Flood Prevention Act of 2019

Mr. President, President Trump was famous for many things even before he was elected. One of those things was the catch-phrase ``You're fired,'' which he popularized on his reality TV show ``The Apprentice.''

This is a relatively commonplace phrase. It is something that most persons are familiar with, but it is not surprising that the phrase would have so much appeal for a television audience. I think the reason has something to do with the fact that it carries a certain power and resonance with it because the person who has the authority to use it within any organization is, generally speaking, a person who gets to call the shots. It is emblematic of executive control and, therefore, the ability to get things done within an organization.

That is not to say that good leaders get their way solely or even primarily by threatening to fire people who work for them. Effective leadership, more often than not, requires what are sometimes called soft leadership skills.

But the fact, nonetheless, remains that the head of an organization must always have hanging in reserve, sort of like an employer Damoclean sword--the absolute right to terminate a subordinate.

It is the ultimate and essential backstop that enforces and reifies an executive's power to make decisions. This is true for pretty much any leader, whether that leader happens to be the CEO of a corporation, the coach of a sports team, or a general out on the field of battle.

Yet, remarkably, under our laws, the President of the United States lacks authority over many high-ranking officers within the executive branch. Despite its elemental association with Executive power, Congress and the courts have time and again deprived the President of the ability to remove his subordinates at will.

These restrictions often take the form of statutory for-cause removal

protections, such as the provision of the Federal Trade Commission Act that provides that Commissioners may be removed only ``for inefficiency, neglect of duty, or malfeasance in office.''

In enacting laws like this, Congress has cast aside the original meaning of the Constitution and thereby eroded a critical safeguard of American freedom. As anyone who has studied the Constitution or constitutional law, for that matter, can guess, my reference to the FTC's for-cause protection is not accidental.

That statute formed the basis of the lawsuit that culminated in the 1935 decision by the Supreme Court in a case called Humphrey's Executor, in which the Supreme Court held for the first time that Congress may impose restrictions on the President's removal power.

In so holding, the Supreme Court overruled its earlier precedent in Myers v. United States, which had held that Congress may not limit the President's ability to remove principal officers within the Federal Government, but Humphrey's Executor didn't simply overrule Myers. Rather, as Justice Scalia later wrote, ``it gutt[ed], in six quick pages devoid of textual or historical precedent. . . . a carefully researched and reasoned 70-page opinion.'' That juxtaposition alone tells you what you need to know about these decisions. One had constitutional text and original understanding and historical precedent behind it. The other was constitutional law by judicial fiat.

Article II of the Constitution unquestionably establishes a unitary executive. The vesting clause provides that ``the executive power shall be vested in a President of the United States of America.''

As Alexander Hamilton explained it in Federalist No. 70, placing the totality of the Executive power in a single individual was no happenstance. It was no mistake. It wasn't just sort of some fluke. The delegates to the Constitutional Convention recognized that a unified executive was essential to ensure energy and accountability in the execution of the laws, and the Constitution was drafted accordingly, consistent with this understanding.

Without the authority to supervise and direct, and, yes, ultimately fire his subordinates, it is impossible for the President to fulfill his duty imposed by article II to ``take care that the laws be faithfully executed.''

The Founders also understood that the President's removal power was the bedrock of his authority to oversee the executive branch. In a famous debate during the First Congress, James Madison argued that ``if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.''

He went on to note that ``if the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; [they] will depend, as they ought, on the President, and the President on the community.''

Madison's argument prevailed, and the First Congress declined, on constitutional grounds, for the reasons articulated by James Madison himself, to create for-cause removal protections for the heads of the newly established executive branch departments. They considered it; Madison raised, very persuasively, this constitutional argument against it; and then they voted it down. That was the original understanding of the removal power, and it predominated for nearly 150 years after the Founding.

Since Humphrey's Executor and its radical departure from the original understanding in 1935, for-cause removal protections, both statutory and otherwise, have, sadly, proliferated, giving rise to a vast, headless, out-of-control branch of government, a fourth branch of government, if you will, that exists beyond the control of the President and is therefore unaccountable to the people.

In fact, by some estimations, there are over 80 so-called independent agencies within the executive branch. These executive branch agencies that we refer to somehow as independent are entrusted with regulating immense swaths of American life--from competition policy and workplace safety regulations to labor relations and even securities laws. They make rules; they adjudicate rights; and they enforce laws. The potential for abuse is tremendous; the inconsistency with the republican principles this country was founded on, obvious.

Now, there are a lot of people here who like the sound of the term ``independent agency,'' and they might suppose, incorrectly, that an agency that is independent, that is beyond the control of the President of the United States to oversee, that that is somehow a good thing.

On closer inspection, we discover that quite the opposite is true. When we insulate someone from Presidential oversight, what we are doing is taking the American people out of the picture. There is a reason why we have elections every 4 years, and those elections focus on the election of a President. It is so there is some chain of accountability between the people and the executive branch of government.

That has become more important, not less, over the last few decades as we have created more and more executive branch agencies and we have entrusted those agencies with more and more power. It has never been more important than it is today to make sure the people are connected. If you disconnect the American people by insulating them from the political process, then you have a whole group of people who these days are charged not just with administrating the laws but, in some cases, with effectively making it and interpreting it, and you are taking them beyond the supervision that would otherwise be appropriate by the President of the United States within the executive branch of government.

In their fight against British tyranny, the Patriots of the American Revolution rallied behind the principle of ``no taxation without representation.'' Today we are faced with a somewhat different threat to freedom, as Chief Justice Roberts wrote in a case just a few years ago. ``The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive's control, and thus from that of the people.''

In other words, as Chief Justice Roberts explained, when you take this power away from the President, you are taking it away from the people. The people lose their input on and their control over these very important functions of what is appropriately described as the people's government.

The concern is further compounded by the existence of independent agencies that are, by law, divorced from any Presidential control. As a result, in this new fight against tyranny, our watchword perhaps must be ``no regulation without representation.'' That is why I have spearheaded the Article I Project and why I supported legislation such as the REINS Act and the Separation of Powers Restoration Act that would bring the Federal regulatory apparatus, as we know it, to heel.

Of course, more is needed. We need to not only reform Congress's relationship with the administrative state but the President's as well. To that end, I am introducing new legislation called the Take Care Act. The bill would restore the unitary executive envisioned by the Founders and, in fact, required by the Constitution by stripping away all existing for-cause removal protections from the so-called independent agencies. It would also limit Congress's ability to create for-cause protections by implication in the future and take other critical steps to fortify the President's directive authority.

Simply put, the Take Care Act would eliminate the headless fourth branch of government, empower the President to ensure faithful execution of the law, and make the bureaucracy accountable to the people again. Importantly, the Take Care Act would not cause the work of administrative agencies to become subject to the unmitigated whims and caprices of a President. There is still very real, very meaningful political constraints, including the Senate's advise and consent role, that would ensure, as they do now, in areas outside of these so-called independent agencies, that the executive officers can fulfill their congressionally assigned duties without undue interference.

In other words, although there are some so-called independent agencies as to which the President has no removal

power, there are a whole lot that are not. The President's Cabinet and many other positions within the Federal Government involve people who are appointed by the President, confirmed by the Senate, and who serve at the pleasure of the President who can be fired at any moment for any reason the President might deem appropriate.

Nevertheless, that does not mean that Presidents go around just firing people arbitrarily because Presidents understand that there is a political cost to doing that. We have seen in recent years, and we have seen earlier in American history, how Presidents, even when they have disagreements with members of their Cabinet or other people who serve at the pleasure of the President--Presidents are still reluctant to fire people because there are political costs attached to that, and especially where Congress perceives there might be a partisan political motive in mind, Congress may well take action.

In the case of the Senate, it almost inevitably will at least threaten, if not carry out the threat, to hold up future confirmations of Presidential appointees if Presidents abuse this power.

So it simply isn't true to say that this would open the floodgates and cause all Presidents to just fire people arbitrarily without hesitation in the future. What it would mean is that our elected President would have the power to represent the people and to oversee the executive branch of the Federal Government just as article II already requires.

So all this bill would do would be to rescind and limit unconstitutional restrictions on the President's removal power, and while it may be more convenient to limit this power by statute, convenience and efficiency are not the primary objectives or the hallmarks of a democratic government, as the Supreme Court has repeatedly reminded us.

Another famous catchphrase popularized by an American President is ``the buck stops here,'' which President Truman, of course, displayed on a placard on his desk in the Oval Office at the White House during his Presidency. What it means is, the President is the final decision maker within the executive branch, and, therefore, bears the sole and ultimate responsibility for executing the laws.

In order to fulfill that very special, sacred, important responsibility, the President must have plenary power to direct the President's subordinates in how they carry out their assigned tasks and, if necessary, fire them. That is what the Constitution and, indeed, common sense require. By restoring the original understanding and restoring the removal power to the Presidency, the Take Care Act would give the President this authority.

By taking this step, we would reempower the American people with that which is rightfully theirs to begin with.

Mr. President, I rise today to introduce legislation that will address one of the most pressing immigration problems facing our nation.

For the past decade, thousands of families have fled violence and poverty to seek asylum in the United States. These families include vulnerable children who must be kept safe once they arrive in the United States. However, since the beginning of the Trump Administration, several new policies have been implemented.

Most disconcerting is the Trump policy to separate young children, even babies, from their mothers and fathers. Dozens of these children spent days and weeks in cages with nothing but thin mats and aluminum blankets.

We have also learned that the Trump Administration then deported many of these parents, leaving the children to be orphaned in this country. In fact, hundreds of children who were separated under this policy have now been apart from their parents for many months, without any immediate prospects for reunification. These children continue to experience extreme stress that leaves them vulnerable to serious, lifelong mental and physical health problems.

Even when families are reunified after months apart, some children no longer recognize the mothers and fathers. This is unconscionable. Today I am introducing the Protecting Immigrant Families and Improving Immigration Procedures Act, a bill that will not only end the practice of separating families at the border, but also put in place other safeguards to protect these at-risk groups.

The first component of the bill I am introducing today is the full text of the Keep Families Together Act, a bill I introduced earlier this year to halt the separation of families and which currently has more than 40 cosponsors. The President claimed to end his policy of separation in June 2018. However, we have since learned that the practice of separating families continues today.

In fact, the Inspector General for Health and Human Services found that thousands more children were separated than the administration initially revealed in June. Parents who try to protect their children from violence and poverty abroad should not be punished by having those children ripped from their arms. Children should not be subjected to severe trauma in the interest of deterring migration.

Instead, families should be kept together and given an opportunity to present their cases for asylum as has been done for the past seven decades.

The second part of the bill I'm introducing today ensures that families with children are not forced into prolonged, indefinite family detention in order to remain together. Child welfare experts, including the American Academy of Pediatrics and the United Nations, have found that detention of this sort has tremendous negative effects on children's health and welfare. This bill guarantees that the Trump Administration cannot reverse the crucial protections that are currently in place under the Flores settlement agreement.

The third piece of this bill would help address the backlog in our immigration courts while protecting the basic rights of children. This part of the bill contains provisions to provide adequate resources to our immigration court system. By adding additional judges and staff, courts will be able to reduce the crushing backlog of over a million pending deportation cases.

The fourth component of this legislation is Senator Hirono's bill, the Fair Day in Court for Kids Act, that provides counsel for unaccompanied children. This is meant to ensure that these children receive a meaningful opportunity to present their cases in immigration court. This is important because young children, including toddlers, have been forced to represent themselves in immigration court in recent years. It is simply impossible for children to understand their legal immigration status or rights, let alone explain it to a judge.

This bill protects the most vulnerable children in by providing counsel when there is no parent or legal guardian available. The final part of the bill will ensure that immigration judges can manage their caseloads and prioritize the cases as needed. Currently, individuals in deportation proceedings who have been victims of human trafficking or have assisted with criminal prosecutions are often eligible for visas that would protect them from deportation. This bill would allow immigration judges to close these deportation cases quickly to protect these vulnerable individuals and conserve scarce courtroom time. This will be a crucial step in clearing the backlog of pending immigration cases.

By taking these steps, we will help put our immigration system on a pathway to respect the basic rights of children, particularly those who are fleeing violence and poverty abroad. These children are some of the most vulnerable people in the world, and it is absolutely essential that our legal system should treat them with fairness and respect.

These are goals that should be appealing to Democrats and Republicans alike. I hope my colleagues will join me in passing the Protecting Immigrant Families and Improving Immigration Procedures Act.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today I am once again introducing legislation to allow the District of Columbia to receive funding and other benefits under the Coastal Zone Management Act. I am pleased to offer this companion legislation to a bill, H.R. 2185, introduced by the Congresswoman from the District of Columbia, Eleanor Holmes Norton.

Few of us realize that 70 percent of the District is located within the coastal plain. Similar to my State of Delaware, sea level rise, upstream sources of water, degraded infrastructure, and coastal subsidence mean that the District could experience serious future cleanup and repair costs due to flooding--including damage to federal property, which makes up almost 30 percent of the District. The National Oceanic and Atmospheric Administration (NOAA) reports that since 1950, nuisance flooding has increased by more than 300% in the District. And, since 2006, DC has experienced two 100-year flooding events, and District officials estimate that a future 100-year flood event could cause over $1.2 billion in damages. Needless to say, these events will become more and more common due to climate change-- including rising sea levels--and coastal subsidence.

The District of Columbia would use funding from the Coastal Zone Management Program for flood risk planning and environmental restoration to prevent and mitigate future flood damage. At the same time, this work would help to restore and conserve the District's coastal resources such as habitat, fisheries, and endangered species.

If included in the Coastal Zone Management Program, the District of Columbia would be eligible for $1 million or more of federal funding annually to assist in coastal flood-control projects, to combat non- point source water pollution, and to develop special area management plans in areas experiencing environmental justice and/or flooding issues.

The National Coastal Zone Management Program, housed in NOAA, was established through the passage of the Federal Coastal Zone Management Act of 1972. At the time, Congress recognized the need to manage the effects of increased growth in the nation's coastal zone, which includes jurisdictions bordering the oceans and the Great Lakes.

There are currently 34 jurisdictional coastal zone management programs, including both States and territories. In order for the District of Columbia to participate in the program, Congress must pass this amendment to the Coastal Zone Management Act that would include the District under the definition of a ``coastal state.''

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today I am once again introducing legislation to allow the District of Columbia to receive funding and other benefits under the Coastal Zone Management Act. I am pleased to offer this companion legislation to a bill, H.R. 2185, introduced by the Congresswoman from the District of Columbia, Eleanor Holmes Norton.

Few of us realize that 70 percent of the District is located within the coastal plain. Similar to my State of Delaware, sea level rise, upstream sources of water, degraded infrastructure, and coastal subsidence mean that the District could experience serious future cleanup and repair costs due to flooding--including damage to federal property, which makes up almost 30 percent of the District. The National Oceanic and Atmospheric Administration (NOAA) reports that since 1950, nuisance flooding has increased by more than 300% in the District. And, since 2006, DC has experienced two 100-year flooding events, and District officials estimate that a future 100-year flood event could cause over $1.2 billion in damages. Needless to say, these events will become more and more common due to climate change-- including rising sea levels--and coastal subsidence.

The District of Columbia would use funding from the Coastal Zone Management Program for flood risk planning and environmental restoration to prevent and mitigate future flood damage. At the same time, this work would help to restore and conserve the District's coastal resources such as habitat, fisheries, and endangered species.

If included in the Coastal Zone Management Program, the District of Columbia would be eligible for $1 million or more of federal funding annually to assist in coastal flood-control projects, to combat non- point source water pollution, and to develop special area management plans in areas experiencing environmental justice and/or flooding issues.

The National Coastal Zone Management Program, housed in NOAA, was established through the passage of the Federal Coastal Zone Management Act of 1972. At the time, Congress recognized the need to manage the effects of increased growth in the nation's coastal zone, which includes jurisdictions bordering the oceans and the Great Lakes.

There are currently 34 jurisdictional coastal zone management programs, including both States and territories. In order for the District of Columbia to participate in the program, Congress must pass this amendment to the Coastal Zone Management Act that would include the District under the definition of a ``coastal state.''

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today I am introducing a set of three bills that will lower the cost of energy storage, increase flexibility in the power grid, and create a comprehensive set of grant programs to advance development of renewable energy technologies throughout the country.

Currently, many energy technologies--like energy storage--compete in unfair markets, making it hard for new innovations to measure up to more established technologies like those of the fossil fuel industry. Congress and the Department of Energy

can work hand-in-hand with industry to level the playing field, using a fair, tech-neutral approach when updating the electricity system, to benefit the American consumer.

My Reducing the Cost of Energy Storage Act will provide funding to the Department of Energy to research and develop ways to lower the cost of energy storage technologies. Ultimately, this bill will make it possible for renewable energy to be used on a more reliable and affordable basis.

To protect the power supply from disruptions caused by natural disasters, which can wipe out power to millions of homes, my Flexible Grid Infrastructure Act will require the Department of Energy to find and develop ways to make the power grid more flexible and responsive to these challenges. The bill will also connect displaced workers to training programs that will allow them to transition to high-skill clean energy jobs. Finally, this bill will provide States and utilities with resources to upgrade the flexibility and reliability of the power grid.

In order to ensure private sector growth in distributed energy technologies, my Distributed Energy Demonstration Act will create competitive, cost-share grant programs for new small-scale, grid- connected projects, such as rooftop solar panels, hot water heaters, electric vehicles, and modernized utility pricing technologies.

Together or apart, these bills will promote a more flexible electricity grid that can respond to power disruptions from natural disasters and ensure reliable, low-cost electricity for consumers now and in the future. They will also lower costs for energy storage technologies that make renewable energy more reliable and cost- effective, boost funding for cutting-edge research, and reward State and private sector innovations, which will make renewable energy more reliable and affordab1e for U.S. energy consumers.