Mike Lee To Judicial Nominee: 'What Judicial Philosophy Guides Your Interpretive Approach?'

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During a Senate Judiciary Committee hearing prior to the congressional recess, Sen. Mike Lee (R-UT) questioned judicial nominee, Eric Chunyee Tung, about his "judicial philosophy."

Transcript

00:00And I appreciate your willingness, both of you, to serve and to be here.

00:04You both come with impressive qualifications,

00:08and I very much look forward to working to secure your confirmation.

00:13In each of your cases, you come with a strong set of recommendations

00:17and great professional experience to back that up.

00:20And both of you, as far as I can tell,

00:24come with a built-in understanding of the necessarily limited

00:28but indispensable role that our federal court system plays.

00:33There are a lot of misunderstandings about what the federal courts are.

00:38They are not there to adjudicate hot-button social disputes.

00:41They are not there to serve as representative bodies.

00:45They are there to decide discrete questions of law presented before them,

00:49where two or more parties disagree as to the meaning of the law

00:52and where the law needs to be enforced or in one way or another applied.

00:56But they're there in a sort of rear-view mirror capacity

01:00to decide what the law is, what the law says, what it said,

01:04and what the original understanding of those words were

01:08based on the public meaning at the time of enactment of a statute

01:11or the time of ratification, if a provision of the Constitution.

01:15Mr. Tung, let's start with you.

01:17As a federal judge, a federal appellate court judge,

01:22if confirmed, which I very much hope you are,

01:26you'll be required to interpret the text of federal law

01:29across a broad range of topics,

01:33including provisions of the U.S. Code,

01:36including provisions of the Constitution.

01:38How will you approach this task?

01:40And what sort of judicial philosophy would you say guides

01:44your interpretive approach as a judge?

01:46Thank you for the question, Senator.

01:48I would start, as instructed by the Supreme Court,

01:51I would start with the text of the statute that's being interpreted

01:54or if we are interpreting a Constitution,

01:57the particular provision of the Constitution.

02:00If the text does not yield a clear answer,

02:02I would move to the context or the structure of the statutory provision,

02:07that is, looking at the surrounding provisions

02:09that may shed light on the meaning of the provision under issue.

02:13Beyond the context, I would look to the history,

02:17what animated the passage or the enactment of the law.

02:21And precedents, of course, that bear on the meaning of the text

02:25would be consulted carefully as well.

02:28And I would also apply various statutory canons of interpretation

02:32if, again, the issue before me is a statute.

02:35What role, if any, would legislative history play there?

02:38And by legislative history, I mean not sort of the sequence

02:41in which things were added, but rather more directly,

02:44committee reports, floor statements by individual members,

02:47either on the Senate floor or in committee.

02:49Senator, legislative history is not law.

02:52It didn't overcome the bicameralism requirements

02:56that are set forth in Article I, Section 7 of our Constitution.

03:00I would, again, look to the text.

03:03Now, speaking of Article I, Section 7,

03:07there are two fundamental elements that have to be satisfied

03:09in order to make a new federal law

03:12or modify an existing federal law.

03:14Those steps are bicameral passage followed by presentment.

03:17You referred to those briefly a moment ago.

03:20In your view, what are the dangers of ignoring that?

03:24And to what degree do you think we've gotten a little too fast

03:27and loose with the way we approach Article I, Section 7?

03:30There is a grave danger in ignoring the bicameralism

03:33and presentment requirements as set forth in Article I, Section 7.

03:37The founders designed the Constitution in a way

03:39that would give accountability to the people, ultimately.

03:45Our powers under the Constitution,

03:46the government's powers, are derived from the people.

03:49And so under Article I of our Constitution,

03:53the Congress was divided into two houses,

03:55so requiring both the House and the Senate

03:57to pass by a majority vote

04:00the bill that's being under consideration.

04:02Now, the president also needs to agree and sign

04:07and provide his approval in order for that law

04:09to become in the U.S. Code.

04:12So I believe that bicameralism requirement

04:15is extremely critical to our constitutional system.

04:19The requirements of bicameralism

04:21and the requirements of bicameral passage

04:25followed by a presentment of the president

04:26were deemed not to have been satisfied in INS v. Chata,

04:30and on that basis, the legislative veto provision in that case

04:33and ultimately in all other cases

04:37were deemed unconstitutional

04:39as violative of Article I, Section 7.

04:42If it is the case

04:44that you have to ring the legislative bell

04:47in order to make a new federal law

04:49or change an existing federal law,

04:51and if it is the case

04:52that that wasn't satisfied in INS v. Chata,

04:56where the application

04:58of an existing provision of federal law

05:01was being changed or modified in that instance,

05:04in some cases by one chamber,

05:06or in other cases by both,

05:07but without the added step of presentment to the president,

05:10couldn't one also make the same argument

05:13that where the obligations imposed

05:15on members of the public by a federal statute

05:18or by a provision of federal law,

05:21let's say a federal regulation,

05:24where the obligations inherent

05:26in that affirmative command to the public

05:28aren't evident on the face of the underlying statute

05:31authorizing the promulgation of that reg,

05:33couldn't that arguably be said

05:35to violate Article I, Section 7,

05:38just as the legislative veto was

05:40in INS v. Chata?

05:42Senator, it could arguably pose

05:45an issue under Article I, Section 7.

05:47It also poses an issue

05:49under the non-delegation doctrine,

05:51which is derived from the vesting clauses

05:53of our Constitution.

05:55Article I says that all legislative powers

05:57granted herein

05:58are vested in the legislative branch,

06:01are vested in Congress.

06:02And so Congress can't delegate

06:03its lawmaking powers

06:05to an unelected federal agency

06:07to make laws.

06:09And so I believe it would pose a problem

06:11potentially under the bicameralism

06:12presentment provision,

06:13but also under the non-delegation principle.

06:16Wonderful.

06:18Thank you, Mr. Chairman.

06:20Colleagues, I want to...

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