[Congressional Record Volume 144, Number 99 (Wednesday, July 22, 1998)]
[House]
[Pages H6178-H6181]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   ISSUES OF HIGH NATIONAL IMPORTANCE

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 7, 1997, the gentleman from Georgia (Mr. Barr) is recognized 
until 12 midnight as the designee of the majority leader.
  Mr. BARR of Georgia. Mr. Speaker, I would like to spend a few moments 
this evening engaging in what we used to as children called paint by 
numbers. The Speaker may recall those paint by numbers where, when you 
open a box of that paint by number, you are basically presented with 
what appears to be an incoherent picture, white with some black lines 
on it and some numbers. Only as you fill in the numbers so designated 
at some point does the full impact of that picture really become clear.
  The paint by number picture about which I speak tonight has to do 
with fundamental constitutional powers such as separation of powers and 
other very clear concepts and philosophy and powers designated 
explicitly or implicitly in our Constitution, in other words, very, 
very grave issues of high national importance.
  The picture being painted by the administration is not one that is 
being painted directly through the normal time honored and 
constitutionally sound process of proposing legislation, fully debating 
that legislation, holding hearings on that legislation, making changes 
to that legislation, further debating that legislation, allowing 
Members and, indirectly, the American people to vote on that proposed 
legislation, reflecting their will, their desires, their needs, that is 
the will, the desire, and the needs of the American people, and then 
having a similar process of public vetting, as it were, take place in 
the Senate.
  Then and only then would the President as the Chief Executive Officer 
of this country either approve or veto that legislation at which time, 
if it is signed reflecting, one presumes, the desires of the Chief 
Executive would it become the law of the land.

                              {time}  2330

  It would be, thereafter, subject to whatever scrutiny those who 
object to it, who might object to it, would raise through our court 
system.
  That is how the system ought to operate. And whether each one of us 
agrees or disagrees with any particular laws so passed and so signed by 
the President, at least we have had the opportunity and the American 
people have had the opportunity through their representatives in this 
representative democracy to have input, to have an impact, and to 
understand what it is that is being proposed to ensure to the greatest 
extent possible that it reflects their views, their needs and their 
desires. That is the way it ought to be. That is the way normally it 
is.
  Over the course of our Nation's history, we have had dozens of 
presidents. By and large, each one of them has respected that process. 
They understand that process, and they abide by that process, because 
they know it is essential to the fabric and the continuing of this 
great country.
  Unfortunately, Mr. Speaker, what we have currently is something quite 
different. We have an administration that is attempting to govern by 
executive order and rules and regulations; attempting to come in 
through the back door, as it were, when the front door has either not 
yet been opened or deliberately closed shut by the people's 
representatives in this great body.
  When you see these numbers being filled in, Executive Order 13083, 
for example, it does become frighteningly clear what is happening in 
America through essentially a subversion of the process of governing 
laid out in our Constitution. I would like to mention briefly, Mr. 
Speaker, just a few examples of this process, or lack of process, this 
evening.
  Let us start with the big picture. Federalism, that concept embodied 
in our Constitution and honed to a fine art through decades upon 
decades of activities here in this body and our sister body across the 
Capitol and at the other end of Pennsylvania Avenue and, indeed, as 
well through the court system.
  On May 14, 1998, perhaps just by coincidence while he was outside the 
continental United States of America in England, President Clinton 
signed Executive Order 13083, on May 14, 1998. This is an Executive 
Order entitled simply ``Federalism,'' similar in its title and in its 
prefatory language to an Executive Order issued 11 years ago, in 1987, 
by President Reagan.
  There the similarity ends. The Executive Order on Federalism issued 
in 1987 by President Reagan was a blueprint that was consistent in 
every respect with the concepts of Federalism embodied in and 
contemplated by the founders of our Constitution, our Founding Fathers.
  It basically served over the course of the last 11 years to set forth 
a policy of the Executive Branch of government that unless there was a 
specific power on which any and all Federal agencies or departments 
could base prospective action involving powers normally granted to, 
subsumed by or exercised by state or local governments, then, in the 
absence of such clear express authority, President Reagan's Executive 
Order directed that the agency or the department contemplating such 
action should not and would not move forward with it. In other words, 
it was a limiting Executive Order.
  What we have, Mr. Speaker, in Executive Order 13083, signed on May 
14, 1998, by President Clinton, is an Executive Order that, while it 
purports to embody concepts of Federalism similar to that put forth by 
President Reagan, it does exactly the opposite.
  Executive Order 13083 is a blueprint providing justification for any 
agency or department of the Executive Branch to involve itself in any 
activity, particularly those normally subsumed by or exercised by state 
or local governments, so long as that proposed activity falls into one 
of nine categories of activities that are so broad as to encompass 
virtually any activity any administration would want to involve itself 
in.
  For example, number one, when the matter to be addressed by Federal 
action occurs interstate; two, when the source of the matter to be 
addressed occurs in a state different from the state or states where a 
significant amount of the harm occurs; three, when there is a need for 
uniform national standards; four, when decentralization increases the 
costs of government; five, when states have not adequately protected 
individual rights and liberties; six, when states would be

[[Page H6179]]

reluctant to impose necessary regulations because of fears that the 
regulated business activity will relocate to other states; seven, when 
action would undermine regulatory goals; eight, when the matter relates 
to international obligations; and, nine, when the matter to be 
regulated significantly or uniquely affects Indian tribal governments.
  One does not have to be either a rocket scientist or a learned 
constitutional scholar to conclude very quickly that this list of nine 
categories of proposed Federal activity would encompass anything any 
administration would want to encompass. It goes far beyond, both in its 
express terms as well as in its implicit powers, beyond any powers 
contemplated to be granted to the Federal Government in the 
Constitution, far beyond even the very expansive notions of interstate 
commerce that have been used as an almost universal hook on which to 
impose Federal action in recent decades.
  This Executive Order, unless stopped by the courts or by Congress, 
goes into effect August 12, 1998. Legislation though has been 
introduced by myself and others, H.R. 4196, the State Sovereignty Act 
of 1998, that would stop this Executive Order.
  Let us erase at least those numbers ``13083'' from this paint-by-
number process that we see this administration trying to sneak through 
on to the American people, our states and our local governments.
  There is another Executive Order to which I would draw the Speaker's 
attention, signed exactly two weeks after the Federalism Executive 
Order. This one was signed by the President, numbered 13087, on May 28, 
1998.
  While this one is much shorter and more direct and limited in its 
scope, it reflects either a gross misunderstanding of the purpose and 
proper role of an Executive Order, or, again, a back door effort to 
subvert the normal process of legislating and governing in America.
  This Executive Order, 13087, provides that sexual orientation shall 
be for Federal employment purposes and all other activities of Federal 
agencies or departments a protected category of activity.

                              {time}  2340

  It does this by amending Executive order number 11478 signed in 
August of 1969 by former President Nixon, which had to do with 
affirmative action in Federal agencies and departments. Therefore, 
through the Executive order signed by President Clinton on May 28, 
1998, providing for sexual orientation as a protected category of 
activity for all Federal purposes by inserting that provision into the 
prior Executive order signed by President Nixon under this new 
Executive order, there will be an affirmative action program for sexual 
orientation in Federal agencies and departments.
  This, despite an expressed decision by the Congress of the United 
States not to pass legislation that would purport to make sexual 
orientation a protected category activity, and despite the fact that 
the Supreme Court of the United States has consistently refused to find 
or to grant a protected category for sexual orientation.
  Those who support this Executive order claim it does not mandate an 
affirmative action policy, but it does. The expressed terms of the 
Nixon Executive order, for example, and I quote, ``To promote a 
continuing affirmative program in each executive department and 
agency.'' And further, in its section 2, quote: ``The head of each 
executive department and agency shall establish and maintain an 
affirmative program of equal employment opportunity for all civilian 
employees and applicants for employment within his jurisdiction.''
  That was the affirmative action Executive order which now, by virtue 
of a stroke of the pen by President Clinton, includes and mandates 
sexual orientation as among its protected class of activity.
  Further, and even more unfortunately perhaps, Mr. Speaker, is the 
fact that this latest Executive order is poorly crafted, perhaps on 
purpose, perhaps simply by haste. Regardless of why, it is a very 
poorly crafted Executive order, because although its subject matter is 
sexual orientation as a protected class of activity, nowhere in it does 
it define what sexual orientation is. Nowhere in the United States code 
is there a definition of sexual orientation.
  One week ago, Mr. Speaker, when we had the opportunity to talk with 
the acting Assistant Attorney General for Civil Rights, Mr. Bill 
Lanley, I asked him if he could define for us sexual orientation in the 
context of this Executive order or other matters within the 
jurisdiction of the Department of Justice. He could not. I asked him 
again today in hearings before the Subcommittee on Crime of the 
Committee on the Judiciary in the context of the next matter I will 
speak about if he could define sexual orientation. He made a stab at 
it, but he could not. Yet, we now have an Executive order that mandates 
sexual orientation as a class of activity for all Federal purposes and 
makes it a requirement that every Federal agency or department 
establish and maintain an affirmative action policy relating to that 
protected category of activity, yet it does not define what it is. Is 
this a recipe for mischief, or what? Yet Congress has had no say-so, 
nor have the American people had any input, into this legislation by 
Executive order.
  Let us, however, assert our proper responsibility role, power and 
jurisdiction under the Constitution, and by legislation mandate that 
this Executive order not go into effect. Let us at least erase those 
colors from the paint-by-number drawing that this administration is 
forcing on the American people.
  Thirdly, and related to that prior Executive order on sexual 
orientation affirmative action, Mr. Speaker, is legislation being 
supported without any hesitancy whatsoever, in the words of acting 
Assistant Attorney General Bill Lanley today, that would establish a 
new category of Federal crime, so-called hate crimes, which would 
include as a Federal hate crime harming somebody because of their 
actual or perceived gender or sexual orientation. Nowhere in the 
legislation or in the code is there a definition of either of those 
terms. Yet, this administration would saddle United States Attorneys 
all across this country, and certain Federal agencies all across this 
country, already overburdened in their efforts to protect the American 
people from legitimate crime, to now take from their precious resources 
and overburdened staffs personnel and resources and time to try and 
figure out what is a crime involving activity based on perceived sexual 
orientation.
  This legislation should be defeated. If we do not, then I feel fairly 
confident the courts will, because of vagueness and other infirmities 
in its terms, but here again, Congress has expressly refused to 
recognize, as have the courts, so-called sexual orientation as a 
protected category of activity, and this administration should not be 
allowed to move forward in this backhanded, back-door way of subverting 
the will of the people of this country.
  The gentleman from Arizona has joined us.
  Mr. HAYWORTH. Mr. Speaker, I thank the gentleman from Georgia for the 
concerns he has brought to light this evening. As I watched on our 
television system while I was making calls to constituents in the 6th 
district of Arizona, I could not help but note that the very concerns 
the gentleman from Georgia outlines were raised with me this past 
weekend back in the 6th district.
  I had occasion to visit Arizona's pleasant valley, the small town of 
Young, Arizona for their annual Pleasant Valley Days parade, and then 
Saturday evening in a neighborhood townhall meeting in Mesa. Many 
citizens of the 6th district raised these precise concerns. And 
regardless of philosophical orientation, what the gentleman from 
Georgia points out tonight is absolutely correct, because in this 
Chamber and indeed, Mr. Speaker, throughout this government, there 
needs to be a reverence for and an adherence to the Constitution of the 
United States, which properly notes that the powers this government 
derives is conferred upon it by the people, and accordingly states that 
it is the legislative branch which has lawmaking authority, and the 
executive branch the responsibility to execute the law.
  So this transcends political philosophy, for it is a question of 
constitutionality, and those who would seek to usurp in the executive 
branch the powers rightly conferred by the people on

[[Page H6180]]

the legislative branch of government are treading on dangerous ground.

                              {time}  2350

  I almost hesitate to use the term, for it sounds very strong. And yet 
this is what it in effect is. It is a subversion of the intent of our 
Founders to have those in the Executive Branch attempt to legislate by 
Executive order.
  I would say, Mr. Speaker, this holds true regardless of party 
affiliation. For whatever reasons, those tempted in the Executive 
Branch to attempt to subjugate the American people to their visions and 
designs, independent of what the Congress of the United States says, 
and indeed in direct opposition to what the Congress has specified 
through the votes of the duly elected constitutional officers in this 
body and in the Chamber opposite who serve in the legislative branch.
  So, Mr. Speaker, on behalf of many citizens of the Sixth District of 
Arizona, I rise to take to the well of the House to commend the 
gentleman from Georgia for properly pointing out that there are serious 
questions about the entire notion of Executive orders, and especially 
those which he has outlined here this evening. Again, concerns that 
transcend philosophical differences and go to the very fabric of our 
constitutional republic and the powers conferred upon us by the people 
through their expressions at the ballot box.
  That is why I look forward to joining with my colleague from Georgia 
and others in this body to reaffirm what the Constitution sets up. That 
this body is set aside to deal with legislative remedies and law 
making. And that the Executive Branch exists to execute the laws passed 
in the Legislative Branch. And that, of course, our friends in the 
Judiciary, in that third separate but coequal branch of government, 
have the right to interpret and through judicial review determine the 
constitutionality of many different actions.
  I share the concern of the gentleman from Georgia that the propensity 
for and the temptation of Executive orders seems to have run rife 
through this administration. That in the wake of the ground swell of 
popular support for a new conservative majority, there seem to be those 
in this city, located at the other end of Pennsylvania Avenue, who 
would move to ignore the will of the people as expressed by the duly 
elected constitutional officers.
  So, again, just as I heard Saturday afternoon in Young, Arizona, and 
Saturday evening in Mesa, Arizona, I rise to compliment the gentleman 
from Georgia, to pledge publicly that I will work with him because the 
people have this concern. And as Dr. Franklin said to a bystander, 
``Here, sir, the people govern.''
  Not the executive, but the people working their will through their 
duly elected constitutional representatives.
  Mr. BARR of Georgia. Mr. Speaker, reclaiming my time, I thank the 
gentleman from Arizona, although his presence here this evening and his 
words are not surprising to me. He is say well-known champion of the 
Constitution and is a tireless and very eloquent advocate for its 
principles. I appreciate his support and his words which he speaks many 
times from the well of this House, and in his district.
  If I might, Mr. Speaker, two other quick examples, and there will be 
more to be sure in succeeding hours here on the floor of this House, 
because the issues are more important, much more important than can be 
dealt with in one evening's discussion.
  Many of us have heard for quite some time, I know the gentleman from 
Arizona has as well, of a national ID, a national identification card. 
``May we see your papers, please?'' Yet up to this point, that really 
has been a theoretical discussion.
  Well, it is theoretical no longer. By rules proposed in the Federal 
Register on June 17, 1998, the public comment period for which will end 
on August 3, 1998, the Federal Government is setting in motion a 
comprehensive and very proactive policy and mechanism for the 
establishment of a single national identification card.
  Now, one might think, well, that would be something that would be 
subject to great discussion and debate and would certainly be 
something, because of its importance and its legal ramifications, 
something that would be sponsored by the Department of Justice or the 
FBI. Not so. It is being sponsored and implemented by an agency well-
known to everybody with clear jurisdiction over such key judicial and 
constitutional matters as this, by the National Highway Traffic Safety 
Administration.
  Time will not permit, Mr. Speaker, to go into all of the details of 
this. I will at a future date. Suffice to say that in the numerous 
pages promulgated in the Federal Register on June 17 of this year by 
the National Highway Traffic Safety Administration, is a comprehensive 
laundry list of all of the specific information and indeed the format 
in which that specific information shall be included in a national 
identification card. At its core will be the Social Security number.

  This has been followed up already, Mr. Speaker, by another proposal 
which is becoming known to those citizens, such as the gentleman from 
Arizona, who are concerned about privacy rights, separation of powers 
and other constitutional principles, the national health identification 
card or health identifier.
  We do not need to use our imagination to know exactly where this 
leads us. We need only to look at our friends across the Atlantic 
Ocean, Great Britain. During the Christmas holidays this past 
Christmas, Prime Minister Tony Blair instituted by executive fiat, 
similar to his friend here in Washington, the President of the United 
States, a national identification card which is called, oh, so 
benignly, a Smart Card. And this is simply a prelude to a European 
identification card for the European Union, which will then become part 
of what many would hope and envisage as an international identification 
card.
  Lastly, the Second Amendment well-known to at least most of us in 
this Chamber preserves for the American people expressly in our 
Constitution the right to keep and bear arms. Also expressly embodied 
in our Constitution is the principle that only the House of 
Representatives shall have the power to levy taxes. Yet what the FBI 
has proposed again in proposed rules and regulation, not legislation 
subject to full, open, and fair debate and voting by the American 
people through their representatives, but through rules and 
regulations, the FBI is proposing a gun transfer tax.
  Moreover, Mr. Speaker, and I know this is of concern to the gentleman 
from Arizona whose citizens cherish not only the Second Amendment but 
the entire Constitution, the FBI is also proposing to begin and 
maintain a registry of all law-abiding gun owners in this country.
  We have legislation, H.R. 3949, that would strike the proper balance 
and rescind and stop this unconstitutional power grab. I urge, as I 
know the gentleman from Arizona will, support for this so that here 
again we do not allow those numbers to be painted in through the 
unconstitutional colors of this administration.
  In closing, if I have any time I will yield to the gentleman from 
Arizona, but in closing, let me do something that I purposefully did 
not do at the beginning of this discussion about paint by numbers. Let 
the American people understand and know what the title is of this paint 
by numbers being proposed by the Clinton administration. It is abuse of 
power.
  There is a remedy for that, which we may indeed get to in this 
Congress. But let us begin now through legislation and the light of day 
and stopping these unconstitutional moves by this administration.
  Mr. Speaker, I yield to the gentleman from Arizona.
  Mr. HAYWORTH. Mr. Speaker, I thank the gentleman from Georgia, and 
again it is almost as if my friend joined me in Arizona this past 
weekend, because these exact concerns, enumerated here on the floor by 
the gentleman from Georgia, were exactly the concerns I heard not only 
from the two groups with whom I met personally, but on talk radio in 
the Phoenix market and in a variety of different venues.
  I would certainly commend the comments of the gentleman from Georgia, 
and also point out to the gentleman and to our other colleagues, Mr. 
Speaker, that the gentleman from Pennsylvania (Mr. Gekas) and I have 
prepared legislation that again amplifies the Constitution, that the 
sole power to

[[Page H6181]]

tax resides here in the House of Representatives, not with any 
bureaucratic organization or organization of the administrative branch.
  Mr. Speaker, I yield back to gentleman from Georgia.
  Mr. BARR of Georgia. Mr. Speaker, I thank the gentleman from Arizona 
and look forward to further discussions on these very important 
matters.

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