[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.

                          ____________________