[Congressional Record (Bound Edition), Volume 161 (2015), Part 15]
[Senate]
[Pages 21458-21460]
[From the U.S. Government Publishing Office, www.gpo.gov]




            EXECUTIVE OVERREACH AND THE SEPARATION OF POWERS

  Mr. SASSE. Mr. President, today I would like to propose a thought 
experiment. Imagine if President Trump has been propelled into the 
White House with 300 electoral votes, having won mainly by the force of 
his personality, by calling BS on this town, and by his promise to 
``get things done'' by acting unilaterally.
  The first 100 days are huge. He signs an order to turn the Peace 
Corps into stone masons to build a southern wall. He shutters the 
Department of Education, and by Executive order, he turns the 
Department of Interior into the classiest oil company the world has 
ever known.
  What happens next? Would those who have stayed silent about Executive 
overreach over the last 7 years suddenly find religion? After years of 
legislative atrophy, would Congress spring into action and remember its 
supposed power of the purse?
  And what about the Republicans? After having raged against a 
supposedly lawless President, would they suddenly find that they are OK 
with a strongman President, so long as he is wearing the same color 
jersey they are? He may be a lawless son of a gun, some would say, but 
he is our lawless son of a gun. Would the end justify the means?
  The way Congress thinks and talks about Executive power over the last 
few years has almost been this sophomoric. It has been based 
overwhelmingly on the party tag of whoever happens to sit in the Oval 
Office at any given moment. Republicans, Democrats, us versus them--
these are the political trenches, and the no man's land lies somewhere 
between this Chamber and 1600 Pennsylvania Avenue, NW. When your 
highest objective is advancing partisan lines on a map, it is easy to 
forgive a President who oversteps his authority, so long as he is your 
guy and the one with authority is in your party.
  This Senator suggests that this is the entirely wrong way to think 
about this issue. The problem of a weak Congress--which we are--and the 
growth of the unchecked Executive should be bad news to all of us. But 
more importantly than us, this should be bad news for every constituent 
who casts their votes for us under the impression that the Congress 
actually makes decisions and doesn't just offer whiny suggestions.
  The shrinking of the legislature in the age of Obama should be bad 
news for all of us for three reasons. First, we have taken an oath to 
defend the Constitution, and the Constitution invests the legislature 
with the legislative powers.
  Second, the Founders' design of checks and balances actually was and 
is a good idea. They were struggling to preserve the freedom of the 
individual and especially of the vulnerable against the powerful--
against those who could afford to hire the well-connected lobbyists. 
The Founders were equally afraid of the unchecked consolidation of 
power in a king or in the passions of a mob. They understood that human 
nature means that those in power will almost always try to grab more 
power, and that base reality hasn't changed over the last 230 years.
  Third, under the system that is now emerging, the public is growing 
more and more frustrated. They think that most of us will be reelected 
no matter what, and they think that the executive agencies that daily 
substitute rulemaking for legislating will promulgate whatever rules 
they want, no matter what, and that the people have no control. People 
grow more cynical in a world where the legislators who can be fired--
that is what elections are for--have little actual power and a world 
where bureaucrats, who have most of the actual power, cannot be fired. 
It is basically impossible for the people who are supposed to be in 
charge of our system to figure out how they would throw the bums out. 
They ask: Where is the accountability in the present arrangement?
  Allow me to be clear about two issues up front. First, this Senator 
believes that the weakness of the Congress is not just undesirable; it 
is actually dangerous for America and her future. Second, this Senator 
thinks so not because I am a Republican and we have a Democrat in the 
White House; rather, I think this because of my oath of office to a 
constitutional system, and I will continue to hold this view, having 
taken this oath, the next time a Republican President tries to reach 
beyond his or her constitutional powers. Despite these two strongly 
held views, though, in this series of addresses on the growth of the 
administrative State and more broadly on the unbalanced nature of 
executive and legislative branch relations in our time, my goal will 
not be primarily to advocate. My first goal is just to do some history 
together.
  My goal is primarily to describe how the executive branch has grown 
and

[[Page 21459]]

how Presidents of both parties are guilty of it. But it isn't just that 
Republicans and Democrats are guilty of trying to consolidate more 
power when they have the Presidency, although that is true; it is a 
one-way ratchet. It is also true that Republicans and Democrats are to 
blame in this Congress for not wanting to lead on hard issues and take 
hard votes, but rather to sit back and let successive Presidents gobble 
up more authorities.
  My goal is to give all of us who are called to serve in this body a 
shared sense of some historical moments, how we got to this place where 
so much of the legislative function now happens inside the executive 
branch, and to convince my colleagues of both parties that we have to 
take this power back, regardless of who serves in the White House and 
what party they are from.
  So how did we get to the place where so many giant legislative 
decisions are now made inside 1600 Pennsylvania Avenue and in the 
dozens of alphabet soup agencies? To understand that, we have to look 
briefly at the Founders and what they were trying to accomplish. These 
were educated men who had studied all forms of government throughout 
human history. They had a worked-out theory of human nature. They knew 
that we are created with inherent dignity worthy of respect, that our 
rights come to us from God via nature, and that government doesn't give 
us rights; government is just our shared tool to secure those natural 
rights. At the same time they knew that we also have a disposition to 
self-interest and a capacity for evil. They observed it throughout all 
of human history, rulers trying to consolidate more power for their own 
ends, and this is obviously dangerous.
  One of the lessons they drew from their rich historical understanding 
was the importance of keeping three main functions of government 
separate. As Montesquieu wrote: ``All would be lost if the same man or 
the same body of principal men, either of the nobles or of the masses, 
exercised these three powers: that of making the laws, that of 
executing public resolutions, and that of judging the crimes and 
disputes among individuals.''
  The separation of powers could not, of course, be absolute, for the 
branches had to work together, each power had to counterpose one 
another. The key was to divide the power among different institutions 
while ensuring that those institutions could act together as a coherent 
whole on the basis of what they call ``mixed government.''
  The Constitution that emerged from the Founders' debates and 
deliberations intentionally enshrines the separation of the powers, and 
this was a direct result of the Founders' study of human nature and 
their conclusion that that nature was relatively constant. Men 
everywhere tend to aggrandize power and to use it for selfish ends. 
When power checks power in the government, the people are better 
protected. As Tocqueville said when he studied America: Their more 
constrained government leaves them more room for civil society.
  We have a limited government because we mean to enable nearly 
limitless--that is, more free families, more free inventors, more free 
churches and synagogues, more free not-for-profits, more free local 
governments, and so on.
  If you have to describe the essence of the American government in one 
sentence, Lincoln, to paraphrase, would say, it is ``of the people, by 
the people, and for the people.'' Americans believe that we are free, 
endowed by our Creator with unalienable--that is unchangeable and 
untouchable--rights. That is opposite of everything the world had ever 
held in government until 1776.
  This is what American exceptionalism means--not that there is 
something unique about Americans distinct from people in any other 
place, but that the American idea is premised on rejecting the idea 
that the King is the one who is free. The King, after all, had an army, 
and you didn't, and he could use his power however he wished. His 
subjects--remember they were not called citizens; they were subjects--
were dependent. If they wanted to open a business, to start a church, 
to publish a book, then they needed to ask the King for permission. All 
that was not mandatory was forbidden unless the King gave you an 
exception, unless the King gave you a carve-out, unless the King gave 
you a waiver.
  In America, the opposite was to be true. You are born free, 
regardless of where you are from or who your parents are, regardless of 
your bank balance or the color of your skin. In America, if you want to 
preach a sermon or write a piece of investigative journalism, if you 
want to say that your elected leaders are losers, if you want to invest 
in a new app or launch a nonprofit, you don't need the King's 
permission, for you are free.
  About 100 years ago, this idea and our system of separation of powers 
came under attack. There are three or four large reasons why the era of 
urbanization, industrialization, and then progressivism and the rise of 
specialized experts called our constitutional system of limited 
government into question. We will tackle some of those topics after the 
holidays. But for now, it is sufficient to say that the Presidency 
began to grow larger in the first two decades of the 20th century, and 
the Congress began to lose some of its powers.
  It happened because Presidents of both parties were willing to 
overreach and because the Congress was willing to underreach, to 
retreat from that field of competitive ideas, to retreat from our 
constitutional commitments.
  For every TR--Teddy Roosevelt, a Republican--there is an FDR, a 
Democrat. This should not be a partisan issue, for both sides have been 
guilty of extensive executive branch overreach. Meanwhile, the 
professional legislators realized that permanent incumbency is easier 
if you cede control rather than lead, if you decide not to take the 
hard votes but just quietly ask the executive branch to make the 
decisions unilaterally.
  Today many in my party argue that no President has ever even 
contemplated what President Obama regularly does. That is actually not 
true. Whatever one might think of President Obama's gobbling up of 
powers, his theories are not at all new. His theories date back to the 
Progressive Era's disdain for limits of the Constitution, and this is 
especially evident in the self-conscious Executive expansionism of 
Teddy Roosevelt, the Republican, and Woodrow Wilson the Democrat.
  After the holidays, we are going to spend a little time exploring 
both of these men and their attempts to marginalize and to 
intentionally ignore the Congress to--as TR put it--``greatly broaden 
the use of executive power.''
  I hope that this look at the rise of the executive branch and its 
legislating over the next number of months will contribute to the 
efforts of all of us here together who want to recover and safeguard 
that constitutional vision.
  But in historical terms, the Congress, in the age of Obama, is very 
weak. This isn't about the current majority leader, and it isn't about 
the most recent previous majority leader. It is much bigger than that. 
This institution is arguably the weakest it has been relative to the 
executive branch at any point in our Nation's 2\1/2\ centuries. Others 
interested in the history of this special place might argue that there 
is some other moment with greater relative weakness than this current 
moment. We should have that debate, for we should be discussing how and 
why this institution became so weak.
  We should stop pretending--the constant exaggeration around here as 
people fake it, pretending that some tiny procedural vote that didn't 
pass somehow still changed the world. We should stop pretending 
omnicompetence across huge expanses of often unknowable executive 
branch governmental action.
  Voters--better, citizens--don't believe us. The lobbyists don't 
believe it either. They are willing to fake it with you, but they don't 
really believe you, which is why so many lobbying firms today are 
expanding most of their efforts in the regulatory--not the 
legislative--lobbying space, for that is where the action is.

[[Page 21460]]

  It would be far more useful in this body--not to mention far more 
believable to the people who we work for--for us to learn to talk 
openly about how and why this once powerful and still special body 
became so weak. Congress is mocked, and we should tackle the hows and 
whys, for the people are not wrong. We should stop this trend, and the 
first step toward that would be to better understand and to more openly 
admit the nature of the problem.
  I planned this series on the growth of the executive branch for early 
in 2016 because it would be healthy for the Senate and for our broader 
public to be wrestling with the duties and constitutional authorities 
in advance of November's Presidential elections before we will know 
which party will win. We need to have this conversation now precisely 
because we don't know which party will win.
  Let me be realistic for a minute. I hope it is not pessimistic, but I 
will be realistic. I actually don't think there is much will in this 
body to do things like recovering the power of the purse. And even if 
there were, the will to get beyond R's and D's, shirts and skins Kabuki 
theatre, as we drift toward a parliamentary system with ``winners take 
all'' in the executive branch--the actual act of trying to recover 
power, the power of the purse and the legislative powers that the 
Constitution vests in this body--would be very difficult at a time when 
the public is so cynical and so disengaged because of how dysfunctional 
this institution is.
  I think that the Democrats are likely only to recover a sense of 
their article I powers if they are looking at a President Trump or a 
President X or a President Y or whoever the scariest candidate might be 
to the Democrats.
  Similarly, I think the Republicans are most likely prone to forget 
most of their concerns about Executive overreach if a Republican does 
defeat Secretary Clinton in November.
  I will just end with two brief stories. In the first, FDR was 
frustrated with the Supreme Court, so he had a solution. He would just 
pack the Court. Who could stop him? He had control of the Congress, 
after all.
  Well, someone did stop him--Senate Democrats who cared about the 
Constitution and their oath stepped up.
  In one of the other great instances of this place just saying no, 
regardless of party, LBJ--arguably the most powerful leader until the 
last 10 years in the history of the Senate, the most powerful leader 
this place had ever known in his age--became VP and said he would 
essentially remain majority leader of the Senate at the same time. 
Again, it was Democrats in this body who said no based on their 
constitutional responsibilities, not their partisanship. These were men 
and women who cared more about their country and more about their 
Constitution and more about their oaths than their party.
  I think that all of us in both parties should look to those examples 
and again be talking in the future about how we emulate them and 
recover the responsibilities of this body.
  The PRESIDING OFFICER. The Senator from Georgia.

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