[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

[[Page S8926]]

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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