[Congressional Record Volume 160, Number 146 (Wednesday, December 3, 2014)]
[House]
[Pages H8358-H8360]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE ACTION
The SPEAKER pro tempore. Under the Speaker's announced policy of
January 3, 2013, the gentleman from Georgia (Mr. Woodall) is recognized
for 60 minutes as the designee of the majority leader.
Mr. WOODALL. Mr. Speaker, I have got a heavy heart because I feel
like, in just the short time you and I have been in this body, we have
seen the same story play out more than once. You would like to think
that we would all learn from our mistakes in this body.
In fact, I don't fault any of my colleagues who make mistakes. I am
one of the folks who is guilty of having made a mistake before, Mr.
Speaker, and I am not going to put you in that same box; but, yes, I
have made a mistake before. The question isn't: ``Do you make
mistakes?'' The question is: ``What do you learn from your mistakes?''
As we go down this road of executive action, this conversation that
the country is having today, I feel like we have been down this road
before, and I want to try to connect a couple of those dots for folks
tonight, Mr. Speaker.
You can't see what I have here, but it is something that is near and
dear to your heart. It is article II, section 2, of the United States
Constitution.
It says:
The President shall have the power to fill up all vacancies
that may happen during the recess of the Senate by granting
commissions which shall expire at the end of their session.
Now, you wonder why this is important. It is just one paragraph in a
relatively lengthy and really meaty Constitution. The answer is because
it defines the relationship between the article I, Congress, and the
article II, White House.
It says, White House, if you want to make appointments to positions
of great power, of great authority, in the United States Government,
you must do so with the advice and consent of the United States Senate,
that the Senate must confirm all of those individuals the President
wishes to place in these positions of great power.
The President back in 2012, 2011, had some folks he wanted to appoint
to positions of great responsibility. One of those was to the National
Labor Relations Board. You will recall this, Mr. Speaker. The President
made some nominations, and the Senate said, ``No, this isn't going to
fly.''
Now, the President could have gone back and said: ``Do you know what?
If you don't like these nominees, this is an important job, it is an
important responsibility, I am going to appoint some different
nominees. I am going to put some different names out there. I am going
to work with you to try to find some folks we can agree on as the
Constitution requires.''
It is not what the President did. In fact, there is a pattern of that
not being what the President does.
What the President did instead of working with the Senate--what the
President did instead of offering some different names--what the
President did instead of trying to find common ground was he went to
this article II, section 2, of the United States Constitution and said:
``I have the power to fill these spots without anybody else's advice or
counsel, without anybody else's consent, as long as I do it during
recess.''
He woke up one morning, and he declared the Senate in recess, and he
made these appointments. Now, that would be all well and good, Mr.
Speaker, if the Senate had, in fact, been in recess, but the Senate was
not in recess.
I have here on a chart, Mr. Speaker, a quote from Senate Majority
Leader Harry Reid. It is November 16, 2007, when President Bush was
still the President of the United States. He, too, wanted to make some
nominations. The Senate then, as in 2012, disagreed with those
nominations and didn't want to appoint those people.
Senate Majority Leader Harry Reid said this:
The Senate will be coming in for pro forma sessions during
the Thanksgiving holiday to prevent recess appointments. My
hope is that this will prompt the President to see that it is
in our mutual interests for the nominations process to get
back on track.
Hear that, Mr. Speaker? Senate Majority Leader Harry Reid said to
then-President George Bush: ``I don't like the folks you are trying to
nominate. I disagree with you on those nominations, so I am going to
keep the Senate in, in pro forma session, to prevent you from
nominating those folks during a period of recess, to prevent you from
using article II, section 2. I hope that will encourage you to come and
work with us together to find folks who are mutually agreeable for
these positions.''
In November 2007, Harry Reid kept the Senate in session, these pro
forma sessions, all through the Thanksgiving holiday.
{time} 1915
I now bring you to December 19, 2007, later that same year. Again,
Senate Majority Leader Harry Reid said this: I could be a grinch. I
could tell the President that I would not move any nominations, given
his demand to make controversial recess appointments. But I am not
going to do that tonight, Mr. President. I am not going to meet
intransigence with intransigence. We will confirm those appointments
this evening, and I will keep the Senate in pro forma session to block
the President from doing an end run around the Senate and the
Constitution with his other controversial nominees.
Hear that: Getting ready to head home for Christmas, Senator Harry
Reid said to then-President George Bush: I will not let you do an end
run around the Constitution by appointing individuals to these powerful
positions across the government without the consent of the Senate. I
will not let you do it, and I will prevent you from doing it by keeping
the Senate in pro forma session during the holidays.
Pro forma session means you are in once every 3 days. That is how the
law defines it. You come in once every 3 days. It doesn't count as a
recess. Harry Reid knows this. It is the tool that he uses to prevent
then-President
[[Page H8359]]
George Bush from doing, and I quote, an end run around the Senate and
the Constitution.
I found it fairly persuasive, Mr. Speaker. In fact, President George
Bush found it fairly persuasive. And this ended the argument because no
President has a vested interest in making an end run around the Senate
and the Constitution.
But President Obama didn't see things that same way. In January of
2012, faced with the exact same circumstances, Mr. Speaker, a Senate in
pro forma session designed specifically to prevent recess appointments,
the President woke up one morning in January and said: The Senate is,
in fact, in recess. They say that they are not, but they are wrong.
They, in fact, are. I am going to make four appointments today.
Now, you would think, having read what we read from Senate Majority
Leader Harry Reid, that the Senate would have melted down with
defenders of article I standing up and saying: Mr. President, we may
agree with your politics, we may agree with your policy, but we
disagree with this end run that you are making around the Senate and
the United States Constitution.
It is what you would have expected. It is what you would have hoped
for. But it is not what you got.
Senator Tom Harkin, when asked about those appointments, said the
President ``acted responsibly'' in making those appointments. He
``acted responsibly.''
This is the National Labor Relations Board we are talking about. So,
of course, the AFL-CIO commented that President Richard Trumka said the
President was ``exercising his constitutional authority to ensure that
crucially important agencies protecting workers and consumers are not
shut down.''
The Labor Secretary is one of those Members that had to be confirmed
by the United States Senate. Then-Labor Secretary Hilda Solis said:
``We can't afford to not move on very important issues that affect
working class people.'' We cannot afford not to move. We cannot afford
to allow the Constitution to get in the way of those things that we
would like to do.
This isn't sour grapes from a Republican in the U.S. House of
Representatives, Mr. Speaker. This case went to the Supreme Court. This
case went to the Supreme Court. And on that Court, of course, sit two
Obama appointees; two Clinton appointees sit there. Mr. Speaker, 2\1/2\
years later, 9-0 was the ruling from the Supreme Court that what the
President did was patently unconstitutional. Unconstitutional.
Now, this isn't a surprise to anyone. You will remember the words of
Harry Reid when he implemented these sessions to prevent recess
appointments. He said: I am not going to let the President do ``an end
run around the Constitution.'' The Constitution has these requirements.
Harry Reid knew it. President Bush knew it. Harry Reid knew it again in
2012. President Obama knew it in 2012, and he did it anyway, as then-
Labor Secretary Hilda Solis said: because we have important things that
we need to do, and we can't let things get in the way.
Quoting from that 9-0 decision, Mr. Speaker, Justice Breyer wrote the
majority opinion. He said: ``The recess appointments clause is not
designed to overcome serious institutional friction. Friction between
the branches is an inevitable consequence of our constitutional
structure.''
That bears repeating, Mr. Speaker. The ``clause is not designed to
overcome serious institutional friction. Friction between the branches
is an inevitable consequence of our constitutional structure.''
I don't even know if that captures it, Mr. Speaker. It is not really
an inevitable consequence. It is there by design. It is not an accident
that we have this friction. It is there by design.
This isn't the ranting of a sour grapes conservative Republican. This
is the unanimous decision of a Supreme Court that is as divided as any
Court we have seen in my lifetime.
But they unanimously said: President Obama, your goals are not what
we are litigating today. The process that you are using to achieve your
goals is unconstitutional. Why? Because Congress got in your way. And
instead of working with Congress, you went around Congress, and the law
doesn't allow for that.
Sound familiar, Mr. Speaker? Sound familiar? It took 2\1/2\ years to
litigate that case. It took 2\1/2\ years to get an answer from the
Supreme Court. In those 2\1/2\ years, over 400 cases were decided by
the National Labor Relations Board, now all invalidated by this Supreme
Court decision, lives thrown into turmoil.
Not one Senator, not one Democratic Senator, not one Senator from the
leadership spoke out to say: Mr. President, I may agree with your
politics, I may agree with your policies, but the way you are getting
them done is unconstitutional.
And every one of them knew it, just like the Supreme Court did, 9-0,
when they ruled 2\1/2\ years later.
Now fast-forward to today, Mr. Speaker. We are talking about
immigration. And we are not talking about good immigration policy,
because that is what we talk about in the Judiciary Committee. We are
not talking about immigration law in this country, because that is what
is decided in the House and the Senate. What we are talking about is
the President taking action on his own in an end run around the Senate,
an end run around the House, an end run around the Constitution and
implementing immigration policy all by himself.
He was asked about that in a Univision town hall, Mr. Speaker. It was
March of 2011, and the question that was put to the President was:
``Mr. President, my question will be as follows: With an executive
order, could you be able to stop deportations of the students?''
Fair question. Fair question. A lot of folks out there have this
issue on their mind.
It was March of 2011, and this is what President Barack Obama said in
answer to the question: Mr. President, can't you just stop deportations
by executive order? The President said this: ``With respect to the
notion that I can just suspend deportations with executive order,
that's just not the case because there are laws on the books that
Congress has passed.''
The President was right on that day in March.
``I can't just do this by executive order,'' he told the questioner,
``because there are laws on the books that Congress has passed.'' He
says: ``Congress passes the law. The executive branch's job is to
enforce and implement those laws. Then the judiciary has to interpret
those laws. There are enough laws on the books by Congress that are
very clear in terms of how we have to enforce our immigration system
that for me to simply, through executive order, ignore those
congressional mandates would not conform with my appropriate role as
President.''
Those are not my words, Mr. Speaker. Those are President Barack
Obama's words. ``There are enough laws on the books by Congress that
are very clear''--very clear--``in terms of how we have to enforce our
immigration system that for me to simply, through executive order,
ignore those congressional mandates would not conform with my
responsibilities as President.''
Now, that is powerful, Mr. Speaker; but that is not even the most
interesting part of that response. He went on in that question and said
this:
That doesn't mean that we can't make decisions to emphasize
enforcement. It doesn't mean that we can't strongly advocate and
propose legislation that would change the law in order to make it fair
or more just and ultimately would help young people who are here trying
to do the right thing and whose talents we want to embrace in order to
succeed as a country. It doesn't mean that we can't work hard to change
the law. It just means that I, as President, don't have the ability to
do it by myself. The Constitution requires a team effort between
Congress and the White House.
Mr. Speaker, this wasn't just a one-time thing. This wasn't just a
quote that I pulled out of thin air. I am not trying to mischaracterize
the President's feelings.
November 2013, he is being heckled. He is giving a speech, and he is
being heckled by protesters who want him to do more in terms of
changing immigration law. You have just heard his last quote, where he
said, I can't do this by myself. Congress has to lead in this
[[Page H8360]]
area. He is being heckled; and he says this:
``What you need to know, when I'm speaking as President of the United
States and I come to this community, is that if, in fact, I could solve
all these problems without passing laws in Congress, then I would do
so.''
That is what he says to the heckler. He said: Sir, what you need to
know is, if I could, I would. If I could change these laws without
Congress, I would. But the Constitution doesn't allow for it.
President Obama went on to say:
``We're also a nation of laws. That's part of our tradition. And so
the easy way out is to try to yell and pretend like I can do something
by violating our laws. And what I'm proposing is the harder path, which
is to use our democratic processes to achieve the same goal that you
want to achieve. But it won't be as easy as just shouting. It requires
us lobbying and getting it done.''
Wow, Mr. Speaker. He is being heckled for his position on immigration
policy, and he says to the heckler: If I could do something about it, I
would, but I can't because America's tradition is a tradition of laws.
He says: It is not as easy as just one man deciding that he is going to
ignore the law or change the law. What it takes is hard work, working
with Congress, lobbying in Congress, working through legislation and
changing the laws. It is not as easy as one man deciding he doesn't
like the law, because our tradition is a tradition of law.
He goes on to that heckler, Mr. Speaker, and he says to him: If you
are serious about making that happen--that change happen, changing the
law--if you are serious about making that happen, then I am willing to
work with you, but it is going to require work.
He says: It is not simply a matter of us just saying we are going to
violate the law. That is not our tradition. The great thing about this
country, President Obama said, is we have this wonderful process of
democracy. And sometimes it is messy, and sometimes it is hard, but
ultimately, justice and truth win out. That has always been the case in
this country, and that is going to continue to be the case today.
Mr. Speaker, that was a year ago. That was a year ago that President
Obama said to the heckler wanting him to do unilateral immigration
action, he said it is not just a matter of us saying we are going to
violate the law. He said we have got this wonderful process, this
crazy, crazy process called democracy, where we go to the House and we
go to the Senate and we work to change the law. He says it is hard. He
says it is a hard process. It is a messy process. But ultimately, truth
and justice win out. And he is so right. He is so right.
Justice Breyer in that 9-0 decision, rebuking the President for
violating the Constitution, said: ``Friction between the branches is an
inevitable consequence of our constitutional structure.''
{time} 1930
We have been down this road before.
Mr. Speaker, I represent a community of immigrants, a vibrant,
wonderful, wonderful community of immigrants, folks who have stood in
line and paid their money, folks who have relatives overseas who have
been waiting in line 5 years, or 10 years, or 20 years, and I welcome
the opportunity to work with my colleagues to change the law to bring
fairness and justice to them. Oh, Mr. Speaker, I have got folks in my
district with big brains, big minds, strong work ethics, but the visas
they are here under don't allow them to go to work.
The President has proposed offering 4 million new work permits to
folks who have done it the wrong way. I have got folks in my district
who have done it the right way, waiting in line without the ability to
work.
Are there things on which we can agree? There absolutely are. But
isn't the first of those things that the President cannot unilaterally
change the law from 1600 Pennsylvania Avenue? He knew that was true in
2012. He knew that was true in 2013. What has changed about our 250-
year-old Constitution today that suddenly makes it okay? The silence in
this town is deafening from folks who know the right way, who know the
right way to pass a law, to change a law, to implement a law, and to
enforce a law in the America that you and I love, the America that we
inherited from patriots before us.
The President says it is sometimes messy and it is sometimes hard,
but the great thing about this country is we have this wonderful
process called democracy. Justice Breyer says, ``Mr. President you
might have forgotten a little bit about that democracy.'' And 9-0 the
Supreme Court says the Constitution was thrown by the wayside in the
President's zeal to implement his policies, in the President's zeal to
do, as Harry Reid described it, an end run around the Senate, and the
President's zeal to do, as Mr. Reid described it, an end run around the
Constitution.
Mr. Speaker, I welcome a policy debate with the President. I welcome
a partnership with the President to fix a muddled immigration process
that we have in this country today. We are a land of immigrants. We
always have been, and we always will be. And I thrive on that. I
celebrate that. But we are also a land of laws, a sentiment the
President has acknowledged and celebrated in years past and a sentiment
that just days after the last election the President threw out the
window in the spirit of the ends justifying the means.
I don't think the American people are going to let that stand, Mr.
Speaker. And I call on folks from the left and the right to be a part
of that chorus of voices. We are not having a debate tonight. We are
not having a debate tomorrow about policies of immigration reform. The
discussion we are having is about process. The discussion we are having
is about whether or not the Constitution matters. The discussion we are
having is, who writes the laws? Does Congress craft the laws and the
President signs them? Or does the President craft the laws and the
President signs them?
``It is not simply a matter of our saying we are going to violate the
law,'' the President said. ``The easy way is to yell and scream and
pretend that I can do something by violating our laws, but the better
path is the harder path,'' the President says. ``With respect to the
notion that I can just suspend deportation through executive order,
that is just not the case because there are laws on the books that
Congress has passed,'' the President says. ``There are enough laws on
the books by Congress that are very clear in terms of how we have to
enforce our immigration system that for me to simply through executive
order ignore those congressional mandates would not conform with my
appropriate role as President,'' President Obama says.
Nine to zero in defense of the Constitution the last time the
President decided he was going to go it alone, an end run around the
Senate, as Harry Reid says, an end run around the Congress, as Harry
Reid says. But it took 2\1/2\ years for the Supreme Court to sort that
out.
I think America deserves better, I think those trying to immigrate to
this country deserve better, I think those fighting for work back home
deserve better, and perhaps worst, Mr. Speaker, I think the President
knows better and has chosen the path he has chosen anyway. There is
still time to turn back on that decision, Mr. Speaker.
There is still time to engage in that partnership, to engage in that
messy, that hard, but that oh so rewarding process as the President has
described it that is the Constitution-defined democracy that we live in
today.
With that, Mr. Speaker, I yield back the balance of my time.
____________________