[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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