[Congressional Record Volume 155, Number 95 (Tuesday, June 23, 2009)]
[Senate]
[Pages S6933-S6934]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         ENUMERATED POWERS ACT

  Mr. COBURN. Mr. President, I wish to spend a few minutes this evening 
to outline where we are and one possible solution to help us as a 
nation. We are on a course to double the debt in 4\1/2\ years. We are 
on a course to triple the debt over the next 10 years. Think of what 
that means for our children and our grandchildren. That is not 
President Obama's fault. I am probably one of the few Republicans who 
will say that. It is Congress's fault, because Presidents don't get to 
spend money we don't let them spend. We are the ones who offer the 
spending bills.
  How did we get here? How did we get to the point where we are 
borrowing money that we don't have against our children's future to 
spend on things we don't need? It is simple. We have forgotten what the 
Constitution says. We have ignored the Constitution at almost every 
turn.
  Today, myself and 17 other Senators introduced a bill which is called 
the Enumerated Powers Act. It goes back to article I, section 8 of the 
Constitution. Here is what it says. It very plainly lists the 
responsibilities of the Federal Government. When you think we are going 
to have a $3.6 trillion budget and a $2 trillion deficit this year--and 
that is real accounting; that is not Washington gimmick accounting--how 
did we get to where we could do that? How did we get to where we can 
put our children and grandchildren in such dire straits in their 
future? We got to it by ignoring the enumerated powers of the 
Constitution.
  If you go to the textbooks and read the history, you will see that 
Madison wrote that section. If you read what he had to say about what 
he meant in article I, section 8 of the Constitution, he said, People 
are going to try to get around this. People are going to try to say it 
doesn't mean what it means. But, in fact, here is exactly what we mean. 
Anything that we don't want the Federal Government doing, we are going 
to specifically reserve for the States. That is where the 10th 
amendment came from in the Bill of Rights. Because you can't limit what 
the Federal Government does without saying, Here are the things that 
should be done, but they should be done under the authority of the 
people and the States.
  When Ben Franklin left the Constitutional Convention in 1787, he was 
asked by somebody in the crowd: What did the convention produce? He 
said: It produced a republic. Then he said: If we can keep it.
  Well, I can tell my colleagues that ``if'' is a great big word. We 
have a Medicare Program that over the next 30 years has a $39 trillion 
unfunded liability. So the factors I have mentioned already don't have 
anything to do with that. That is $39 trillion on top of $11.5 trillion 
today and $2 trillion more we are going to add to the debt this year. 
Then we have Social Security, which is unfunded. We have Medicare Part 
D that has an $11 trillion unfunded liability. Then we have Medicaid, 
which is about $17 trillion. So what we have basically done is 
abandoned what our Founders thought was prudent so we could enhance 
politicians. We put that big ``if'' up there for our kids and our 
grandkids.
  The task of keeping a republic now falls to this Congress. It doesn't 
look bright. We passed a stimulus bill, $787 billion. By the time you 
count the interest rate over the next 10 years, it is $1 trillion. We 
passed an omnibus bill that increased spending by each branch of the 
government over 9 percent. We passed an emergency supplemental that had 
$24 billion in it that we didn't need, but we spent it, which will 
raise the baseline in future years, which will raise spending even 
further. The first appropriations bills coming out are a 7-percent or 8 
percent increase when inflation has been a minus four-tenths of 1-
percent increase.
  The whole purpose behind this bill is to say when you write a bill in 
this Congress and any Congress that follows it, you have to know in 
that bill where you get the authority in the Constitution to spend this 
money or to authorize this program. You can still introduce a bill 
without it, but it creates a point of order that says a Senator can 
challenge that bill on the basis of what the Constitution says because 
you have not clearly stated in this new piece of legislation where you 
get the authority as a Member of the Senate to author it when, in fact, 
it is outside the authority given to us under the Constitution. The 
bill then sets up a debate on which the Senate will have to vote. I am 
not so naive as to believe I will win a whole lot of those, but I know 
I will win something, because the American people want to hear that 
debate, and that debate is something they are not hearing today.
  They are not hearing our justifications why we can take freedom away 
and we can make a bigger, more powerful Federal Government that is 
going to borrow more money from their children to spend on things we 
don't need, money we don't have. The American people are entitled to 
hear the reasoning behind why we know so much better than they do, and 
to hear the reasoning why we can ignore the wisdom of our Founders in 
terms of our ability to grow the Federal Government.
  The Federal Government is far too big and far too removed from 
people's lives today. That is why we are feeling this rumble out in the 
country. That is why people are worried about the deficits. That is why 
people are worried about their children's future, because the debt is 
going to triple over the next 10 years. We can't even come close. 
Interest payments next year are going to be close to $500 billion. 
Think about that. Just the interest on the debt is starting to approach 
a half a trillion dollars a year--a half a trillion dollars a year. Had 
we been prudent and not borrowed money, that would be a half a trillion 
dollars we could either give back to the American people or create 
tremendous abilities and opportunities in terms of solving some of the 
problems in front of us today. Health care, for example. The reason why 
we can't get a health care bill out of the HELP Committee is because 
nobody is satisfied with the tremendous costs that

[[Page S6934]]

CBO has estimated because we are spending tons of money. We don't have 
the money, so we are now handicapped.
  This bill, S. 1319, requires that each act of Congress shall contain 
a concise explanation of the authority, the specific constitutional 
authority under which this bill would be enacted. What it does is makes 
Congress go to the Constitution, and particularly article I, section 8, 
and say, here is where I get the authority. We won't win many of those 
arguments, even though many of the bills will be outside of the 
authority granted us under the Constitution.
  Thomas Jefferson thought such an exercise was vitally important--we 
have ignored his advice--he thought it was important for Congress to 
undertake in order to study what those who ratified the Constitution 
had in mind. In a letter in 1823, he said this:

       On every question of construction, let us carry ourselves 
     back to the time when the Constitution was adopted, recollect 
     the spirit manifested in the debates, and instead of trying 
     what meaning may be squeezed out of the text, or invented 
     against it, conform to the probable one in which it was 
     passed.

  There is no question what the context and the meaning was of our 
Founders when they wrote out the enumerated powers section. We have 
prostituted it to our own demise. The words of Benjamin Franklin ring 
true today: Can we keep it. If we can keep it.
  S. 1319 is a little exercise in self-discipline for the Senate that 
maybe we ought to be explaining to the American people where we think 
we get the authority to trample on the 10th amendment, to tell them 
what to do, how to do it, and by the way, we need some money to tell 
you how to do that. The whole goal of the Enumerated Powers Act is to 
make us accountable. My whole goal in the Senate has been transparency. 
We ought to be transparent about how we get or where we get or from 
where we get the authority to grow the size of this government even 
further and to make it less effective.
  Finally, in a recent speech, retiring Justice David Souter recently 
commented that the American Republic ``can be lost, it is being lost, 
it is lost, if it is not understood.'' He went on to cite surveys that 
show Americans cannot even name the three branches of government. That 
is why he and retired Justice Sandra Day O'Connor have both undertaken, 
in their retirement, efforts to restore America's civic education.
  I am convinced that if Americans know what is in the Constitution, 
they will start holding us accountable. Part of our job ought to be to 
explain how we can be accountable. We have 17 Senators who think this 
is a good idea. That is a lot for a bill in the Senate. I encourage my 
colleagues to look at this bill, to become accountable and transparent 
with our constituencies.
  I will end on one final note. When the Presiding Officer was sworn in 
this year, he took an oath. That oath said he would uphold the 
Constitution. Not once in his oath did it mention the State of Alaska 
from where he and the people he represents in the Senate hail, but his 
oath was sworn to the betterment of this country, not to the betterment 
of Alaska, as mine is to the betterment of the country, not to the 
betterment of Oklahoma. For Alaska and Oklahoma can't fare well if the 
country doesn't fare well. So our Founders knew that when we took this 
oath to uphold the Constitution, they knew our direction would be 
national interests and long term. We have fallen away from that. We 
have become parochial and we have become short term.
  This bill says you can still cheat on the Constitution, but now you 
have to explain to the American people why you are cheating, and there 
will be a point of order against any bill that doesn't provide an 
explanation to the people.
  That is one of the ways we get our country back because the American 
people become informed. I guarantee you many will become outraged when 
they hear some of the statements on why the Senate thinks we have the 
authority to do some of the things we do.
  With that, I yield the floor.

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