[Congressional Record Volume 160, Number 142 (Wednesday, November 19, 2014)]
[Senate]
[Pages S6159-S6161]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE ORDERS
Mr. GRASSLEY. Mr. President, in his State of the Union Address last
January, President Obama announced what he called a year of action.
Armed with pen and phone, he promised to take action where Congress
wouldn't. At the time, I warned that these threats were a gathering
danger to the separation of powers established in our Constitution.
The President is now threatening to implement a mass amnesty from our
immigration laws by Executive fiat. He plans to act without the support
of Congress or the American people. In fact, he has conveniently waited
until after the recent elections to do so in order to avoid being
punished at the ballot box. This Executive order will be the
culmination of his self-proclaimed year of action.
The President may think of this Executive action as a political
victory in a year filled with so many failures and defeats for him and
his party, but history will surely view it as a serious blow to the
systems of checks and balances established by the Framers. In reality,
this was a year in which the President's abuse of Executive power came
into clear focus.
Today I would like to review President Obama's pattern of
unconstitutional Executive action this year. I would like to explain
why the mass amnesty he has been threatening is merely the latest in a
long list of abuses of his Executive authority. And I would like to
offer a few thoughts about what the Senate can do about these kinds of
abuses.
After the President's State of the Union Address, I wrote to the
Attorney General on January 31. I wrote that I was ``gravely concerned
that the system of checks and balances enshrined in the Constitution
[was] threatened by the President's determination to take unilateral
action.'' In short, I made clear that ``while the President has a pen
and phone, we have a Constitution that places limits on his use of them
to issue Executive Orders.'' Indeed, my concern about the President's
threat to take action on his own was ``heightened by the
administration's record of failing to discharge his constitutional
duties to `take Care that the Laws be faithfully executed.' ''
By then, President Obama had already failed to execute the laws in
many areas. For example, the administration was rewriting ObamaCare's
deadlines at will and was making little effort to enforce the
Controlled Substances Act in some States. These abuses rang like alarm
bells--alarm bells in the night--even before the so-called year of
action began.
Indeed, in December of 2013 a liberal law professor testified before
the House Judiciary Committee that ``despite the fact that I once voted
for President Obama, personal admiration is no substitute for the
constitutional principles at stake in this controversy.''
The professor went on:
When a President claims the inherent power of both
legislation and enforcement, he becomes a virtual government
unto himself. He is not simply posing a danger to the
constitutional system; he becomes the very danger that the
Constitution was designed to avoid.
Against this backdrop, I asked the President to defend the legal
basis for the actions he was threatening. In my letter I asked the
Attorney General to direct the Justice Department's Office of Legal
Counsel to publicly disclose its opinions concerning the lawfulness of
the Executive orders proposed by the President. That is what the Office
of Legal Counsel does--it reviews all Executive orders to determine
whether they are constitutional and lawful. Many of its opinions have
been made public in the past. I hoped this transparency would allow
Congress and then the American people to better understand the alleged
legal basis for these orders and challenge them, if necessary.
Providing Congress and the American people with the legal opinions
supporting his unilateral actions seemed like a reasonable request of a
President who had claimed to support ``an unprecedented level of
openness'' and transparency in government. But February passed, March
as well, April came and went, winter turned into spring, and summer was
around the corner. Finally, on May 20 I received a response from the
Justice Department. In summary, the Department told me no, they
wouldn't disclose these opinions to the public. However, the Department
assured me that if I had questions about particular Office of Legal
Counsel advice documents, it would assist me in understanding them--in
their words--to the fullest extent possible. In short, the
administration stonewalled legitimate questions from Congress, as it
often does, and stymied this Congress from carrying out its
constitutional responsibility of oversight.
As it turned out, within a few weeks I and many others in Congress
had very serious questions about a specific Executive action and its
effect on our national security, and we had questions about the advice
provided by the Office of Legal Counsel. The American people had the
same questions as well.
In early June the President decided to release five Taliban detainees
held at Guantanamo Bay in exchange for SGT Bowe Bergdahl, a U.S.
soldier who had been captured in 2009. The detainees were reportedly
senior-level Taliban commanders. Some had direct links to Al Qaeda, and
all were reportedly determined to be a high risk to the United States
and were recommended for continued detention. Nonetheless, President
Obama decided to free these prisoners from Guantanamo.
[[Page S6160]]
There was one problem, however: The National Defense Authorization
Act required the administration to notify Congress 30 days before any
detainee could be transferred from Guantanamo. Under this statute, the
notification was required to include lots of detailed information about
the basis for the transfer--why it was in our national security
interests and any actions taken to prevent detainees from returning to
the battlefield. In fact, none of this information was provided to the
Congress before these detainees were released, as the very law
requires. And perhaps not coincidentally, this was information that
Members of Congress and the American people were very interested in
learning. There were and still are serious questions about whether
releasing these detainees from Guantanamo was a good idea.
So the President decided to act alone, without regard to Congress's
role in our system of checks and balances and directly contrary to a
law the President had recently signed.
Then the administration began changing its story about why it broke
the law. First, they said it was Sergeant Bergdahl's health that
required his release--his release without notifying Congress. Then they
said it was operational security surrounding the release itself. Then
they said it was the nature of the negotiations with the Taliban.
But there was one point administration officials were clear about--
the Department of Justice had provided legal advice that justified
transferring these detainees from Guantanamo without informing Congress
as the law required. This was difficult to square with the limited
powers of the Executive established in the Constitution.
In Youngstown Sheet & Tube Company v. Sawyer, otherwise known as the
steel seizure case, the Supreme Court set a clear precedent
establishing what a President can and cannot do. In that case the
Supreme Court held that President Truman's Executive order seizing
steel mills to avoid a strike during the Korean war was
unconstitutional. In doing so, the Court emphasized that the Executive
isn't above the law as written by Congress.
The Founders of this Nation entrusted the lawmaking powers
to the Congress alone in both good and bad times. It would do
no good to recall the historical events, the fears of power
and the hopes for freedom that lay behind their choice. Such
a review would but confirm our holding that this seizure
order cannot stand.
Moreover, Justice Jackson emphasized that point here:
When the President takes measures incompatible with the
expressed or implied will of Congress, the authority of the
President is at its lowest [ebb].
Just as the Supreme Court held that President Truman had unlawfully
seized the steel mills, President Obama's release of the Taliban
detainees without a required notification effectively rewrote the law
contrary to the will of Congress.
In short, there didn't seem to be a lawful basis for what the
President had done. In fact, it seemed plainly illegal.
So I took the Department up on its offer. In a letter to the Attorney
General dated June 5, I requested that he direct the Office of Legal
Counsel to make public ``its opinions, analyses, and conclusions
concerning the lawfulness'' of the transfer without compliance with the
statute that required congressional notification. I went on to say:
It is obviously too late for Congress to express its
concerns about these transfers in time to prevent them.
However, this measure of transparency will at least allow the
American people to better understand the Administration's
purported basis for ignoring the legal requirement that
Congress be notified in advance, and shed additional light on
this controversial decision.
It is now 6 months later, and the Attorney General hasn't given me
the courtesy of a response to my letter. We still don't know how the
Department justified the release of these detainees. We don't know the
legal basis or the underlying facts that were relied upon. That should
not be acceptable to anyone, but sadly it has become commonplace with
the Obama administration.
It turns out that to this Justice Department, assisting me ``to the
fullest extent possible'' is actually indistinguishable from ignoring
my request completely.
Shortly thereafter, in August, the Government Accountability Office
concluded that the administration acted illegally when it released
these senior-level Taliban commanders from Guantanamo without notifying
Congress, as the law recently signed by the President demanded.
Let's be clear. That wasn't a Member of Congress reaching that
conclusion. It wasn't a political operative or a talking head on
television. It was an independent, nonpartisan government agency. So
the GAO effectively said: President Obama, you broke the law.
So perhaps it makes sense that the Department of Justice couldn't
respond to my letter. Maybe even the very smart lawyers in the Office
of Legal Counsel couldn't come up with a justification for what
happened that could pass the laugh test.
But that wasn't the only rebuke the President suffered this year
after trampling on Congress's role under the Constitution. The Supreme
Court was forced to rein in President Obama as well in a dispute over
his powers to make recess appointments.
Article II, section 2 of the Constitution provides for only two ways
in which Presidents may appoint certain officers. First, it provides
that the President nominates and, with the advice and consent of the
Senate, appoints various officers. Second, it permits the President to
make temporary appointments when a vacancy in one of those offices
happens when the Senate is in recess.
Back in 2012, President Obama made four appointments to various
executive branch positions. They were purportedly based on the recess
appointments clause. But he took this action even though they weren't
made, in the words of the Constitution, ``during the recess of the
Senate'' because the Senate was still in session.
No President in history had ever tried to make recess appointments
when the Senate said it was in session, but this President once again
decided to go around Congress.
In June of this year, the Supreme Court struck down these
appointments as unconstitutional. It wasn't a split decision. It wasn't
5 to 4 along party lines. It was unanimous. Every Justice agreed--those
appointed by both Republicans and Democrats. That included two Justices
appointed by President Obama himself. It was the Supreme Court's
biggest rebuke to any President since 1974, when it ordered President
Nixon to produce the Watergate tapes.
This was a case where the Office of Legal Counsel's opinion didn't
pass the laugh test again. So the Supreme Court unanimously said:
President Obama, you broke the law.
So this purported year of action has brought into focus a President
with little respect for the roles of the coequal branches of
government, unwilling to explain the legal basis for his actions, and
rebuked by the courts and independent agencies for overstepping his
bounds--quite out of character with somebody who proudly says he is a
professor of constitutional law.
Now, again, the President is threatening to act unilaterally on
immigration. If we thought this year's events so far would have given
the President pause about his ``go it alone'' approach, apparently we
would be wrong.
Of course one of the reasons I oppose mass amnesty is because it is
bad policy. Immigration reform should begin with securing our borders.
Border security is among the most basic responsibilities of any country
and somewhat the definition of what sovereignty is all about.
But this administration hasn't done that. To the contrary, according
to recent news reports it has freed alleged kidnappers, rapists, and
murderers into communities in the United States rather than deport
them. It has sacrificed public safety in order to provide relief for
people who are here illegally.
But the President's unilateral action on immigration isn't just bad
policy, it is contrary to the rule of law. It is unconstitutional for
the executive branch to nullify or even unilaterally rewrite the
immigration laws that the people of the United States through their
elected representatives have chosen to enact.
We have been hearing about the possibility of an Executive action on
immigration for many months. It will apparently involve steps to allow
millions of people illegally present in the United States to live,
work, and collect benefits here.
[[Page S6161]]
The Democratic leadership wants to compare what is being threatened
here to the Executive actions of past Presidents on immigration, but
the actions of Presidents Reagan and Bush were merely tying up loose
ends, carrying out a law Congress at that time had just passed. They
established policies that were later put in the statute in 1990.
President Obama is threatening to act directly against the wishes of
Congress and on a far greater scope and scale. That is why I and 21
other Senators wrote to the President on April 24 to express our grave
concerns about the lawfulness of what was reportedly under
consideration, and apparently our warnings were not heeded.
Now, if the President acts after repeated calls by congressional
leaders not to do so, it will severely damage his relationship with the
new Congress elected by the American people.
But the core issue is this: Under our Constitution, the Congress
makes the law. Under article II, section 3, the President is charged
with taking care that these laws are faithfully executed. But if
President Obama effectively legalizes people who are here unlawfully,
no one will be able to reasonably argue that he is faithfully executing
our laws. Once again, that doesn't pass the laugh test.
So, like the Government Accountability Office and the Supreme Court
earlier this year, I say: President Obama, if you take this Executive
action on immigration, you will be breaking the law, and even more than
that, you will be violating the Constitution.
And the President knows this. Just a few years ago he conceded:
This notion that somehow I can just change the laws
unilaterally is just not true. The fact of the matter is
there are laws on the books that I have to enforce. And I
think there's been a great disservice done to the cause of
getting . . . comprehensive [immigration] legislation passed
by perpetrating the notion that somehow, by myself, I can go
and do these things. It's just not true. We live in a
democracy. We have to pass bills through the legislature, and
then I can sign it.
That is the end of a quote of the President that speaks to exactly
what the responsibilities of a President happen to be and how they
should be viewed and how he ought to be acting now. The President was
right then, even if he doesn't want to live by his own words now. There
are no shortcuts to following the Constitution.
Now what we are likely to hear from the administration is that this
Executive action is simply a lawful exercise of enforcement discretion.
It is not. It is simply not an exercise of enforcement discretion.
Lawful enforcement discretion is exercised on an individual case-by-
case basis. So whether enforcement action takes place is informed by a
careful evaluation of the facts in a particular case as each case
presents itself. Lawful enforcement discretion isn't selecting entire
categories of individuals and telling them that going forward the law
won't be applied to them. That is what President Obama is threatening
to do.
This shouldn't only concern constitutional scholars and lawyers. It
is no exaggeration to say that the freedom of the American people is at
stake. That is what the Framers believed. Listen to Federalist Paper
51. James Madison wrote that ``separate and distinct exercise of
different powers of government'' is ``essential to the preservation of
liberty.''
Moreover, in the Steel Seizure case I quoted, Justice Frankfurter
warned that ``the accretion of dangerous power does not come in a day.
It does come, however slowly, from the generative force of unchecked
disregard of the restrictions that fence in even the most disinterested
assertion of authority.''
President Obama's actions this year wreak of unchecked disregard for
the restrictions of his authority. In his remarks after the recent
elections, President Obama repeatedly emphasized that his Executive
actions would be lawful, but, as this year has shown, he has repeatedly
acted illegally even though the Department of Justice evidently had
assured him otherwise. The Office of Legal Counsel doesn't appear to be
providing independent legal advice to the President; it is simply
rubberstamping whatever he wants to do. So it is cold comfort for the
President to assure us that anything he will do is legal.
Let's go back to the bedrock principles of our country's Founders.
The Framers of the Constitution knew an abusive Executive when they saw
one. They sent the Declaration of Independence to a King who had
ignored and abused their legislatures and laws. The Framers would also
have recognized the specific kinds of Executive abuses as reflected in
President Obama's mass amnesty. They would have referred to them as the
royal suspending and dispensing powers. But George III didn't even try
to abuse colonists with these powers. Why? Because Parliament had
denied them to the King 100 years before the American Revolution.
You see, the Kings of England had traditionally asserted the power to
suspend the operation of certain laws or to grant dispensations
prospectively excusing particular individuals from compliance. But as
deference to the King's authorities eroded, these powers became more
controversial.
As part of the Glorious Revolution in the late 17th century, these
royal powers were terminated. The first two articles in the English
Bill of Rights of 1689 made it illegal for the King to exercise the
``pretended power of suspending the laws and dispensing with the
laws.'' This happened a century before our own Constitutional
Convention. So when the Framers met in Philadelphia, these were abuses
long since remedied in England. Instead, the Framers charged the
President with the constitutional duty to take care that the laws are
faithfully executed.
With his talk now of mass amnesty, President Obama is threatening to
abandon his constitutional duty. He is threatening to reassert royal
powers that even the Framers thought were long abolished. He is
threatening to take our country backward a century before the American
Revolution.
When talking about immigration policy, the President has acknowledged
that he isn't a King, so common sense tells me he shouldn't act like
one.
During the President's remaining 2 years in office, how should the
Senate respond to his illegal Executive action on immigration or any
other Executive abuses? In some cases we can use the power of the purse
to defund them. In other cases we may use our congressional oversight
tools to expose them. In still other cases, we may be able to pass
legislation to do away with them completely. These tools have been
available to the Senate since President Obama was elected. It should
come as no surprise that the Democrats in the majority didn't use them
to confront his abuses of power. So in the 114th Congress, we
Republicans intend to use that.
The best course of action for the President is this: Learn from
President Clinton. He lost control of the Congress 2 years after he
became President. He decided to show leadership and work with the
Congress of the United States. Great things happened with a Republican
Congress and a Democratic President. We had welfare reform. We had 40
percent of the people leave the welfare rolls. We had tax reform. We
had budgets that were balanced and paid down $568 billion on the
national debt. There are things we can do together very early.
The President wants patent trolling and corporate tax reform. There
are a lot of things we can work on together.
I have been led to believe that the President is very much a free
trade person, and I believe he is. We could pass trade promotion
authority. We could work together with the President in the early
months of next year and we could gain credibility. Under his
leadership, we could reform an immigration system that needs reform.
But, no, I think the President is going to take another route and
retard the cooperation that is potentially available to him just as it
was when President Clinton was President.
I hope the President will rethink what he wants to do and show the
same leadership that President Clinton did so we can get off to a very
good start next year.
I yield the floor.
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