[Congressional Record Volume 140, Number 21 (Wednesday, March 2, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: March 2, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                        AMERICAN JUDICIAL SYSTEM

  Mr. SPECTER. Mr. President, I will speak for a few moments this 
afternoon about the American judicial system, and I speak not really as 
a lawyer or as a Senator but as an American who has just had an 
opportunity to observe the Supreme Court of the United States in 
action. I did so this morning as a lawyer representing plaintiffs in a 
case involving the Philadelphia Navy Yard.
  I do not at this moment speak about the merits of the case, which I 
had an opportunity to do this morning before the Court, and have had an 
opportunity to do on this floor on prior occasions, but about our 
system of justice, about our Constitution and about our Federal courts.
  It is an inspirational experience to come into the Supreme Court 
building and to see the inscriptions about major court decisions, 
starting with Marbury versus Madison, a case decided in 1803 which 
upheld the principle of Supreme Court review on constitutional issues, 
and the declaration by Chief Justice Marshall that it is emphatically 
the province of the Federal courts to decide the law.
  The Constitution of the United States has been widely cited as the 
greatest document ever written, and it has provided the basis for the 
evolution of the greatest country in the history of the world--the 
United States of America--as it has defined a tripartite system of 
Congress: The Congress under article I; the executive under article II 
and the judiciary under article III.
  Taking the opportunity to argue a case before the Supreme Court and 
to revisit constitutional cases has been a new, growing, and learning 
experience for me and gives me new insights into the workings of our 
Government as a whole and especially our workings here in the 
Senate, and a new appreciation of our role in making the law and 
establishing appropriate standards whenever the Congress delegates 
authority to carry out important public policy functions.

  The Constitution needs to be reread from time to time to see the 
precise sphere of activity. While the President, as Chief Executive 
Officer, has substantial constitutional authority--illustratively, as 
Commander in Chief of the military--it is the Congress which has the 
sole authority to make the laws.
  That is an awesome responsibility. Revisiting constitutional cases 
starting with Marbury versus Madison, our written Constitution and our 
tradition of judicial review, under which the Federal courts, and 
especially the Supreme Court, interpret the law and make sure that 
individual rights are protected and that there is no infringement on 
the constitutional process, distinguish the United States, I think, 
from every other country in the world.
  I reread the decision of Little versus Barreme from 1804, 1 year 
after Marbury versus Madison, in which Chief Justice Marshall wrote an 
opinion limiting Executive power because the authority to make laws 
resides solely with the Congress. In that case, the Congress had 
authorized the seizure on the high seas of any vessel sailing from a 
French port. The President authorized the seizure of vessels sailing to 
or from a French port. The Supreme Court of the United States said that 
the President's authority does not go beyond the congressional 
authorization.
  When the President authorized the seizure of any vessel sailing from 
a French port, it was declared illegal; even in the time of a military 
situation when the President's authority might arguably be construed to 
be broader, that authority was limited by the Supreme Court to the 
seizure of vessels going to a French port, and was held not to 
encompass a seizure of a vessel coming from the port.
  These decisions supporting the concept of limited government range to 
landmark cases like the review of the seizure of the steel mills by 
President Truman, which was declared unconstitutional as being in 
excess of Presidential authority. In that case, Justice Jackson wrote a 
learned concurring opinion, saying that in a parliamentary government, 
which the United States has, the legislative power resides in the 
Congress, and authority in case of public necessity to seize the steel 
mills could come only from the Congress. There is no broader power in 
the President. Notwithstanding the generalized constitutional Executive 
powers, they were not broad enough to comprehend the seizure of the 
steel mills in the absence of congressional authorization.
  In the landmark decision of Panama Refining versus Ryan, on an issue 
which was before the Supreme Court this morning, the Supreme Court of 
the United States ruled that the President could not carry out 
legislative functions even when the Congress had delegated those 
functions to the President because only the Congress has the authority 
to make law, and that there cannot be a pact between the President and 
the Congress which violates the Constitution. An attempt by the 
Congress to grant broad powers to the President which infringe upon the 
congressional authority to make laws violates the Constitution and the 
principle of separation of power.
  The Congress has responded to the proliferation of administrative 
agencies by expanding judicial review, and that expansion of judicial 
review was encompassed in the Administrative Procedure Act. That 
statutory authority for judicial review stands in addition to the case 
law or common law which has given the judiciary broad authority to 
review Executive decisions and to be sure that when the Executive acts, 
it acts within the confines of the congressional delegation and in 
conformity with the standards that Congress has authorized.
  That is a critical part of the Navy Yard case, where the Congress 
established an elaborate procedure in order to resolve the issue of 
base closures, which had been a political hot potato. The Congress felt 
unable to select military bases for closure, and the Congress felt it 
inappropriate for the President to select bases for closure because of 
favoritism or politics. To solve this problem, the Congress established 
an elaborate process which required standards for closure--a strategic 
plan, criteria, hearings, full disclosure to the Comptroller General, 
the General Accounting Office, the investigative arm of the Congress.
  The essential issue in the Philadelphia Navy Yard case is whether 
those statutory standards were followed, and whether, in not following 
those standards, the Executive exceeded its authority and violated the 
constitutional doctrine of separation of powers.
  As a totally independent basis, there is also statutory authority for 
judicial review, and when we legislate in the Congress, most frequently 
the Congress does not expressly state whether the action of the 
administrative agency is or is not subject to judicial review.
  From a reexamination of these cases, Mr. President, I see that we 
might be wiser in our legislative capacities to look at that issue and 
to provide some judicial guidance. But the Supreme Court has broadly 
interpreted the courts' authority to undertake judicial review, saying 
that the Congress is not drawing blank checks to the administrative 
agencies, that there is a presumption in favor of judicial review of 
agency action, and that it is really up to the courts to say what the 
law means.
  But just as more care might be given by the Congress, the Senate and 
House, to establish standards, more care should be given to 
congressional intent on the issue of judicial review.
  (Mrs. BOXER assumed the chair.)
  Mr. SPECTER. Today's argument considered at some length a case handed 
down by the Supreme Court involving reapportionment. Secretary of 
Commerce Barbara Franklin submitted the census report to the President, 
who certified the numbers. The Supreme Court ultimately said there was 
no judicial review because of the absence of finality of agency action, 
where the President was able to change, alter, modify, or supervise 
what the President's Cabinet official had done.
  A central point in today's argument was the basic distinction between 
what the President could do on the census data reported by the 
Secretary of Commerce contrasted with what he could do with the Base 
Closure Commission, where the President had to take it all or leave it 
all. The President could send it back once, but on the second round the 
President had to take it all or leave it all.
  Now, then, the Congress provided in the base closure process for a 
resolution of disapproval--again, all or nothing. There is a 
fundamental difference in that kind of procedure from the situation 
where the President is the supervising Executive over the Secretary of 
Commerce and revisions could be made, so that there was final agency 
action, at least arguably, and I think realistically, by the Base 
Closure Commission.
  The opportunity to be a U.S. Senator, Madam President --and I am sure 
you will agree with me--is a privilege, and it is a rare privilege for 
Senator Boxer to serve the State of California or for Arlen Specter to 
serve the State of Pennsylvania. It is a rare privilege. We have heavy 
responsibilities that affect 260 million people whenever we act. On 
some occasions, we affect 6 billion people around the world because of 
the superpower stature of the United States.
  An opportunity to reexamine the delicate constitutional balance gives 
me a new appreciation of the separation of powers and our 
responsibilities in establishing standards in legislation dealing with 
issues of judicial review. To have had an opportunity to appear before 
the Supreme Court is really inspirational. Actually, it is 
inspirational to appear on the floor of the U.S. Senate even when the 
Chamber is largely empty. It is inspirational for a person such as me 
every time I leave Union Station and see the Capitol dome and reflect 
on the kind of country we have and the kind of Government we have.
  So I just wanted to make those few comments, Madam President, within 
a few hours of leaving the Supreme Court Chamber, to articulate my view 
on what a great country we have, a great Constitution we have, and to 
pay tribute to the Federal judicial system as the final arbiter of the 
greatest document in the history of the world which has led to the 
development of the greatest country in the history of the world.
  Mr. MITCHELL addressed the Chair.
  The PRESIDING OFFICER. The majority leader.

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