advised — the “power of the purse.”
“Without congressional approval, no federal program can be funded, and without funding, no program can be implemented,” Lee wrote in his book “Our Lost Constitution” in 2015. “By simply refusing to fund a president’s unconstitutional conduct, Congress can stop him dead in his tracks.”
It’s high school civics and it’s precisely what Congress did on Trump’s border wall — not just neglecting to fund it, but explicitly putting in a set amount of funding for barriers in the budget bill. Trump didn’t take the hint, declared an emergency and is putting that balance of power to the test.
It’s gut-check time for people like Lee, who might be well advised to remember his own words at the Hoover speech when he warned about what happens when it’s not your party’s president giving everyone the bird.
“If you are a liberal … perhaps you’re very content right now with the fact that you’ve got someone most would regard as a pretty progressive Democratic president. A few years from now, a few months from now, that might no longer be the case,” he said. “At that point, you might be concerned with the way that president might act. … You don’t really want that, do you?”
Of course Lee can try to find a way out and dodge the issue. He could follow those like Rep. John Curtis, who voted against the resolution in the House, his rationale being that, even though he opposed the president’s emergency declaration, the House vote wouldn’t actually change anything.
Curtis isn’t wrong. If the Senate passes the resolution, Trump has repeatedly said he would veto it. That would send it back to Congress, where it would take two-thirds to override the veto — votes that simply aren’t there.
That makes this largely a statement bill, as such measures are derisively called. But saying something is wrong is not a bad thing and it does nothing to preclude future action.
If you saw someone on the street being mugged, do you walk on by, or do you say something and then maybe call the cops?
And how does the calculus change if you are the cops? Because in Lee’s construct, it is Congress’ job to be the cop and keep the executive branch in check. Sure, he can look the other way or rationalize it and use the defense that nobody did anything to stop the last guy, either.
But this issue has been the focal point of Lee’s time in Congress. It is the crusade that has animated his entire political career.
For him to vote against this resolution would be recognizing, acknowledging and doubling down on the hypocrisy he condemned at CPAC. It would be facilitating that voluntary abdication of congressional authority that he condemned in 2015. And it would be putting his party ahead of his most fundamental principles.
It’s gut-check time, senator. It’s the moment you’ve waited for. Now let’s see what you’re made of.