I ask unanimous consent that the order for the quorum call be rescinded. I ask unanimous consent to speak as in morning business Mr. President, we Americans are so fortunate to enjoy the blessings of liberty. We protect our rights as…
I ask unanimous consent that the order for the quorum call be rescinded.
I ask unanimous consent to speak as in morning business
Mr. President, we Americans are so fortunate to enjoy the blessings of liberty. We protect our rights as individuals, and we have a legal system that demands that government officials respect those rights and respect the law.
Historically some nations have lost their freedoms in revolutions. In others a leader gradually undermined the rule of law. Once the rule of law is dismantled, the road to dictatorship is easily traveled.
In a country under the rule of law, government officials are bound by that law.
When the Framers wrote our Constitution, they feared that the Federal Government might grow too strong. They divided and limited the powers among three branches. They made sure to preserve State power to serve as a check on the Federal power, and they also provided that where the Federal Government had the authority to make uniform laws, contrary State laws gave way.
To make sure everyone would be subject to the law, they entrusted the President with the duty to ``take Care that the Laws be faithfully executed.''
President Obama has repeatedly failed to take care that the laws be faithfully executed. He has repeatedly violated the Constitution. His administration has not conformed its conduct to law.
His administration therefore has undermined the rule of law. Often patterns repeat. The President proposes legislation that the American people do not want, so the Congress naturally refuses to enact it.
The President then decides that he will take Executive action as if Congress had enacted that law. Another pattern is he claims the authority to take various actions but fails to produce an opinion from the Department of Justice that coherently supports his authority. That creates a terrible lack of accountability.
We have also seen the President pick and choose which laws he will enforce, claiming that the ability to make individual enforcement decisions extends to failing to enforce the laws in millions of instances, and the President has simply failed to take notice when the Supreme Court has ruled he has exceeded his powers.
I know my colleagues think these are serious charges, and they are.
I wish to outline a number of instances where the President or his administration, acting at his discretion, has failed to follow the Constitution or the laws. Regrettably I will only be able to touch on some of the examples.
The President has attempted to unconstitutionally limit the powers of States through ObamaCare. He threatened the States that did not expand Medicaid would lose their existing Medicaid funds. The Supreme Court ruled 7 to 2 for the first time that a condition on Federal spending was so coercive to the States as to be unconstitutional.
Another President might have been careful after such a rebuke by the highest Court in the land to be mindful of State power--after all, it included one of the Justices that the President himself appointed to the Supreme Court--but not this President taking notice of what the Court said.
President Obama's EPA then turned around and has not followed the rule of law. It wrongly recognizes no limit to Federal power or to its own power.
Despite the fact that Congress rejected his cap-and-trade proposal, his EPA issued greenhouse gas regulations
that would require States to develop plans that meet EPA-established emission standards. Once EPA approved them, EPA would then order the States to enforce the standards.
Supporters of EPA argued that the threat from pollutants under the Clean Air Act, a category in which they erroneously include carbon dioxide, justified EPA's action, but the ``end justifies the means'' is an argument that is totally at odds with the concept of rule of law.
EPA's approach is unconstitutional. Just as a State cannot be coerced by Federal spending programs, it cannot be commandeered to enact Federal dictates. This is a well-established rule of the 10th Amendment, otherwise the States would lose their sovereignty.
Responsibility and therefore accountability would be blurred as voters could not tell which level of government to blame for unpopular policies. Among those who recognize that EPA has acted unconstitutionally is the President's own liberal constitutional law professor, Laurence Tribe of Harvard.
He wrote that it was his own view that the EPA is ``asserting executive power far beyond its lawful authority.''
He also wrote: ``Frustration with congressional inaction cannot justify throwing the Constitution overboard.''
President Obama also acted unconstitutionally when he made what he said were valid recess appointments, even though the Senate was not in recess. Although Presidents had been making recess appointments for more than 200 years, the President's use of the power was once again unprecedented.
He was armed with a Justice Department opinion that laughably argued that the President could ignore when the Senate said it was in session to make such appointments.
The Supreme Court rejected the President's so-called recess appointments unanimously. That meant of course that both of the Justices President Obama appointed rejected his claim that he could determine when the Senate was in recess, even though the Constitution makes it very clear, and it also rejected the Justice Department's arguments that supposedly allowed the President to make that recess appointment in violation of the Constitution.
But the President, similar to the old French Kings, learns nothing and forgets nothing when it comes to respecting the limits of Presidential power.
Despite the lodging of the power in the Constitution to Congress alone to enact uniform laws of naturalization, the President decided to enable millions of people who entered the country without documents to remain without congressional approval.
In fact, at a recent Judiciary Committee hearing we heard testimony that the administration's misuse of parole authority under this directive would allow many individuals who are here illegally to obtain green cards without Congress changing a word of the immigration laws.
This follows the President's earlier decision when Congress would not pass the DREAM Act to give benefits to undocumented aliens, as if that bill had been enacted into law.
In both of these instances, the supposed justification for noncompliance with the law is that the need is so great. This is a siren song that supporters of the rule of law must reject.
Texas and a number of other States have already filed suit challenging the immigration order's constitutionality, as well as its violation of the Administrative Procedure Act.
In an unrelated case, Federal district court has already found parts of the order to be unlawful. The President also has claimed enforcement discretion in failing to enforce other Federal criminal laws.
The Controlled Substances Act prohibits marijuana possession nationwide. Under the supremacy clause of the Constitution, State laws to the contrary are unconstitutional.
Normally the Federal Government sues States that enact such laws. But when Colorado and other States legalized marijuana, the Obama administration directed Federal law enforcement to refrain from using its resources to enforce Federal law in those States. It did not make individualized prosecutorial decisions but a very blanket refusal to enforce Federal law, contrary to the oath.
Nebraska and Oklahoma, rather than the Federal Government, have sued Colorado, as those neighboring States argue they face a significant increase in marijuana and other drug-related harms as a result of the Colorado law.
To make matters worse, Attorney General Holder is expanding his refusal to apply Federal marijuana laws to Indian reservations. Those reservations depend upon Federal law enforcement.
He plans to allow tribes to petition unelected local prosecutors to decide whether the same nonenforcement of marijuana laws' policy will apply to those reservations. Apart from the rule of law question, it must be kept in mind that these reservations are in States that still want to see marijuana illegal. As a matter of policy, rates of illegal drug use are higher on Indian reservations, with all of the associated health and crime consequences.
Again, this goes to the heart of the rule of law.
Does anyone believe if a State decided dealers could sell guns without conducting the federally required background checks, that the Obama administration would ignore those States? Anyone who approves what President Obama has done under the guise of enforcement discretion will have no cause to complain about a future President's decision to allocate scarce resources.
For instance, he could decide that the ObamaCare individual mandate, which is constitutional according to the Supreme Court--only because it is a tax--will not be enforced against anyone who does not buy government-approved health insurance.
President Obama has also violated the law when he released five Taliban fighters who were detained at Guantanamo in exchange for an American sergeant. As the nonpartisan Government Accountability Office concluded, the failure to notify Congress 30 days before such transfer, and to provide a justification, was a violation of law.
I have asked the Justice Department for the justification they prepared for this move by the President. To this day, the President refuses to produce the Justice Department's opinion that purports to legally justify this action, contrary to the law passed by Congress.
The American people can draw their own conclusions as to whether that means a well-reasoned legal argument exists that the President could legally act as he did.
The rule of law ensures that government officials and agencies obey the law. Under the Constitution, Federal agencies can only exercise the power that Congress gives them. They cannot do whatever they want. Now that is obvious to any high school government class. But in the Obama administration, where too many agencies do not believe in limited government, agencies are lawlessly exceeding their powers. This lawlessness is a major reason why polls show that Americans believe the Federal Government is overregulated.
Let's take a look at the EPA again. Not only has the EPA violated the Constitution and exceeded its powers on the Clean Air Act, that agency has violated a core Federal statute--the Administrative Procedures Act. The Administrative Procedures Act sets forth the process by which agencies can issue regulations and conduct other administrative business.
For instance, under the APA, an agency can issue a regulation that is binding on citizens with penalties for noncompliance only if that agency pursues notice-and-comment rulemaking.
This process, consistent with notions of due process and fairness, requires any agency to issue a proposed rule, seek public comment, respond to public comment, and modify the proposed rule to reflect those comments when it issues a final rule. The process is this way to assure accountability, to ensure transparency and input from regulated entities. Courts can strike down the regulation if the agency fails to comply with the Administrative Procedures Act.
They can also strike down the regulation where the agency exceeds its statutory powers or where the agency's interpretation of law that is said to justify the regulation does not reflect a legitimate reading of the statute. Courts give greater deference to an agency's interpretations of statutes that are taken after proceeding through the notice-and-comment process.
The EPA recently violated the Administrative Procedures Act in my own
State of Iowa. The EPA wrote letters to Iowa municipalities setting forth specific requirements that they said must be followed to meet their obligations under the Clean Water Act. The cities challenged the EPA because the two letters effectively imposed new regulatory requirements. They argued the EPA could not impose regulatory obligations simply by letter but needed to proceed by notice-and- comment rulemaking--the Administrative Procedures Act requirements.
They also argued that so-called informal guidance imposes subtle pressures on regulated entities to comply even if the EPA does not call its actions a regulation.
The U.S. Court of Appeals for the Eighth Circuit agreed and struck down the requirements EPA imposed on those cities just by issuing letters. However, the EPA has since publicly stated, as a lot of government agencies do, that the EPA would only comply with the ruling in the Eighth Circuit.
So here we have a situation where there is a national law, the actions of the EPA are struck down in the Eighth Circuit, and now that law is going to be applied one way in the Eighth Circuit and the other way in the rest of the States. In other words, the EPA has proclaimed it intends to continue to impose these illegal requirements on municipalities in those States outside the Eighth Circuit, in clear violation of the APA.
The EPA is not alone in failing to comply with the Administrative Procedures Act. The Department of Education issued what it termed informal guidance concerning campus sexual assault last year without public input.
I hope we can see a pattern here, whether it is by letter by the EPA to Iowa municipalities or whether it is something called informal guidance by the Department of Education. These are all terms trying to get around the legal requirements of the Administrative Procedures Act to get things done faster by these agencies, because following the rule of law is kind of an encumbrance they do not want to go through.
In regard to what the Department of Education did, at a HELP Committee hearing the Assistant Secretary for Civil Rights Catherine Lhamon stated that she expected colleges and universities to comply with that guidance that was not a regulation under the Administrative Procedures Act. Of course, that meant what the Department was calling informal guidance was really a regulation that could only be issued after engaging in notice-and-comment rulemaking.
When Senator Alexander, who is chairman of the committee now, asked her who gave her the authority to issue the guidance, she responded, incredibly--and I emphasize incredibly--``Well, with gratitude, you did, when I was confirmed.''
So you get confirmed by 100 Members of the Senate and you can do whatever you want to regardless of law? No. This is the United States, where we operate under the rule of law and the constitution. It is not France in the age of Louis XIV where government officials say, L'Etat c'est moi. I am the State, in other words.
Senate confirmation means only that a person has been legally installed in a job. But once confirmed, the agency official can only act in accordance with the laws governing their agency.
I support the Department's overall goal of holding accountable those who commit campus sexual assault, but it has to be done lawfully. By issuing so-called guidance that, by her own admission, she expected colleges and universities to follow, the Department exceeded its lawful powers.
Separate from excluding the public from having any say in the rules that have governed their conduct, bureaucrats have many incentives--too many incentives--to ignore the Administrative Procedures Act.
Imagine: Formal rulemaking takes time. A formal notice of proposed rulemaking is followed by the public's comment period, then the agency responds to comments and modifies their proposed rule before it is made final. The Office of Management and Budget reviews the regulation and can block or modify it. The Office of Management and Budget makes agencies justify the costs and benefits of their rules, reduce burdens under the Paperwork Reduction Act, and also prepare a federalism impact statement for those proposed rules.
Agencies that want to regulate without oversight can subvert the whole process of issuing binding rules under the cover of ``informal guidance.'' It is so much faster for bureaucrats to issue dictates to whomever they want for whatever reason they want.
By avoiding the Administrative Procedures Act, these unelected agencies violate the whole separation of powers. They act legislatively in violation of the limited authority Congress provides a particular agency. Then they are free to issue even more rules, restricting the freedom of American people and increasing the role of unelected bureaucrats in telling other people what to do. Reductions in freedom are ultimately manifestations of a failure to follow the rule of law.
We are already headed in that direction. The Supreme Court has before it a case now from the Labor Department, where one of the issues discussed at oral argument was whether that agency was required to proceed by notice-and-comment rulemaking rather than through interpretive rules. We shall see, then, whether the Court addresses that issue or focuses instead on what level of deference a court gives when agencies change their position without proceeding through Administrative Procedures Act rulemaking.
But even if the issue of the necessity of engaging in notice-and- comment rulemaking is not addressed in that case, the Court, before long, will reach that question. When it does, I believe it will find that what the Obama administration has been doing is clearly illegal.
President Obama's claims of Executive power are unprecedented. He is creating a general precedent of a Presidency unrestrained by law.
When Franklin Roosevelt was inaugurated in the darkest days of the Great Depression, he called on Congress to act to respond to the emergency as well as giving him powers to address it. He did issue Executive orders, such as declaring a bank holiday, but he did not say that he had a phone and a pen and that he would do whatever he felt was necessary regardless of whether Congress acted. Rather, he said that if the powers Congress gave him to address the emergency were inadequate, he would ask Congress to provide him with the powers Congress would give a President in the event of a foreign invasion.
Those are extensive powers. But he was determined to ask Congress for power, not to act unilaterally because the ends justified the means. He wanted to use all the powers available under the Constitution, not exceed those powers.
Not only does the Constitution further government compliance with the rule of law through the separation of powers, it also sets up an executive branch that can act to check itself. Executive officials have their own legal powers that the President cannot interfere with. They can also refuse to carry out illegal Presidential orders.
We have a very good example from the dark days of Watergate. The Nixon administration exceeded its powers too. When that happened, there were administration officials who pushed back against their own President who appointed them. The appropriate Justice Department official told President Nixon he would haul him into Federal Court if there were evidence of his criminality. Attorney General Elliott Richardson and Deputy Attorney General Ruckelhaus resigned rather than fire the Watergate special prosecutor, as the President had ordered. People of conscience do sometimes resign or threaten to do so, and that increases public pressure on the President to obey the law.
Who in the Obama administration has ever stood up against his lawlessness? No one, as far as I know. No one has resigned from the Justice Department as it has become a rubberstamp for wild claims of Presidential power that exceed the Constitution and violate the laws.
What lawyer in the EPA or any other Department has stopped her agency from acting unconstitutionally by exceeding the powers that Congress has specifically delegated under various statutes? What lawyer has stopped an agency from violating the Administrative Procedures Act by issuing binding rules on the public without public comment?
I regret to say that the Congress up to now has too often been complicit with Presidential assaults on the rule of law. When President Obama eviscerated the core Senate prerogative of advice and consent by making unconstitutional recess appointments, not one single Democrat in this body objected. This is where the real harm of excessive partisanship manifests itself.
Time and again, the previous majority in this body refused to take action against any Presidential action that violated the law if they agreed with the policy being pursued by the President. This sort of nonactivity is not why the Constitution created the Congress. Whatever its flaws, an active Congress that defends its legislative prerogatives and conducts effective oversight of Executive illegality is vital to preserving liberty.
In one historical example, the process of transformation from democracy to dictatorship was completed when the Parliament voted itself out of existence.
The Framers did not intend a Congress to sit idly by as the President violates the Constitution and the laws. In Federalist 51, James Madison wrote that the separation of powers was vital to the preservation of liberty. He noted that checks and balances would be effective in keeping each branch within its prescribed constitutional role because each had, in his words:
. . . the necessary constitutional means and personal
motives to resist encroachments of the others. . . . Ambition
must be made to counteract ambition.
Recently, the Senate has failed to counteract unlimited Executive ambition. That must change and, as a result of the last election, should change. Will it change? I sure hope so.
I trust that under our new leadership, the Senate will take action for the government to control itself, and to restore the rule of law that has been so badly damaged in recent years, because if we take the spirit of the Declaration of Independence--and remember, prior to that Declaration, the colonies decided they did not want one person, George III, making decisions affecting millions of people on this side of the ocean. So they were very careful, when they declared independence and they wrote a Constitution a few years later, to make sure they carried out the spirit of the Declaration of Independence that:
. . . they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and
the pursuit of happiness.
Not by our government, but by nature or by our Creator.
So they put into this Constitution assurances so there could never be a George III again, and separated all the powers so one person didn't have all the power.
Now we see one person trying to exercise the power of several branches of government, as George III tried to do. So we are over that hurdle. All we have to do is make sure that the checks and balances the government worked--the same checks and balances that every high school kid learns in government class, to make sure that one person doesn't do it, and that our liberties are protected by a government that operates under the rule of law. And that Constitution is our rule of law.
I yield the floor, and I suggest the absence of a quorum.