[Congressional Record Volume 158, Number 12 (Thursday, January 26, 2012)]
[Senate]
[Pages S95-S97]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. GRASSLEY. Mr. President, I addressed the Senate recently on 
President Obama's recess appointments, and he did this when the Senate 
was not in fact in recess. I described at length why this was an 
outrageous and unconstitutional power grab. However, President Obama's 
decision to bypass the constitutional advice and consent of the Senate 
is not an isolated incident by the President. It is merely the latest 
escalation in a pattern of contempt for elected representatives of the 
American people and the constitutional separation of powers. This 
pattern has become more apparent since the last election when public 
opinion turned against the direction that President Obama was trying to 
take the country.
  When the President's party in 2009 and 2010 had an overwhelming 
control of both Houses of Congress, he was able to pursue his agenda 
with only the slightest of lip service to the objections from 
congressional Republicans because we were very much in the minority, 
and, of course, we believe we were representing millions of Americans 
whose views were in opposition to President Obama's views. In 2009 and 
2010, President Obama could in fact govern more like a Prime Minister 
in a European parliament, where the leader of the party in power 
dictates the policy to be rubberstamped by that parliament.
  Since the 2010 election, that is no longer the case. There was a 
tremendous voter backlash against both the style and substance of the 
President's agenda. A groundswell of Americans became convinced their 
government was out of touch, and they demanded to be heard. The 
President's party in the Senate is now well below the supermajority 
necessary to pass legislation without consulting the minority party, 
and that is the way it was intended for the Senate to work. Moreover, 
there is now a new majority in the House of Representatives trying to 
chart a new course based on the concerns that so many voters expressed 
in the last election.
  Rather than accept the message of the 2010 election and the fact he 
is faced with a Congress that is no longer a rubberstamp, the President 
has decided that he does not need Congress at all. Imagine that. In 
fact, he has even said so.
  In October, upset that Congress would not pass his latest stimulus 
bill exactly as he had proposed, the President launched a media 
campaign around the tag line, ``We can't wait for Congress.'' Under 
this banner he has announced executive actions for everything from 
mortgage and student loans, summer jobs for youth, and new fuel economy 
standards.
  A President being frustrated with Congress is nothing new. We all 
know that from history. What is more remarkable is the notion that the 
President, however, can act independently of Congress. ``Where they 
won't act, I will,'' the President has said.
  Article I, section 1 of the Constitution of the United States says:

       All legislative Powers herein granted shall be vested in a 
     Congress of the United States,

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     which shall consist of a Senate and House of Representatives.

  Having had their rights violated by King George, our Founding Fathers 
intentionally put the power to make laws in the branch of government 
that is most directly related and accountable to the citizenry of this 
country. Under our Constitution, the President's role is not to make 
policy unilaterally but, to quote the Constitution, ``take care that 
the laws are faithfully executed.''
  Some might say the whole ``we can't wait'' campaign is just harmless 
political rhetoric. It would be bad enough if the President were just 
kidding when he implies that he is usurping legislative power, the 
legislative power vested in the duly elected representatives of the 
citizens of the 50 States. However, after his latest power grab, there 
can be no doubt that President Obama is dead serious. It is not just 
political rhetoric.
  This disregard for the constitutional role of Congress did not start 
with President Obama's ``we can't wait for Congress'' campaign. An 
earlier indicator of actions to come was his controversial appointment 
of several new so-called czars. The President is well within his rights 
to choose advisers. We all agree to that. That is in the past just what 
these positions now termed ``czars'' are supposed to be, just advisers. 
However, it became clear that many of President Obama's new high-level 
czars--such as the climate czar, for instance--were involved in 
crafting regulations and other roles normally reserved for Senate-
confirmed officials. Why? Because then they could be called to the 
Senate committees to respond and have us operate a proper oversight 
function.
  Another example of President Obama's disregard for Congress is his 
administration's unilateral pursuit of climate change regulations. The 
House and Senate have considered various proposals to regulate 
greenhouse gas emissions, but these have proved very controversial and 
very harmful to the economy. When the climate legislation backed by 
President Obama could not achieve sufficient support to pass Congress, 
the administration announced that it would go ahead anyway. While a 
Supreme Court ruling opened the door to that possibility, the fact that 
Congress specifically did not authorize such regulations should have 
given the President pause.
  In a similar move, when the DREAM Act as currently written was unable 
to secure sufficient support in Congress to pass, an Immigration and 
Customs memorandum appeared calling for immigration laws to be enforced 
so as to bring about the same ends as the legislation that could not 
pass Congress. Congress also rejected the card check bill supported by 
President Obama to eliminate secret ballot elections for union members. 
Sure enough, the National Labor Relations Board proposed a rule 
providing for snap elections, which would achieve the same goals, thus 
giving union leaders an upper hand in union elections.
  The President's ``Race to the Top'' education program is another 
significant overreach. Congress bears responsibility for writing a $5 
billion check to the Secretary of Education in the first stimulus bill 
with minimal guidelines attached. However, the administration blew past 
even those broad guidelines to implement an unprecedented Federal 
intervention into State education policy. The resulting program offered 
the possibility of big grants to cash-strapped States provided they 
first changed State laws to implement specific policies favored by the 
Secretary of Education. Most States, such as Iowa, implemented the 
Secretary's preferred policies and applied for the funds yet never saw 
a dime in return for changing out State laws.
  In a similar move, the President announced he would grant waivers to 
States for relief from the requirements of the No Child Left Behind 
Act. The catch is that States will have to adopt key components of his 
education reform agenda in order to get such a waiver. This is despite 
the fact that Congress is currently considering legislation to update 
the Federal education policy and may not adopt all aspects of the 
President's proposal. Moreover, current law allows for waiving existing 
requirements on a case-by-case basis but does not authorize the 
administration to add new requirements in return.
  So far during my remarks I have mostly focused on areas where the 
President has acted without authority from Congress. On the other hand, 
when Congress has passed legislation the President has not entirely 
agreed with, he has announced while signing them into law that he will 
not implement the parts he does not like.
  During the 2008 campaign, candidate Obama said that he was ``not 
going to use signing statements as a way of doing an end run around 
Congress.''
  However, he has done just that on numerous occasions.
  Moreover, he has made clear his intention to not enforce certain laws 
that are already on the books, such as federal anti-drug laws.
  The President's Attorney General also decided not to defend a legal 
challenge to the Defense of Marriage Act.
  Again, the Constitution makes clear that it is the President's 
responsibility to ``take Care that the Laws be faithfully executed'' 
whether the current occupant of the White House agrees with those laws 
or not.
  I can think of plenty more examples of executive overreach.
  It would be much harder to think of examples where Congress has 
successfully fought off an executive power grab.
  In fact, the more President Obama has gotten away with these little 
power grabs, the bolder he has become.
  Congress has not been effective in fighting this executive 
encroachment because Congress is not of one mind.
  Members of the President's party are understandably reluctant to 
oppose him publicly.
  However, with this latest escalation, the time has come for Congress, 
on a bipartisan basis, to say ``Enough is enough.''
  I would ask my colleagues on the other side of the aisle to think 
hard about the precedent being set for the next Republican President.
  Once the genie is out of the bottle, you are not likely to be able to 
get it back in.
  For those who are tempted to sympathize with the President when he 
justifies bypassing Congress because of ``obstructionism'', I would 
return to the fact that our system of checks and balances between the 
different branches of government did not come about by accident.
  The philosophy underpinning the American Revolution, as expressed in 
the Declaration of Independence, is based on ``unalienable Rights'' and 
the principle ``That to secure these Rights, Governments are instituted 
among Men, deriving their just powers from the consent of the 
governed.''
  As a result, our government was intentionally structured to provide 
maximum protection to individual rights.
  In our Constitution, that principle takes precedent over getting 
things done.
  In my previous remarks, I quoted the Father of the Constitution, 
James Madison, in Federalist 51, ``separate and distinct exercise of 
the different powers of government'' is ``essential to the preservation 
of liberty.''
  Madison was concerned about a temporary majority faction assuming 
full control of the government and acting tyrannically toward those 
Americans in the minority.
  By contrast, the French Revolution was inspired by the philosophy of 
Jean-Jacques Rousseau, who wrote that claims of natural rights must be 
abandoned in favor of submission to the authority of the ``general 
will'' of the people as a whole.
  The application of this philosophy tends to result in power 
centralized in a ruling elite that claims a unique ability to interpret 
the ``general will''.
  This centralization of power allows for a more active government.
  That may be attractive to those whose main concern is making the 
trains run on time. But Amtrak doesn't run on time.
  On the other hand, the single-minded pursuit of a common purpose at 
the expense of individual rights has led to some of history's worst 
tyrannies.
  Our system of separation of powers, federalism, and checks and 
balances, designed to protect individual rights, results in a more 
deliberative form of government.
  This can be frustrating.
  It means that the President cannot expect Congress to just pass his 
proposals without reading them. But Speaker Pelosi said about Health 
Care

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Reform we have to first pass it to find out what is in it.
  Still, these features of our Constitution perform an important role 
in preventing one faction of Americans from dominating another.
  President Obama is not the first to become frustrated with the checks 
and balances built into our constitutional system.
  In fact, at the dawn of the 20th century, an entire philosophical 
movement developed around the idea that our Constitution had become 
outmoded, that its focus on individual rights was no longer applicable 
to the modern age.
  I mentioned in my previous remarks about the President's 
unconstitutional appointments that it was Theodore Roosevelt who 
started to change the way Presidents viewed power.
  It is worth noting that President Obama recently gave a speech in 
Osawatomie, KS, the site of Teddy Roosevelt's famous ``New 
Nationalism'' speech.
  That speech marked the beginning of Roosevelt's break with the 
incumbent Republican president, William Howard Taft.
  Roosevelt then went on to challenge Taft in the 1912 election on the 
Progressive Party ticket.
  In that speech, which President Obama commemorated, Roosevelt 
described his New Nationalism as ``. . . impatient of the impotence 
which springs from overdivision of governmental powers.'' Throw the 
Constitution out the window.
  He went on to say that, ``This New Nationalism regards the executive 
power as the steward of the public welfare.''
  An even more explicit description of the progressive view of the 
Constitution was written by the ultimate winner of the 1912 
presidential election, Woodrow Wilson.
  In his Constitutional Government, Wilson wrote,

       The makers of the Constitution constructed the federal 
     government upon a theory of checks and balances which was 
     meant to limit the operation of each part and allow to no 
     single part of organ of it a dominating force; but no 
     government, can be successfully conducted upon so mechanical 
     a theory.
       Leadership and control must be lodged somewhere . . .

  It seems strange we have made it for 225 years under our 
Constitution.
  He then goes on to describe at length why he feels the President is 
where this ``leadership and control'' should ultimately be lodged.
  This philosophy advocates a concentration of power in order to more 
effectively act on behalf of ``the people,'' at the expense of 
representing the diverse views of Americans.
  It is contrary to the founding principles of our Nation and foreign 
to the realities of American civic life.
  We are a large nation with tremendous variety in both geography and 
people.
  No one man can claim to speak on behalf of all Americans, which is 
why we have a Congress in the first place.
  The voices of all Americans deserve to be heard through their elected 
representatives and the rights of each American must be respected.
  As the State motto of Iowa goes, ``Our liberties we prize, and our 
rights we will maintain.''
  We must not let short term partisan interests trump those enduring 
constitutional principles.
  The Senate, and the whole Congress, has a solemn duty to defend its 
constitutional role.
  The PRESIDING OFFICER. The Senator from Michigan.

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