“The authors of the Constitution intended Congress to be first among the federal government’s three co-equal branches. Endowed with the power to legislate, tax, spend, and oversee the weaker Executive and Judicial branches — while simultaneously held to tighter public accountability — Congress was meant to be the driving force in federal policymaking.”
— The Case for Congressional Empowerment, The Article I Project
The above is taken from Sen. Mike Lee’s official website, from a page where he promotes the idea that Congress has foolishly given away, or carelessly let slip, its explicitly given charge to be first among equals in the federal government.
It’s a theory with much to recommend it, whether you are one of those 21st-century conservatives who fear the secret power of “The Deep State” or a 20th-century liberal who always stood against “The Imperial Presidency.”
It is such a good idea, in fact, that Lee sometimes even seems to believe it. Until he doesn’t.
An example of each came Wednesday.
First, as other senators of both parties tried to move along a piece of legislation that would make it more difficult — though not impossible — for the president or the attorney general to fire special counsel Robert Mueller, Lee rose to single-handedly torpedo the idea.
The Senate has a rule that allows one member to urge the rapid passage of a bill thought to be so important that it ought not wait for the often-sluggish legislative process. But it only works if every other senator agrees — or, at least, keeps his or her mouth shut. That’s why it is called “unanimous consent.”
Sen. Jeff Flake, an Arizona Republican who is a frequent critic of the administration, asked for such consent to pass the bill. He argued, quite reasonably, that all the trash tweets from the White House raise a strong possibility that the president will fire — or order his phony acting attorney general to fire — the special prosecutor before he can get to the bottom of whatever dirty dealings the president’s campaign was up to with Russian trolls to flood social media with phony information.
Lee, objectionably, objected.
He quoted a 30-year-old dissent filed by Justice Antonin Scalia, on the losing side of a 7-1 ruling in which the court majority upheld a special counsel law that has long since expired. Lee, and Scalia, argued that the whole idea of an independent counsel/special prosecutor/whatever is unconstitutional because it undermines the constitutional order of the executive branch being one thing, under the control of the president.
Maybe. Or maybe that’s some constitutional doublethink. It does seem to stand against the whole idea of congressional supremacy, specifically the legislative branch’s power to insulate a prosecutor who is investigating the powerful from being fired by the people he is investigating. If that’s what the superior — and most representative — branch of government thinks best.
Theory aside — and theory is usually aside when such power is on the line — Lee’s action can do nothing but further embolden a chief executive who already has trouble grasping the concept that there are any limits on his power.
Of course, if Congress were truly independent, not a partisan appendage of the White House, then Congress would be very much about investigating real and imagined wrongdoing in the executive branch, and there would be little or no need for any troublesome independent prosecutors.
Then, on the very same day, Lee remembered that he favors congressional supremacy over the “weaker” presidency. He joined forces with — gasp! — Sen. Bernie Sanders to try to invoke, for the first time in half a century, the War Powers Act and order the administration to stop helping the president’s bosom buddies in Saudi Arabia as they wage a slow genocidal war against tiny Yemen.
The measure passed, 63-37. Good. And rather surprising.
Such congressional intercession, after centuries of widespread belief that matters of security and diplomacy are firmly in the executive sphere, would be a giant step toward fulfillment of the idea that Lee promotes — except when he doesn’t — that Congress makes the rules. Except when it doesn’t.
The fact is that neither the measure Lee blocked nor the one he helped to pass in the Senate has much chance of passing the House or winning presidential assent or really mattering very much.
Except to expose the soon-to-be-senior senator from Utah as being as much into situational ethics as anyone.
George Pyle, editorial page editor of The Salt Lake Tribune, believes in intellectual consistency. Except when he doesn’t. email@example.com @debatestate