Enumerated Powers Act

Mr. President, I wish to spend a few minutes this evening to outline where we are and one possible solution to help us as a nation. We are on a course to double the debt in 4\1/2\ years. We are on a course to triple the debt over the next 10 years. Think of what that means for our children and our grandchildren. That is not President Obama's fault. I am probably one of the few Republicans who will say that. It is Congress's fault, because Presidents don't get to spend money we don't let them spend. We are the ones who offer the spending bills.

How did we get here? How did we get to the point where we are borrowing money that we don't have against our children's future to spend on things we don't need? It is simple. We have forgotten what the Constitution says. We have ignored the Constitution at almost every turn.

Today, myself and 17 other Senators introduced a bill which is called the Enumerated Powers Act. It goes back to article I, section 8 of the Constitution. Here is what it says. It very plainly lists the responsibilities of the Federal Government. When you think we are going to have a $3.6 trillion budget and a $2 trillion deficit this year--and that is real accounting; that is not Washington gimmick accounting--how did we get to where we could do that? How did we get to where we can put our children and grandchildren in such dire straits in their future? We got to it by ignoring the enumerated powers of the Constitution.

If you go to the textbooks and read the history, you will see that Madison wrote that section. If you read what he had to say about what he meant in article I, section 8 of the Constitution, he said, People are going to try to get around this. People are going to try to say it doesn't mean what it means. But, in fact, here is exactly what we mean. Anything that we don't want the Federal Government doing, we are going to specifically reserve for the States. That is where the 10th amendment came from in the Bill of Rights. Because you can't limit what the Federal Government does without saying, Here are the things that should be done, but they should be done under the authority of the people and the States.

When Ben Franklin left the Constitutional Convention in 1787, he was asked by somebody in the crowd: What did the convention produce? He said: It produced a republic. Then he said: If we can keep it.

Well, I can tell my colleagues that ``if'' is a great big word. We have a Medicare Program that over the next 30 years has a $39 trillion unfunded liability. So the factors I have mentioned already don't have anything to do with that. That is $39 trillion on top of $11.5 trillion today and $2 trillion more we are going to add to the debt this year. Then we have Social Security, which is unfunded. We have Medicare Part D that has an $11 trillion unfunded liability. Then we have Medicaid, which is about $17 trillion. So what we have basically done is abandoned what our Founders thought was prudent so we could enhance politicians. We put that big ``if'' up there for our kids and our grandkids.

The task of keeping a republic now falls to this Congress. It doesn't look bright. We passed a stimulus bill, $787 billion. By the time you count the interest rate over the next 10 years, it is $1 trillion. We passed an omnibus bill that increased spending by each branch of the government over 9 percent. We passed an emergency supplemental that had $24 billion in it that we didn't need, but we spent it, which will raise the baseline in future years, which will raise spending even further. The first appropriations bills coming out are a 7-percent or 8 percent increase when inflation has been a minus four-tenths of 1- percent increase.

The whole purpose behind this bill is to say when you write a bill in this Congress and any Congress that follows it, you have to know in that bill where you get the authority in the Constitution to spend this money or to authorize this program. You can still introduce a bill without it, but it creates a point of order that says a Senator can challenge that bill on the basis of what the Constitution says because you have not clearly stated in this new piece of legislation where you get the authority as a Member of the Senate to author it when, in fact, it is outside the authority given to us under the Constitution. The bill then sets up a debate on which the Senate will have to vote. I am not so naive as to believe I will win a whole lot of those, but I know I will win something, because the American people want to hear that debate, and that debate is something they are not hearing today.

They are not hearing our justifications why we can take freedom away and we can make a bigger, more powerful Federal Government that is going to borrow more money from their children to spend on things we don't need, money we don't have. The American people are entitled to hear the reasoning behind why we know so much better than they do, and to hear the reasoning why we can ignore the wisdom of our Founders in terms of our ability to grow the Federal Government.

The Federal Government is far too big and far too removed from people's lives today. That is why we are feeling this rumble out in the country. That is why people are worried about the deficits. That is why people are worried about their children's future, because the debt is going to triple over the next 10 years. We can't even come close. Interest payments next year are going to be close to $500 billion. Think about that. Just the interest on the debt is starting to approach a half a trillion dollars a year--a half a trillion dollars a year. Had we been prudent and not borrowed money, that would be a half a trillion dollars we could either give back to the American people or create tremendous abilities and opportunities in terms of solving some of the problems in front of us today. Health care, for example. The reason why we can't get a health care bill out of the HELP Committee is because nobody is satisfied with the tremendous costs that

CBO has estimated because we are spending tons of money. We don't have the money, so we are now handicapped.

This bill, S. 1319, requires that each act of Congress shall contain a concise explanation of the authority, the specific constitutional authority under which this bill would be enacted. What it does is makes Congress go to the Constitution, and particularly article I, section 8, and say, here is where I get the authority. We won't win many of those arguments, even though many of the bills will be outside of the authority granted us under the Constitution.

Thomas Jefferson thought such an exercise was vitally important--we have ignored his advice--he thought it was important for Congress to undertake in order to study what those who ratified the Constitution had in mind. In a letter in 1823, he said this:

On every question of construction, let us carry ourselves

back to the time when the Constitution was adopted, recollect

the spirit manifested in the debates, and instead of trying

what meaning may be squeezed out of the text, or invented

against it, conform to the probable one in which it was

passed.

There is no question what the context and the meaning was of our Founders when they wrote out the enumerated powers section. We have prostituted it to our own demise. The words of Benjamin Franklin ring true today: Can we keep it. If we can keep it.

S. 1319 is a little exercise in self-discipline for the Senate that maybe we ought to be explaining to the American people where we think we get the authority to trample on the 10th amendment, to tell them what to do, how to do it, and by the way, we need some money to tell you how to do that. The whole goal of the Enumerated Powers Act is to make us accountable. My whole goal in the Senate has been transparency. We ought to be transparent about how we get or where we get or from where we get the authority to grow the size of this government even further and to make it less effective.

Finally, in a recent speech, retiring Justice David Souter recently commented that the American Republic ``can be lost, it is being lost, it is lost, if it is not understood.'' He went on to cite surveys that show Americans cannot even name the three branches of government. That is why he and retired Justice Sandra Day O'Connor have both undertaken, in their retirement, efforts to restore America's civic education.

I am convinced that if Americans know what is in the Constitution, they will start holding us accountable. Part of our job ought to be to explain how we can be accountable. We have 17 Senators who think this is a good idea. That is a lot for a bill in the Senate. I encourage my colleagues to look at this bill, to become accountable and transparent with our constituencies.

I will end on one final note. When the Presiding Officer was sworn in this year, he took an oath. That oath said he would uphold the Constitution. Not once in his oath did it mention the State of Alaska from where he and the people he represents in the Senate hail, but his oath was sworn to the betterment of this country, not to the betterment of Alaska, as mine is to the betterment of the country, not to the betterment of Oklahoma. For Alaska and Oklahoma can't fare well if the country doesn't fare well. So our Founders knew that when we took this oath to uphold the Constitution, they knew our direction would be national interests and long term. We have fallen away from that. We have become parochial and we have become short term.

This bill says you can still cheat on the Constitution, but now you have to explain to the American people why you are cheating, and there will be a point of order against any bill that doesn't provide an explanation to the people.

That is one of the ways we get our country back because the American people become informed. I guarantee you many will become outraged when they hear some of the statements on why the Senate thinks we have the authority to do some of the things we do.

With that, I yield the floor.

Mr. President, I rise on this Constitution Day to urge support for S. 1319, the Enumerated Powers Act. My friend and Judiciary Committee colleague from Oklahoma, Senator Coburn, introduced the bill in June, and I am proud to be a cosponsor. It would create a mechanism by which we can highlight and, if necessary, debate whether we actually have the power to do what we do.

Today, the prevailing view seems to be that Congress can do anything we want to do, any time, and in any way. There are always problems to solve, good ideas to implement, money to spend, activities to regulate, agendas to pursue, or constituencies to please. But those are merely the ends and, in our system of government at least, the ends cannot not justify the means. Not if we truly value our liberty. Our liberty requires that government be limited, that government's actions have legal authority, ultimately rooted in the Constitution itself.

The Constitution, for example, does not grant Congress all legislative authority. Article I gives Congress only ``legislative powers herein granted.'' Those powers are listed, or enumerated, in article I, section 8. The 10th amendment affirms that the Federal Government has only powers that are affirmatively delegated to it. James Madison explained in The Federalist No. 45 that these powers delegated to the Federal Government are ``few and defined.'' Why all this emphasis on definition and limitation, especially of the Federal Government? Because individual liberty requires limited government.

In The Federalist No. 51, Madison wrote that ``if men were angels, no government would be necessary.'' In other words, some government is necessary to have any liberty at all. But Madison went right on to write that ``if angels were to govern men, neither external nor internal controls on government would be necessary.'' In other words, unlimited government makes liberty impossible. The truth is that men are not angels and angels do not govern men. Acknowledging that truth, America's Founders in their genius created a system of limited government to maximize ordered liberty.

I realize that such notions as definition and limitation are not in fashion today. Many today think these ideas passe, antiquated, or--and this is my personal favorite--archaic. Limited government is fine when we have no major problems to solve, when there are no big crises looming large. But today we face the worst economic crisis since the Great Depression and many Americans want government to be robust and full-throttled. We want government to come to the rescue, to set things right, to make everything OK. I realize that today saying no is not popular, whether for individuals or for the government.

So we have to make the same basic, fundamental choice that America's Founders did. How much do we prize liberty? The laws of human nature and, therefore, of government have not changed. Men have not become angels and angels do not govern men. That condition will never exist. Ordered liberty will always require limited government, and so we must repeatedly ask whether, and how much, we prize liberty.

This bill embodies these principles by requiring that each of Congress state its constitutional authority. In other words, each act of Congress must state the very condition that indicates it is consistent with limited government. Congress has no authority to act, Congress has no authority to exist at all, unless that authority is derived from the Constitution. It is no less important than that. So this bill would require that each act of Congress state the one condition that is necessary for that act of Congress to be legitimate-- authority derived from the Constitution.

That statement alone would be important but purely symbolic. Virtually everyone could ignore it. So this bill would create a mechanism for challenging and even debating whether an act of Congress is indeed authorized by the Constitution. It does not require such a debate for every act of Congress but provides for a point of order that can result in such a debate. That debate would focus everyone's attention on the absolutely necessary connection between Congress' actions and the Constitution and, ultimately, on the Constitution itself.

In the landmark case of Marbury v. Madison, Chief Justice John Marshall wrote that ``[t]he powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.'' A written Constitution that delegates enumerated powers to Congress is central to limited government and, therefore, central to our liberty. If we prize liberty, we must prize limitations on government. Chief Justice Marshall later wrote in McCulloch v. Maryland that ``this government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it . . . is now universally admitted.''

That was then. How about today? Do we still believe that ordered liberty requires limited government? Do we still believe that Congress may only do what the Constitution authorizes us to do? Or do we believe that Congress needs no more than a good idea powered by a good intention? Are the principles embraced by Madison, by Marshall, still universally admitted today? If so, then this bill is an important way to prove it. On this Constitution Day, I urge my colleagues once again to embrace those principles of limited government and to demonstrate it by supporting this bill. Policy ideas and political positions shape our legislative activity, the Constitution should do so as well. I applaud my colleague from Oklahoma, Senator Coburn, for introducing this bill and offering this opportunity to raise these principles closer to the position of importance they deserve.

Mr. President, I rise today to discuss the need to closely examine our United States Constitution and Congress's limits held within this important document. Our Founding Fathers granted Congress limited powers within the Constitution, and we should not stray outside those powers. They knew what would happen if a government grew too large and too controlling. So far during the 111th Congress, the government has taken over banks, insurance companies, the student loan industry and the automobile industry. The American people know this is wrong and they have spoken out. During the Wyoming State legislative session, which concluded on March 5, two resolutions were passed because the Federal Government continues to overstep its bounds. These two resolutions, House Enrolled Joint Resolution 2 and House Enrolled Joint Resolution 3, demand that Congress desist from making mandates beyond the enumerated powers of the United States Constitution.

In the U.S. Senate, I am working to pass S. 1319, The Enumerated Powers Act, to achieve what the Wyoming State Legislature passed and signed into law on the State level earlier this year. The Enumerated Powers Act would require that every bill introduced in Congress include a constitutionality clause pointing to the exact section in the Constitution that grants

Congress the right to make that specific law. I am proud to be an original cosponsor of this piece of legislation which was introduced by Senator Coburn.

We must learn from our constituents and fellow lawmakers. Our Constitution has held our country together for hundreds of years and this is no time to abandon it.

I ask unanimous consent to have these two resolutions printed in the Record.