[Congressional Record Volume 162, Number 26 (Friday, February 12, 2016)]
[House]
[Pages H806-H811]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
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AMERICA'S RULE BOOK: THE UNITED STATES CONSTITUTION
The SPEAKER pro tempore. Under the Speaker's announced policy of
January 6, 2015, the gentleman from Georgia (Mr. Woodall) is recognized
for 60 minutes as the designee of the majority leader.
Mr. WOODALL. Mr. Speaker, we have got our Presidential primary coming
up in Georgia in the first week of March, and everybody is talking
about what it means to be an American and where it is we want America
to go. I love that conversation. I love that it is happening on the
Democratic side of the aisle. I love that it is happening on the
Republican side of the aisle. I love that it is happening in every
household in America.
What I don't hear as much conversation about--and I wish that I did--
is about that rule book for how America is supposed to be run, called
the United States Constitution. Folks seem to have a firm grasp on it
when they want to be the President of the United States. They lose that
grasp when they get to be President of the United States, because they
want to serve. They so badly want to serve.
What I have here, Mr. Speaker, are a couple of quotes from President
Obama.
He says:
I taught constitutional law for 10 years, and I take the
Constitution very seriously. The biggest problems that we are
facing right now have to do with George Bush's trying to
bring more and more power into the executive branch and not
go through Congress at all; and that is what I intend to
reverse when I am President of the United States of America.
Now, that was at a Pennsylvania townhall meeting, Mr. Speaker, when
the President was running for office.
As a Senator, he could see clearly that, in article I, the House and
the Senate were in charge of passing the laws, and that, in article II,
the White House was in charge of enforcing the laws. During the 8 years
that George Bush was President, time and time again, charges were made
that the White House was taking the people's power from article I and
carrying it down Pennsylvania Avenue to the White House.
Again, I quote from President Obama:
I taught the Constitution for 10 years. I believe in the
Constitution, and I will obey the Constitution of the United
States. We are not going to use signing statements as a way
of doing an end run around Congress.
That was at a Montana campaign event back in 2008.
The President was absolutely right, and Republicans in this
institution were absolutely wrong, during his 8 years in the White
House, for not holding George Bush more accountable to his article II
responsibilities and staying out of Congress' article I
responsibilities; but it was hard, Mr. Speaker. It was after 9/11.
I will forever wonder what America would have looked like but for
that fateful day. The President was off, focusing on his agenda. We
were not campaigning on 9/11 issues in that election. We were
campaigning on domestic issues, on economic issues. The economy was on
fire, and then everything changed.
I would argue that many of my Republican colleagues--you and I were
not here at that time, Mr. Speaker--cut President Bush a lot of slack.
America was in crisis, and the Nation was under attack; and we said: Do
you know what? The Constitution does give the President special
responsibilities during these times of national crisis, and I am
willing to allow him to adopt a little more authority--I am willing to
be a little more deferential--to the President during these difficult
times.
President Obama saw that as then-Senator Obama, and he said: That is
wrong. Republicans are not supposed to be Republicans first.
Republicans in Congress are supposed to be Congressmen first.
Republicans in the Senate are supposed to be Senators first. Our
obligation first is to our constituents back home, to the United States
Constitution, not to someone who may or may not hold the same party
title at the White House.
As a candidate, the President saw that clearly, but we all know how
that transpired, Mr. Speaker.
As President, the President has said this:
We can't wait for an increasingly dysfunctional Congress to
do its job. Where they won't act, I will.
We can't wait for that Constitution, which was specifically designed
to be slow and painful, because every act that we pass here, Mr.
Speaker, takes freedom or power or money from someone in America and
gives it to someone else. It was designed to be hard; but as President
Obama says: I can't wait. Where Congress won't act, I will.
I continue to quote, Mr. Speaker, from a different speech during a
Cabinet meeting in 2014:
But one of the things that I will be emphasizing in this
meeting is the fact that we are not just going to be sitting,
waiting for legislation, in order to make sure that we are
providing Americans with the kind of help that they need. I
have got a pen and I have got a phone. I can use that pen to
sign executive orders and take executive actions and
administrative actions that move the ball forward.
Mr. Speaker, one of my great disappointments in this administration
is that President Obama had an opportunity to lead America in ways that
no other President could have led. He had an opportunity when he was
elected, with all of his personal charisma and popularity, to lead
public opinion in ways that no other President could. He was not my
choice for President, but when America chose him, America chose
opportunity to do things that we could not have done otherwise.
All we are in this Chamber is a reflection of that public opinion
back home. All we are the voices of our individual districts back
home--435 voices representing millions of constituents back home. The
President could have come and changed the minds of those in this
Congress. He could have come and changed the minds of the people.
Instead--do you know what?--he said: I have studied the Constitution
for 10 years. It is really hard to move Congress. It is really hard to
move public opinion. So I am going to use my phone and my pen, and I am
going to do it alone.
This isn't just in the White House, Mr. Speaker. This idea that the
people's voice in Congress is a nuisance and gets in the way of getting
the real business done permeates the entire administration.
I quote from EPA Administrator Gina McCarthy:
But I will tell you that I didn't go to Washington to sit
around and wait for congressional action. I have never done
that before, and I don't plan to do it in the future.
Forbid the thought. Forbid the thought you would be on the Federal
Government's payroll, charged with enforcing the laws of the land, and
you might sit around and wait for Congress to pass the laws of the
land. Forbid the thought. If you have got a phone and if you have got a
pen, just go ahead and rewrite those laws of the land, Mr. Speaker. It
is dangerous when Republicans do that. It is dangerous when Democrats
do that. It is dangerous when Independents do that.
We have a Constitution as our rule book for a reason, and that is
that changing the law should be hard. Taking power from one group and
giving it to another should be hard. Taking money from one group and
giving it to another should be hard. The power is not ours, Mr.
Speaker. The power is the people's. They allow us to administer it for
a short period of time, and there is a long and difficult process to do
that.
Mr. Speaker, I am going to focus on some EPA regulations today. In
the past, Presidents have acknowledged how hard it is to get it done,
but they have committed to going out there and getting it done. I will
remind you, Mr. Speaker, that the EPA was created by a Republican
President. There is no one who cares more about clean water and clean
air in the great State of Georgia than I do. I am a hardcore, Deep
South Republican, Mr. Speaker, and we play outside a lot. Our kids are
outside a lot. We are drinking a lot of water, and we are playing in a
lot of grass. We care about a clean environment. So did President
Richard Nixon when he created the EPA.
He said this:
The reorganizations which I am proposing afford both the
Congress and the executive branch an opportunity to
reevaluate the adequacy of existing programs involved in
these consolidations.
[[Page H807]]
I look forward to working with the Congress in this task.
Congress, the administration, and the public all share a
profound commitment to the rescue of our natural
environment and in the preservation of the Earth as a
place both habitable by and hospitable to man. With its
acceptance of these reorganization plans, the Congress
will help us fulfill that commitment.
Mr. Speaker, President Nixon had a vision of what he wanted to do for
environmental protection in America.
He said this is a three-part vision: it is going to involve the
executive branch; it is going to involve the legislative branch; it is
going to involve the American people. I am going to take this idea out,
and I am going to sell it. We are going to get it passed into law
because I am going to make the American people believe it. We all want
the same things: we want an environment that is hospitable to and
habitable by man; we want an environment that serves us today and our
kids and grandkids tomorrow. He went out there, and he sold America on
this, and we did it together. By article I, Congress passed it, and the
President signed it into law.
With the Clean Air Act Amendments of 1990, Mr. Speaker, you will
remember it was a Democrat-controlled Congress and Republican George H.
W. Bush in the White House.
George H.W. Bush said this:
Upon signing the Clean Air Act Amendments of 1990, today, I
am signing S. 1630, a bill to amend the Clean Air Act, and I
take great pleasure in signing S. 1630 as a demonstration to
the American people of my determination that each and every
American shall breathe clean air. The passage of this bill is
an indication that the Congress shares my commitment to a
strong Clean Air Act, to a clean environment, and to the
achievement of the goals I originally set forth.
Mr. Speaker, if you will recall, at the time of the Clean Air Act of
1990, I was in college. It was a battle in Washington, D.C. It was a
battle. Again, the Democrats were controlling all of Congress, and the
Republicans were in the White House, trying to decide what our
obligations were as individuals, what businesses' obligations were, and
what government's obligations would be. It was hard and it was
important.
Mr. Speaker, you will remember that was acid rain. That was when they
panned the camera around to the monuments throughout the city and
showed where the facial features were being eroded by acid rain.
We said what can we do together to make a difference? It was not
someone with a phone and a pen. It became a national movement. It was
what all laws are supposed to be, Mr. Speaker, which is where we come
together and we talk about our differences; we take steps forward where
we can; we take time to sort out the steps we can't take today but hope
to take tomorrow.
In signing that legislation, the President said: This represents my
vision. This represents my goals. This represents my commitment to
clean air. Because the people's Representatives in Congress passed it,
it represents all of the American people as well.
Mr. Speaker, that is the way it is supposed to be. It is hard and it
is slow, and it has been a long time since we have seen that function
effectively; but let me tell you what the impact of that is.
The Founding Fathers were really smart folks, and I am never willing
to underestimate the wisdom that is in those few founding pages. We
have article I in the legislative branch. We have article II in the
executive branch. We have article III in the judicial branch. In these
days, where article I and article II are not functioning as they
should, article III is wielding more than its fair share of the power,
and I will tell you that is wrong. I will tell you that is wrong.
Decisions about what is the right law of the land are made one of
three ways, Mr. Speaker. They get made because the President of the
United States, who was popularly elected, signs a bill into law. They
get made because the United States Congress, which was popularly
elected, overrides a veto and implements a new law; or they get made
because nine men and women who are in black robes and are across the
street at the Supreme Court, who have never been elected, sit around
and think deeply about it and pronounce what the law of the land will
be.
Now, Mr. Speaker, I have great respect for the Supreme Court, and I
believe it is critical--again, in the wisdom of our Founding Fathers--
to have balanced power in that way; but as a citizen, as just a guy
from the great State of Georgia--just one of 300 million--when I have
to choose who writes the law--the President I have a chance to vote
for, the Congress I have a chance to vote for, or the Supreme Court,
which is appointed for life and is never accountable to anyone--I feel
a little bit safer when it is one of the folks who has to be up for
reelection every once in a while.
It is bad for America when the President--with a pen and a phone--
goes and implements those things, when we as the legislative branch
don't identify ourselves as article I but identify ourselves as
Republicans and Democrats--who are divided along those lines--and allow
the courts to sort it out.
Let me just give you an example, Mr. Speaker: WOTUS, waters of the
U.S. I had never heard the term ``WOTUS'' until I showed up in this
Chamber, Mr. Speaker. Waters of the United States is an initiative from
the President that is going to reregulate who controls and keeps tabs
on clean water in America.
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Currently, if it is navigable water, water that you can sail your
boat on, then it is governed by the Federal Government. If it is any
other water, it is governed by State government.
The little creek in the backyard at the park down the road from my
house, that is governed by the great State of Georgia, and they do a
great job with it. It empties out into the Chatahoochee River, which is
navigable, which is regulated by the Federal Government. It goes
through some National Park land, national recreation area, but it
begins--where so much of an opportunity to impact pollution and make a
difference in water quality--at the headwaters, which is regulated by
State governments.
Well, Jim Oberstar, a Representative in this Chamber back in 2010,
introduced a bill that said, since the Federal Government is so
effective at everything that they do, let's entrust all clean water
decisions to the Federal Government instead of to the localities that
have been doing it so well for so long.
Well, he introduced a bill in Congress, Mr. Speaker, and that is the
way it is supposed to start. This was H.R. 5088. He introduced a bill
to expand the definition of water so that the Federal Government could
regulate everything.
Second step, Mr. Speaker, is to have that bill considered. Well, the
bill never was considered in this Chamber. It could not gather enough
support in this Chamber to even be considered in the committee, much
less the floor of this House.
Well, you have seen it, Mr. Speaker:
``Yes, I'm only a bill, And I'm sitting here on Capitol Hill. Well,
it's a long, long journey to the Capital City. It's a long, long wait
while I'm sitting in committee . . .''
That is ``Schoolhouse Rock,'' a tale of how a bill becomes a law. If
you can't get consideration, it expires.
Well, the President wanted this regulation, and he couldn't get the
support in Congress to pass it. He didn't want to go out and sell it to
the American people, so he went to the Federal Register, Mr. Speaker.
Most folks don't even know the Federal Register exists. It comes out
every day. It is a list of all the regulations that the administration
is proposing, and it is thick. Every day, it is thick. It is new
restrictions on private life in America.
In April 2014, the President went out and published this rule and
said: This is what I am going to do. Congress hasn't authorized it. It
is a dramatic departure from the way America has been governed for the
last 200 years, but I have a pen and phone, and I am just going to do
it.
Mr. Speaker, if he wanted to do it, he should have come and sold
Congress. If he wanted to do it, he should have gone and sold the
American people, but he didn't. He published it in an obscure
publication, and, a year later, he announced new rules that would
govern all activity affecting water in the United States of America.
Not one congressional bill had passed authorizing such an action.
In fact, Mr. Speaker, the opposite had happened. Congress saw what
was going on. Congress saw that the President was way outside of his
authority. Congress saw that he was way outside of the mandate given to
him by the people, and Congress passed legislation to block those
rules.
[[Page H808]]
Now, hear that, Mr. Speaker. The President had legislation introduced
to implement the rules. It never even got out of committee because
folks opposed it. Then he went around Congress, tried to do it on his
own. Congress passed a new measure that said: Mr. President, that is
wrong. Don't do it.
So Congress--it is not that we failed to act--we acted affirmatively
and said: Mr. President, that is not okay.
It passed the House, Mr. Speaker. It passed the Senate. It went to
the President's desk, where he vetoed it. Understand that.
The President is outside of his constitutional role. Congress calls
him on it, passes it by both Houses--which is rare, these days, as you
know. The President, armed with the knowledge that the American people
are against him on this issue, vetoes that measure. It took him exactly
24 hours to think through that, Mr. Speaker. Hear that.
He knew Congress rejected the measure because he couldn't get it out
of committee. He implemented it by going around Congress, doing it
entirely through the administrative branch, which we all know from
Constitution 101 is not the way laws get made.
Congress affirmatively passes a law that says: You cannot do that,
Mr. President; that is outside of your bounds. It takes him 24 hours to
think about that before he stamps it with a veto stamp and sends it
away.
So what do you do, Mr. Speaker? What do you do? What do you do when
you represent 300 million Americans, you have a democratic process here
on the floor of the House, everybody's voice is heard, you duly pass
measures, and the President says: No, I am not concerned about that?
You go to court. You go to court. Mr. Speaker, I hate going to court.
I hate it.
We are the Congress of the United States. We are article I for a
reason. This is where the power was supposed to reside, distributed
among all of us across this country.
I hate going to the court to solve problems between the White House
and the President. We ought to be able to solve those on our own, but
we haven't been able to. We haven't been able to start that dialogue.
So what do we do? We go to the court.
Here is what the court says about this waters of the U.S. rule. I am
quoting from their opinion:
``Even so, a review of what has been made available reveals a process
that is inexplicable, arbitrary, and devoid of a reasoned process.''
They are not talking about what happened in Congress, Mr. Speaker. We
did everything by the book. The court is talking about what happened at
the White House and at the EPA, this administrative process that tried
to craft a brand-new regulatory regime to reregulate all water in the
United States of America: our review ``reveals a process that is
inexplicable, arbitrary, and devoid of a reasoned process.''
Quoting from another section of the decision, Mr. Speaker:
It appears likely that the EPA has violated its
congressional grant of authority in its promulgation of the
rule at issue, and it appears likely the EPA failed to comply
with the EPA requirements when promulgating the rule.
That is the requirement that we have some public input on the rule.
So not only did we violate our authority to begin with, but even if the
EPA had had authority, the court says it should have invited more
public input, which it did not.
Reading, finally, from that decision, Mr. Speaker:
A far broader segment of the public would benefit from the
preliminary injunction because it would ensure that Federal
agencies do not extend their power beyond the express
delegation from Congress.
The court said: No, Mr. President, no. You do not have this
authority. Congress makes the law. The answer is ``no.''
So just a recap, Mr. Speaker: a bill was brought in this Congress to
implement these rules. It never made it out of committee because folks
didn't like it. The President did it unilaterally, and Congress
responded by passing a bill out of both Chambers and sending it to the
President's desk, saying: Don't do that; that is wrong.
The President vetoes it.
America sues, and the court says: You can't do that; that is wrong.
You are exceeding your grant of authority under the law.
You would think that after all of that, Mr. Speaker, the White House
might say: Well, I don't know how we got it wrong, but we got it wrong.
Let's go back to the drawing board.
Not so. The White House continues to march on in this direction.
Mr. Speaker, it sounds like inside baseball. It sounds like this is
just that standard quibbling--Republicans-Democrats-Washington, D.C.,
dysfunction. That is not so. We are talking about water. We are talking
about every spigot in America, Mr. Speaker.
Let me tell you what folks have said in Georgia. This is our attorney
general, Sam Olens. He is commenting after the court has prevented the
implementation of these waters of the U.S. rules. He says:
I am pleased the Sixth Circuit has granted a nationwide
stay on the burdensome waters of the United States rule.
Under this illegal rule, Georgia families, farmers, and
businesses would be subject to excessive and intrusive
Federal regulation. As the Federal Government continues to
issue massive and unconstitutional executive directives at an
alarming rate, I remain steadfast in my commitment to protect
and defend the interest of Georgians.
Mr. Speaker, I don't know how it is in your home State. In my home
State, the attorney general is elected by the people. He is not named
by the Governor. This is the popularly elected representative for
constitutional issues in the State of Georgia talking about Washington,
D.C., and the White House, talking about illegal rules,
unconstitutional executive directions coming out at an alarming rate.
Again, these are regulations that have traditionally been controlled
at the local level. I promise you--I promise you, Mr. Speaker--there is
not a man or woman in this city who cares more about the streams
outside of my home than I do; there is not a man or woman in this city
who cares more about the water in my district than I do; and there is
not a man or woman in this city that knows better about how to protect
that order than the men and women in local government back home.
This is from the Association County Commissioners in Georgia, Mr.
Speaker:
We feel that this rule has great potential to increase
counties' risk of litigation and unnecessary delays and
confusion and cause disincentive for adequately constructed
and maintained drainage ditches.
This is where it has come, Mr. Speaker. In the massive power grab
that is the waters of the U.S. rule, trying to grab everything and
carry it to Washington, D.C., I have county commissioners writing to
say this goes even to the drainage ditches in our area, which we are in
charge of keeping clean, which we are in charge of water quality. We
are involved in sediment control.
It will also divert critical county resources--those being taxpayer
resources--from other critical local government services and federally
mandated Clean Water Act responsibilities at a time when our budgets
are already under great duress. Hear that. There are already Federal
mandates on counties for a variety of other issues. They are handling
it all, even in these tough budget times, and they are saying not only
are these new regulations going to drain taxpayer resources that would
have been going to clean water, but the litigation is going to drain
them because we are going to sue and we are not going to allow you to
do these unconstitutional things.
This is the Georgia Chamber of Commerce, Mr. Speaker:
As such, the chamber opposes recent attempts by the Obama
administration to circumvent the role of Congress in the
regulation and management of the Nation's water resources, as
well as that of the States. In addition, the chamber believes
the proposed rules would violate private property rights and
subject business to yet another layer of uncertainty.
More lawsuits, Mr. Speaker. This is not an issue for courts to solve.
The President proposed it. Congress rejected it. Then the President
tried to implement it, and Congress rejected that, too. Then the
President vetoed that. Now the courts have rejected it, too.
Mr. Speaker, if you have got a good idea, get out there and sell it.
If you want to change the law of the land, get out there and persuade
folks it is a good idea.
[[Page H809]]
Look at what the President did on the Affordable Care Act, Mr.
Speaker. There is not a man or a woman in America today who believes
there should be lifetime caps on insurance policies. They believe, if
you are facing the greatest crisis in your life, your insurance company
ought to be there for you. President Obama won on that issue. I agree
with him on that issue. That law is never going to change, that segment
of it.
President Obama said, you know, just because you have had cancer
doesn't mean you shouldn't ever be able to buy an insurance policy
again; just because you were born with a preexisting condition doesn't
mean you should never be able to buy an insurance policy again.
The President was right. Republicans in Congress passed that for
federally regulated plans back in 1996. Some States didn't follow suit.
That is now the law of the land. The President went out and led on some
issues and changed America's minds on some issues.
He did not do that here. He did it with his pen and his phone. It is
unconstitutional, and the courts are telling him as much.
This is right from my home district, Mr. Speaker. Gwinnett County is
the biggest county in the district. I only represent two counties. So
many folks live in these two counties, Mr. Speaker.
On behalf of the Gwinnett County Board of Commissioners and
the residents of Gwinnett County, I am writing to encourage
continued action by the United States Congress to delay and
defeat the proposed EPA rule regarding the definition of
waters of the United States.
The county commissioners, who have enough work to do, Mr. Speaker,
are taking up for Congress, saying this is way outside of the bounds of
what lawmakers ought to be doing from the White House. It ought to be
happening in article I. Do what you can.
Quoting from that same county commissioner, Mr. Speaker, the
chairwoman of our county in Gwinnett:
This would have the potential to increase costs and cause
delays in permitting an operation of needed public works
projects. In Gwinnett County, 2,700 miles of roads and 684
miles of ditches within the highway right-of-way would be
impacted by this proposed definition if it is adopted, as
would 1,400 miles of streams and 1,400 miles of drainage
ditches.
Now hear that, Mr. Speaker. I guess I kind of glossed over that. I
called this the largest power grab that we have seen in water rights in
American history, but I haven't really tried to enumerate it.
One county in the State of Georgia--we have got a lot of counties,
Mr. Speaker. I believe we have the second most counties in the United
States of America. So our counties are not that big.
In one county, there are 2,700 miles of roads going under Federal
regulation, 684 miles of ditches in those right-of-ways going under
Federal regulation, 1,400 miles of streams going under new Federal
regulation, and 1,400 miles of additional drainage ditches going under
Federal regulation in one county--one county.
To add insult to injury, Mr. Speaker, the Government Accountability
Office, the auditor of the United States Government, had this to say in
December of last year:
``The Environmental Protection Agency, EPA, violated publicity or
propaganda and anti-lobbying provisions contained in appropriations
acts with its use of certain social media platforms in association with
its `Waters of the United States,' WOTUS, rulemaking . . .''
{time} 1245
Mr. Speaker, the EPA violated propaganda and antilobbying provisions.
Hear that. I am begging the administration to go out there and sell the
American people before they act, as is supposed to be done.
The General Accountability Office is chastising the administration
because, instead of going out and selling it, they are illegally
lobbying for it after the fact. We couldn't persuade anybody about it
ahead of time. We didn't bother to involve folks ahead of time. We are
going to go out after the fact illegally and try to change everybody's
mind.
Quoting again from that same report:
``The EPA engaged in covert propaganda when the agency did not
identify EPA's role as the creator of the Thunderclap message to the
target audience.''
This is one particular campaign that the General Accountability
Office is looking at.
Mr. Speaker, we have got to demand better. President Obama, when he
was Senator Obama, was demanding better of the Bush administration. He
was right to do so.
I am demanding better of the Obama administration. This Congress is
demanding better. We are right to do so. Whoever the next President is,
him or her, we have to ask more of them.
The Constitution was crafted with three branches of government for a
reason, one branch to create the laws--that is us--one branch to
enforce the laws--that is the President--and one branch to adjudicate
the differences.
I will come back to the courts, Mr. Speaker. I have been talking
about waters of the U.S. That is just one of dozens of examples of
administration overreach.
This headline, Mr. Speaker: Supreme Court Deals Blow to Obama's
Effort to Regulate Coal Emissions. Coal emissions. This is the war on
coal that you hear so much about.
Mr. Speaker, the President has not come to Congress to sell Congress
on doing away with our number one natural energy resource. The
President has not gone to the American people to sell the American
people on doing away with the number one energy resource in America.
In fact, if you go into coal country, Mr. Speaker, every single
Democrat at the Federal level has been defeated not because they
weren't doing a good job--they may well have been--but because the
President was declaring a war on coal.
Hardworking Americans who work in the coal industry said: Why are you
picking on me? If you want clean air, let's pass clean air regulations.
Why are you declaring war on coal? This ends up in the Supreme Court.
Former EPA Assistant Administrator Jeff Holmstead says this: It is
the first time the Supreme Court has actually stayed a regulation.
This is happening right now. It is happening right now. Mr. Speaker,
I have got it on the front page of yesterday's National Journal, one of
those Washington, D.C., dailies that tracks Federal opportunities and
regulations. The headline reads: ``Obama's Second-Term Agenda Hits a
Roadblock: the Supreme Court.''
Think about that, Mr. Speaker. The headline, the generally accepted
conventional wisdom, is the President's agenda hits a roadblock because
the Supreme Court says no.
Mr. Speaker, the President's agenda hit a roadblock when he decided
not to sell it to Congress, not to sell it to his constituents, but to
go around us both and do it through administrative action. It is the
first time in American history that the Supreme Court has stayed a
regulation, so egregious is this action.
I go on from The New York Times, Mr. Speaker, just this week: ``But
the Supreme Court's willingness to issue a stay while the case proceeds
was an early hint that the program could face a skeptical reception
from the justices.''
With the Court's four liberal members dissenting, a 5-4 decision was
unprecedented. ``The Supreme Court had never before granted a request
to halt a regulation before review by a federal appeals court.''
`` `It's a stunning development,' Jody Freeman, a Harvard law
professor and former environmental legal counsel to the Obama
administration, said in an email.''
A stunning development. What is stunning, Mr. Speaker, is around and
around and around the President goes, around this body, Republicans and
Democrats.
It is not a partisan issue. This is a constitutional issue of whether
or not we should be concerned why it is that the courts are solving the
issues.
Here is a quote from Laurence Tribe, Harvard law professor. In fact,
he was President Obama's constitutional law professor when the
President was in law school.
Professor Tribe says this: ``To justify the Clean Power Plan''--that
is this power plan that is implementing the coal regulations that the
Supreme Court just put a stay on this week--``the EPA has brazenly
rewritten the
[[Page H810]]
history of an obscure section of the 1970 Clean Air Act . . .
Frustration with congressional inaction cannot justify throwing the
Constitution overboard to rescue this lawless EPA proposal. . . .''
Mr. Speaker, we are supposed to disagree on things. You don't have to
go far outside of my congressional district. Hank Johnson represents
the south side of the county just beyond me, John Lewis just beyond
that.
We disagree on all sorts of things. I admire them. I respect them. We
work together on issues. It is not surprising that we disagree.
What is surprising and, in fact, alarming is that the American
people's thirst for results has become such that Presidents think they
can just skip the process, that the ends are going to justify the
means.
President Obama's law school professor, an undisputed congressional
scholar, not a conservative by any stretch of the imagination:
``Frustration with congressional inaction cannot justify throwing the
Constitution overboard to rescue this lawless EPA proposal. . . .''
I need folks to understand, Mr. Speaker, that this is not Republican-
Democrat. This is article I, article II. We talked about waters of the
U.S. We talked about the war on coal. What about Guantanamo Bay, Mr.
Speaker? What about the detention facility in Guantanamo Bay?
U.S. Attorney General Loretta Lynch in November of last year--this is
not old news; this is right now--said: ``With respect to individuals
being transferred to the United States, the law currently does not
allow for that. . . . ''
The Attorney General of the United States, President Obama's Attorney
General, the chief law enforcement officer of the land second only to
the President, says the law will not allow you to transfer these
individuals to the United States.
The Secretary of Defense, Ash Carter, just last month: ``There are
people in Gitmo who are so dangerous we cannot transfer them to the
custody of another government no matter how much we trust that
government. . . . We need to find another place [and] it would have to
be in the United States. So I've made a proposal for the president, and
he has indicated that he's going to submit that to Congress.''
Hear that. The Secretary of Defense, Mr. Speaker, says the guys in
Guantanamo are so dangerous, we cannot trust any other government on
the planet with them. And so, if we are to close Guantanamo, as the
President has desired for 8 years, we must bring those folks back to
the U.S. It is the only way.
He's going to have to submit that proposal to Congress, the Secretary
of Defense says. Why is that? Because it's against the law to establish
another detention facility, so, therefore, to get the support of
Congress.
It is against the law. So we have got the Secretary of Defense saying
these guys are really dangerous, which would question why we want to
bring them to the United States to begin with.
But you can't transfer them here because it is against the law. We
have Loretta Lynch, Attorney General, saying you can't bring them here
because it is against the law.
But I challenge anyone in this Chamber to do a news search, a Yahoo!
search, Google search, however it is you get your news, and look in the
last 14 days and see if you have seen another statement from the
President saying he is going to bring those folks here.
There is no proposal on Capitol Hill to do that. There is no effort
from the White House on Capitol Hill to get that done. In fact, the
opposite is true. Time after time after time this body, the Senate--the
President has signed it into law--says that you cannot bring these
folks back to America, that they are too dangerous. The Secretary of
Defense agrees. U.S. Attorney General Loretta Lynch agrees. Yet, we go
down this road again.
Visa waiver reform, Mr. Speaker, I was about to dismiss. Yet another
issue. We passed a bill that said: Listen, if you have been traveling
to some of these countries in the Middle East where terrorism is
running rampant today, you are not going to get a free pass into
America. We are going to want to look at your background before we tell
you to come on in.
Now, that seems fair, Mr. Speaker, if you are from one of these
countries and you have been traveling through these countries where
terrorism is running rampant, where there is case after case after case
of terrorists leaving those countries and performing deadly acts around
the globe, before we just let you in, which is what the Visa Waiver
Program is.
It says: Come on in. We are not going to do a background check on
you. If you are from England, you are from France, you are from
Germany, we trust you. Come right on in.
We say: If you have been traveling to sites where the terrorist
training camps are, we are going to want to give you a little further
scrutiny.
Congress passed this. The House passed it. The Senate passed it. The
President signed it into law. And then he turned around the very next
day and said: Well, but I am not going to enforce that because I
promised the Iranians in my nuclear deal that I wouldn't enforce those
kinds of rules against Iranians.
Well, you can't pick and choose. Veto the bill if you don't like the
bill. Sign the bill if you do like the bill. You can't pick and choose.
I quote from Senator Ron Johnson. He is the chairman of the Homeland
Security and Governmental Affairs Committee on the Senate side.
He says: ``Congress has every right to expect full compliance with
the new provisions.''
As the lead sponsor of the Visa Waiver Program Improvement and
Terrorist Travel Prevention Act of 2015, I can attest that Congress
considered and rejected expanding the waiver authority in the way the
President proposes because these groups of travelers would be hard to
verify and any waivers granted would be easy to exploit.
This isn't 8 years ago. This isn't 5 years ago. This isn't 3 years
ago. This is happening right now. The President signed language into
law in December, signed language into law in November, in October, in
September, signed language into law last year and said that this is the
way it is going to be and has shown up this year and said: Oh, well, I
didn't mean it. I am going to do it differently.
You have the lead Senate sponsor, the chairman of the Homeland
Security and Governmental Affairs Committee, saying: No. We considered
that. We specifically didn't give you that waiver authority. Don't go
down that road.
Mr. Speaker, I have a chart up here. You can't see it. It says 9-0.
It is another Supreme Court decision against the administration,
saying: You have gone outside of your congressionally delegated
authority. You can't do that.
You see a lot of 5-4 decisions out of the Supreme Court, Mr. Speaker.
You rarely see a 9-0 decision. These are Justices appointed by
Presidents of all political stripes, including Justices appointed by
President Obama.
They looked at what the President did in the Noel Canning case where
he declared that Congress was in recess so that he could put people in
executive positions without having to have Congress' approval.
And they said: Nonsense. Nonsense. You can't do that. It is
outrageous. The Supreme Court rejected that 9-0.
Mr. Speaker, I don't pick on this issue because it is an example of
good news. I pick on it because it is an example of bad news. The
courts said the President is overreaching and seizing congressional
power illegitimately, unconstitutional actions.
But when I go to Democrats in the Senate during the time period this
was going on, Mr. Speaker, I get this.
Senator Tom Harkin from Iowa: ``By appointing these nominees,
President Obama has acted responsibly in order to ensure that workers
and businesses across this country who rely on the stable functioning
of this important agency would not be caught in the crossfire of the
Republicans' misguided ideological battle.''
He has a good reason. He has a good reason for defending the
President. Partisan politics have created gridlock on Capitol Hill, Mr.
Speaker.
So I support the President ignoring the Constitution,
seizing authority that is granted only to the Senate, and
doing what he wants to do with it.
This is a United States Senator choosing to be a Democrat first and
defending article I second.
I am not picking on Senator Harkin. That happens all the time in this
place, Mr. Speaker.
[[Page H811]]
When did that happen? When did it become more important to defend
your President than to defend the Constitution? When did it become more
important to be a good Republican than to be a good Congressman? I
argue we can still turn the tide on that, Mr. Speaker.
Representative George Miller from California, ranking member of the
Education and the Workforce Committee, which had jurisdiction over
these issues in the House, said this: ``President Obama's recess
appointments will guarantee both employers and employees will have a
place to go to have their rights under the law protected and
enforced.''
Well, that would be true except that they were unconstitutionally
appointed, and, thus, all of the decisions they rendered are now moot.
No one is defending article I. Folks are defending their President
instead.
Senator Harry Reid: ``Since President Obama took office, Senate
Republicans have done everything possible to deny qualified nominees
from receiving a fair up-or-down vote. President Obama did the right
thing when he made these appointments on behalf of American workers.''
Mr. Speaker, at 9-0, the Supreme Court said: No. You did not do the
right thing, Mr. President. In fact, you did exactly the wrong thing.
In fact, it is unconstitutional what you did. You do not have the power
to act in this way. And Democrat after Democrat after Democrat is
defending him.
{time} 1300
Now, Mr. Speaker, if I put up these same charts from the Bush
administration, I would have Democrats saying the Bush administration
overstepped its bounds, and Republican after Republican after
Republican would be defending them.
It has got to stop. It may be too late for this administration, Mr.
Speaker. The lines in the sand may have already been dug so deep that
we won't be able to cross them, but here in this Presidential primary
season we have got to ask of our Presidential candidates: What are you
first? Are you your own leader first? Are you a Republican or Democrat
first? Or, are you the leader of the free world under the restrictions
of article II first?
Are you going to use your pen and your phone? Are you just going to
go out there and get it done by yourself? Or, are you going to go sell
your boss on the idea--your boss, being 300 million Americans--and then
are we going to bring ourselves together as a Nation to do these things
one by one?
Mr. Speaker, we have got to stop defending or criticizing actions
based on which party is involved in it. There is one rule book for this
country. It is not the policy position of the Republican National
Committee. It is not the policy position of the Democratic National
Committee. The one rule book in this country is the United States
Constitution, which says Congress writes the law and the President
enforces it.
We have got to expect more of our Presidents--not about the results
that they get, but about the leadership they provide. Not the
leadership to go around the law, but the leadership to change people's
minds and then change the law.
We have got so much opportunity, Mr. Speaker. We have so much
opportunity. The men and women that I have gotten to know in this
Chamber would rather lose their seat tomorrow--who cares about the
election--and they want to make a difference for the country. Don't
tell me partisan gridlock has rendered self-governance impossible.
Gridlock is the natural state of the constitutional government that
our Founding Fathers created. We have to work with it, not around it,
and we have to work with the American people, changing hearts and
minds, not going around the American people and having to rely on the
Supreme Court to fix those mistakes.
Mr. Speaker, I yield back the balance of my time.
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