[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[Senate]
[Pages 1983-1984]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          NOMINATION OBJECTION

  Mr. LANKFORD. Mr. President, we have witnessed in this administration 
Executive overreach with increasing

[[Page 1984]]

boldness. One manifestation of Executive overreach is the shocking 
indifference with which departmental agencies spurn the congressionally 
mandated rulemaking processes in favor of regulating under the guise of 
``guidance documents.'' Guidance documents in their proper form advise 
the public of their obligations under existing law and, therefore, 
merely interpret the law without imposing any additional obligation. 
Agencies are quick to echo that guidance documents do not have the 
force and effect of law; yet governmentwide, agencies increasingly have 
used guidance as an end-run around the rulemaking process in violation 
of Federal law.
  The Department of Education's Office for Civil Rights is such an 
offender. Their guidance documents, including Dear Colleague letters on 
harassment and bullying, issued October 23, 2010, and sexual violence, 
issued April 4, 2011, purport to merely interpret title IX of the 
Education Amendments of 1972, yet advance troublesome policies not 
contemplated by the text of title IX or its implementing regulations.
  I appreciate the fact that these guidance documents predated Mr. 
King's service at the Department of Education, and I do not assert that 
he had any role in developing or issuing the letters. However, in a 
letter dated January 7, 2016, I asked him to clarify his role as Acting 
Secretary, in no uncertain terms, that the policies expounded in the 
2010 and 2011 letters not required by the terms of title IX cannot be 
grounds for any adverse action.
  To my disappointment, his response failed to do so. Mr. King should 
commit to use the office of the Secretary to rein in the regulatory 
abuses within the Department of Education and encourage his Cabinet 
counterparts to do the same. Until such time as such commitments are 
made, I intend to object to his nomination.

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