[Congressional Record Volume 161, Number 184 (Thursday, December 17, 2015)]
[Senate]
[Pages S8777-S8779]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE OVERREACH AND THE SEPARATION OF POWERS
Mr. SASSE. Mr. President, today I would like to propose a thought
experiment. Imagine if President Trump has been propelled into the
White House with 300 electoral votes, having won mainly by the force of
his personality, by calling BS on this town, and by his promise to
``get things done'' by acting unilaterally.
The first 100 days are huge. He signs an order to turn the Peace
Corps into stone masons to build a southern wall. He shutters the
Department of Education, and by Executive order, he turns the
Department of Interior into the classiest oil company the world has
ever known.
What happens next? Would those who have stayed silent about Executive
overreach over the last 7 years suddenly find religion? After years of
legislative atrophy, would Congress spring into action and remember its
supposed power of the purse?
And what about the Republicans? After having raged against a
supposedly lawless President, would they suddenly find that they are OK
with a strongman President, so long as he is wearing the same color
jersey they are? He may be a lawless son of a gun, some would say, but
he is our lawless son of a gun. Would the end justify the means?
The way Congress thinks and talks about Executive power over the last
few years has almost been this sophomoric. It has been based
overwhelmingly on the party tag of whoever happens to sit in the Oval
Office at any given moment. Republicans, Democrats, us versus them--
these are the political trenches, and the no man's land lies somewhere
between this Chamber and 1600 Pennsylvania Avenue, NW. When your
highest objective is advancing partisan lines on a map, it is easy to
forgive a President who oversteps his authority, so long as he is your
guy and the one with authority is in your party.
This Senator suggests that this is the entirely wrong way to think
about this issue. The problem of a weak Congress--which we are--and the
growth of the unchecked Executive should be bad news to all of us. But
more importantly than us, this should be bad news for every constituent
who casts their votes for us under the impression that the Congress
actually makes decisions and doesn't just offer whiny suggestions.
The shrinking of the legislature in the age of Obama should be bad
news for all of us for three reasons. First, we have taken an oath to
defend the Constitution, and the Constitution invests the legislature
with the legislative powers.
Second, the Founders' design of checks and balances actually was and
is a good idea. They were struggling to preserve the freedom of the
individual and especially of the vulnerable against the powerful--
against those who could afford to hire the well-connected lobbyists.
The Founders were equally afraid of the unchecked consolidation of
power in a king or in the passions of a mob. They understood that human
nature means that those in power will almost always try to grab more
power, and that base reality hasn't changed over the last 230 years.
Third, under the system that is now emerging, the public is growing
more and more frustrated. They think that most of us will be reelected
no matter what, and they think that the executive agencies that daily
substitute rulemaking for legislating will promulgate whatever rules
they want, no matter what, and that the people have no control. People
grow more cynical in a world where the legislators who can be fired--
that is what elections are for--have little actual power and a world
where bureaucrats, who have most of the actual power, cannot be fired.
It is basically impossible for the people who are supposed to be in
charge of our system to figure out how they would throw the bums out.
They ask: Where is the accountability in the present arrangement?
Allow me to be clear about two issues up front. First, this Senator
believes that the weakness of the Congress is not just undesirable; it
is actually dangerous for America and her future. Second, this Senator
thinks so not because I am a Republican and we have a Democrat in the
White House; rather, I think this because of my oath of office to a
constitutional system, and I will continue to hold this view, having
taken this oath, the next time a Republican President tries to reach
beyond his or her constitutional powers. Despite these two strongly
held views, though, in this series of addresses on the growth of the
administrative State and more broadly on the unbalanced nature of
executive and legislative branch relations in our time, my goal will
not be primarily to advocate. My first goal is just to do some history
together.
My goal is primarily to describe how the executive branch has grown
and how Presidents of both parties are guilty of it. But it isn't just
that Republicans and Democrats are guilty of trying to consolidate more
power when they have the Presidency, although that is true; it is a
one-way ratchet. It
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is also true that Republicans and Democrats are to blame in this
Congress for not wanting to lead on hard issues and take hard votes,
but rather to sit back and let successive Presidents gobble up more
authorities.
My goal is to give all of us who are called to serve in this body a
shared sense of some historical moments, how we got to this place where
so much of the legislative function now happens inside the executive
branch, and to convince my colleagues of both parties that we have to
take this power back, regardless of who serves in the White House and
what party they are from.
So how did we get to the place where so many giant legislative
decisions are now made inside 1600 Pennsylvania Avenue and in the
dozens of alphabet soup agencies? To understand that, we have to look
briefly at the Founders and what they were trying to accomplish. These
were educated men who had studied all forms of government throughout
human history. They had a worked-out theory of human nature. They knew
that we are created with inherent dignity worthy of respect, that our
rights come to us from God via nature, and that government doesn't give
us rights; government is just our shared tool to secure those natural
rights. At the same time they knew that we also have a disposition to
self-interest and a capacity for evil. They observed it throughout all
of human history, rulers trying to consolidate more power for their own
ends, and this is obviously dangerous.
One of the lessons they drew from their rich historical understanding
was the importance of keeping three main functions of government
separate. As Montesquieu wrote: ``All would be lost if the same man or
the same body of principal men, either of the nobles or of the masses,
exercised these three powers: that of making the laws, that of
executing public resolutions, and that of judging the crimes and
disputes among individuals.''
The separation of powers could not, of course, be absolute, for the
branches had to work together, each power had to counterpose one
another. The key was to divide the power among different institutions
while ensuring that those institutions could act together as a coherent
whole on the basis of what they call ``mixed government.''
The Constitution that emerged from the Founders' debates and
deliberations intentionally enshrines the separation of the powers, and
this was a direct result of the Founders' study of human nature and
their conclusion that that nature was relatively constant. Men
everywhere tend to aggrandize power and to use it for selfish ends.
When power checks power in the government, the people are better
protected. As Tocqueville said when he studied America: Their more
constrained government leaves them more room for civil society.
We have a limited government because we mean to enable nearly
limitless--that is, more free families, more free inventors, more free
churches and synagogues, more free not-for-profits, more free local
governments, and so on.
If you have to describe the essence of the American government in one
sentence, Lincoln, to paraphrase, would say, it is ``of the people, by
the people, and for the people.'' Americans believe that we are free,
endowed by our Creator with unalienable--that is unchangeable and
untouchable--rights. That is opposite of everything the world had ever
held in government until 1776.
This is what American exceptionalism means--not that there is
something unique about Americans distinct from people in any other
place, but that the American idea is premised on rejecting the idea
that the King is the one who is free. The King, after all, had an army,
and you didn't, and he could use his power however he wished. His
subjects--remember they were not called citizens; they were subjects--
were dependent. If they wanted to open a business, to start a church,
to publish a book, then they needed to ask the King for permission. All
that was not mandatory was forbidden unless the King gave you an
exception, unless the King gave you a carve-out, unless the King gave
you a waiver.
In America, the opposite was to be true. You are born free,
regardless of where you are from or who your parents are, regardless of
your bank balance or the color of your skin. In America, if you want to
preach a sermon or write a piece of investigative journalism, if you
want to say that your elected leaders are losers, if you want to invest
in a new app or launch a nonprofit, you don't need the King's
permission, for you are free.
About 100 years ago, this idea and our system of separation of powers
came under attack. There are three or four large reasons why the era of
urbanization, industrialization, and then progressivism and the rise of
specialized experts called our constitutional system of limited
government into question. We will tackle some of those topics after the
holidays. But for now, it is sufficient to say that the Presidency
began to grow larger in the first two decades of the 20th century, and
the Congress began to lose some of its powers.
It happened because Presidents of both parties were willing to
overreach and because the Congress was willing to underreach, to
retreat from that field of competitive ideas, to retreat from our
constitutional commitments.
For every TR--Teddy Roosevelt, a Republican--there is an FDR, a
Democrat. This should not be a partisan issue, for both sides have been
guilty of extensive executive branch overreach. Meanwhile, the
professional legislators realized that permanent incumbency is easier
if you cede control rather than lead, if you decide not to take the
hard votes but just quietly ask the executive branch to make the
decisions unilaterally.
Today many in my party argue that no President has ever even
contemplated what President Obama regularly does. That is actually not
true. Whatever one might think of President Obama's gobbling up of
powers, his theories are not at all new. His theories date back to the
Progressive Era's disdain for limits of the Constitution, and this is
especially evident in the self-conscious Executive expansionism of
Teddy Roosevelt, the Republican, and Woodrow Wilson the Democrat.
After the holidays, we are going to spend a little time exploring
both of these men and their attempts to marginalize and to
intentionally ignore the Congress to--as TR put it--``greatly broaden
the use of executive power.''
I hope that this look at the rise of the executive branch and its
legislating over the next number of months will contribute to the
efforts of all of us here together who want to recover and safeguard
that constitutional vision.
But in historical terms, the Congress, in the age of Obama, is very
weak. This isn't about the current majority leader, and it isn't about
the most recent previous majority leader. It is much bigger than that.
This institution is arguably the weakest it has been relative to the
executive branch at any point in our Nation's 2\1/2\ centuries. Others
interested in the history of this special place might argue that there
is some other moment with greater relative weakness than this current
moment. We should have that debate, for we should be discussing how and
why this institution became so weak.
We should stop pretending--the constant exaggeration around here as
people fake it, pretending that some tiny procedural vote that didn't
pass somehow still changed the world. We should stop pretending
omnicompetence across huge expanses of often unknowable executive
branch governmental action.
Voters--better, citizens--don't believe us. The lobbyists don't
believe it either. They are willing to fake it with you, but they don't
really believe you, which is why so many lobbying firms today are
expanding most of their efforts in the regulatory--not the
legislative--lobbying space, for that is where the action is.
It would be far more useful in this body--not to mention far more
believable to the people who we work for--for us to learn to talk
openly about how and why this once powerful and still special body
became so weak. Congress is mocked, and we should tackle the hows and
whys, for the people are not wrong. We should stop this trend, and the
first step toward that would be to better understand and to more openly
admit the nature of the problem.
I planned this series on the growth of the executive branch for early
in 2016 because it would be healthy for the Senate and for our broader
public to be
[[Page S8779]]
wrestling with the duties and constitutional authorities in advance of
November's Presidential elections before we will know which party will
win. We need to have this conversation now precisely because we don't
know which party will win.
Let me be realistic for a minute. I hope it is not pessimistic, but I
will be realistic. I actually don't think there is much will in this
body to do things like recovering the power of the purse. And even if
there were, the will to get beyond R's and D's, shirts and skins Kabuki
theatre, as we drift toward a parliamentary system with ``winners take
all'' in the executive branch--the actual act of trying to recover
power, the power of the purse and the legislative powers that the
Constitution vests in this body--would be very difficult at a time when
the public is so cynical and so disengaged because of how dysfunctional
this institution is.
I think that the Democrats are likely only to recover a sense of
their article I powers if they are looking at a President Trump or a
President X or a President Y or whoever the scariest candidate might be
to the Democrats.
Similarly, I think the Republicans are most likely prone to forget
most of their concerns about Executive overreach if a Republican does
defeat Secretary Clinton in November.
I will just end with two brief stories. In the first, FDR was
frustrated with the Supreme Court, so he had a solution. He would just
pack the Court. Who could stop him? He had control of the Congress,
after all.
Well, someone did stop him--Senate Democrats who cared about the
Constitution and their oath stepped up.
In one of the other great instances of this place just saying no,
regardless of party, LBJ--arguably the most powerful leader until the
last 10 years in the history of the Senate, the most powerful leader
this place had ever known in his age--became VP and said he would
essentially remain majority leader of the Senate at the same time.
Again, it was Democrats in this body who said no based on their
constitutional responsibilities, not their partisanship. These were men
and women who cared more about their country and more about their
Constitution and more about their oaths than their party.
I think that all of us in both parties should look to those examples
and again be talking in the future about how we emulate them and
recover the responsibilities of this body.
The PRESIDING OFFICER. The Senator from Georgia.
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