[Congressional Record Volume 171, Number 54 (Tuesday, March 25, 2025)]
[Senate]
[Pages S1820-S1823]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Unanimous Consent Request--S. Res. 136
Mr. DURBIN. Mr. President, I come to the floor to make a unanimous
consent request. That is a process in the Senate where we agree on
things because no one disagrees--unanimous consent.
I have made this request before. Senator Grassley, who is my
colleague and friend from the State of Iowa--different political party,
but occasionally we do agree--he has a different point of view. He is
likely to object. I will keep my fingers crossed that my speech will be
so convincing that perhaps he will change his mind. We will see.
But what we are basically discussing on the floor, at this point, is
whether or not, if the court issues an order, a public official has to
follow the order. It is pretty basic. It gets down to the daily routine
of courtrooms across the Nation.
Now, it has more meaning because there is a question as to whether
this new President--President Trump--is going to follow a court order,
if it is handed down by a court.
So my unanimous consent request is one on basic principle, as to
whether or not people--elected officials--are required to follow court
orders. I would like to make a statement in support of my offer.
I have come to the floor several times in recent weeks to speak about
unacceptable attacks on the Federal judiciary--the Federal courts--by
President Trump and his allies. These attacks are not only wrong but
dangerous. It is posing a serious threat to our constitutional order.
I am sorry to say that the attacks on our judges and our judiciary
have not stopped, as I have made these requests on the floor. Instead,
they have grown worse.
Last week, President Trump himself called for the impeachment of a
Federal judge simply because the judge ruled against the Trump
administration. The President's MAGA loyalists were quick to pile on
when he did that. Elon Musk has demanded the impeachment of Federal
judges dozens of times, and House Republicans rushed to introduce
articles of impeachment in the House.
In response to this unprecedented attack on the Federal judiciary,
Chief Justice Roberts and the Supreme Court issued a rare statement. It
reads:
For more than two centuries, it has been established that
impeachment is not an appropriate response to disagreement
concerning a judicial decision. The normal appellate review
process exists for that purpose.
Yet this relentless campaign against the judiciary has continued.
On Friday, President Trump issued a wild rant that read, in part--
this is the President: ``Unlawful Nationwide Injunctions by Radical
Left Judges could very well lead to the destruction of our country!
These people are Lunatics'' the President's Tweet read.
There has been a lot of debate about when we will cross the threshold
into a
[[Page S1821]]
genuine constitutional crisis. I pray that it will never happen, but it
will come down to a basic principle.
The question is not when we are going to face this. It is whether we
can afford to hold our breath and wait to see if the President will
formally announce he will defy a court order.
We must respond to the dangerous attacks on our courts and judges
now. The Senate must speak with one voice, Republicans and Democrats,
in defense of the judiciary, the separation of powers, the
Constitution, and the country we love. This cannot and should not be a
partisan issue.
Last month, my colleague Senator Kennedy, a Republican of Louisiana,
admonished two Trump nominees who suggested, in a hearing in the
Judiciary Committee, that the executive branch can ignore court orders.
Senator Kennedy said:
Don't ever, ever take the position that you are 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.
Earlier this month, Senator Cornyn, a Republican of Texas, said:
You don't impeach judges who make decisions you disagree
with. That happens all the time. What you do is appeal. If
you are right, then you are going to win on appeal.
These words by my Republican colleagues demonstrate an understanding
of checks and balances and our Constitution.
Some have argued that impeachment of judges is necessary because of
the number of injunctions issued against President Trump compared to
other Presidents. They claim this is evidence that Federal judges are
biased against President Trump. I would suggest there is a more obvious
explanation: The number of injunctions issued against the first and
second Trump administrations is evidence of a President who has
repeatedly violated the law.
I also want to respond to the baseless claims from, of all people,
unelected Elon Musk and other MAGA allies that the most recent judge to
be targeted by President Trump is some sort of radical ideologue. Let's
be clear: Judge Boasberg is no partisan. He was actually appointed to
the Superior Court of the District of Columbia by a Republican
President, George W. Bush.
As a DC district court judge, Judge Boasberg has issued many rulings
that illustrate--clearly illustrate--impartiality. For example, he was
the judge who ordered the release of thousands of Hillary Clinton's
emails, and his decisions have favored President Trump's interests on
several occasions.
Other judges who have ruled against the Trump administration were
appointed by Republican Presidents, including some who were appointed
by President Trump himself. He is not always going to win in court, but
he seems to think he should.
As Chief Justice Roberts said, in 2018, in response to an earlier
attack on the judiciary by the same President--President Trump--``we do
not have Obama judges or Trump judges, Bush judges or Clinton judges.
What we have is an extraordinary group of dedicated judges doing their
level best to do equal right to those appearing before them.''
Unfortunately, leading Republicans, including Secretary Rubio and
Elon Musk, have aligned themselves with the likes of El Salvador's
Nayib Bukele, a foreign dictator in El Salvador who destroyed judicial
independence in his own country and now is attempting to interfere in
our internal affairs. Musk went so far as to endorse Bukele's false
claim that ``the U.S. is facing a judicial coup.''
Fortunately, the American people know better. A recent Washington
Post poll found that an overwhelming majority of Americans believe
President Trump must follow Federal court orders, including 79 percent
of Republicans who agree with that.
With strong bipartisan support, America knows no President is above
the law, and the danger posed by the Trump administration's attack on
the judiciary is not abstract. The recent invective by the President
and his allies has resulted in increased threats to the lives of judges
and their families.
That is absolutely unacceptable. Our judges should not fear for their
lives and those of their loved ones because of their work. If judges
feel compelled to decide cases in favor of the President to avoid his
wrath, we will no longer have an independent judiciary. We can debate
the value of nationwide injunctions and the merits of any particular
judicial decision, but violence or threats of violence, whether from
the right or the left of the political spectrum, are never, never
acceptable.
In December of 1862, in the midst of the Civil War, a month before he
issued the Emancipation Proclamation, Abraham Lincoln submitted his
second annual address to Congress. It was read aloud by the Secretary
of the Senate. It included these famous words:
We shall nobly save, or meanly lose, the last best hope of
earth.
America retains this last best hope of Earth--for democracy, for
freedom, for liberty, and justice. It is up to both political parties
to protect it. We have sworn to uphold and defend this Constitution.
Now, we will be tested.
An independent judiciary has nobly saved our Nation many times
throughout history. It is a critical pillar upholding our
constitutional order. As Chief Justice Marshall famously declared, ``it
is emphatically the province and duty of the judicial department to say
what the law is.''
And it is the duty of Congress to support the judicial branch against
unwarranted attacks by the executive. For that reason, the resolution I
offer today affirms that the Senate supports the rule of law, the
judicial branch, and the Constitution.
Mr. President, as if in legislative session and notwithstanding rule
XXII, I ask unanimous consent that the Senate proceed to the
consideration of S. Res. 136, 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 and that the motion 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. Reserving the right to object, before I give my reasons
for objecting, I want to comment on a couple of things in your remarks.
Before you spoke, you spoke about the times that we often agree. Just
today, you and I--I won't go into the subject matter. But just today,
you and I cosponsored a bill together, as an example.
The other thing I would like to say, before I go to my remarks, is
that I want to associate myself with your quote from our colleague
Senator Cornyn that you don't impeach judges just because of a
decision, because we would be impeaching judges all the time. That is
my additional comment.
The third thing is to inform you that I hope I can get, as chairman
of the Judiciary Committee, something moving in this area. I happen to
agree with some Democrats, in previous years, that said some judges
have gone way beyond what a judge should do on national injunctions,
and I hope to find a solution for that. I would hope that you and I
maybe could work on that together because I know Democrats have made
that same accusation about district court judges in 1 district out of
93 in the United States applying their decision nationally.
So now, I would like to go to my reason for objecting. A few weeks
ago, I objected to a version of this resolution because I considered
that something that both Democrats and Republicans do too much around
here is nothing but a political messaging exercise. Today, I come here
for the same reason.
I won't stand by and allow my colleagues to imply that ``the rule of
law''--those three words--only matters when there is a Republican
President.
As I explained a few weeks ago, the Biden administration engaged in 4
years of complete lawlessness. Instead of condemning it, Democrats
viciously attacked the legitimacy of the courts for ruling against the
Biden administration. The silence that we heard from Democrats about
the rule of law during the Biden years is quite deafening.
I won't repeat my last speech, but I will expand on one of my
previous objections.
This resolution demands that the President comply with all court
orders, but it is completely silent about the role of the Federal
courts to adhere to the law themselves. For a number of years, but
particularly in the last few months, we have seen increasingly
sweeping, potentially lawless orders coming from any 1 of our 600
district judges out of the 93 districts we have.
[[Page S1822]]
Although our Founders saw an important role for the judiciary,
individual judges have empowered themselves to become nationwide
policymakers, as opposed to interpreting law. I consider this very
dangerous.
In the last few weeks, individual unelected judges made policy
decisions for the whole country. Some examples include: ordering the
President to stop deporting foreign terrorists; directing the military
to enlist and retain transgender servicemembers; directing who will and
will not staff the President's administration--that is really
extraordinary, I think--and then, lastly, an example, ordering the
immediate expenditure of billions of dollars. One judge even went so
far as to order the government to pay out 2 billion taxpayer dollars
and to do it within 36 hours.
Much of this would go to organizations not even involved in the case,
and the government would never be able to get this money back, even if
they ultimately won on appeal.
In the 2 months since President Trump has entered office, his
administration has suffered more of these sweeping orders at the hands
of district court judges than the Biden administration experienced in 4
years.
I want to emphasize that--more obstacles to carrying out what the
President wants to do in 2 months and stopped by the court more than
the entire 4 years of the Biden administration.
Has President Trump chosen to ignore this avalanche of irresponsible
court orders? Flat-out no. He has appealed these outrageous decisions,
just as he promised he would do when he said:
I always abide by the courts and then I'll have to appeal
it. . . . The answer is I always abide by the courts.
Appellate courts have responded by striking down many of the unlawful
intrusions into Presidential authority, but the core problem remains:
The President of the United States shouldn't have to ask permission
from more than 600 different district court judges to manage the
executive branch that he was elected to lead.
The practice of sweeping, nationwide injunctions, broad restraining
orders, and judicial policymaking must end. It is unconstitutional, it
is anti-democratic, and it is imprudent. If the Supreme Court won't
stop it, then Congress must. And I wish the Supreme Court would get on
this and do it right away.
This issue isn't a partisan issue. I want to work with Democrats, as
I just said to the Senator from Illinois.
Democrats, work with us to fix this.
In the past, Democrats and Republicans have both criticized
nationwide injunctions and the power of individual district judges. My
Democratic colleagues have even proposed legislation to rein in some of
these abuses.
You don't have to take my word for it. In 2022, Justice Elena Kagan
correctly observed:
It just can't be right that one district judge can stop a
nationwide policy in its tracks and leave it stopped for the
years it takes to go through the normal process.
In 2024, President Biden's Solicitor General, Elizabeth Prelogar,
argued before the Supreme Court. Now listen to this quote:
A court of equity may grant relief only to the parties
before it. The district court violated that principle by
issuing a universal injunction purporting to enjoin the Act
itself and forbidding the enforcement of the Act even against
non-parties.
So, as I told Senator Durbin, I hope to soon be holding a hearing in
the Senate Judiciary Committee to address this matter and even
introduce legislation to end these abuses. I hope both my Democratic
and Republican colleagues join me in this effort.
For the resolution at hand, I propose an amendment so it reads ``the
Constitution of the United States and established precedent require the
executive branch to comply with all lawful Federal court rulings.''
This simple change of one word--``lawful''--will show that Congress
expects both the executive branch and the judicial branch to respect
the rule of law and constitutional constraints.
My amendment mirrors what the Chief Justice said in 2024. The Chief
Justice rightly raised concerns about the intimidation and the threats
leveled at the Court in the wake of the Dobbs decision. He said:
The final threat to judicial independence is defiance of
judgments lawfully entered by courts of competent
jurisdiction.
He had no problem adding the word ``lawful'' in. We shouldn't have it
any other way.
So therefore I ask the Senator, my friend from Illinois, to modify
his request such that the Grassley amendment to the resolution at the
desk be considered and agreed to.
The PRESIDING OFFICER. Is there an objection to the modification?
The Senator from Illinois.
Mr. DURBIN. Mr. President, reserving the right to object, the
resolution I offered today is short and straightforward. It is not
complicated. It simply restates a bedrock principle of our democratic
system of government that it is the responsibility of the judiciary to
say what the law is, and, second, the executive branch is required to
comply with court orders. It is just that simple.
I offered a similar resolution 3 weeks ago. It included some language
which my friend from Iowa did not like. I took that language out. I
want to get down to the basics here, the very basics.
He made reference to the Dobbs decision. That overturned Roe v. Wade
on abortion--a controversial issue in the United States since that
decision in 1972 but a decision that was overturned by the Court. There
were many who disagreed with the Court's approach to it and said that
it was inconsistent with precedent and inconsistent with what the
Justices had promised. Yet, when it was all over, no one filed Articles
of Impeachment against the Supreme Court, and there were no threats
that I know, personal threats and physical threats, on the Justices and
their families. There should never be. Violence is never acceptable.
After my colleague from Iowa objected to my previous language, I made
it very simple--the simple fact that the Vice President and other
prominent officials have suggested that the executive branch may
disregard a Federal court order.
This, unfortunately, would be an item of controversy that could
really threaten our constitutional democracy, and that is why I have
asked that this very simple statement that everyone must follow the law
when it comes to court orders be made part of the official record of
the Senate.
With those changes, there is absolutely nothing objectionable in this
resolution. Yet my colleague seeks to add language that would only
muddle what this sentence should make clear. By stating that the
executive branch only needs to follow ``lawful'' court orders, which is
what the Senator from Iowa has suggested, it then begs the question of
who decides a court order is lawful.
This suggests that in some cases, the President is going to decide
rather than the judiciary. The responsibility to decide whether a court
order is lawful is, in the words of Chief Justice Marshall,
``emphatically the province and the duty'' of the judiciary. If the
President disagrees with a court order, his only option is to appeal
it, and I have added language to my resolution stating that simple
fact. Otherwise, the President would be above the law. America does not
accept it, the Constitution does not accept it, and we should be bold
enough and courageous enough to stand on a bipartisan basis and reject
it as well.
The other amendment implies that courts are ruling against the
administration because of ``different policy preferences'' rather than
following the law.
Over and over and over again, thousands and thousands of times, we
have had judicial nominees appear in the Judiciary Committee. But when
asked the basic question of ``What would you do in court if you had to
make a decision?'' they say ``I will follow the law.'' That is basic.
Now, their decision on the law may be different than yours or mine or
some other judge's, but the fact of the matter is, they do believe--at
least they tell us--that is their bedrock responsibility.
This resolution is nonpartisan. It is clear. It should be bipartisan.
We ought to make it clear once and for all that no President--Biden or
President Trump or any other President in the future--is above the law.
Any further amendment is unnecessary. It undermines the simple,
straightforward message which we should stand together and speak.
[[Page S1823]]
For these reasons, I object.
The PRESIDING OFFICER. Is there objection to the original request?
Mr. GRASSLEY. Are you asking about the original one?
The PRESIDING OFFICER. Yes.
Mr. GRASSLEY. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the text of
my amendments at the desk be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
(Purpose: To improve the resolution)
On page 2, line 5, insert ``lawful'' after ``all''.
(Purpose: To improve the resolution)
On page 2, between lines 5 and 6, insert the following:
(4) Article III of the Constitution of the United States
limits Federal courts to deciding specific ``cases'' or
``controversies'';
(5) it is inappropriate for courts of the United States to
override legislative or executive action by the elected
branches of government because of different policy
preferences; and
Mr. GRASSLEY. I know of no further debate on the nomination.
The PRESIDING OFFICER. Is there further debate?