[Congressional Record Volume 144, Number 100 (Thursday, July 23, 1998)]
[Senate]
[Pages S8924-S8926]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SENATE CONCURRENT RESOLUTION 109--EXPRESSING THE SENSE OF CONGRESS
RELATIVE TO EXECUTIVE DEPARTMENTS AND AGENCIES, NATIONAL POLICIES, AND
FEDERALISM
Mr. COVERDELL (for himself, Mr. Craig, and Mr. Enzi) submitted the
following concurrent resolution; which
[[Page S8925]]
was referred to the Committee on Governmental Affairs:
S. Con. Res. 109
Whereas federalism is rooted in the knowledge that our
political liberties are best assured by limiting the size and
scope of the national government;
Whereas the people of the States created the national
government when they delegated to it those enumerated
governmental powers relating to matters beyond the competence
of the individual States;
Whereas all other sovereign powers, save those expressly
prohibited the States by the Constitution, are reserved to
the States or to the people as the tenth amendment to the
Constitution requires;
Whereas the people of the States are free, subject only to
restrictions in the Constitution itself or in
constitutionally authorized Act of Congress, to define the
moral, political, and legal character of their lives;
Whereas in most areas of governmental concern, the States
uniquely possess the constitutional authority, resources, and
the competence to discern the sentiments of the people and to
govern accordingly;
Whereas the nature of our constitutional system encourages
a healthy diversity in the public policies adopted by the
people of the several States according to their own
conditions, needs, and desires;
Whereas acts of the national government, whether executive,
legislative, or judicial in nature, that exceed the
enumerated powers of that government under the Constitution
violate the principle of federalism established by the
framers;
Whereas policies of the national government should
recognize the responsibility of, and should encourage
opportunities for, individuals, families, neighborhoods,
local governments, and private associations to achieve their
personal, social, and economic objectives through cooperative
effort; and
Whereas in the absence of clear constitutional or statutory
authority, the presumption of sovereignty should rest with
the individual States: Now, therefore, be it
Resolved by the Senate (the House of Representatives
concurring), That executive departments and agencies should
adhere, to the extent permitted by law, to the following
criteria when formulating and implementing policies that have
federalism implications:
(1) There should be strict adherence to constitutional
principles. Executive departments and agencies should closely
examine the constitutional and statutory authority supporting
any Federal action that would limit the policymaking
discretion of the States, and should carefully assess the
necessity for such action. To the extent practicable, the
States should be consulted before any such action is
implemented.
(2) Federal action limiting the policymaking discretion of
the States should be taken only where constitutional
authority for the action is clear and certain, and the
national activity is necessitated by the presence of a
problem of national scope.
(3) It is important to recognize the distinction between
problems of national scope (which may justify Federal action)
and problems that are merely common to the States (which will
not justify Federal action because individual States, acting
individually or together, can effectively manage such
issues).
(4) Constitutional authority for Federal action is clear
and certain only when authority for the action may be found
in a specific provision of the Constitution, when there is no
provision in the Constitution prohibiting Federal action, and
when the action does not encroach upon authority reserved to
the States.
(5) With respect to national policies administered by the
States, the national government should grant the States the
maximum administrative discretion possible. Intrusive Federal
oversight of State administration is neither necessary nor
desirable.
(6) When undertaking to formulate and implement policies
that have federalism implications, executive departments and
agencies should--
(A) encourage States to develop their own policies to
achieve program objectives and to work with appropriate
officials in other States;
(B) refrain, to the maximum extent possible, from
establishing uniform, national standards for programs and,
when possible, defer to the States to establish standards;
and
(C) when national standards are required, consult with
appropriate officials and organizations representing the
States in developing those standards.
(7) The following special requirements for preemption of
State law should be observed:
(A) To the extent permitted by law, executive departments
and agencies should construe, in regulations and otherwise, a
Federal statute to preempt a State law only when the statute
contains an express preemption provision, when there is some
other firm and palpable evidence compelling the conclusion
that the Congress intended preemption of State law, or when
the exercise of State authority directly conflicts with the
exercise of Federal authority under the Federal statute.
(B) If a Federal statute does not preempt State law,
executive departments and agencies should construe any
authorization in the statute for the issuance of regulations
as authorizing preemption of State law by rulemaking only
when the statute expressly authorizes issuance of preemptive
regulations or when there is some other firm and palpable
evidence compelling the conclusion that the Congress intended
to delegate to the department or agency the authority to
issue regulations preempting State law.
(C) Any regulatory preemption of State law should be
restricted to the minimum level necessary to achieve the
objectives of the statute pursuant to which the regulations
are promulgated.
(D) When an executive department or agency foresees the
possibility of a conflict between State law and federally
protected interests within its area of regulatory
responsibility, the department or agency should consult, to
the extent practicable, with appropriate officials and
organizations representing the States in an effort to avoid
such a conflict.
(E) When an executive department or agency proposes to act
through adjudication or rulemaking to preempt State law, the
department or agency should provide all affected States
notice and an opportunity for appropriate participation in
the proceedings.
Mr. COVERDELL. Mr. President, I rise today to speak on a concurrent
resolution I have submitted, the subject of which is important not only
to my constituents, but to anyone who stands by the Constitution of the
United States. Ironically, while in England last May President Clinton,
with little fanfare or media attention, issued Executive Order (EO)
13083. EO 13083 in both its letter and intent seeks to give executive
departments and agencies greater preemptive authority over State and
local law in the administration of Executive Branch policies.
Ultimately this action is an attempt by the President to promote an
agenda by circumventing Congress while subverting the Constitution and
the principles of a limited federal government that the Framers were so
careful to express in writing this document.
Mr. President, as members of Congress we have each taken an oath to
uphold the Constitution. The President has done the same. And as we all
know, the Constitution is our nation's most important document. It
establishes the way our government works; it establishes the freedoms
American citizens enjoy; and it provides for protections of those
freedoms.
The Framers understood that individual freedom and centralized power
are incompatible. Thus they set out not only to decentralize our
federal government, but also to balance the power held at the national
level with the power held by individual states. The Tenth Amendment to
the Constitution explicitly expresses this intent. It states ``The
powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.'' I believe that sentence is perfectly
clear, yet our Federal Government continues to grow in size and scope.
All three branches of the government are to blame.
Is this a reason, however, to allow continued federal infringement
into state matters? Must we not at some point ask ourselves where we
draw the line? I believe we must if we hope to preserve the meaning of
the Constitution.
EO 13083 sacrifice states rights and Constitutional principles to
empower further the Federal Government. It does so by broadly defining
``matters of national or multi-state scope that justify Federal
action.'' These loosely defined ``matters'' include any matter of
concern that is not confined by a single state's boundaries; any matter
involving a ``need for national standards;'' any matter in which
``decentralization increases the costs of government;'' any matter in
which ``States would be reluctant to impose necessary regulations
because of fears that regulated business activity will relocate to
other states;'' and any matter related to ``Federally owned or managed
property or natural resources, trust obligation or international
organizations.'' Such ambiguous terms give this Administration
tremendous leeway to implement policies through executive order that
might meet resistance in Congress--policies that deserve full
consideration by Congress before becoming law. Indeed, a number of
recent newspaper articles demonstrate the President's desires to move
an agenda without Congressional approval. The President's EO would
allow circumvention of Congress while trampling the Tenth Amendment.
Mr. President, we should be wary of this.
This is why I submit today a concurrent resolution expressing the
sense of
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Congress that the intent of the Framers must guide federal executive
departments and agencies when carrying out policies with federalism
implications. Through this concurrent resolution Congress would
reaffirm the principles of federalism the Framers used in writing the
Constitution and express its sense regarding the criteria federal
agencies should use in formulating and implementing policies that have
federalism implications. Mr. President, I find it difficult when one
looks at this resolution in a constitutional context, which is the
context in which we must evaluate this issue, to disagree with its
findings and the criteria it establishes. I believe this Congress must
make a statement on where it stands with the Executive Branch's
attempts to encroach, through executive order, on states rights. This
resolution is an opportunity for Congress to do so.
Mr. President, I ask through this resolution that each of us reaffirm
the pledges we made when we first entered office. I ask that we
recognize the importance of local and state governments, their
abilities to solve their problems on their own terms and the powers
given the states by the Constitution. I ask that we honor the Framers'
intent to limit the power of the Federal government.
A number of organizations representing elected officials in all
levels of local government have voiced objections to EO 13083. These
include the National Governors' Association, the National Conference of
State Legislatures, the Council of State Governments, the National
Association of Counties, the U.S. Conference of Mayors, the National
League of Cities and the International City/County Management
Association. These groups are opposed to this order not only because of
its content but because no official from state or local government was
consulted in the drafting of the order. Mr. President, I submit for the
Record a July 16, 1998, Washington Post article that describes the
frustration these groups have with the Administration's lack of
consultation. I find it strange that the Administration did not consult
with the very groups this Executive Order would most affect.
This is not a political issue. This resolution seeks to address an
executive action that strikes at the very foundation of our government
and of our Constitutional values. The means by which the Clinton
Administration hopes to achieve its objectives are an affront to the
Constitution, the Congress, and the American people at large. It is the
intent of this Executive Order issued by the President to subvert the
will of Congress and the will of the people through executive decree. I
cannot imagine this is how the Framers intended our Federal democracy
to work and I urge Congress to remind the executive branch that it is
more important to return to the principles established in our
Constitution than to continue the trend of increasing federal
authority.
Mr. President, I ask unanimous consent that the Los Angeles Times
article be printed in the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:
[From the Los Angeles Times, Sat., July 4, 1998]
Clinton to Bypass Congress in Blitz of Executive Orders
(By Elizabeth Shogren)
Policy: President will use strategy to move his domestic agenda past
GOP resistance. He starts today with announcement of warning labels for
unpasteurized juices
Washington.--Frustrated by a GOP--controlled Congress that
lately has rebuffed him on almost every front, President
Clinton plans a blitz of executive orders during the next few
weeks, part of a White House strategy to make progress on
Clinton's domestic agenda with or without congressional help.
His first unilateral strike will come today. According to a
draft of Clinton's weekly radio address obtained by The
Times, he plans to announce a few federal regulation
requiring warning labels on containers of fruit and vegetable
juices that have not been pasteurized. Congress has not fully
funded Clinton's $101-million food safety initiative, which
among other things would pay for inspectors to ensure that
tainted foods from other countries do not reach American
consumers.
After that initiative, Clinton will take executive actions
later in the week that are intended to improve health care
and cut juvenile crime, according to a senior White House
official. While not far-reaching, Clinton's proposals are
intended to make gradual progress on largely popular social
reforms until Republicans in Congress start to cooperate--or
lose power after the November elections.
``He's ready to work with Congress if they will work with
him. But if they choose partisanship, he will choose
progress,'' said Rahm Emanuel, senior policy advisor to the
president. The power to issue executive orders originally was
intended to give presidents rule-making authority over the
executive branch. But many have used it instead for sweeping
public policy decisions.
Fresh from what aides view as a triumphant trip to China,
Clinton is reportedly eager to exercise his executive powers
to the hilt.
``He always comes back from these trips with a big head of
steam, and this trip has been especially remarkable,'' said
Paul Begala, another senior advisor. ``This president has a
very strong sense of the powers of the presidency, and is
willing to use all of them.''
Mindful of the recent Supreme Court decision striking down
the line-item veto authority Clinton won last term, the
president also hopes his executive-order offensive will
pressure Congress to enact his legislative priorities,
Emanuel said. ``I am doing what I can to protect our families
from contaminated food,'' Clinton says in the draft of
today's radio address. ``But Congress must do its part.''
The latest series of executive orders is illustrative of a
president who has used his unilateral authority more robustly
and frequently than most of his predecessors.
Just last month, after the Senate rejected sweeping anti-
smoking legislation, Clinton announced a survey on what
cigarette brands teenagers smoke--in hopes of shaming the
tobacco companies into getting serious about cutting teen
smoking.
On the same day, eager to make health care fixes that
Congress has not, he announced new coverage under the
Medicare health insurance program for the elderly and charged
federal agencies with signing up millions more poor children
for Medicaid.
Some in Congress have argued that Clinton's use of
executive authority has gone too far, and several outside
critics agree. ``Clinton is pushing the envelope,'' says
David Schoenbrod, a professor at New York Law School who is
an expert in the field. ``He's consistently trying to take
more power than Congress gives him.''.
With most of his executive orders, no matter how
incremental, Clinton hopes to prod Congress to pass more
ambitious versions. For instance, last year he extended
broader family leave provisions for federal employees while
pushing Congress to pass legislation to provide similar
opportunities for all other workers.
Clinton forewarned the country about his zeal for
exercising executive powers in his 1992 acceptance speech at
the Democratic National Convention, saying: ``President Bush:
If you won't use your power to help people, step aside, I
will.'' Of course, other presidents have used executive
authority to meet their policy goals. Abraham Lincoln used it
to declare the slaves free. Franklin D. Roosevelt used it to
help set up the New Deal. Harry S. Truman used it to
integrate the armed forces. But Clinton has rewritten the
manual on how to use executive powers with gusto, some
professors and analysts argue. His formula includes pressing
the limits of his regulatory authority, signing executive
orders and using other unilateral means to obtain his policy
priorities when Congress fails to embrace them.
Clearly, the growing antagonism between the president and
Congress makes it likely that Clinton will continue to govern
by fiat.
``It depends on the political environment whether
presidents push their limits or not,'' said Marci Hamilton,
professor of constitutional law at Cardozo Law School in New
York. ``Clinton has more incentive to do it because he's
stuck with a Congress that is not politically aligned with
him.'' This is all the more true this year, since Congress
feels empowered to ignore the president as a result of the
legal crisis he faces because of independent counsel Kenneth
W. Starr's investigation.
``This president has extraordinary lame-duck status,''
Hamilton added. ``There is very little incentive for Congress
to go along with him. A president who has a strong working
relationship and looks powerful to Congress is less likely to
push the limits.'' But analysts charge that Congress
continues to create the problem by ceding so much authority
to the president. In one recent example, Congress directed
the Federal Communications Commission to subsidize the wiring
of schools, libraries and rural health care facilities for
high-speed Internet access, but did not provide the money to
do so. Now it blames the FCC for passing on costs to
telephone companies, which are in turn passing on costs to
consumers.
``The bottom line is the Congress gave the administration
power to do this. But they'd like to have it both ways,''
said Jeremy Taylor, ``They want to say: `I voted for
universal Internet service, but I did not vote for a tax hike
to pay for it.' It's this lack of responsibility on the part
of Congress that has transformed American politics.''
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