Mr. President, it is no secret that, in recent years, the Supreme Court has become a political target for our friends across the aisle, the Democrats. I still remember a time--maybe it was a quaint…
Mr. President, it is no secret that, in recent years, the Supreme Court has become a political target for our friends across the aisle, the Democrats. I still remember a time--maybe it was a quaint period during our Nation's history--when Robert Jackson, former Supreme Court Justice, said: The Supreme Court is not final because it is always right. It is right because it is always final.
The point is, there has to be someplace, somewhere in the U.S. Government, where decisions are made on something other than a political basis. We know that in Congress--the political branches of government--we run for office; we stand for reelection. The voters can agree with us or disagree with us based upon our actions, and we will then be held accountable at the ballot box. The same is true for the President of the United States, the head of the executive branch.
But the judicial branch is supposed to be different. Judges don't stand for election. They can't be removed from office for virtually anything other than impeachable behavior, which is rare indeed, and Congress can't reduce their pay during their tenure in office. All of these are designed to preserve the independence of the judiciary.
Justice Scalia, during his lifetime, liked to observe that constitutions are simply words on paper, and he pointed out that the Soviet Union--the former Soviet Union--had one of the best constitutions on paper that existed at the time. But the difference between the Soviet Union and the United States is that we have an independent judiciary--unelected, unaccountable at the ballot box, but who continue, during their good behavior, as members of the court who have to make hard decisions. Their decisions are supposed to be made not on public opinion polls, not on votes cast at the ballot box, not on what is most popular but what conforms with the Constitution and laws of the United States. They have to literally call balls and strikes.
But some of our Democratic colleagues have decided that, when they don't like those decisions made by this independent judiciary, the best tactic is to attack the Judges and to thereby claim that, somehow, they are just another political branch--an unelected political branch--but nothing could be farther from the truth.
As evidence of their attempt to politicize the courts, I would point to the time that five of our Democratic colleagues threatened to ``restructure the Court'' if it didn't deliver their preferred outcome in a case involving the Second Amendment.
There was a time when some of our colleagues said: We need to pack the Court with more judges because we don't like the ones that currently sit on the Court, and we want a different outcome in the Court's decision.
And then there was the time when 15 of our Democratic colleagues recommended slashing the Court's budget unless it implemented a preferred code of ethics dictated by the legislative branch and not an independent judiciary.
And, of course, we can't forget the time when the majority leader, the Senator from New York, stood on the steps of the Supreme Court and threatened two Justices by name, saying they would ``pay the price''; they wouldn't know what hit them if they didn't reach his preferred decision in a case involving abortion.
Over and over again, many of our Democratic colleagues have shown their contempt for an independent judiciary, the very foundation of our form of government and the crown jewels of what makes us different from the rest of the world.
Let's forget unbiased judges who reach decisions based on the law and the Constitution. Some of our Democratic colleagues want to put their thumbs on the scales of justice in order to achieve specific results. And in pursuit of what? I would suggest it is in pursuit of power by any means whatsoever, as opposed to regarding the Constitution itself and the very structure of our Government as being sacrosanct, something to be celebrated and honored. They view it as something to be circumvented in order to pursue power, in order to pursue desired results.
We all know that, last week, the Supreme Court concluded a busy and consequential term that included a number of cases on a wide range of matters, from voting rights and homelessness to Presidential immunity and the power of Federal Agencies. Based on the reaction of some on the left, you would think the sky is falling. You would think the apocalypse is nigh and that we had reached the end of democracy as we know it.
Well, let's first look at the decision that the Court made to strike down something called the Chevron doctrine. This is a 40-year-old interpretation of an Agency's power that basically deferred to an Agency and created immense, unaccountable authority in bureaucrats who were not elected to office. This doctrine originated in 1984 in a case where the Supreme Court gave Federal Agencies broad leeway to interpret laws passed by Congress.
Over time, Chevron deference has emboldened Agencies to expand their powers, far beyond what Congress has authorized, to enact policies that go far beyond what Congress intended, with little or no oversight and no accountability.
If you think about it, Congress is the one given the authority, under our Constitution, to legislate, to make the laws. There is no authority under the Constitution for the executive branch to make laws, and certainly no authority under the Constitution given to Federal Agencies to make laws, absent authority granted to them by the legislative branch.
But here is one example of how the administrative Agencies have abused their authority. In the wake of a horrific mass shooting in Uvalde, TX, 2 years ago, I worked with colleagues on both sides of the aisle to pass a bill called the Bipartisan Safer Communities Act. It was signed into law a month after the shooting and made historic investments in mental health and school safety. We also included targeted reforms to protect public safety, without infringing on the rights of law-abiding citizens under the Second Amendment to the Constitution.
The firearms-related provisions of the bill were designed to be targeted and extremely narrow. But when it came to interpreting or implementing the law, the Biden administration's Bureau of Alcohol, Tobacco, and Firearms colored way outside the lines that Congress authorized.
The administration used these provisions as a pretext to implement broader reforms that were flatly rejected by Congress multiple times during the course of the negotiations. In other words, we considered and rejected the very outcome that the Bureau of Alcohol, Tobacco, and Firearms sought to achieve by this rewrite of what Congress had authorized. In short, unelected bureaucrats, accountable to no one, ignored the express will of the people's representatives in Congress and took a bipartisan law that was crafted in good faith and turned it into a Trojan horse for their own radical gun control policies, all contrary to the Constitution.
Senator Tillis, the Senator from North Carolina, and I had worked together with our friends and colleagues Senator Chris Murphy from Connecticut and Senator Kyrsten Sinema from Arizona to be the principal authors of the Bipartisan Safer Communities Act.
Senator Tillis and I--after the Bureau of Alcohol, Tobacco, and Firearms issued their unauthorized and unconstitutional rule-- introduced a measure to block the Biden rule, and I hope that we have a chance to vote on that soon. The truth is, it has already been enjoined, or stayed, by Federal courts as being outside of the authority given to the Agency to interpret the Bipartisan Safer Communities Act--in other words, an extralegal act to try to create law where Congress had not.
But the truth is Congress shouldn't have to pass a resolution of disapproval
every time the administration overreaches. That alone could be a full- time job.
In its recent ruling, the Supreme Court affirmed what should be obvious to all of us, because that is what the Constitution says: that it is up to Congress to pass laws, not unaccountable bureaucrats--an unremarkable holding, really, but one that was long overdue.
If an Agency takes too many creative liberties with implementing the law, that matter should be examined and ultimately struck down by a court as outside the authorities that the Constitution gives the executive branch Agency.
Again, our Framers designed three coequal and distinct separate branches of government. When Agencies attempt to legislate, even though the Constitution does not permit it, the courts have a responsibility to step in and strike down unlawful attempts to usurp the article I authority granted solely to the legislative branch, including the U.S. Senate.
In our country, all power--all political power--is derived from a single source; that is the consent of the governed. Laws that affect people across the country should be crafted, debated, and passed by Congress, not handed down through administrative actions and rulemaking where Congress is not authorized.
If a President's party wants to change the law, the only option is to come to Congress and work with Congress. There are no shortcuts. The executive branch doesn't have the authority to legislate on its own, whether under the guise of rulemaking or otherwise.
That is why the end of this so-called Chevron deference is so important to the restoration of democracy and constitutional government. It takes power out of the hands of unaccountable bureaucrats, and it puts the responsibility back in the hands of those of us who are Members of the political branch, the legislature.
We run for office. Voters can vote for us or vote against us, and that is the sort of accountability that the Constitution contemplates.
Despite some of the dramatic overreaction by some of our colleagues, the end of Chevron deference does not signal the end of democracy. It simply says the Court has to look at the Constitution and the laws passed by Congress, and if the administration overreaches, it is the duty of the Court to strike it down as being unauthorized by Congress. Regardless of political affiliation, everyone should want that because that is what the Constitution requires.
No administration--no Republican administration, no Democratic administration--should have the authority to violate the Constitution and usurp the will and the responsibilities given solely to Congress.
In another highly anticipated opinion, the Supreme Court clarified what Presidents can and cannot be sued for. Well, based on some reaction to the case, you would think the Court had given the President the green light to commit murder, rob a bank, or traffic illegal drugs from the White House. But, obviously, that is not case. As a matter of fact, the Supreme Court stated that official acts of a President should be given immunity but did not go on to say that individual acts that have been charged in pending cases were, in fact, immune. It has remanded those decisions back to the trial courts to apply the law as the Court articulated.
The Court did not offer any sort of protection against unofficial acts. The Justices didn't grant the President carte blanche to commit crimes with impunity. It simply clarified that the President is entitled to immunity while performing official acts.
This opinion is not, contrary to some claims, a monumental shift in policy. Presidential immunity was established in previous cases to protect the integrity of the executive branch, and it recognizes that a President--any President--a Democratic President or a Republican President--needs some latitude to make tough calls on public policy and matters facing the country without the threat of being sued incessantly and being distracted from their duties to serve the American people in this office.
I think back on George W. Bush's Presidency, when the Nation was attacked by al-Qaida on 9/11. Nearly 3,000 Americans were killed on that day, and President Bush made the decision that, I have to imagine, was one of the most difficult decisions that any President can make: He made the decision to go to war against these terrorists.
American troops were deployed in the Middle East to destroy al-Qaida, and many on the left viewed this act of self-defense as something else entirely. Some went so far as to label that what the President did made him a ``war criminal'' for his decision to defend the country against terrorists.
Current Supreme Court Justice Brown Jackson served as a Federal public defender at the time, and she even filed a brief accusing President Bush of committing a war crime.
Can you imagine if the President was dragged into court every time somebody had a disagreement about what the President decides in acting in his or her official capacity? It would, obviously, not only chill decision making, but it would severely limit the President's ability to govern effectively. The recourse is not in court; it is at the ballot box.
Presidents must be able to perform their duties without the fear of incessant and harassing litigation. The Commander in Chief should not have his or her hands tied by a looming threat of prosecution for actions taken during their official duties as part of the Presidency of the United States.
The Supreme Court, in fact, simply clarified that criminal law cannot be used as a weapon against a President for his or her official acts. But given the fact that many of our colleagues on the left have tried to weaponize a judicial system in recent years, the Supreme Court's decision was particularly important.
We have had a new word created recently called lawfare, basically using litigation as a form of warfare rather than arguing for votes and having debates about policies that are then decided by the voters at the ballot box.
We have seen some of our Democratic colleagues attempting to use every tool to tear down President Biden's campaign rival, former President Trump.
And in the process, we have seen some Democrats weaponize the Department of Justice against President Trump and his allies, and we have seen that in the district attorney in the State of New York in a recent litigation against former President Trump.
Prosecutors blew past exculpatory evidence when looking at the January 6 cases, for example. Manhattan District Attorney Alvin Bragg even campaigned on the promise to prosecute President Trump. This is just the latest chapter in the never-ending saga that is the Democrats' war against an independent judiciary and using the court to try to accomplish what they should be trying to accomplish not in court but at the ballot box, through legitimate debate, transparency and, ultimately, the decision of the American people.
Some of our colleagues on the left don't want judges to follow the law. They want easy victories. They want layups. And when they can't win in Congress because they don't have the votes, they want the courts to fill in the gaps and accomplish the goals that they could not accomplish in Congress.
Some of our colleagues want the court to reach a conclusion first, without regard to the facts or the law, and then work backward to try to come up with some sort of justification for the outcome. That is called results-oriented decision making. It is the opposite of what judges should be doing.
Whether that means taking down a political rival, implementing radical pro-abortion policies, or expanding the power of unelected bureaucrats, some of our colleagues on the left want the Supreme Court to be a shortcut to easy wins--easy political wins--again, that they could not accomplish in the Halls of Congress or at the ballot box.
These Justices are not puppets that can be manipulated for partisan gain. They are members of a separate and coequal branch of government, and their decisions must be respected.
That doesn't mean you need to agree with them, but you do need to respect their right to make the decision and to finally settle these issues, at least until Congress or another branch of government decides to overturn them on other than constitutional grounds. Obviously, the Supreme Court is the
final word in interpreting the Constitution. And unless we see the Constitution amended at some point by the American people, that is going to stand.
Many of the Courts' decisions are based on statutory interpretation, based on what the legislature has done, what the Senate has done. And those are things that the Senate can come back and address through legislation.
But the biggest threat to democracy isn't the Supreme Court; it is a never-ending series of political attacks on the Court by many on the left.
I yield the floor.
I suggest the absence of a quorum.
