GLENN: Senator Mike Lee, welcome to the program, sir. How are you?
MIKE: Doing well. Thank you so much, Glenn.
GLENN: Can we start with -- quickly on the Muslim ban and whether that is legal or not? What is your opinion?
MIKE: The short answer is, the president has authority to suspend the entry of certain aliens coming into this country. He has that authority, under section 212F of the immigration and nationality act.
Now, there's an amendment to that that came about several decades after that one was put in place that some have read to suggest the president can't do this. But when you read the language on that one, it deals with visa issuance, not suspension on entry. And it deals with visa issuance by those who issue visas, not by the president.
That's why, on its face, I can't look at this order and say it's illegal. That's why the order to the extent it causes legal problems, will present legal problems, only in the way it's enforced.
In other words, we'll have to wait and see how this thing is implied, how it's interpreted, how it's actually utilized on the ground, before we can say it violates the law.
GLENN: Poorly written, Mike? Is that the problem?
MIKE: Not ideally. The rollout was suboptimal. The draftsmanship could have been better. But, look, these are people who have got a lot on their plate. And I understand that. That's why I hope they get the implementation right. Because if they get the implementation right, I think it will be okay.
GLENN: What did this judge up in Washington -- is he right at all?
MIKE: You know, I read his temporary restraining order. And it's been a long time since I've seen an order like that, that dealt with an issue of this magnitude with so few words. And I don't mean that in a complimentary way. What I mean is it lacks analysis. It is full of what I call conclusory assertions, where the judge just sort of found that the basis in law existed for him to issue this temporary restraining order. And so he did. But it was very short on legal analysis.
GLENN: So they're making this into a big deal because, well, he was appointed by George Bush. And so, George Bush, of course, you know, how could you possibly go against a George Bush judge?
MIKE: You know, Glenn, if I had a nickel for every bad decision made by a Republican-appointed judge or Supreme Court justice, I'd be a very wealthy man.
MIKE: The fact that someone is put on a court by a Republican means absolutely nothing, in terms of his indelibility (phonetic).
PAT: Mike, real quick, before we get into the crux of this. There's a new poll out about Democrats that are concerned about Christians and Mormons being just as violent --
GLENN: And Jews.
PAT: And Jews. Just as violent as Islam. What are you doing to curb the Mormon violence in this country? Are you drafting any kind of legislation?
MIKE: Yeah, it's a big problem.
PAT: It is. It is.
MIKE: I would -- look, Mormons are known for their violent tendencies.
MIKE: The bicycles -- the bicycles and the short-sleeved shirts with ties strikes fear on the part of all who behold. It's a big problem.
GLENN: So, Mike, 63 percent of all Democrats --
GLENN: Sixty-six feel that's true. Two-thirds of all Democrats feel that Christians, Jews, and Mormons are just as dangerous as Islamic terrorists.
MIKE: Wow. That's interesting, especially given that it would be difficult to find doctrine to support that.
MIKE: It would be difficult to find actual statistics to support that.
One of the reasons why I find this most disturbing is that it strikes this term of moral equivalency, which I think causes a whole lot of problems. It -- there's no such thing as bad or good -- bad or worse than bad. It's just stuff people do.
And I am very curious about that study and how they reached those conclusions.
GLENN: It scares the hell out of me. Because it seems to me that we are living in a time where facts don't matter at all, to anybody, on either side.
MIKE: You know, they do matter to the reader. I think there are a lot of readers out there and a lot of people who listen to your program, a lot of people who actually are willing to dig beneath the surface who care. It's not always the case, that reporting those facts case. So when the people care, those who report facts that are not ringing true, can be held accountable. I think that's what we have to do.
GLENN: All right. Talk to me a little bit about Gorsuch. You met with him last -- what was it? Thursday or Friday. What did you think of him?
MIKE: Love the guy. Just fantastic judge.
Look, I already had a high opinion of him because I've argued in front of him. I was a lawyer before I became a politician.
GLENN: I argue in front of my children, and I don't necessarily have a lot of respect for them.
MIKE: This guy is good though. This guy is good. But I just highlighted two of the reasons of why -- I chose two hated professions. First lawyer and then politician. You know, I'm not sure how it could get worse than that.
But in any event, he's a great judge. He's a dream to argue in front of because he's the kind of judge who reads all the briefs and reads all the statutes and all the cases cited in the briefs. He's always prepared. He knows exactly where he's going. And he believes that our laws matter and the words used matter. And he wants to find the meaning of those words.
But then in the last few days, I've been reading a whole lot of Gorsuch. I've spent hours upon hours, reading Gorsuch opinions.
And so far, I have yet to find a bad opinion among them. This is -- this is an extraordinary judge.
His opinions, if you can believe it, are actually interesting. They're fun to read, in addition to the fact that they seem to follow the right approach very consistently, with an eye toward finding out what the law says.
GLENN: Let's just clarify. That is Mike Lee that just said these are fun to read. So, kids, don't rush out there. It's Mike saying that.
What are the odds of him getting confirmed?
MIKE: We intend to get him confirmed. And I expect we will get him confirmed.
GLENN: Without the nuclear option?
MIKE: Well, there is no reason why we necessarily have to use the nuclear option. And I think most or all of us would prefer not to. It's not clear that we'll have to, to begin with. You know, I do think that at least one Democrat will make sure that we have to get cloture, if they can. And that requires 60 votes, to bring the debate to a close.
I think it's possible that we could get those 60 votes. If we don't, there are a couple of options at our disposal, only one of which involves the use of the nuclear option.
There's another one called Rule 19, the so-called two speech rule that allows to us bypass cloture when we stay in the legislative day until everyone who wants to speak has had a chance to do so and then we go directly to the final vote, which is set at 51.
Look, this is terribly boring, arcane stuff. This from a guy who loves to read Gorsuch opinions.
GLENN: No. He loves them. Says they're fun.
MIKE: Yes, yes, they are fun. The Gorsuch opinions are fun. Rule 19 is not fun. It's quite arcane. But it's useful here. And I think it might give us a path to confirming Judge Gorsuch without deploying the nuclear option.
PAT: Mike, if you had to compare him to a sitting or former judge, who -- who would he mostly closely compare to? Would it be Scalia? Would it be Alito? Kennedy?
MIKE: I'd say he's sort of a blend between Justice Alito, my former boss, and justices Scalia and Thomas, which is exactly what we want.
MIKE: I had hoped the president would nominate someone in that mold. And as far as I can tell, he appears to be in that mold. This is a guy who really believes deeply that we need to follow certain principles in the law.
He's deeply wedded to textualism, the idea that the laws consist of words. The words have meaning, and you have to find out what those words mean.
And originalism, which is the idea that in order to understand the Constitution, it's important to go back and understand how the words in the Constitution were used at the time they were put in there, at the time they were drafted and ratified.
STU: As someone, Mike, who is really interested in the Gorsuch opinions, can you help -- because speaking of the Scalia comparisons, one interesting place where they seem to split, and it seems that Gorsuch is better than Scalia on, is this idea -- this Chevron deference, where we're talking about basically giving deference to federal agencies -- can you explain that and make it a slightly less boring than it sounds?
MIKE: Yes. First of all, I'm thrilled, I'm ecstatic that I get do explain Chevron deference.
GLENN: Oh, my gosh. People are pulling over.
PAT: Chevron deference. I can't go to work yet!
GLENN: I'm about to wet my pants, I'm so excited.
MIKE: Okay. So Chevron deference is this legal doctrine created out of whole cloth by the devil himself within the federal court system.
And it says that the courts, rather than doing their own thinking, are just going to defer to executive branch, bureaucratic agencies, when they interpret a regulation developed by that agency. In other words, hello, Mr. Fox, here are the keys to the henhouse. Please enjoy it.
That's what we do.
Now, for reasons that astound me, for reasons that sometimes allow me to argue with Justice Scalia, when I go to dinner with him, that is a doctrine that doesn't make sense. And yet, Justice Scalia wanted it in one way or another.
Judge Gorsuch appears to have real concerns, with Chevron deference. And he pointed out that this is a doctrine that runs against the doctrine of separation of powers embedded deeply in the Constitution. And I just -- I had a huge grin on my face when I was reading that opinion. It was fantastic.
STU: It essentially means if the EPA has regulation and there's disagreement about it, the legal system just says, "Eh, ask the EPA what they meant."
JEFFY: Yeah, yeah, exactly. Exactly. And if other people disagree with the EPA's interpretation of what it meant, they say, ask the EPA. And whatever the EPA says stands, stands. And that's a problem, that's really a big problem.
GLENN: Yeah. So, Mike, help me out on this, I have -- I don't have a problem necessarily with some of the direction that this president is taking.
MIKE: Oh. I was afraid you were going to tell me you didn't have a problem with Chevron.
I know. The controversy. People would have been fighting across the country over this.
STU: Mike Lee was actually legitimately excited to answer the Chevron deference question.
GLENN: I know. I know. God bless him. God bless him.
MIKE: Who wouldn't be? Who wouldn't be?
GLENN: So, Mike, my problem has been with the lack of concern on the number of -- of executive orders that are being issued. Do you have a problem with the -- with the system that we're using here with this president? Is it any different, or is it just my perception?
MIKE: It's not now. And never has been and never will be, the number of executive orders that are a problem.
I said this repeatedly throughout the eight years of President Obama's presidency. It's not the number that matters. It's the nature of the executive order, how they're used. It's whether or not they're used in a manner authorized by law.
GLENN: Right. So are these executive orders falling in line with what is authorized?
MIKE: So far, the executive orders on their face don't fly in the face of the law. So far, these executive orders could be implemented in a manner fully consistent with the law.
Now, that doesn't mean that all executive orders this president issues will necessarily, going forward, fall into that category. But I haven't seen one yet that I look at and say, "He doesn't have authority to do that."
GLENN: Oh, that's really good.
STU: That's great news.
There are some ambiguities in this order we were talking about earlier. There is some language in there, that depending on how it's implemented could cause a problem. That's why I'm watching that one carefully.
GLENN: Like what?
You're going to yell at me for getting into this level of detail, but there -- there are subsequently enacted provisions of the immigration code --
GLENN: Hold on just a second.
Jeffy, assuming you're awake by the end of this, wake me so I can yell at him for getting into the weeds. Go ahead, Mike. What now?
MIKE: They can be read to restrict any type of effort on the part of the president to deal with the visa issuance program -- process. Depending on how the courts interpret that, that could end up creating a problem.
Likewise, depending on how they interpret this, this could cause other problems. I don't want to get into all the details of that. I don't want to pick any fights that the administration doesn't need picked.
STU: People are like, "Oh. Go back to Chevron deference on that one."
GLENN: One last question: Mitt Romney said he won't rule anything out, but he won't rule anything in yet. He's not sure if Orrin Hatch is going to run for Senate. How do you feel about your partner being possibly Mitt Romney?
MIKE: You know, look, Mitt Romney is a great guy. Not ruling anything in, not ruling anything out describes the entire context of the Utah Senate race coming up in 2018. Nobody knows what the heck is going on. Nobody knows who is running and who isn't.
I have absolutely no idea how to predict this thing. So I don't know what to say. I think people, before they decide they're going to get in, kind of like having their name floated out there. And they enjoy the process a lot. Sometimes that causes the process to drag out too far.
But we still don't know whether Senator Hatch is going to seek reelection. And I suspect that would strongly influence whether or not Mitt Romney decides to get in.
GLENN: Hey, do you have a second to hang on for one more -- or do you have to run?
MIKE: Hey, for you, anything. You let me talk about Chevron deference.
GLENN: I know. I know. You owe us. You owe the whole nation for that.