Authorization To Initiate Litigation For Actions By The President
Mr. Speaker, pursuant to House Resolution 694, I call up the resolution (H. Res. 676) providing for authority to initiate litigation for actions by the President or other executive branch officials inconsistent with their duties under the…
Mr. Speaker, pursuant to House Resolution 694, I call up the resolution (H. Res. 676) providing for authority to initiate litigation for actions by the President or other executive branch officials inconsistent with their duties under the Constitution of the United States, and ask for its immediate consideration.
Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days in which to revise and extend their remarks and to include extraneous material on the consideration of H. Res. 676.
Mr. Speaker, I yield myself such time as I may consume.
I rise today to discuss the unwarranted, ongoing shift of power in favor of the executive branch.
Under President Obama, the executive branch has increasingly gone beyond the constraints of the Constitution. In fact, in a number of instances, the President's actions have gone beyond his article II powers to enforce the law and have infringed upon the article I powers of Congress to write the law.
We are here today because, at the beginning of this Congress, every Member of this body took an oath of office in which we swore to ``support and defend the Constitution of the United States.'' At the beginning of each Presidential term, the President takes an oath to ``faithfully execute the Office of the President of the United States and . . . to the best of my ability, preserve, protect and defend the Constitution of the United States.'' While these oaths are slightly different, the object of both oaths is the same. The President and Members of Congress have an obligation to follow and defend the Constitution.
The text of the Constitution that we have sworn to defend provides separate powers for each branch of the Federal Government. Article I puts the power to legislate--that is, to write the law--in the hands of Congress. Article II, on the other hand, requires that the President ``take care that the laws be faithfully executed.'' The difference is important. The Founders knew that giving one branch the power to both write and execute the law would be a direct threat to the liberties of the American people. They separated these powers between the branches in order to ensure that no one particular person, whether it be the President or a Member of Congress, could trample upon the rights of the people.
My fear is that our Nation is currently facing the exact threat that the Constitution is designed to avoid. Branches of government have always attempted to exert their influence on the other branches, but the President has gone too far. Rather than faithfully executing the law as the Constitution requires, I believe that the President has selectively enforced the law in some instances, ignored the law in other instances and, in a few cases, unilaterally attempted to change the law altogether.
These actions have tilted the power away from the legislature and toward the Executive. They have also undermined the rule of law, which provides the predictability necessary to govern a functioning and fair society. By and large, this country is founded upon the rule of law, and this tilts that balance. By circumventing Congress, the President's actions have marginalized the role that the American people play in creating the laws that govern them. Specifically, the President has waived work requirements for welfare recipients, unilaterally changed immigration laws, released the Gitmo Five without properly notifying Congress, which is the law, and ignored the statutory requirements of the Affordable Care Act.
We have chosen to bring this legislation forth today to sue the President over his selective implementation of the Affordable Care Act because it is the option most likely to clear the legal hurdles necessary to succeed and to restore the balance between the branches intended by the Founders. This administration has effectively rewritten the law without following the constitutional process.
When the executive branch goes beyond the constraints of the Constitution and infringes upon the powers of the legislative branch, it is important that the remaining branch of government--the judiciary--play its role in rebalancing this important separation of powers. After all, the constitutional limits on government power are meaningless unless judges engage with the Constitution and enforce those limits.
My friends in the minority do not seem to believe that the judiciary is up to its role in rebalancing the separation of powers. I disagree. Yesterday, at the Rules Committee, Members of the minority argued that this lawsuit is frivolous and a waste of time. They argued that if this litigation were to go forward that it would lead to countless lawsuits between the branches of government.
What my friends in the minority might fail to tell you--but I will today on the floor--is that they were for suing the President before they were against it. Eight years ago, in 2006, some Members of the minority, including the ranking member of the Rules Committee--the gentlewoman from New York--were plaintiffs in a lawsuit filed by congressional Democrats against then sitting President George W. Bush.
That is right. Eight years ago, my friends across the aisle filed a lawsuit against the President, brought by Members of one half of the Congress. The Democratic ranking member of the Judiciary Committee, the gentleman from Michigan, who is also a plaintiff, argued that he was alarmed by the erosion of our constitutional form of government and by a President who shrugged about the law. After consulting with some of the foremost constitutional experts in the Nation, he said he had determined that there was one group of people who was injured by the President's lack of respect for checks and balances--the House of Representatives.
I want to echo one line that he argued at the time regarding the separation of powers:
If a President does not need one House of Congress to pass
the law, what is next?
Perhaps this makes sense.
Mr. Speaker, I submit for the Record an editorial from The Huffington Post, on April 26, 2006, by the ranking member of the Judiciary Committee, the gentleman from Michigan. It is entitled, ``Taking the President to Court,'' in which he made a compelling argument as to why Members of the House could, in fact, have standing to sue the President.
[From The Huffington Post, July 30, 2014]
Taking the President to Court
As some of you may be aware, according to the President and
Congressional Republicans, a bill does not have to pass both
the Senate and the House to become a law. Forget your sixth
grade civics lesson, forget the book they give you when you
visit Congress--``How Our Laws Are Made,'' and forget
Schoolhouse Rock. These are checks and balances, Republican-
style.
As the Washington Post reported last month, as the
Republican budget bill struggled to make its way through
Congress at the end of last year and beginning of this year
(the bill cuts critical programs such as student loans and
Medicaid funding), the House and Senate passed different
versions of it. House Republicans did not want to make
Republicans in marginal districts vote on the bill again, so
they simply certified that the Senate bill was the same as
the House bill and sent it to the President. The President,
despite warnings that the bill did not represent the
consensus of the House and Senate, simply shrugged and signed
the bill anyway. Now, the Administration is implementing it
as though it was the law of the land.
Several public interest groups have sought to stop some
parts of the bill from being implemented, under the theory
that the bill is unconstitutional. However, getting into the
weeds a bit, they have lacked the ability to stop the entire
bill. To seek this recourse, the person bringing the suit
must have what is called ``standing,'' that is they must show
they were injured or deprived of some right. Because the
budget bill covers so many areas of the law, it is difficult
for one person to show they were harmed by the entire bill.
Thus, many of these groups have only sought to stop part of
it.
After consulting with some of the foremost constitutional
experts in the nation, I determined that one group of people
are injured by the entire bill: Members of the House. We were
deprived of our right to vote on a bill that is now being
treated as the law of the land.
So, I am going to court. With many of my Democratic
Colleagues (list appended at the bottom of this diary), I
plan to file suit tomorrow in federal district court in
Detroit against the President, members of the Cabinet and
other federal officers seeking to have a simple truth
confirmed: a bill not passed by the House and Senate is not a
law, even if the President signs it. As such, the Budget bill
cannot be treated as the law of the land.
As many of you know, I have become increasingly alarmed at
the erosion of our constitutional form of government. Whether
through the Patriot Act, the Presidents Secret Domestic
Spying program, or election irregularities and
disenfranchisement, our fundamental freedoms are being taken
away. Nothing to me is more stark than this, however. If a
President does not need one House of Congress to pass a law,
what's next?
The following is a list of co-plaintiffs on this lawsuit. I
would note that I did not invite every Member of the House to
join in the suit, and I am certain many, many more Members
would have joined if asked. However, this was not possible
for various arcane legal reasons.
The other plaintiffs include Rep. John Dingell, Ranking
Member on the Energy and
Commerce Committee; Rep. Charles B. Rangel, Ranking Member on
the Ways and Means Committee; Rep. George Miller, Ranking
Member on the Education and Workforce Committee; Rep. James
L. Oberstar, Ranking Member on the Transportation and
Infrastructure Committee; Rep. Barney Frank, Ranking Member
on the Financial Services Committee; Rep. Collin C. Peterson,
Ranking Member on the Agriculture Committee; Rep. Bennie
Thompson, Ranking Member on the Homeland Security Committee;
Rep. Louise M. Slaughter, Ranking Member on the Rules
Committee; Rep. Fortney ``Pete'' Stark, Ranking Member on the
Ways and Means Health Subcommittee; Rep. Sherrod Brown,
Representing Ohio's 13th District.
Mr. Speaker, the litigation considered by this resolution is a lot different and is a lot stronger than litigation filed by my friends on the other side against a previous President. The majority of these lawsuits was brought by a small group of legislators or individual Members. Today, the House as an institution will vote to authorize the suit, which gives this case, I believe, a far better chance in court than previous attempts.
My friends in the minority at the Rules Committee yesterday claimed that this is all about politics, but the Republican members of this committee repeatedly insisted that we disagreed. The issue is not about partisan politics. It is not about Republicans and Democrats. This lawsuit is about the legislative branch's standing up for the laws that have been passed and signed into law by the legislative branch and signed by the Executive of this great Nation. Republicans are motivated to stand up for the Constitution, the separation of powers, and the rule of law.
Any person who believes in our system of government should be worried about the President's executive overreach. This President, as well as future Presidents--from either party--must not be allowed to ignore the Constitution and to circumvent Congress.
Both Republicans and Democrats have stood up for the legislative branch in the past. In fact, there have been 44 lawsuits filed in the last 75 years in which legislators sought standing in Federal court. Of the 41 filed by plaintiffs from a single party, nearly 70 percent were brought by Democrats, representing the body.
I submit for the Record an editorial by Kimberley Strassel, from The Wall Street Journal, dated July 17, 2014, that further explains why the Democrats were suing the President before they were against it, and I call on my colleagues on both sides of the aisle to stand up for Congress and to defend our Constitution against the executive branch.
[From The Potomac Watch, July 17, 2014]
The Boehner-Bashers' Track Record
(By Kimberley A. Strassel)
In the tiny House Rules Committee room in Congress on
Wednesday, New York Democrat Louise Slaughter let roll her
grievances against House Republicans' lawsuit against Barack
Obama. It took a lot of coffee.
The suit, which sues the president for unilaterally
changing a core provision of ObamaCare, is a ``political
stunt,'' declared Ms. Slaughter. Republicans have ``timed''
it to ``peak . . . right as the midterm elections are
happening,'' said the ranking Rules member. Having failed to
stop ObamaCare, they have chosen to ``run to the judicial
branch.'' And, she lectured, a ``lawsuit against the
president brought by half of the Congress'' is ``certainly''
not the ``correct way to resolve'' a ``political dispute.''
As for the legal merits, well! Ms. Slaughter feted her
witness, lawyer Walter Dellinger, praising his work on Raines
v. Byrd , a 1997 case in which the Supreme Court found
members of Congress do not have automatic standing to sue.
The courts, she insisted, had no business settling such
disputes. A lawsuit against the president, she declared, ``is
preposterous.''
About the only thing Ms. Slaughter didn't do in five hours
was offer House Speaker John Boehner her litigation notes.
For it seems to have slipped Ms. Slaughter's mind--and the
press's attention--that a mere eight years ago she was a
plaintiff in a lawsuit filed by congressional Democrats
against George W. Bush. The year was 2006, just as Democrats
were, uh, peaking in their campaign to take back the House.
Democrats were sore that they'd lost a fight over a budget
bill that made cuts to Medicaid and student loans. They
dredged up a technical mistake--a tiny difference between the
House and Senate version of the bill. Michigan Democrat John
Conyers, ranking member of the House Judiciary Committee,
decided to (how did Ms. Slaughter put it?) file a lawsuit
against the president brought by half of the Congress. He was
joined as a plaintiff by nearly every other then-ranking
Democratic member and titan in the House--Charles Rangel,
John Dingell, George Miller, Collin Peterson, Bennie
Thompson, Barney Frank, Pete Stark, James Oberstar and Ms.
Slaughter herself.
In an April 2006 Huffington Post piece titled ``Taking the
President to Court,'' Mr. Conyers explained that he was
``alarmed by the erosion of our constitutional form of
government,'' and by a president who ``shrugged'' about ``the
law.'' After ``consulting with some of the foremost
constitutional experts in the nation,'' he had determined
that there was ``one group of people'' who were ``injured''
by Mr. Bush's lack of respect for ``checks and balances'':
Congress. So he was ``going''--or as Ms. Slaughter might put
it, ``running''--''to court.''
The plaintiffs--including Ms. Slaughter--meanwhile filed
briefs explaining why Raines v. Byrd (her Dellinger special)
should be no bar to granting them standing. They chided the
defendants for omitting ``any mention'' of Coleman v. Miller,
a 1939 case in which the Supreme Court did grant standing to
members of a legislature to sue. By Wednesday, it was Ms.
Slaughter who was omitting any mention that any such decision
ever existed.
Then again, there was so much that escaped Democrats' minds
at that hearing. Not one of those present, for instance,
recalled that only two years ago, four of their House
colleagues filed suit against Vice President Joe Biden (in
his capacity as head of the Senate) challenging as
unconstitutional the filibuster. Or that Democratic
legislators also filed lawsuits claiming standing in 2011,
and in 2007, and in 2006, and in 2002 and in 2001 and . . .
It was left to Florida International University law professor
Elizabeth Price Foley, another witness, to remind Democrats
that in fact no fewer than 44 lawsuits in which legislators
sought standing had been filed in federal court since Coleman
v. Miller. Of the 41 filed by plaintiffs with unified
political affiliation, nearly 70 percent were brought by
Democrats. At least 20 of those came since 2000. The GOP
might thank Ms. Slaughter for the idea.
Save one crucial difference. It was also left to Ms. Foley
to explain that the reason most of these prior cases had
failed is because most were, in fact--again, in Ms.
Slaughter's words--''political stunts.'' The majority,
including the Slaughter case, were brought by ad hoc groups
of legislators, sore over a lost political battle,
complaining to courts. The judiciary wasn't much impressed.
By contrast--and by far the more notable aspect of the five
long hours of the hearing--is the care the Boehner team is
putting into its own suit. While Democrats used Wednesday to
score political points, Republicans used it to grill their
expert witnesses on case law and constitutional questions.
Mr. Boehner's decisions to have the House as a whole vote to
authorize the suit, and to narrowly tailor it around a
specific presidential transgression (and one that no private
litigant would ever have standing to protest), are designed
to make this a far different and better breed of a court
case.
It's precisely because Democrats know how good a point
Republicans have about Obama unilateralism that they are
already working to dismiss the suit as ``political.'' And to
do that, Ms. Slaughter must have us forget that up until, oh,
two weeks ago, Democrats were all about asking the courts to
vindicate Congress's prerogatives. How times change.
Mr. Speaker, through this lawsuit, the United States House of Representatives will take a critical and crucial step in reining in the President and in defending the Constitution so that it will endure for yet another generation.
I reserve the balance of my time.
Mr. Speaker, at this time, I yield 4 minutes to the gentleman from Virginia (Mr. Goodlatte), the chairman of the Judiciary Committee.
Mr. Speaker, I yield the gentleman an additional minute.
Mr. Speaker, we just heard a lot of revisionist history.
But I will answer the question. And the answer is that years back, we did impeach William Jefferson Clinton because he lied to an FBI agent. He lied to a Federal grand jury, and he violated a Federal law, which was a felony. Oh, by the way, that led to impeachment for a felony while in office, a sitting President.
In this instance, the President of the United States is not faithfully executing the laws of the country, and that is an entirely different process. So for the gentleman to suggest that this is going to lead to that is simply not true.
I will tell you that William Jefferson Clinton violated the Federal law as a felony, and we believe our President, now Barack Obama, is not faithfully executing the laws. And anybody could figure that out who serves as a Member of Congress.
I would now like to yield 4 minutes to the gentleman from South Carolina (Mr. Duncan), a member of the Foreign Affairs, Homeland Security, and Natural Resources Committees.
Mr. Speaker, I yield the gentleman an additional 30 seconds.
Mr. Speaker, at this time, I would like to yield 2 minutes to the gentleman from Georgia (Mr. Gingrey).
Mr. Speaker, at this time, I would like to yield 1 minute to the gentleman from Ohio (Mr. Boehner), the Speaker of the House.
Mr. Speaker, at this time, I would like to yield 3 minutes to the gentleman from South Carolina (Mr. Rice).
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I would like to ask how much time remains on both sides.
Mr. Speaker, I reserve the balance of my time.
I reserve the balance of my time.
With the gentlewoman having 5\1/2\ minutes left, I will reserve the balance of my time.
Mr. Speaker, at this time, I would like to yield 2 minutes to the gentleman from Lewisville, Texas (Mr. Burgess), a member of the Rules Committee.
Mr. Speaker, I would like to advise the gentlewoman that I have no additional speakers except myself to close, so I reserve the balance of my time.
Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, our system of government is in a bad place when one branch of government is compelled to sue another branch of government for failing to play its proper constitutional role. We shouldn't be in that situation, but we are. The President should have fulfilled his oath to faithfully execute the laws as written by Congress and signed by this President. Unfortunately, this lawsuit is necessary because the President has not implemented the law as passed and chose to pick and choose how he would have the law affect the American citizens.
This resolution will help guarantee that the legislation passed by Congress and signed by the President is faithfully executed according to the rule of law and not according to the whim of one person, that being the President of the United States. Also, no President should be allowed to pick and choose which laws matter and which ones do not.
It is unfortunate that some Members of Congress believe this body should be irrelevant. It is unfortunate that they believe any President should be able to enforce the law or not enforce the law as that President chooses.
The American people elect their Member of Congress. They live under the laws that are written. They make their plans and follow through based upon what the laws are, and they live under these rules of law, and they need to be able to count on them. When Members of Congress believe the laws that we pass no longer matter, they are also saying that the beliefs of the American people do not matter.
When we allow the President to singlehandedly determine what the law is, the Constitution, our separation of powers, and the American people become irrelevant. That is why the President's system of unilateral governance cannot stand. It must be stopped. Even if it takes a lawsuit to do so, that is what we think the Federal judiciary is there to do: to resolve differences based upon the law. If the President's goal was to goad the House into defending the Constitution and the role of the
government, he certainly had succeeded when he said: Why not just sue me?
Our Constitution must be defended and the role of the American people in the lawmaking process must be understood and guaranteed. This resolution is an important step in doing that.
I urge my colleagues to vote in favor of this resolution.
With that, Mr. Speaker, I yield back the balance of my time.
Mr. Speaker, I submit an exchange of letters between Chairman of the Committee on House Administration, Candice Miller, and myself regarding the Committee on House Administration's jurisdictional interests in this resolution as well as Chairman Miller's desire to waive House Administration's consideration of H. Res. 676. These letters were also included in House Report 113- 561, which was filed on July 28, 2014.
July 24, 2014.
Hon. Pete Sessions;
Chairman, The Committee on Rules,
Washington, DC.
Dear Chairman Sessions: On July 24, 2014, the Committee on
Rules ordered reported H. Res. 676, a resolution providing
for authority to initiate litigation for actions by the
President or other executive branch officials inconsistent
with their duties under the Constitution of the United
States. As you know, the Committee on House Administration
was granted an additional referral upon the bill's
introduction pursuant to the Committee's jurisdiction under
rule X of the Rules of the House of Representatives over the
allowance and expenses of administrative officers of the
House.
Because of your willingness to consult with my committee
regarding this matter, I will waive consideration of the bill
by the Committee on House Administration. By agreeing to
waive its consideration of the bill, the Committee on House
Administration does not waive its jurisdiction over H. Res.
676.
I request that you include this letter and your response as
part of your committee's report on the bill and the
Congressional Record during consideration of the legislation
on the House floor.
Thank you for your attention to these matters.
Sincerely,
Candice S. Miller,
Chairman, Committee on
House Administration.