Politics & Policy

Mike Lee Bids to Reclaim Congressional Power from the Executive

Sen. Mike Lee (Gage Skidmore/Flickr)

‘Do you see those stacks of papers over there?”

Just pointing won’t suffice for Senator Mike Lee. He gets up from his chair and walks over to a wooden cabinet in the corner of his office.

The shelves are filled with stacks of white paper. My eyes settle on one of the thicker sheaves, which has a red bow on top. He notices. “No, no, not the one with the bow. That’s the omnibus.”

He picks up a 400-page pile, only a few inches tall. It comprises all of the laws Congress passed in 2014. The second stack — over 80,000 pages, around eleven feet high — he can’t hold. It’s the 2014 federal register, which contains all federal regulations to date.

“This should give you a sense of the problem.”

In Lee’s estimation, the imbalance between the two stacks is indicative of how much lawmaking power Congress has ceded to the executive branch. He sees a body of lawmakers unwilling to make the “tough choices” that are their rightful responsibility, and peppering their bills with phrases such as “the Secretary shall determine” that pass the buck to a cabinet agency all too willing to take it. It’s the reason, for instance, regulations continue to pour out of Dodd-Frank: Through the creation of the Financial Stability Oversight Council, Congress left all discretion over whether a bank has gotten too big to the Treasury secretary, rather than outlining a metric itself.

Complaints about executive overreach have recently become common among Republicans on Capitol Hill — in the agenda he announced last week, Speaker Paul Ryan deemed restoring the separation of powers a top priority for 2016 and beyond — but Lee has been quietly launching an offensive against what he deems “the foremost inadequacy of Congress” for nearly a year. He’s worked the halls of both chambers since March to garner support for his “Article I Project,” or “A1P” for short. The Utah senator envisions the project as an “in-house think tank” where legislators identify instances in which congressional authority has been usurped and devise ways to reclaim it. He’s already convinced allies such as Senator Jeff Flake (R., Ariz.) to back the idea, and his team is readying for a glossy rollout: Lee will announce the project in a February 3 speech at Hillsdale’s Kirby Center, and later in an op-ed with Representative Jeb Hensarling (R., Texas).

A1P was born out of an early conversation with National Affairs editor Yuval Levin. The two shared a deepening concern that Congress was “not eager to defend its prerogative,” Levin says. The problem, he adds, stems from years of accumulated legislation engulfed in a fog of intentionally ambiguous, discretionary language that grants department secretaries “easy loopholes” to carry out their own agendas.

After Lee and Levin gave the project its namesake last April, they began circulating a memo among members and staff, introducing what they deemed a “new lane for the Conservative Reform Agenda.” A1P, Lee wrote, had four goals: reclaiming the power of the purse, controlling regulatory lawmaking, fixing executive-empowering legislative “cliffs,” and reining in executive discretion.

Those who have rallied around the project — including Representative John Ratcliffe (R., Texas), Representative Mia Love (R., Utah), and Representative Dave Brat (R., Va.) — share Lee and Levin’s concerns. And Lee says they are committed to making A1P more than a vehicle for “grandstanding” and “complaining about how bad everything is.” Rather, they hope it will serve as an institutional umbrella for legislation already in the works, such as House Budget Committee chairman Tom Price’s reforms to the budget-making process and the REINS Act, which requires any executive regulation that would cost more than $100 million to come before Congress for a vote.

By encouraging a public debate about the erosion of congressional power, Lee & Co. could help protect Ryan’s agenda from being pummeled by the president.

This is where Levin believes the project can have a meaningful impact, by serving as a “public-relations arm” for the erosion of congressional authority. “Members need to get on record saying they actually want to change that,” Levin says. “Part of what Lee is after is having Congress be explicit about reclaiming its power. It doesn’t matter if it’s something everyone is already thinking. Lee wants to put this marker down and make sure people actually express a view on it.”

By encouraging a public debate about the erosion of congressional power, Lee & Co. could help protect Ryan’s agenda from being pummeled by the president should any pieces of it — such as welfare reform — become law in 2016. In reforming welfare, Ryan hopes to strengthen existing work requirements for those receiving assistance. Those requirements were originally put in place by the last major welfare-reform bill, passed through a Republican Congress in 1996. But in 2012, Obama took unilateral action to water them down, seizing on language in the bill that gave rulemaking power to the Department of Health and Human Services. Republican lawmakers, despite making a public stink over the move, took no steps afterward to rewrite the law.

“What Republicans needed to do at the time was not only stop that power grab, but toughen up the work requirements, and tighten the language” to avoid a repeat of Obama’s move, says the Heritage Foundation’s Robert Rector. “Congress has the power to do that. It’s a great surprise to me that they don’t know how to use it.”

With A1P, Lee wants to ensure that, in the event that welfare reform becomes law and Obama tries to strip out work requirements once more, lawmakers will be prepared to act and reverse the president’s move. But more important, he wants to ensure that the bill won’t be written in such a way to allow it in the first place.

He’s hoping his colleagues across the aisle will help, too. He says Democratic members have told him privately that they agree with his assessment of Obama’s excesses, but they’re reluctant to deviate from the party line in public.

“They would say, ‘You’re making some very good points, and I’m tempted to speak out with you.’ And I would ask, ‘Well, why don’t you?’ And invariably they’d say, ‘Well, he’s our president, you know, and it’s our party.’ And I’d say, ‘No, I don’t know.’ If it were a Republican president, I’d be doing the same thing.”

Even if he does somehow manage to assemble bipartisan support for the project, though, it’s unclear as of now how much Lee could accomplish beyond offering a sounding board for members, since Senate majority leader Mitch McConnell made it clear last week that his chamber, unlike the House, will avoid any bold moves until after the November elections.

“This is a longer-term initiative. I don’t expect it to be grabbing headlines immediately,” Lee says. “But I’ve been thinking about this ever since I’ve been in the Senate. We’ll see what happens.”

— Elaina Plott is a William F. Buckley Fellow in Political Journalism at the National Review Institute.

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