[Congressional Record Volume 159, Number 72 (Tuesday, May 21, 2013)]
[Extensions of Remarks]
[Pages E715-E716]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           ADDRESSING H.R. 3--THE NORTHERN ROUTE APPROVAL ACT

                                 ______
                                 

                           HON. ALAN GRAYSON

                               of florida

                    in the house of representatives

                         Tuesday, May 21, 2013

  Mr. GRAYSON. Mr. Speaker, I would like to submit the following:

                                                     May 21, 2013.
     Hon. John Boehner,
     Speaker, House of Representatives, The Capitol, Washington, 
         DC.
       Dear Mr. Speaker: I write today to address H.R. 3, the 
     `Northern Route Approval Act', and my resolution raising a 
     question of privilege regarding the matter. Please note that 
     this is a privileged motion and therefore outside the scope 
     of the Rules Committee's jurisdiction regarding ``the order 
     of business of the House'' (Rule X(1)(o)(1)). This is a 
     question of privilege ``affecting the rights of the House 
     collectively, its safety, dignity, and the integrity of its 
     proceedings'' pursuant to Rule IX (1). It is not invoked to 
     ``effect a change in the rules . . . or their 
     interpretation'' (`House Rules and Manuals' at 420).
       Consideration of this bill exceeds `the rights of the House 
     collectively' and brings into question the `dignity and the 
     integrity of [the] proceedings' of the House of 
     Representatives (House Rule IX) because: 1) it is 
     unconstitutional, and 2) it is an earmark.
       I presented this matter to the full House in H. Res. 225 as 
     a question of privilege last night, and I noticed the 
     question immediately following the only vote series of the 
     day.
       Mr. Speaker, pursuant to Rule IX of the House you must now 
     1) make your determination as to whether or not this is an 
     appropriate `question of privilege', and 2) hold a vote on 
     the resolution offered before the House. Before that happens, 
     I would like to address the two claims I have made against 
     the bill offered by the gentleman from Nebraska, and then I 
     will outline the reasons why I feel you should find in favor 
     of my question of privilege.


                       H.R. 3 is Unconstitutional

       ``The . . . Constitution does not permit Congress to 
     execute the laws.''
       The above is taken from the Supreme Court's ruling in 
     Bowsher v. Synar. The bill before us violates this principle. 
     Congress creates the law, and the Executive executes it.
       Under Section 3 of this bill however, ``the final 
     environmental impact statement (FEIS) issued by the Secretary 
     of State on August 26, 2011'', and ``the Presidential permit 
     required for the pipeline described in the application filed 
     on May 4, 2012, by TransCanada Keystone Pipeline, L.P. to the 
     Department of State . . . as supplemented to include the 
     Nebraska reroute evaluated in the Final Evaluation Report 
     issued by the Nebraska Department of Environmental Quality in 
     January 2013 and approved by the Nebraska governor'' shall 
     ``be considered [deemed] to satisfy all requirements of 1) 
     the National Environmental Policy Act of 1969, and 2) the 
     National Historic Preservation Act''. This is a clear attempt 
     by this body to execute the law of the land.
       Again Mr. Speaker, the Executive must execute the laws. 
     H.R. 3 runs afoul of this requirement. The Supreme Court also 
     held in Bowsher v. Synar that ``[i]nterpreting a law enacted 
     by Congress to implement the legislative mandate is the very 
     essence of `execution' of the law'', and that is exactly what 
     is being proposed here. The exercise of judgment in the bill 
     before us, concerning facts that affect application of 
     statute, constitutes execution of the law. It is an 
     unconstitutional act that this body should not entertain. It 
     violates separation of powers, and violates the principle 
     underlying the prohibition of bills of attainder.
       Statements are deemed by this bill to be in compliance with 
     laws the Executive has been tasked with executing--the 
     National Environmental Policy Act of 1969 (NEPA) and the 
     National Historic Preservation Act (see section 3 of H.R. 3). 
     This is an impermissible execution of the law. Congress, 
     through this bill, is attempting to apply the facts of the 
     Keystone XL Pipeline environmental impact statement to the 
     body of law, and deciding that they comply. This is 
     unconstitutional and brings into question the `dignity and 
     the integrity of [the] proceedings' of the House.
       Apparently, we are no longer satisfied with writing the 
     laws. We have now taken it upon ourselves to execute them as 
     well. This discredits the institution not only within the 
     federal government (complicating our constitutional 
     relationship with both the executive and judicial branches), 
     but also in the eyes of the American people. We must not 
     allow the House to be degraded in such a way.
       Even when the facts of the bill are examined, this measure 
     fails. This bill states that the FEIS satisfies NEPA. That 
     FEIS however, was for a different project--the Keystone XL 
     Pipeline as proposed in 2009, a pipeline which would have 
     terminated in the Gulf Coast. The NEPA process for that 
     proposal ended when the State Department denied the 
     Presidential Permit application and issued a Record of 
     Decision pursuant to 40 C.F.R. Sec. 1505.2. The current 
     proposal is different. It has a different route, different 
     purpose and need, different NEPA process, and more. This 
     bill, however, deems the (outdated) FEIS for the previous 
     proposal to comply with NEPA for the purposes of approving 
     the current proposal. This leap of logic is untenable, and 
     again, compromises the dignity and integrity of the 
     proceedings of this body.
       Finally Mr. Speaker, Section 4 of this bill states: ``no 
     Presidential permit shall be required for the pipeline 
     described in the application filed on May 4, 2012 by 
     TransCanada . . .''. This section encroaches upon the 
     President's independent constitutional authority over matters 
     of foreign affairs. As a Member of the House Committee on 
     Foreign Affairs, I am intimately familiar with Article II of 
     the Constitution. Today, this body intends to ignore it and 
     trample our Founding Document. I refuse to stand idly by and 
     participate any longer. The Department of State does not 
     issue Presidential permits based on any statutory authority 
     from Congress; rather, the President delegated his inherent 
     constitutional authority over matters of foreign affairs to 
     the Department of State in Executive Order 13337. The 
     President and Department of State have independent authority 
     to act in this field, not Congress.
       For these reasons Mr. Speaker, I feel that H.R. 3 is 
     unconstitutional, and that any consideration of the bill 
     affects the dignity and integrity of the institution.


                          H.R. 3 is an Earmark

       Rule XXI (9)(a)(1) states:
       ``(a) It shall not be in order to consider--
       ``(1) a bill or joint resolution reported by a committee 
     unless the report includes a list of congressional earmarks. 
     . . .''
       `Congressional earmark' is defined in Rule XXI (9)(e) in 
     the following way:
       ``(e) For the purpose of this clause, the term 
     ``congressional earmark'' means a provision or report 
     language included primarily at the request of a Member, 
     Delegate, Resident Commissioner, or Senator providing, 
     authorizing or recommending a specific amount of 
     discretionary budget authority, credit authority, or other 
     spending authority for a contract, loan, loan guarantee, 
     grant, loan authority, or other expenditure with or to an 
     entity, or targeted to a specific State, locality or 
     Congressional district, other than through a statutory or 
     administrative formula-driven or competitive award process.''
       Restated, using only the words of the Rule, in the order in 
     which they appear, a `congressional earmark' is:
       ``a provision . . . included primarily at the request of a 
     Member . . . providing [or] authorizing . . . a . . . grant . 
     . . to an entity . . . other than through a statutory or 
     administrative . . . or competitive award process.''
       Mr. Speaker, Section 6 of H.R. 3 satisfies every one of 
     these criteria. It grants not only a right-of-way, but also a 
     temporary use permit, outside of established statutory, 
     administrative, and competitive award processes, and it does 
     so to only one entity--explicitly named in this bill 
     `TransCanada Keystone Pipeline, L.P.'.
       The requirement that this provision be included `primarily 
     at the request of a Member' is surely satisfied by the act of 
     a Member drafting and offering this bill. It was a conscious 
     choice of a Member from the state of Nebraska to offer this 
     legislation, as well as explicitly mention Nebraska or 
     Nebraskans six separate times, while no other state receives 
     a single mention.
       Clearly Mr. Speaker, this is an earmark.
       As such, beyond the determination as to the question of 
     privilege which I have raised, I would also assert that H.R. 
     3 violates the Rules of the House. Not one of the reports 
     filed by the Committee on Transportation and Infrastructure, 
     the Committee on Energy and Commerce, or the Committee on 
     Natural Resources includes a list containing the 
     congressional earmark that appears in this bill. Rule XXI 
     (9)(a)(1) is violated.
       For these reasons (among others) Mr. Speaker, I 
     respectfully request your determination that my question and 
     resolution before the House is privileged. H.R. 3 is 
     unconstitutional, it is an earmark, and it violates the Rules 
     of the House. Therefore, any consideration of this bill is an 
     action which affects the dignity and the integrity of the 
     proceedings of the House pursuant to Rule IX.
       If you have any questions regarding this letter, please do 
     not hesitate to contact me or David Bagby of my staff.
           Sincerely,
                                                     Alan Grayson,
                                               Member of Congress.

[[Page E716]]



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