Last May, Republican presidential nominee Donald Trump released a list of 11 sitting judges who, he says, fit the ideological mold of the kind of people he will appoint to the Supreme Court if elected president. The list ran the conservative gamut from judges who cut their teeth questioning judicial power to judges who want to revive long-discredited doctrines once used to tear down the minimum wage and other basic labor laws.
On Friday, Trump added 10 names to his list of potential justices. The new list is notable in that it includes a number of fairly obscure judges, including a few who currently serve as trial judges. It also includes people of color, something his first list did not.
The first name on the new list, however, is Sen. Mike Lee (R-UT). A former law clerk to Justice Samuel Alito, Lee describes Sen. Ted Cruz (R-TX) as his “best friend,” and Lee is probably the most conservative member of the United States Senate. To date, he’s also refused to endorse Trump’s presidential candidacy.
Lee’s conservatism, moreover, is rooted in a hard-line understanding of the Constitution that was popular among judges in the early twentieth century but is now widely viewed as wrong and immoral. As a candidate for the senate in 2010, Lee laid out many of the consequences of his vision — a vision he would potentially be in a position to implement if appointed to the nation’s highest court. Among other things, Lee believes that federal child labor laws, Medicare and Social Security are all unconstitutional.
A lecture Lee gave in 2010 lecture laid out his understanding of the Constitution in a surprising amount of detail. Among other things, he argued that a measure of cruelty is written into the Constitution itself:
Congress decided it wanted to prohibit [child labor], so it passed a law — no more child labor. The Supreme Court heard a challenge to that and the Supreme Court decided a case in 1918 called Hammer v. Dagenhardt. In that case, the Supreme Court acknowledged something very interesting — that, as reprehensible as child labor is, and as much as it ought to be abandoned — that’s something that has to be done by state legislators, not by Members of Congress. […]
This may sound harsh, but it was designed to be that way. It was designed to be a little bit harsh.
In reality, as I explain in my book Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, state lawmakers were unable to fight child labor, largely because they could not resist the financial incentives to permit it. So long as only one state permitted such labor, cotton mills and other factories would flock to that state in order to take advantage of cheap underage workers. States that didn’t follow suit would lose out, so many of them either repealed their child labor laws or did not meaningfully enforce them.
Indeed, in some cases, states entered into explicit quid pro quo deals with employers. Alabama passed a law limiting child workers to an eight-hour workday in 1887, for example. It repealed the law seven years later after a group of mill owners promised to open a factor in Alabama in return for this repeal.
Federal legislation, in other words, was the only viable source of relief for many children — some as young as six — forced to spend their formative years in hard labor. Such legislation eventually became possible after Hammer, the decision Lee praises, was unanimously overruled in 1941.
Children would not be the only people who suffered in Mike Lee’s America. The sick and the elderly would also bear a significant burden. Later in Lee’s lecture, the future senator attacks President Franklin Roosevelt for calling on the federal government to provide “a decent retirement plan” and “health care” because “the Constitution doesn’t give Congress any of those powers.”
So say goodbye to Social Security. Say goodbye to Medicare, Medicaid, the Affordable Care Act, and SCHIP. Can’t afford health insurance? Or unable to find an insurer who will cover your preexisting condition? Mike Lee thinks you should get nothing from the federal government.
And, if Trump wins this November, Mike Lee could become Justice Mike Lee.