A tea-party activist approached Sarah Palin, Texas senator Ted Cruz, and Utah senator Mike Lee at a campaign rally earlier this year. After enthusiastically greeting Cruz and Palin, the woman turned to Lee. She introduced herself and asked, “Who are you?”
“I’m Ringo,” the senator joked, referring to the oft-overlooked Beatles drummer. Asked about his tea-party colleagues Rand Paul, Marco Rubio, and Cruz, Lee says, “We can’t all be running for president.”
Instead, the U.S. solicitor general’s son and former Supreme Court clerk has set the tempo for Republicans in responding to what he considers the president’s consistent executive overreach and violation of the separation of powers. He faults Obama for making the unthinkable, as a matter of political culture, thinkable. “Things that we would have called inconceivable — it’s like that line in the Princess Bride — ‘I do not think that word means what you think it means,’” Lee says. And so, from Obama’s “recess” appointments to the politically convenient delays of Obamacare’s employer mandate, Lee has spent his Senate career pleading with Republicans and fighting with Democrats about the need for Congress to restrain the executive.
All those debates were dress rehearsals for the showdown over Obama’s plan to confer the benefits of legal status, by fiat, on approximately 5 million people who are in the country illegally. Lee, the incoming chairman of the Republican Steering Committee, is once again trying to rally Republicans around a response. He suspects the Democrats could also provide some surprising reinforcements.
“Democrats in particular ought to contemplate what it would be like if the shoe were on the other foot and ought to contemplate the very real risks that could come to them when it comes to policy if they do nothing here,” Lee says.
Obama’s team amplified congressional fears when White House communications director Jennifer Palmieri told the New York Times that Americans are “more focused on outcomes than process.”
“I find that statement to be both incredibly naïve and insulting, not to mention dangerous,” Lee tells NRO when asked about her assessment.
Once upon a time, the president agreed. “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case,” the president told Univision in 2011. “There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply, through executive order, to ignore those congressional mandates would not conform with my appropriate role as president.”
Now the president hopes the issuance of an executive amnesty on Wednesday will force Congress to codify his orders into law.
Lee predicts that lawmakers will not reverse Obama’s orders once they take effect. “It’s kind of like saying I will collect the feathers once they’ve been released into the wind,” he says. “I don’t regard that as a reasonable possibility and so I think we have to try to stop him from issuing them in the first place.” That, he says, will requires Congress to “flex every muscle we have as a legislative branch.”
White House press secretary Josh Earnest derides any talk of congressional Republicans’ using the power of the purse as a shutdown threat, but a top Senate Democrat undermined that talking point earlier this week. “That’s not uncommon that there’s amendments saying ‘none of the funds in this appropriation bill may be spent for’ — fill in the blank,” retiring Senator Carl Levin (D., Mich.) told NRO when asked if a GOP Congress could refuse to finance Obama’s immigration orders next year. “That’s not bringing down the government. That’s a fairly traditional, targeted approach to make a policy point.”
Levin’s willingness to say so publicly — though not his sentiment — surprises the Utah Republican. When Obama pretended that the Senate wasn’t in session so that he could install so-called “recess appointments” on the National Labor Relations Board and the Consumer Financial Protection Bureau in January of 2012, Lee began voting against every nomination the president put forward. The tactic went party-wide months later, when Senate minority leader Mitch McConnell (R., Ky.) invoked the Leahy-Thurmond rule and refused to confirm anyone else until after the election.
“I thought we should have made more of an institutional push looking out for our institutional interests,” he says. “As an institution, we did nothing, even though I had Democratic colleagues pull me aside and say, ‘Hey, I agree with you on this.’”
The issue was so clear-cut that the Supreme Court voted 9–0 that Obama was wrong to have used the president’s recess-appointment power when the Senate, by its own rules, was not in recess.
Obama’s inconsistent enforcement of the Affordable Care Act and Congress’s failure to respond adequately to it stands as perhaps the most frustrating aspect of Lee’s Senate career. He instigated the effort to defund the law last year in response to Obama’s decision to waive the employer mandate, which drew the ire of Senate colleagues who wanted nothing to do with a fight that would lead to a government shutdown. The tea-party freshman kept up the drumbeat against the delay of the employer mandate in January of this year by forcing Attorney General Eric Holder to admit during a Senate hearing that he couldn’t articulate the legal basis for it. House Speaker John Boehner announced in June that he would file a lawsuit challenging its legality.
Lee is not satisfied. “It’s not enough, it’s not nearly enough,” Lee says of the lawsuit, recalling that it took 18 months for the Supreme Court to rebuke Obama over the invalid recess appointments. “I think it’s great if Speaker Boehner wants to devote some resources to doing that, but it should be in addition to, not instead of, the other things that we do,” he says.
That’s especially true of Obama’s executive orders on immigration. If Congress does nothing in its power, Lee says, future presidents will believe they can “modify what federal law says to make it consistent with their liking.”
Lee expects that some Democrats, even supporters of amnesty, might vote with Republicans in objection to Obama’s tactics. “They’ve been asked over and over again to take one for the team for this president, to protect the president, often at great personal political expense, and I think a lot of them are getting tired of it,” he says of his Democratic colleagues.
Senator Joe Manchin (D., W.Va.) has already made clear that he opposes the president. “I just wish he wouldn’t do it,” Manchin said plainly.
Lee thinks there may be enough Democrats like Manchin to help Republicans block the executive orders, but for that to work, he has to convince his own party that withholding the money necessary to carry out a “lawless” executive order is essential to maintaining the checks and balances that prevent the presidency from gaining too much power.
“If that’s a shutdown strategy, this whole thing is over,” he warns.
— Joel Gehrke is a political reporter for National Review Online.