[Congressional Record (Bound Edition), Volume 158 (2012), Part 7]
[House]
[Pages 9635-9639]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       CONSTITUTIONAL LIMITATIONS

  The SPEAKER pro tempore (Mrs. Black). Under the Speaker's announced 
policy of January 5, 2011, the Chair recognizes the gentleman from Iowa 
(Mr. King) for 30 minutes.
  Mr. KING of Iowa. Thank you, Madam Speaker.
  As always, I'm privileged and honored to be able to address you here 
on the floor of the United States House of Representatives. And having 
heard some of the dialogue of the gentleman from Georgia just preceding 
me, it transitions in a way that I think it is fitting, and his focus 
on the 10th Amendment and the limitations of the Constitution that 
don't seem to be felt by many Members of the Congress that serve over 
on this side as a rule and the debacle that's been brought upon us, and 
now we've called upon the Supreme Court to unravel, and anticipate a 
decision as early as next week, no longer this week, I'm told, Madam 
Speaker.
  As I watched this administration unfold, and we're into 3\1/2\ years 
or a little bit more into the Presidency of Barack Obama, I'm extremely 
troubled by the constitutional aspects of this administration.

                              {time}  1640

  I would frame this with the understanding that the President of the 
United States is a former adjunct law professor at the University of 
Chicago who taught constitutional law. He taught constitutional law to 
students that were to learn about this document that I carry with me in 
my jacket pocket every day, this Constitution that has, as essential 
components, article I, article II, and article III of this 
Constitution.
  Article I sets up the legislature--that's us, Madam Speaker, here in 
the House of Representatives and down the hallway to the other end of 
the Capitol, the United States Senate. It invests in us all legislative 
authority. That's article I. It sets up the legislature, and it gives 
us our authority. And I'll talk about that a little bit more in a 
moment, Madam Speaker.
  Article II sets up the executive branch of government. It establishes

[[Page 9636]]

that there shall be a President who is the Commander in Chief of all of 
our Armed Forces and a Vice President. Beyond that, there's not a 
requirement that this Congress establish any other parts of the 
executive branch of government. It just says that we may, not that we 
shall. That is in the enumerated powers that this Congress has.
  The third branch of government, of course, is the judicial branch of 
government. It wasn't originally established for the purposes of 
determining the intent of the letter of the Constitution. It did 
emerge, and for more than two centuries the landmark precedent case of 
Marbury v. Madison has not been successfully challenged, although 
occasionally it's been argued. So I concede to the Marbury decision.
  I look over to the Supreme Court and look to the United States 
Supreme Court to be the branch of government that determines what the 
laws mean, that identifies and defines the laws that we pass here. But 
my disagreement--although I've had some with the Supreme Court in the 
past, Madam Speaker--is not with the judicial branch of the government. 
I'm looking for them to grant us a decision next week on perhaps two 
large cases that have come before the Court, the ObamaCare case and 
also Arizona's SB-1070 immigration case. I'm hopeful that they will 
read this Constitution and understand it as I do and as most of us that 
take an oath to this Constitution do.
  But I'm very concerned about the President of the United States, the 
former adjunct law professor who taught constitutional law at the 
University of Chicago.
  When I had a speaker on this Wednesday morning at a breakfast that I 
host each week on Wednesdays--what goes on in that room is Members 
only, but it's the Conservative Opportunity Society--when the speaker 
that I introduced announced that he received his law degree from the 
University of Chicago's School of Law, it was a bit of an apology for 
the President's interpretations. I'm hopeful that the very fine and 
excellent University of Chicago School of Law doesn't have now a bad 
reputation it has to peel off that comes from the interpretations of 
the Constitution that the President is making these days--who taught 
law there, of course I would remind you.
  So I'm very troubled by the actions of the President of the United 
States. The most recent action that I'm troubled by is, let me say, the 
amnesty memorandum that he has directed Janet Napolitano to issue. This 
amnesty memorandum establishes several classes of people. One of those 
classes they've defined as this: if they were brought into the United 
States--or came into the United States is a more accurate way--if they 
arrived in the United States illegally from a foreign country before 
they were 16 years old and if they are still under 30 years old, and if 
they continuously resided in the United States for 5 years and if they 
received a high school degree, a GED, or were honorably discharged from 
the military--there are a couple other criteria there--then the 
President has directed Janet Napolitano, the Secretary of Homeland 
Security, who has in turn directed her subordinates--that being the 
Acting Director of Custom Border Protection, David Aguilar, and the 
Director of ICE, John Morton, and also the USCIS, Mayorkas--to 
recognize this memorandum and act as if the President had issued an 
edict that is actually a law.
  Now, as Mr. Woodall from Georgia spoke about the Constitution and 
what's happened to our 10th Amendment, I would suggest that the 
President seems to be usurping nearly all of article I, section 8 of 
our Constitution, the enumerated powers.
  Now, I came here to speak of these enumerated powers in this way: if 
the President can manufacture law out of thin air--not whole cloth, 
Madam Speaker, but out of thin air--we get things like the immigration 
law that the United States Congress has established. It has defined 
categories of people, it has established numerous visas, it allows for 
the most generous legal immigration of any country in the world--and 
some say more legal immigrants coming into the United States every year 
than are allowed in all other countries in the world put together. I 
haven't seen that data to my satisfaction. That gets repeated here in 
this Congress so fairly often.
  I am very confident that the United States is the most generous 
nation on Earth when it comes to legal immigration. A number between 1 
million and 1.2 million legal immigrants come into the United States. 
That number of people happens to be something that would establish 
workers for every job that's been created for more than a decade here 
in the United States.
  I have tracked the U.S. Department of Labor's Web site and I 
evaluated that, and I'll see that anywhere between 1 million and 1.2 
million jobs have been created by this economy, and they're all taken 
up, at least in theory, by new legal immigrants.
  Then we have 12 million to 20 million illegal immigrants, 7 out of 12 
of whom are out working, and the other 5 out of that 12 are presumably 
not working, or in the home perhaps. Those jobs are maybe not recorded 
by the Department of Labor because they aren't legitimate jobs from 
their statistical standpoint.
  But imagine this, imagine an economy that generates over 1 million 
jobs a year, and imagine a country that would open its doors to over 1 
million immigrants a year. Watch the economy create these jobs and 
watch those jobs being used by legal immigrants, and then turn a blind 
eye towards the illegal immigrants that are coming into the United 
States.
  The people on the other side of the aisle see illegal immigrants as 
undocumented Democrats. It is a political equation for them. It's not 
an equation of what's good for America's economy, what's good for 
America's culture, what's good for America's society. It's what gives 
them political power. So they cynically turn a blind eye and encourage 
that laws not be enforced, erode the rule of law; and in the process of 
expanding their political base they're eroding the core of America and 
creating a greater and greater disrespect for the rule of law. That's 
chiseling away at one of those beautiful pillars of American 
exceptionalism; and the President leads the charge, Madam Speaker.
  This lawless memorandum that was issued by Secretary Napolitano at 
the direction of President Obama has no basis in constitutional 
authority. The President of the United States does not have the 
authority to create law. He has no authority to pull it out of thin 
air. He cannot simply announce that he is going to require us to follow 
some directive, some executive edict and expect us to follow it. It is 
an unconstitutional overreach and a violation of the separation of 
powers.
  Now, I have some experience with this. The President's move on this 
amnesty memorandum is a clear violation of the executive powers of the 
President of the United States. It is one of the enumerated powers that 
is given to the United States Congress in article I, section 8. If the 
President can manufacture immigration law, here's what he has done--
I'll put this poster up.
  Madam Speaker, this is the result of the President's action and, that 
is, first he created the categories that I mentioned--three or four 
categories of people that are classes of people. He has prosecutorial 
discretion to decide where they're going to emphasize the utilization 
of their enforcement resources. He can determine that they are going to 
put more people on violent criminals, more people on serious drug 
smugglers. I'm not sure they are, but he can determine that they are. I 
haven't raised an issue with his constitutional authority to do that. I 
did bring an amendment a couple of weeks ago that blocked the Morton 
memos, which did say we're not going to enforce laws against 
individuals who have found themselves in the United States and haven't 
violated other laws.
  And the President has argued before the Supreme Court that there is 
this careful balance, a careful balance theory that Congress has 
directed the executive branch to create and maintain a careful balance 
of various immigration laws so that the executive branch interest in 
the State Department and the Department of Homeland Security

[[Page 9637]]

and the Department of Commerce, those Departments find that balance so 
we don't over-enforce and offend our neighbors.
  Congress did not direct the President or the executive branch to 
create or maintain any careful balance. That careful balance is a 
completely manufactured theory. Congress passes laws of all kinds under 
the authority granted to it in article I, section 8. And those 
directives to the executive branch are: keep your oath of office, Mr. 
President.

                              {time}  1650

  Executive branch, Eric Holder, keep your oath of office. And that 
oath for the President of the United States says, I do solemnly swear, 
to the best of my ability, to preserve, protect and defend the 
Constitution of the United States, so help me God. Those were the words 
of Barack Obama January 20, 2009, right out here on the west portico of 
the Capitol. Preserve, protect and defend the Constitution of the 
United States so help me God.
  And intrinsic with that oath of office, a little bit later, in 
article II, the Constitution says of the President, he shall take care 
that the laws be faithfully executed. That means, enforce the laws. The 
President must enforce the laws. He must appoint people whose job it is 
to enforce the laws. He must direct that they do so. They take an oath 
to uphold the Constitution.
  Eric Holder has an obligation to enforce the law. Janet Napolitano 
has an obligation to enforce the law, and their oath is tied to the 
Constitution in the same way. They understand that when they put their 
hand on the Bible and raise their right hand and say, I do solemnly 
swear, that includes, take care that the laws be faithfully executed. 
That's the obligation of the executive branch of the government.
  The obligation of the legislative branch of government is to pass 
laws that be necessary and proper. In fact, Madam Speaker, among 
article I, section 8 of the enumerated powers is a Necessary and Proper 
Clause, which says to Congress, the legislative branch to make all laws 
which shall be necessary and proper for carrying into execution the 
foregoing powers. That's the full list of enumerated powers that come 
before it in article I, section 8, and all other powers vested by this 
Constitution in the government of the United States or in any 
department or officers thereof.
  The Necessary and Proper Clause includes exclusive authority to pass 
laws as vested in the legislative branch in government. If it's 
exclusive, that means the President of the United States and nobody 
outside this legislature can pass a law.
  The President believes he can do that. He believes he can create 
legislation out of thin air, and he did so by the effect of his 
memorandum that was released by Janet Napolitano last Friday and 
supported in a Rose Garden speech by the President of the United States 
about 2:40 p.m. last Friday.
  And here's what we have. As a result of that is amnesty for whole 
classes of people. Between 800,000 and 1.4 million people granted a 
legal status in this country that, as of the morning, last Friday 
morning, when they woke up, they were subject to being put back in the 
condition they were in before they broke the law, that is, back to 
their home country where they rightfully belong and legally could 
reside.
  The President changed that with an unconstitutional overreach that's 
a violation of this separation of powers, and I'm going to ask the 
court to resolve this disagreement. It will take some time. It will 
take some money. It will take some effort and some litigation brains. 
They are, I believe, ready to go on this, Madam Speaker.
  But here's what the result is of the President's memo, and it's this: 
Created those classes of people, granted them executive amnesty by memo 
printed by Janet Napolitano, Director of Homeland Security, and 
directed the Director of USCIS, United States Citizenship Immigration 
Services, to create a permit that would allow those formerly illegal 
individuals to work in the United States for the duration of this 
permit that he would grant.
  Now, I've just looked at a couple of these things. These are created 
by laws, acts of Congress. This is an employment authorization card. 
It's just a model or a sample of one. It doesn't actually identify a 
real individual. And this is the size of a credit card, and it says 
U.S. Department of Homeland Security, U.S. Citizenship Immigration 
Services, USCIS.
  This is what the President has directed that USCIS create to hand to 
these one or so million people that get their new amnesty by executive 
fiat. Here is your employment authorization card. This is what will be 
produced, not by the direction of the United States Congress, not under 
the authority of article I of the Constitution that established this 
legislature, but under the arrogant, assumed power of the President of 
the United States to issue a memo that he thinks he has the authority 
to issue.
  And by the way, power in this world has historically been what you're 
able to assert and retain. If anyone steps up and assumes power to do 
something and there's no one there to challenge them and they can get 
away with it, they have that power and they will hold that power, and 
it will be a precedent for that power until someone can challenge it 
and take it away from them, Madam Speaker.
  And so the President has assumed this unconstitutional power to 
create entire classes of people, grouped in the hundreds of thousands, 
grant to them an employment authorization card, and grant to them a 
resident card.
  Now, the resident card that the President has ordered USCIS to 
produce in an unlawful, unconstitutional fashion will likely look 
something like this. This is a copy of what we know as a green card. 
It's a lawful permanent resident card. LPR status is what we call it. 
It says right here, permanent resident card. And again, this is just a 
token individual, a model for the card.
  But, Madam Speaker, they'll probably just strike out permanent 
resident and they might say temporary resident. It might have some kind 
of indication that later on he's going to make them a permanent 
resident.
  If the President can manufacture authority to do this when it doesn't 
exist, if he can grant amnesty to people that fit the age categories 
that he says, that haven't committed violent or serious felonies, or 
too many strings of misdemeanors, if he can do that, then why can't he 
also grant amnesty to those that are over 16 when they came here, those 
that are over 30 today, those that have been in the United States for 
less than 5 years, those that may have committed felonies and he just 
wants to give them a pass?
  We already have amnesty in this country for the President of the 
United States' aunt, who had been adjudicated for deportation, Auntie 
Onyango, and we already have the amnesty from the administration for 
his drunken uncle, Omar, who nearly ran over a police officer and had a 
1.4 blood alcohol content. And then after he was brought to court, his 
punishment was to suspend his driver's license, and then the State of 
Massachusetts issued him a 45-day driver's license.
  These laws don't apply to the relatives of the President of the 
United States. Apparently they don't apply to the President's preferred 
manufactured classes of people.
  And by the way, the Constitution, according to his view, doesn't 
apply either to the President of the United States. This is what he has 
created out of whole cloth. These cards that you see here, this is a 
result of a deliberative act of the United States Congress.
  The U.S. House of Representatives, the United States Senate have 
concurred that we want to give people who are in this country legally 
an employment authorization card when they qualify. We want to give 
them a permanent resident card, a lawful permanent status card, when 
they qualify.
  And this green card, by the way, is a path to citizenship. Carrying 
this green card around for 5 years, being President of the United 
States, obeying our laws, that opens the door to United States 
citizenship, and after that 5-year period of time the green card can be 
converted, and often is, into United States citizenship.

[[Page 9638]]

  What prevents the President from just granting citizenship to all of 
the people that he thinks might vote for him?
  If the President has the authority to manufacture, out of thin air, 
this permit and this permit, Madam Speaker, under the same assumed 
arrogant authority, the President would be able to grant amnesty to 12 
or 20 million people, instantly make them citizens, and march them off 
to the polls.
  He's engaged in blocking the State of Florida and five other States 
from cleaning up their voting rolls; has sent his Attorney General, 
Eric Holder, to block Florida from cleaning illegals off of the voting 
rolls in Florida, and that's not the only State.
  There's a database called the SAVE database that's in the control of 
Janet Napolitano, and Department of Homeland Security.
  The Secretary of State of the State of Iowa, Matt Schultz, who is 
doing an excellent job of making sure that those of us who have a 
legitimate vote in the State don't see our vote diluted or offset by 
the vote of someone who is unlawfully in the United States, or not a 
citizen, or perhaps a felon, or deceased. We need voter registration 
lists that are free of duplicates, deceased and felons, and that 
certifies that they are citizens, and require a picture ID, and the 
Holder Justice Department, working with the assent, if not the 
encouragement of the Obama White House, is blocking the legitimate 
cleanup of the voter registration rolls in State after State after 
State.

                              {time}  1700

  This is the most unconstitutional reach by the executive in the 
history of the United States, and here are some things that the 
President could do if we let him assert his authority. I'll go all the 
way down through and just pick the most important ones.
  In article I, section 8, the enumerated powers of our Constitution, 
the first power grants Congress, exclusively Congress, the authority to 
lay and collect taxes.
  What if the President decided by executive fiat that he didn't want 
to collect taxes against people in the lowest bracket? Because, after 
all, that would be an income redistribution thing that he is likely to 
favor. Do you think those folks would feel good about the President of 
the United States and maybe go to the polls and vote for him?
  Would that change the political dynamic in the country if they didn't 
have a tax liability? Probably. If that's his calculus, what prevents 
him from doing this? If he thinks he has the power to lay and collect 
taxes, he can always absolve people of those taxes as well.
  What if Mitt Romney is elected President of the United States and he 
decides that, in order to stimulate the economy, he would just waive 
the taxes on U.S. capital that's stranded overseas in the trillions of 
dollars? What if he waived the capital gains taxes and let those 
resources come back into the United States tax free to be reinvested in 
the economy?
  Does the President have the authority to waive taxes or does the 
President have the authority to lay and collect them? No, Madam 
Speaker, he does not.
  The President of the United States has the obligation to take care 
that the laws be faithfully executed. The authority to legislate is 
exclusively within the United States Congress--House and Senate--with 
the consent then of the signature of the President or of its overriding 
with his veto.
  The President could, under the same rationale as he has here, lay and 
collect taxes or waive taxes on certain classes of people. What if he 
decided, I feel a little sorry for those people who I wrote into this 
memorandum, so I don't want them to pay taxes either. Would then 
America be outraged? I'd say we need to understand this Constitution 
better, and we will be more outraged.
  What about borrowing money--that's another enumerated power--to 
borrow money on the credit of the United States? What if the President 
of the United States decided under the same authority he has assigned 
himself here that he is not going to pay any attention to Congress on 
whether we agree to lifting the debt ceiling and that he's just going 
to go by Executive order or by Presidential fiat and direct the 
Department of the Treasury to go ahead and borrow money beyond the debt 
ceiling this Congress has set? What would we say then, Madam Speaker?
  How about this: to regulate commerce. Well, wait. They're already 
doing that. They're alleging that under the Commerce Clause of the 
Constitution that they can go ahead and declare that only one lung full 
of American air constitutes engaging in interstate commerce and that 
they can compel you to buy a health insurance policy that's written or 
approved by the Federal Government.
  That's the decision that we expect from the Supreme Court next week. 
I think it's going to be a constitutional one. Barack Obama asserts 
that the Commerce Clause is so broad that Congress can reach across all 
State lines and declare that breathing one lung full of American air is 
enough to engage in interstate commerce, and therefore they can 
regulate all activities that they can declare to be interstate 
commerce. That means all activities whatsoever.
  By the way, I will say, if the Commerce Clause is so broadened by the 
consent of the Supreme Court next week, then the Commerce Clause, 
itself, swallows all of the enumerated powers. Everything can be 
regulated within the Commerce Clause.
  But I'm really here to focus on the separation of powers between the 
legislative and the executive branches. So I take us to naturalization.
  The enumerated powers grant that power of naturalization ``to 
establish an uniform rule of naturalization'' to the United States 
Congress exclusively, not to the President of the United States. The 
President has argued that the exclusive rule of naturalization includes 
all immigration laws, that the Congress should be able to determine 
that, and that there is no 10th Amendment that applies.
  That's another case before the Supreme Court that I expect we will 
get a decision on next week. But this stretch of the rationale that the 
President has sent does great offense to the Constitution of the United 
States.
  Regardless, this Congress has the exclusive constitutional authority 
``to establish an uniform rule of naturalization.'' The President can't 
write that. The States can't write that, but the States do have the 
authority to write immigration laws that mirror those of the United 
States Government's. The President can't write them as he intends to 
do. This is what he has created. Unconstitutionally, he has created 
these permits and these classes of people.
  The President has also declared that the Senate wasn't in session 
when they were in session, and he committed his recess appointments. I 
am disappointed, frankly, Madam Speaker, that the United States Senate 
didn't step up and defend its authority to determine when they were in 
session, and to not adjourn and to be in a pro forma session. They did 
so so that the President could not insert recess appointments, and the 
President did so anyway.
  If the President of the United States can declare that the United 
States Senate is not in session, then he can effectively abolish the 
United States Senate except for its being just simply a symbolic body. 
Now, there are countries around the world like that--in this 
hemisphere, I might add. I remember seeing the President of the United 
States in a glad double-handed handshake with one of those people a few 
years ago.
  Then I mentioned S.B. 1070, this great overreach when the President 
had sent his Attorney General to sue Arizona. He was classically asked 
the question, Attorney General Holder, did you read the Arizona 
immigration bill? His answer was, No.
  Congressman Ted Poe said, Here, you can read mine. It's only 10\1/2\-
pages long. It's not that hard to study.
  I'd read it. Ted Poe had read it. So had, I think, every member of 
the Judiciary Committee on our side. But the Attorney General had 
determined he

[[Page 9639]]

 was going to sue Arizona because he was ordered to by the President of 
the United States. The announcement came in Ecuador from Secretary of 
State Hillary Clinton. That's how we found out. They created a whole 
new legal argument called the ``careful balance theory'' in that 
Congress had directed the executive branch to create and maintain a 
careful balance between the various immigration laws.
  We did no such thing.
  There is no record of this. There is no statute of this. There is no 
dialogue in the Congressional Record that would direct such a thing. 
They asserted it because that was the only argument they could 
manufacture that suited their political position.
  This is not an administration of law. This is not an administration 
bound by it. They are not bound by the Constitution. The President, 
himself, has stood before this Nation multiple times and has given the 
lecture about the separation of powers: Congress passes the laws. The 
executive branch carries them out. Then the Supreme Court, the judicial 
branch, interprets the laws. That's the President's lecture, and he 
cast it all aside and asserted an executive edict that he could create 
these things out of thin air.
  If the President can do so, then, as we go on down the line, he can 
regulate commerce. He can do the naturalization. The President has 
already stuck his nose into bankruptcies, and the secured creditors for 
Chrysler saw themselves aced out while the White House was the only 
appraiser of Chrysler motors. They wrote the terms of the chapter 11 
for Chrysler, and they were the only entity that was bidding on 
Chrysler's assets. They set the price going in. They wrote the terms of 
the bankruptcy, and they offered the price on the other side of it. And 
what did they do? They scooped the secured creditors' assets away and 
handed them over to the unions.
  Congress sets the terms of bankruptcy, not the White House. Again, he 
has crossed the line.
  We go on down the line.
  What if the President decided that he could establish the currency of 
the United States? That's exclusively the Congress as well. What if he 
determined the euro were going to be the currency of the United States 
of America? What could we do? What would our alternative be? We'd take 
the gentleman to the courts, and ask the courts to determine the 
difference. In the end, the people will decide this.
  With regard to intellectual property, he could waive copyrights, 
trademarks, and those types of laws, or he could create tribunals or 
wipe them out if he is going to assert an authority to rewrite article 
I, section 8.
  Madam Speaker, I appreciate your attention. We must keep our oath to 
uphold the Constitution of the United States and the separation of 
powers. I intend to do so. I ask for everyone's help in this whole 
country.
  I yield back the balance of my time.

                          ____________________