[Congressional Record Volume 154, Number 175 (Monday, November 17, 2008)]
[Senate]
[Pages S10545-S10546]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    ATROPHY OF THE BALANCE OF POWERS

  Mr. WEBB. Mr. President, in the 2 years since I have been privileged 
to be in this body, I have spoken frequently about my concerns with 
respect to the balance of power between the executive branch and the 
legislative branch and the atrophy of the powers and the influence of 
the Congress. There are two issues that are before us this week that I 
think illuminate the dangers of that atrophy.
  The first is in respect to the powers we gave to the Secretary of 
Treasury in our vote at the beginning of October, before we went into 
recess, as he addressed the issues of the bailout. Many Senators, 
including myself, wrote letters of concern immediately after this 
bailout was proposed, noting that it was unprecedented for one 
individual in the executive branch of Government to be given the broad 
discretion the present Secretary of the Treasury has been given.

[[Page S10546]]

  I voted to support this bailout, as did most of my colleagues, as we 
were assured, not only by members of the administration, but also with 
a great deal of hesitation by members of our own party in the Senate, 
that this was an essential act to avert an international calamity in 
the financial markets. We were told by the Secretary of the Treasury 
that we needed to reinforce the good will and the concerns people had 
by allowing him to take certain actions. We ensured oversight over the 
Secretary of the Treasury, but he still retained the total discretion 
that has been used over the past several weeks.
  At the same time, we all know now--it has been said several times 
already this afternoon--the decisions that were made, as to where this 
money has been going, were not in line with the reassurances that were 
given this body when the legislation was brought forward. There has 
been a great deal of inconsistency coming from the Secretary of 
Treasury, and it has created a mood of unpredictability that we have 
seen reflected in the markets and in the confidence of investors.
  I would agree with the concept that was recently put forward by the 
Senator from Oklahoma about slowing down the amount of money that is 
available to be spent under this bailout. I also would propose, in 
examining legislation to that effect, that we as a body revisit the 
whole idea of giving this kind of power to one individual in the 
executive branch.
  There are plenty of precedents in history which create a small body 
of honest brokers, perhaps three individuals who collectively can make 
decisions for the good of the country and who would not be burdened by 
conflict of interests because of their own background, either real or 
imagined, or the burden that goes with the discretion of one 
individual. I hope to place something to that effect before this body 
relatively soon. I hope other Members of the Congress will consider 
that idea as well.
  The second issue with respect to the abrogation of power by the 
legislative branch to the executive branch concerns the relationship 
that we are now about to finalize with Iraq. We have seen it reported 
in the media today that the Iraqi Cabinet has given a near unanimous 
agreement to a strategic framework agreement--which is very little 
discussed, and a status of forces agreement--which has been much 
debated, that ostensibly would define the future relationship between 
the United States and Iraq.
  I find it more than ironic, and I have mentioned it several times on 
this floor, that the Congress has not been invited to participate in 
this process. The Iraqi Cabinet is going to present this agreement to 
the Iraqi Parliament for a vote. The Congress of the United States is 
hardly even getting a look.
  If you turn to article II, section 2 of the U.S. Constitution, it 
says the President:

       . . . shall have Power, by and with the Advice and Consent 
     of the Senate, to make Treaties, provided two thirds of the 
     Senators present concur. . . .

  The question is, Is this a treaty? It is going to define the long-
term relationship between the United States and Iraq in a situation 
where we are going to have military bases of some sort in Iraq and a 
security relationship with Iraq. That sounds quite a bit like a treaty 
to me.
  The administration has been claiming this is simply an executive 
agreement and, as a result, the Secretary of State can sign this; the 
Congress can be consulted but does not have to have a vote. But let us 
remember, at the end of this year, on December 31, the legal authority 
for the United States to be operating in Iraq ends under international 
law with the expiration of the U.N. mandate. So under what authority, 
legal authority, will we be operating in Iraq? An executive agreement 
is only constitutional when it is implementing a law. So what law or 
constitutional authority will this executive agreement be implementing?
  The members of the administration, when I raised this issue nearly 8 
months ago, claimed that the 2002 authorization to go to war in Iraq 
was their legal authorization to negotiate an executive agreement 
looking to the future relationships in Iraq. I have strong questions 
about that. First, if the 2002 authorization to go to war would be good 
in terms of an executive agreement to define our future relationship, 
then why did we even need the U.N. mandate in the first place? The 
second is, the 2002 authorization to go to war in Iraq took place at a 
time when the present Government of Iraq did not even exist.
  So I would state my strong belief, again, that the Congress needs to 
assert its constitutional authority on this matter. The Congress needs 
to concur with the strategic framework agreement in order for us as a 
nation under the Constitution to properly define our relationship with 
a government and a country where we are going to have military forces 
in place, and where we are going to have security guarantees.
  In that regard, I conclude by stating my strong hope that the 
incoming administration, under President-elect Obama, will, early on, 
take a comprehensive diplomatic approach to all the issues that affect 
the United States in that particularly troublesome spot in the world. 
We should be fostering the right kind of diplomatic environment with 
other countries such as Russia and China that have interests in this 
region. We should be exploring ways to formally and aggressively 
explore our relationships with countries such as Iran. We need to put 
the whole issue of Afghanistan, Pakistan, Iraq, and other countries in 
the Middle East on the table early on and forcibly. Reality indicates 
and history proves that the longer the new administration waits, the 
more strongly they are going to be embedded in the policies that have 
preceded them, and the more difficult it is going to be to put a 
comprehensive approach to the future into place. I strongly hope this 
administration, at an early time, will take a comprehensive approach to 
this region.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KYL. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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