[Congressional Record Volume 171, Number 42 (Wednesday, March 5, 2025)]
[Senate]
[Pages S1513-S1519]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Unanimous Consent Request--S. Res. 108
Mr. DURBIN. Mr. President, in recent weeks, several Federal judges
have issued orders blocking unlawful actions taken by the Trump
administration. In response, the administration's officials and allies
have made worrisome statements criticizing Federal judges and the
process of judicial review. Elon Musk, an unelected bureaucrat who is
assisting this administration, has repeatedly called for the
impeachment of Federal judges and questioned the lifetime appointment
of Federal judges that is enshrined in article III of the Constitution.
President Trump's choice of Deputy Director of the FBI, Dan Bongino,
suggested on a podcast that the President set up a fake courtroom in
the White House where ``he can just start making judicial decisions.''
Mr. Bongino added:
If the judge is the executive, why can't the executive be
the judge? Ask your stupid liberal friends that.
As a reminder, Mr. Bongino is second-in-command at the FBI, the most
powerful investigative Agency in the world. If he sounds like a
political animal out of his element, you would not be wrong.
But Mr. Bongino is not alone. Last week, a nominee to a senior
position at the Department of Justice testified before the Senate
Judiciary Committee:
There is no hard and fast rule about whether, in every
instance, a public official is bound by a court decision.
Let that sink in for a moment. This is a person who wants a senior
position at the Department of Justice testifying under oath and saying:
There is no hard and fast rule about whether, in every
instance, a public official is bound by a court decision.
In a social media post, Vice President Vance falsely asserted that
``judges aren't allowed to control the executive's legitimate power.''
This is merely the latest in a long line of claims by the Vice
President that a President can defy court orders.
President Trump himself recently posted:
[[Page S1514]]
He who saves his Country does not violate any Law.
That is a line that echoes others who believed they were above the
law, a rationalization more common to leaders of a political coup in a
banana republic.
Let me repeat that quote from President Trump:
He who saves his Country does not violate any Law.
These efforts to intimidate judges and undermine the rule of law do
not stop with these statements. The Speaker of the House said he agrees
with Vice President Vance and urged the courts to ``take a step back.''
Three Members of the House of Representatives have introduced Articles
of Impeachment against Federal judges simply because they ruled against
the Trump administration.
These remarks that I have quoted are not only wrong, they are
constitutionally dangerous, and they pose a serious threat to our
constitutional order and the separation of powers.
Since the Supreme Court's landmark Marbury v. Madison decision in
1803, there has been a broad bipartisan consensus throughout our
history that, in the words of Chief Justice Marshall, and I quote:
It is emphatically the province and duty of the judicial
department to say what the law is.
When it comes to interpreting and applying the law, the courts have
the last word, and that responsibility takes on an outsized importance
when the executive branch shows little regard for the limits of its
constitutional power, as this administration already has.
Under article II of the Constitution, the executive branch is charged
with ``taking care that the laws be faithfully executed,'' but
President Trump and his administration have ignored that
responsibility. Let me give you one clear-cut, unequivocal example.
President Trump summarily fired 18 inspectors general weeks into his
Presidency. He wanted these investigative officials out of the picture.
He did this despite the law that requires him as President to inform
the Congress of the decision to dismiss or transfer an inspector
general and provide a detailed explanation for doing so--that is what
the law requires--at least 30 days before taking any action against
them.
When the executive branch blatantly violates the law, it is essential
that the other branches of government fulfill their constitutional role
and responsibilities.
Thankfully, in the first weeks of the new Trump administration, the
judicial branch has lived up to its responsibility. Judges have
carefully considered the cases before them and, where appropriate,
provided a check on the administration when it oversteps.
Now, the fact that a court has made a decision does not mean you have
to agree with it.
John Kennedy, a Republican Senator from Louisiana, recently
admonished two Trump nominees who suggested the executive branch can
ignore a court order. Here is what my colleague Senator Kennedy said:
Don't ever, ever take the position that you're not going to
follow the order of a federal court. Ever. Now, you can
disagree with it. Within the bounds of legal ethics, you can
criticize it. You can appeal it, or you can resign.
Now, I have disagreed with judicial decisions, including decisions of
the Supreme Court. When that happens, I explain why I disagree. But I
have never advocated ignoring or defying a court order. I never will.
More than 60 years ago, President John Kennedy spoke about the
importance of the rule of law in a speech at Vanderbilt University. As
President Kennedy put it, ``for one man to defy a law or court order he
does not like is to invite others to defy those which they do not like,
leading to a breakdown of all justice and all order.''
We cannot allow any administration to defy a court order, period, and
we cannot stand idly by as the President and his allies undermine the
judiciary by attacking judges.
That is why I introduced the resolution we are considering today. I
want to thank my colleagues who cosponsored it and are joining me on
the floor in this block of time.
Our resolution simply affirms that the Constitution vests the
judicial power in the Federal courts and affirms that both the
Constitution and established precedent require the executive branch to
comply with all Federal court rulings.
These are not partisan talking points; they are basic principles of
constitutional law, so fundamental and so essential to our
constitutional order that they should go without saying. But in light
of recent comments and actions by President Trump, Vice President
Vance, and his administration and allies, some things must be said. So
I ask my colleagues to say with one clear voice: The U.S. Senate
supports the Constitution, the judicial branch, and the rule of law.
Every Member of this body has sworn an oath to support and defend the
Constitution of the United States. I urge my colleagues to fulfill
their oaths today.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, I want to thank our chairman for
bringing us together on the Senate floor today to reaffirm a
proposition that really ought not to be in any doubt, and that is the
proposition that when a court has ruled on a matter, the executive and
legislative branches are bound to follow the law.
As the chairman said, you may choose to appeal or you may choose to
obey or, if you have a hugely principled objection, you may choose to
resign, but you don't get to simply disobey court orders that you don't
like.
Now, thankfully, a number of our Republican colleagues are on record
supporting that simple proposition. The majority leader, Senator Thune,
said:
The courts obviously are . . . the branch of our government
that calls balls and strikes and referees and I think that
they've got an important role to play. I mean we have three
branches of our government in this country, coequal and
independent branches, and the judiciary is the one that
resolves some of the differences that often occur between
executive and legislative branches.
Chairman Grassley, the chairman of the Senate Judiciary Committee,
added:
We've got a system of checks and balances, and that's what
I see working. I learned in eighth grade civics about checks
and balances, and I just expect the process to work its way
out.
Senator Hawley said:
You may think that's not the right ruling, but you know,
they're still the law.
And Senator Kennedy said:
I don't agree with all the rulings. It's often the case
that I'll disagree with an opinion that a court issues, but I
don't attack. I don't attack, and I don't intend to attack
the legitimacy of the Federal judiciary.
He, as the chairman said, advised the witnesses before: Don't ever,
ever take the position that you are not going to follow a court order.
So from all of that, you would think that things were fine and that
this was a wasted exercise of time here on the Senate floor. But,
unfortunately, it is not because at the other end of Pennsylvania
Avenue, the White House is constantly attacking the rule of law from
all angles. And this administration is teetering on full-blown defiance
of court rulings.
Vice President Vance posted that ``Judges aren't allowed to control
the executive's legitimate power.'' That is an invitation to violate
court orders if the executive takes the position that its own view of
what its legitimate power is, is what controls.
One Senate Republican went so far as to call court orders that the
administration lost a ``coup.'' Well, if there is any coup going on, it
is the executive branch coup taking place in our country right now, not
a court-ordered coup.
The Department of Justice, which should know better--including the
Solicitor General who should for sure know better--refused to say that
they will always follow a court order, and many colleagues actually
defended them.
And then outside of the immediate danger of refusing to obey a court
order is the attack on the integrity and safety of the judiciary. We
have seen this in Rhode Island. A judge in Rhode Island--very respected
judge, very well-known throughout our State, very well-regarded, very
experienced--made the determination that the freeze order of the Trump
administration was unconstitutional, which, in my view, is not even a
close call. That was an easy, easy answer. Rather than respond, they
dropped--what I call--the flying monkeys on him. Elon Musk maintains on
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X a cohort of extremists and oddballs who he can launch by targeting an
individual to go and attack and harass that individual and their
family. He did precisely that to this judge to the point where the
judge's daughter was actually doxed by one of these extremist followers
of Musk.
It ought to be self-evident the judge's orders are to be followed. It
ought to be self-evident if you don't like a judge's order, you don't
threaten the judge or his daughter; instead, you appeal it.
And the third tactic that they are using is what I call the fog bank
tactic. So the order is the freeze is unconstitutional. OMB, you have
to let the money go. And then people who have money coming to them
properly obligated, properly appropriated try to call up and say: OK.
The order says you can't hold it back. When is it coming? What do they
get? No clear answers--the fog bank. The executive officials retreat
behind refusal to answer emails, refusal to answer phone calls, vague
answers that give no response. Sometimes even happy indications that:
Don't worry. Hang out there. I am sure that we can work this out. And
even in some cases: Yes, you will have access to these funds. And no
matter what the answer is from the fog bank, it doesn't change the fact
that the money just doesn't go.
It reminds me of old bad movies of the Soviet Union where the KGB guy
in the corner makes all the decisions and the nominal chief of the
agency says: Oh, yes, of course we are going to do this. But unless the
KGB guy signs off, the money doesn't go.
In this case, it isn't the KGB guy; it is the little muskrats who are
in these Departments trying to foul up the lawful flow of properly
appropriated and obligated funds. That is a slo-mo contempt of these
court orders. And as courts and plaintiffs dig in, I think we are going
to find more and more evidence of the deliberate contumacious nature of
that fog bank strategy.
I yield the floor, thanking, again, our chairman for his leadership
on this issue.
The PRESIDING OFFICER. The Senator from California.
Mr. PADILLA. Mr. President, I, too, rise today to defend the
principles at the core of our democratic Republic that we are a
government of laws and institutions, not of individuals; that no
billionaire has more rights than any worker, and that no President has
more rights than any citizen of our country; that we are a government
of three coequal branches, providing checks and balances on each other.
And bottom line: That no one is above the law.
Yet as we stand here today, the Trump administration is clearly
openly laying the groundwork to reject all of these principles. They
are operating under their idea that the President, his Cabinet of
loyalists, and an unelected billionaire adviser can simply ignore the
law or courts in rulings that they disagree with.
Earlier this month, Vice President Vance claimed that ``if a judge
tried to command the attorney general in how to use his or her
discretion as a prosecutor, that's . . . illegal. Judges aren't allowed
to control the executive's legitimate power.''
That is the Vice President. At the same time, President Trump's
seeming co-President, Elon Musk, has repeatedly called for the
impeaching of judges who rule against Donald Trump's attempts at power
grabs. And now President Trump himself has said:
He who saves his Country does not violate any law.
Historians may recognize this quote because it is widely attributed
to Napoleon, a man who became a dictator and who abolished the French
Republic at the time. Seems to me pretty clear that is precisely the
example that Donald Trump is looking to. And it should alarm all of us.
When I think about just how much of Donald Trump's life has been
spent staring at the four walls of a courtroom--yes, from the inside,
folks, the four walls of a courtroom--maybe you can understand why he
may want to do away with the courts.
But the Judiciary does not work for Donald Trump. It is a separate,
coequal branch of government. The courts, colleagues, work for the
American people. And so far, they have served the American people by
pausing many of the President's blatantly illegal Executive orders and
overreach. But that is why he is continuing to target the courts.
Colleagues, I am one of the few nonlawyers to serve on the Judiciary
Committee. And at times, I get to bring a different perspective to our
deliberations and our debates. I will defer to my colleagues to maybe
cover some of the legal history or case law that applies here. But for
Americans watching from home, here is how I can boil it down.
Let's ask ourselves: Do you believe the President can simply ignore
the law? Do you believe that the President should be all-powerful? Do
you believe that if you have to follow the law, then the President of
our country should have to follow it, as well?
The answers should seem very, very obvious. For years, we have known
that if a President did try to push the boundaries of what is legal and
what is not, we could count on an independent Department of Justice to
enforce court rulings. But over the past few weeks, what we have seen
in the Judiciary Committee is nominee after nominee appear before us
and refuse to simply commit to upholding the law. They claim, one after
another, that they respect the Constitution and stand for the rule of
law. But when given specific examples of what would you do, not if, we
have seen a President in his first term and already in this term
suggest those he appoints to not follow the law--they refused to
commit.
That dynamic, colleagues, is unprecedented, and it is dangerous. And
it is also the result of an administration that demands applicants pass
a loyalty test to get their job in the first place. And it has brought
us dangerously close to a constitutional crisis. A President feeling
unconstrained by the courts, by the Constitution, and the rule of law
is no President at all. It is a power-hungry, wannabe King.
Last night, President Trump, in his address, had an opportunity to
unite or at least genuinely try to unite the country and affirm his
commitment to the rule of law. Sadly, I am not surprised that he
refused to do so. But this morning, we also saw the Supreme Court cite
against the Trump administration and affirm a lower court's order that
the administration stop their unlawful freeze on foreign aid--one of
the many, many challenges working its way through the judiciary.
So the question now becomes: Will Donald Trump listen, and will
Republicans in Congress demand that he uphold the law?
So what we are asking of our Republican colleagues today isn't
anything radical. It is the fundamental principle that men and women
dedicated to themselves nearly 250 years ago in the founding of our
Nation, that we shall be ruled of, by, and for the people; not of, by,
and for a King or dictator.
To our Republican colleagues, all we ask is this: Stand up. Stand up
for the rule of law. Stand up for the Constitution. And stand up for
our country.
I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mr. SCHIFF. Mr. President, John Adams once said that we are a Nation
of laws, not men. And this idea has been foundational to the
understanding of the American Republic.
But what does it mean to be a Nation of laws, and is it still true in
America in the era of Donald Trump? Are we a Nation of laws when
characterized by a legal code that applies equally to all citizens, a
justice system in which no one is above the law or beyond its reach, in
which there is not one law for the rich and powerful and yet another
for everyone else?
Or have we become a Nation of men in which the law must bend to the
will of its most powerful citizens, a society in which wealth and
privilege mean that the law need not apply to them with the same force
as it applies to others or not at all?
Four years ago, after losing his reelection campaign, Donald Trump
conspired to interfere with the peaceful transfer of power and incited
a violent attack on the Capitol. He also withheld highly classified
material and obstructed an investigation into that offense.
In what could be seen as a vindication of the rule of law, Donald
Trump was indicted for these crimes, but the system of justice bound by
the rule of law requires not only that charging decisions be made
against people similarly situated without preference or
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disfavor according to their position but that the conduct of those
prosecutions likewise be timely and appropriate. In this, our justice
system failed miserably. Trump was able to seek endless delays in
court, and the courts, understanding of that motivation and mindful of
the fact that justice delayed can mean justice is denied, willfully
delayed the prosecution of Donald Trump until he could avoid a
reckoning with justice altogether.
Most egregious was the conduct of the High Court itself. The Roberts
Court first delayed any potential trial of the President and then
crippled the prosecution altogether in a decision granting the
President immunity from prosecution for the commission of crimes while
in office. No wonder the President thanked the Court at last night's
joint address and told Justice Roberts, in particular, that he would
not forget.
For the first time in America, the Supreme Court held that if you
reach the pinnacle of power, the Presidency, the criminal laws need not
apply to you; that, indeed, you may use the power of that office itself
to commit crimes and never be held to account.
As Justice Sotomayor wrote, that new immunity lies about like a
loaded weapon and makes a mockery of the principle that no man is above
the law.
Now we have entered a perilous new phase as a country, in which a
person who escaped the application of law is now charged with
administering the law in which Donald Trump has appointed his own
criminal defense lawyers to top positions in the Justice Department and
appointed an FBI Director with a long published enemies list.
It is a Justice Department in which Trump's lawyers have sought to
dismiss a serious corruption case against the mayor of New York, as an
alleged quid pro quo for his willingness to do the President's bidding
on unrelated policy matters. They seek a dismissal without prejudice,
meaning the President can lower that sword of Damocles on the head of
the mayor should he ever demonstrate independence from the whims of the
President.
Six senior Justice Department prosecutors resigned their office
rather than pervert justice in this way.
As one wrote in his resignation letter, ``I expect you will
eventually find someone who is enough of a fool, or enough of a coward,
to file your motion. But it was never going to be me.''
Other prosecutors at the Justice Department have likewise refused
illegal orders to initiate investigations where no probable cause
exists, rather than violate their oaths of office.
If this continues, we will be left with a Justice Department
leadership populated by only cowards and fools--a Justice Department
used both as a sword to go after the President's enemies and a shield
to hide its corruption. Then, what will remain of our Nation of laws
but a sad memory of a time when we lived up to our Founders' dreams
only to squander the gift of our inheritance.
I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Ms. KLOBUCHAR. Mr. President, I rise in support of Senator Durbin's
simple but necessary resolution. It reaffirms three basic principles
that should be self-evident to all Senators serving in this body: one,
that there are courts established under the Constitution as a coequal
branch of government; two, that in the words of Chief Justice Marshall,
in Marbury v. Madison, those courts' role is to say what the law is;
and three, that the Constitution requires the executive branch to
comply with all Federal court rulings.
As I reminded all of the Senators who were assembled for the
President's inauguration, there is a reason that that inauguration is
not held in a gilded Presidential palace, like it is in some countries.
It is held in the U.S. Capitol, and the President is sworn in by the
Chief Justice of the U.S. Supreme Court--and in this case, with all
Supreme Court Justices there--to make the point that, in America, we
have three coequal branches of government, and they all have a very
defined role under the Constitution.
These are things we all learned in high school civics, and they are
the bedrock of the rule of law. Yet, today, the President refuses to
acknowledge these foundational principles. He claims, in channeling
Napoleon, that ``he who saves his country does not violate the law.''
He has asserted that ``I have an article II, where I have the right to
do whatever I want as President.'' And he has even used the White
House's social media account to post an image of himself wearing a
crown, proclaiming: ``LONG LIVE THE KING!''
I call that kind of a smoking gun, when it comes to the evidence that
Senator Durbin's very important resolution is necessary.
Judges appointed by Presidents of both parties have found many of the
President's actions illegal. You have seen, in the past 30 days, judges
appointed by Ronald Reagan, judges appointed by George Bush, judges
appointed by Donald Trump himself, along with judges appointed by
Democratic Presidents, who have looked at the facts, who have looked at
the law, and, in the words of Chief Justice Marshall in Marbury v.
Madison, have said ``what the law is.'' They have found the President's
actions illegal--from unilateral funding freezes, in direct defiance of
statutes in the Constitution's crystal-clear mandate that the power of
the purse resides squarely with Congress, to illegal firings of
government officials, where they have been reinstated.
Yet the administration continues to question principles at the very
heart of our Constitution.
Just last month, the Vice President said:
Judges aren't allowed to control the executive's legitimate
power.
In 2021, JD Vance, before he was elected, suggested that the
President should dismantle the Federal workforce, and ``when the courts
stop you, stand before the country like Andrew Jackson did and say,
`The Chief Justice has made his ruling. Now let him enforce it.' ''
Elon Musk, who was here in the House of Representatives just last
night, lauded by the President, has said: ``The only way to restore
rule of the people in America is to impeach judges,'' citing the purge
of judges by the government in El Salvador as an example--the world's
greatest democracy, the United States of America, now pointing to the
rules in El Salvador.
Aaron Reitz, the nominee to head the Office of Legal Policy, had
previously called for defiance of a court order, tweeting himself:
Looking for some Andrew Jackson-level leadership on this
one. ``Judge Yeakel has made his decision. Now let him
enforce it.''
When asked about this tweet at the hearing that Senator Durbin and
Senator Grassley held over his nomination and when asked whether the
President can defy a court order, Reitz said, ``There is no hard and
fast rule in all instances in which a litigant must comply with all or
some or various parts of a judicial decision.''
And when asked for his view on the matter, John Sauer, the
President's nominee for Solicitor General, told the committee he did
not want to speak to hypotheticals. This is a frightening nonanswer.
It is very clear we are to follow the law in the Senate. The
President is to follow the law.
In fact, while the Framers gave the President the power to faithfully
execute the law, our Constitution created an accountable President. The
Framers, who detested the King's unchecked power, made sure to create
an independent judiciary to prevent abuse of power wherever it occurred
and ensure that no one is above the law, not even the President.
As James Madison noted, ``Independent tribunals of justice'' serve as
``an impenetrable bulwark against every assumption of power in the
legislative or executive.'' That includes, of course, the power to
issue binding court orders that the Executive cannot set aside.
Like many of my colleagues, I have vigorously opposed some decisions
by judges. But even when I disagree with a decision, I never thought it
was an open question about whether that decision should be followed. If
you do not like a court ruling, you appeal it. If we think a decision
was wrong, we introduce legislation or a constitutional amendment, as
we have done, to change it or a reasoned argument before the Supreme
Court or we file an amicus brief. I attended hearings in which we filed
an amicus brief.
I know many of my Republican colleagues and other prominent
conservatives agree.
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Speaking to the nominees at last week's hearing, Senator Kennedy of
Louisiana said:
Don't ever, ever take the position that you're not going to
follow the order of a Federal court, ever.
The majority leader Senator Thune has been very clear that people
should follow the law.
Federalist Society cofounder Steven Calabresi wrote in the Minnesota
Law Review that a system in which the President had the power to defy
court judgments ``would not be so much a system of constitutional
government as it would be a system of rule by an elected Napoleonic
strongman.''
Calabresi noted that all past Presidents have understood this as
well. Even Richard Nixon surrendered the Watergate tapes when ordered
by a court.
Ours is a nation of laws, not a nation of Kings. Ours is a nation of
laws in which no one is above the law. When taking the oath of office--
this just happened a month ago; we were all there--the President
promises to ``preserve, protect and defend the Constitution of the
United States.'' That is a pledge to obey court orders. And if the
President chooses not to and flouts a court order, he will provoke a
constitutional crisis.
As Chief Justice John Roberts made clear at the end of last year, any
suggestions that Federal court rulings will be rejected are, in his
words, ``dangerous'' and, in his words, ``must be soundly rejected.''
Hagan Scotten, the lead prosecutor in the Mayor Eric Adams case, who
resigned instead of carrying out politicized orders, maybe said it
best. He wrote in his letter of resignation:
I expect you will eventually find someone who is enough of
a fool, or enough of a coward, to file your motion. But it
was never going to be me.
This comes from a lawyer with an incredible career, someone who was a
decorated Iraq war veteran, someone who clerked for Judge Kavanaugh
before he got to the Supreme Court and clerked for Justice Roberts
himself. But he would not commit an illegal act.
``I expect you will eventually find someone who is enough of a
fool,'' he said, ``or enough of a coward, to file your motion. But it
was never going to be me.''
To my Republican colleagues, those words, they should be something
you keep in your head, something that should haunt you in the middle of
the night.
Nominees who won't answer unequivocally that the President must
comply with a court order, remember the words, maybe ``you will . . .
find someone who is enough of a fool, or enough of a coward. . . . But
it [is] never going to be me.''
Our job--our job--is to look at these nominees and make decisions on
the facts, to advise and consent, not to accept and acquiesce.
And certainly we should, at the very least, support Senator Durbin's
resolution--so simple and such a reinstatement of our actual law--that
there are courts established under the Constitution as a coequal branch
of government--super not controversial; that, in the words of Chief
Justice Marshall in Marbury v. Madison, those courts' role is to say
what the law is; and, finally, that the Constitution requires the
executive branch to comply with all Federal rulings. That is the law,
and we ask our colleagues to support this resolution.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. BLUMENTHAL. Mr. President, like a number of my colleagues who are
here today, I want to support the Senate resolution affirming the rule
of law and the legitimacy of judicial review, and I thank Senator
Durbin for bringing it to the floor.
I am here with a lot of regret and sadness in a way. We should have
pride in our uniquely just and democratic system that puts the rule of
law above everything else. But my regret, my sadness, is that there was
a time in this country when the other side of the aisle would have been
speaking for this resolution as well and would have been not just
accepting but advocating robustly, not just in rhetoric but in action
that we reaffirm our allegiance to the rule of law and the legitimacy
of courts scrutinizing what we do to make sure that we stay within the
Constitution and the rule of law.
We are here because, in effect, that basic consensus and acceptance
seems to be dissipating, perhaps even shredding.
The Founders were far from perfect, and one of their great virtues
was to recognize their imperfection. So they devised a system that
precluded anybody from being fully in power of everything. They lived
under an autocracy--the monarchy--that sent English soldiers into their
homes, allowed them to take people and property without any kind of
approval; in effect, subjected them to a loss of liberty that they
regarded as their fundamental rights as Englishmen.
In fact, our system of constitutional rule owes a lot to the English
system, the Magna Carta. We all know the history from our law school
days.
From my law school days, I remember well my professor expounding with
great reverence this idea that, in our country, courts can override the
excesses of a legislature or an executive. It is not a simple
proposition. I will grant you, in a democracy, the idea of a U.S.
Supreme Court, the highest Court in the land, appointed for life nine
people--the number has varied--without any election, able to override
the two popularly elected branches of government seems totally
anomalous and undemocratic. Yet the U.S. Supreme Court, as a check, as
an enforcer of that balance, has played a critical role throughout our
history in enforcing our rights and preserving them. And at times, it
has failed--Dred Scott, Korematsu. The U.S. Supreme Court is far from
perfect too. But in our system, we are a government of people observing
and enforcing the law.
In the days when I thought there would be no question that following
court orders should be a basic tenet, certainly, for lawyers who are
steeped in the culture of following the law--after all, what good is it
to be debating in court before a judge if the losing party simply
disregards the outcome?
So I come with sadness and regret because we face today a growing and
more popularly accepted idea that those court orders need not be
obeyed; that judicial review is not the acceptable tenet of our
Constitution that it has been for centuries; and that, perhaps, maybe
this President should not be bound by what the courts say.
That is so fundamentally dangerous to our democracy that we are here
today simply to make a statement that this resolution affirming the
rule of law and the legitimacy of judicial review is necessary at this
moment.
I am not going to go into all of the history that Senator Klobuchar
recited so well and eloquently or colleagues have done as well. We
don't blindly follow the edicts or orders of individuals in this
country, elected or not, but all of us in this Chamber, all of us who
have served in the military, all of us who served in any public office
for the public raise our right hand, and we swear an oath not to the
President, not to the majority leader, not to any potentate or
officeholder, we swear to the Constitution. That is an oath that we
take to the Constitution and the laws of the United States, so help me
God. That is the oath that requires us to obey the courts insofar as
they articulate the laws and the Constitution.
Like the Founders and the Supreme Court, lower courts may be far from
perfect too. That is why we have not just judicial review of executive
and legislative branches but also within our judiciary review and
appeals, not just once but twice, and within State court systems as
well, and then from State courts to our Federal courts.
I want to just close by saying I spent most of my career as a lawyer
going to court, trying cases, arguing before judges. I can tell you,
some of those decisions were just dead wrong, just so wrong as to make
my blood boil.
And whether it was for a client or for the United States of America,
when I was a U.S. attorney and the decision went against me, for the
people of the United States, or the people of Connecticut, when I was
attorney general and the decision went against me, I was angry. But it
never crossed my mind that I should just disobey. And the reason is
that the larger good, the longer range public interest is served when
those court orders are obeyed; and that, sometimes, whether it is Dred
Scott or Korematsu, the appeal is to history, the appeal is to the
future, to a moral conscience or a legislative
[[Page S1518]]
chain or someone sensing deep in their gut that an injustice has been
done.
And that is the kind of system that has survived, these centuries, as
the American experiment. We believe in the possibility of change and
reform but not by disobeying a judiciary that serves ultimately to
prevent autocracy, dictatorship, and tyranny.
One of the lessons of tyranny in the 20th century that Professor Tim
Snyder cites in his book ``On Tyranny''--one of the first lessons of 20
lessons on tyranny in the 20th century--is do not obey in advance. Do
not obey in advance. That is not to say we don't obey court orders. It
is to say we do not obey in advance what a dictator tells us to do.
And when a dictator or a would-be tyrant says, ``Don't follow court
decisions,'' we have an obligation to speak up and stand up. And that
is what we are doing through this resolution.
I yield the floor.
The PRESIDING OFFICER. The Democratic whip.
Mr. DURBIN. Mr. President, it has been my great honor to represent
the State of Illinois in this Chamber for many years, and I have been
present for a lot of proceedings which are memorable, some historic. I
can't think of one, in its simplicity, that is as important as what we
have witnessed in the last hour of debate.
We are literally asking a fundamental question about our democracy
that is seldom asked. It is rare that we have a circumstance where we
have to ask it, but we certainly understand in this situation that it
must be resolved.
What I tried to do in establishing this resolution was to make it as
pointed, as direct, and as simple as possible. There are ``Whereas''
clauses, which are of little or no consequence, but the resolution
clause is so simple and direct that I want to repeat it before I make
my request for unanimous consent:
Resolved, That the Senate affirms that--
(1) Article III of the Constitution of the United States
vests the ``judicial Power of the United States . . . in one
supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish'';
(2) as Chief Justice Marshall held in the Supreme Court's
landmark 1803 decision Marbury v. Madison, ``It is
emphatically the province and duty of the judicial department
to say what the law is''; and
(3) the Constitution of the United States and established
precedent require the executive branch to comply with all
Federal court rulings.
That is it. It acknowledges article III establishing the courts. It
acknowledges Marbury v. Madison, one of the very first cases any
student of law in the United States must understand. And, No. 3, it
says clearly the Constitution and established precedent require the
executive branch to comply with all Federal court rulings.
I am sorry that we have reached a point in our history where we even
have to ask the question, but shame on us if we don't.
This is not a political resolution. I have tried to make it as
apolitical as possible because it gets to these basic principles.
I want to thank my colleagues who came forward on the floor to say a
word in support of this resolution.
Now, Mr. President, as if in legislative session, notwithstanding
rule XXII, I ask unanimous consent that the Senate proceed to the
consideration of S. Res. 108, Affirming the rule of law and the
legitimacy of judicial review, which is at the desk; further, I ask
that the resolution be agreed to, the preamble be agreed to, and the
motions to reconsider be considered made and laid upon the table with
no intervening action or debate.
The PRESIDING OFFICER. Is there objection?
The Senator from Iowa.
Mr. GRASSLEY. Mr. President, reserving the right to object, I have
always advocated respect for the Federal courts, and, particularly,
over the last 2 years, I have opposed a vicious smear campaign by
Democrats designed to undermine faith in our Supreme Court and our
judicial system.
Now that we have a Republican President, my Democratic colleagues
appear to have a newfound respect for the courts. It wasn't very long
ago that they were singing a different time and a different tune.
In the last few years, the Democrats have called the Supreme Court:
controlled by a ``creepy right-wing billionaire,'' ``a radical Supreme
Court,'' and ``a partisan and reactionary court.''
One of my colleagues on the Judiciary Committee said the idea that
you can trust the Supreme Court has been ``blown to smithereens.''
Another committee colleague declared: ``I oppose these Justices.'' And
yet another committee colleague questioned: ``How can they call it an
honorable court? The Justices are cherry-picking their way through
constitutional text and history to impose their own ideological agenda
on the American people.''
Over the last few years, Democrats have repeatedly threatened the
Court for ruling in ways that they did not like. Famously, in 2020, the
Senate Democratic leader threatened the Court to influence its rulings
on abortion. He said:
I want to tell you, Gorsuch; I want to tell you, Kavanaugh:
You have released the whirlwind, and you will pay the price.
You won't know what hit you if you go forward with these
awful decisions.
And in the wake of the 2024 Presidential immunity decision, the
Democratic House minority leader said:
House Democrats will engage in aggressive oversight and
legislative activity with respect to the Supreme Court to
ensure that the extreme, far-right Justices in the majority
are brought into compliance with the Constitution.
Now, I am happy that Democrats have finally discovered the importance
of respecting the judiciary. They certainly didn't hold this view when
President Biden was in office. President Biden ignored the Court's
position that the CDC's eviction moratorium was unconstitutional and
his own lawyer's advice that he couldn't do it. He went ahead and
extended the moratorium anyway, and the Court had to strike it down.
President Biden boasted once that the Court's decision on student
loan forgiveness ``didn't stop him.''
The Biden administration undermined the Court's 2023 decision that
racial discrimination in college admissions is unconstitutional and
even issued a ``Dear colleague'' letter on how to circumvent that
ruling.
More broadly, President Biden flouted law after law throughout his
entire administration. He ignored the plain text of our immigration
laws, the parole statute, and our civil rights laws in the name of
advancing his agenda.
And you know what? I heard no complaint from my Democratic
colleagues.
Although I fully agree that Congress stands for the rule of law, this
resolution is nothing but a partisan messaging statement. President
Trump has been clear on this. Just a few weeks ago, he said: I will
always abide by the courts, and then I will have to appeal.
The answer is I always abide by the courts.
There have been numerous extreme orders from various district courts
improperly encroaching on core article II powers. President Trump and
his administration have worked diligently to abide by those orders, no
matter how outrageous, by appealing them and challenging their scope
and reach. He is completely within his right to do so, and his conduct
is appropriate and legitimate.
Our constitutional system has a robust system of checks and balances.
The executive branch must abide by the courts, and the courts must also
ensure that their rulings are respectful of jurisdictional limits and,
particularly, our famous separation of powers.
Some of the recent orders of individual district judges issued on an
expedited basis with very broad nationwide impact have concerned me. I
think Congress needs to examine this issue closely. Concerns about
nationwide injunctions and temporary restraining orders have been
raised on both sides of the aisle, across Presidential administrations.
And if my colleagues want to work with me on it, we will head down that
route of addressing those abuses.
For today's purposes, however, this resolution is incomplete. And
coming from Democrats, I think it shows that they are totally
inconsistent. It unfairly targets President Trump. In turn, then, it
ignores the Democratic attacks on the legitimacy of the Court, and it
ignores President Biden's flagrant violation of law.
So I am offering Senator Durbin an opportunity that he can't turn
down, a resolution to highlight the inappropriate attacks by Democrats
against the legitimacy of the Supreme Court
[[Page S1519]]
and to clarify the executive branch must comply with lawful orders.
So the point is that I ask that the Senator would modify his request;
that the Grassley amendment to the resolution at the desk be considered
and agreed to, and the Grassley amendment to the preamble at the desk
be considered and agreed to.
The PRESIDING OFFICER. Is there objection to the modification?
The Democratic whip.
Mr. DURBIN. Mr. President, reserving the right to object, I would
like to ask a question of my friend the chairman when it comes to the
modification which he is suggesting. Does this include, in one,
request, both modifications?
Mr. GRASSLEY. Yes, it does.
Mr. DURBIN. So I want to make certain particularly that I understand
the modification to the resolution clause. If I understand it
correctly, you are adding a word. Perhaps you could clarify that as to
whether or not there is a requirement of the executive branch to comply
with all Federal court rulings. Do you modify that particular sentence?
Mr. GRASSLEY. That is right.
Mr. DURBIN. And do you add the word ``lawful''?
Mr. GRASSLEY. Yes.
Mr. DURBIN. Mr. President, I think I want to clarify for the record
and for history so there is no dispute. There have been differences of
opinion about court orders in the past. I would say without fear of
contradiction that although President Biden's name has been mentioned
repeatedly, particularly when it comes to the forgiveness of student
loan debt, there was never any acknowledgement of defiance of any court
order, period.
There was a court order against the Biden administration, and
President Biden did not agree with it but went forward with a different
approach to the law. He was never found in contempt, nor was any
suggestion made that he violated a court order. His name has been
mentioned many times, but that just doesn't square with the reality.
Here is the difficulty. Think about this for a second. Under Marbury
v. Madison, we basically said it is the province and duty of the
judicial department, judges and courts, to say what the law is. Then
the modification being made by the Senator from Iowa says: You only
have to abide by lawful court rulings.
Did I state that correctly?
Mr. GRASSLEY. I think you need to be--we need to clarify because I
think your inference is that Trump has violated some court orders. He
has not. In fact, this very day, the Supreme Court ruled against him on
a 5-to-4 decision that goes back to the lower court to make a firm
decision.
So you can't say that the court system isn't working against
President Trump as it worked against President Biden.
Mr. DURBIN. That is a fair criticism. I want to make it clear I am
not saying that President Trump has violated a court order. I don't
know that he has. The question is, Whenever an order is issued either
for him or against him, will he obey the order? Will he acknowledge
that that is his lawful responsibility? That is what it comes down to.
I am not looking prospectively or in history--his brief time in the
Presidency this round--but, rather, saying that whatever the court
order in the future, whether for him or against him, he is bound by
that court order. You have added the word ``lawful'' court order.
I am not sure--if the court is to decide the law, and they decide in
his favor, then the law is acknowledged to be binding on him and his
actions. Conversely, if the ruling is against him and the court order
is against him, I hope you would acknowledge that that is lawful and
that he has to follow it even though they ruled against him. That is
simple constitutional law. I am not presuming how the court will rule.
I am saying that however it rules, he is bound by that ruling. Do you
agree with me, Senator?
Mr. GRASSLEY. I have made very clear that we have a separation of
powers, and each branch has to respect the other's powers.
Mr. DURBIN. I acknowledge that as well. The question is, Does that
mean that the executive branch is bound by the decision of the court
and has to follow a court order, whether it is for or against the
administration?
Mr. GRASSLEY. I think what I would like to do is--do you agree with
my amendment or you don't so we can move on and get to other important
stuff today. I want to help you get your resolution through, and I want
to just say what is good for the goose is good for the gander.
Mr. DURBIN. That is basic midwestern philosophy, which we share, and
I don't disagree with you. But I think the addition of the word
``lawful'' in the final sentence equivocates on what the Constitution's
clarity is. So I am going to object with the possibility that we can
work on this together to see if there is a way to reach a conclusion.
I think this is so basic. You have served honorably in the U.S.
Senate for your entire career, and the point that I am getting to is
that we ought to make certain that, moving forward, there is clarity on
this most basic checks-and-balances constitutional provision.
The PRESIDING OFFICER. Is there an objection to the modification?
Mr. DURBIN. I object to the modification as written.
The PRESIDING OFFICER. Is there an objection to the original request?
Mr. GRASSLEY. Reserving the right to object, before I do object, I
want Senator Durbin to know that there are things like this that we
ought to work out, but we can't be complaining about the courts if we
have a Democratic President and not complaining--just complaining when
we have a Republican President.
I think there are enough abuses of these nationwide orders to stop
certain activity that our committee ought to be looking at and
reviewing and see if they are being abused.
I object.
The PRESIDING OFFICER. The objection is heard.
The Senator from Iowa.
Mr. GRASSLEY. I would like to speak on Mr. Blanche.
Senator Durbin, I see we have an agreement.
Mr. President, I see we have an agreement that Senator Durbin
speaks--that I go again.
Thank you very much, Senator Durbin.
Soon, we will begin voting on the nomination of Todd Blanche.
Mr. President, I ask unanimous consent that the following Senators be
allowed to speak prior to the rollcall vote: Senator Durbin for 5
minutes, Senator Ricketts for 5 minutes, and this Senator for 10
minutes, but I am not going to take 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.