[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[Senate]
[Pages 2775-2776]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. GRASSLEY. Madam President, as my colleagues in the Senate just 
heard, the tantrums from the other side continue, but I guess it 
shouldn't surprise anybody because everyone around here knows that 
nothing makes the minority leader more mad than when his side is forced 
to play by its own rules.
  The American people are divided, and the divided government the 
American people delivered over the last several election cycles 
reflects those divisions.
  Our constitutional Republic was designed with a series of checks and 
balances. As any branch gets too powerful or exceeds its authority and 
tries to impose policies the American people don't want, the people 
express their will through the electoral process, and that is what we 
have witnessed during the last several election cycles.
  Over the last few years, our current President has engaged in a 
systematic and very massive overreach of his executive power, way 
beyond what the Constitution has ever considered, and--thank God for 
checks and balances--the courts have said as much, and that is why I am 
here today. I am here today to tell you how the courts have interceded 
and curbed this massive overreach of Executive power. But as he has 
done so, the people have responded.
  Since he was first sworn into office in 2009, nearly 70 additional 
Republicans have been elected to the People's House. And there are 13 
more Republican Senators today than there were in January of 2009.
  In January of 2014, frustrated that the people's representatives 
wouldn't enact his liberal policies, the President famously said that 
he would use ``a pen and a phone'' and impose his agenda anyway even 
though Article One of the Constitution is very clear. It states that 
the legislative powers of the United States shall be vested in the 
Congress, not with the President of the United States.
  Just a few months later, in November of 2014, the people spoke and 
sent nine additional Republicans to the U.S. Senate.
  This is the beauty of our system of checks and balances, and the 
Framers of our Constitution designed it that way. The Framers knew a 
thing or two about Executive overreach, because they had to deal with 
somebody called George III. They had firsthand experience with an 
Executive, King George III, who imposed his will on the people 
unilaterally.
  So you wonder why our Constitution has checks and balances? The 
President holds the Executive power, the Congress writes the laws, and 
the Supreme Court interprets them. That is what we call separation of 
powers. That's why we have checks and balances. That's why we have 
separation of powers. And that is why our Constitution is designed so 
that no President can appoint a Supreme Court Justice with a pen and a 
phone.
  As we continue to discuss what is at stake during this Presidential 
election and whether the American people want to elect a President who 
will appoint yet another liberal Justice, I wanted to take a few 
minutes to review some of this President's efforts to expand the reach 
of his power and impose his will on the American people. This President 
has pushed the envelope at every turn. He has sought to impose his will 
on the American people in ways and to a degree that this Nation has 
never before witnessed.
  What is striking about this President's record before the Supreme 
Court is that even with a Court as liberal as ours, the Obama 
administration still has the lowest winning record of any President 
going back to at least the Truman administration. When presented with 
this undeniable fact, the President's apologists quickly grasp for the 
nearest bogus defense. Most notably, they claim that the Supreme Court 
is more ideologically hostile to this President than previous Courts 
were to other Presidents. Now that is a very crafty argument, but it is 
what Justice Scalia would have called ``pure applesauce.''
  Leading Supreme Court analysts declared the last term of the Supreme 
Court, even with Justice Scalia on that Court, as the most liberal 
since the 1960s. So the President's defenders can't blame the Court's 
makeup for its rebuke of his expansive claims of power. And of course 
this explanation fails to account for the fact that President 
Eisenhower took office and litigated in a Supreme Court with eight 
Justices who were appointed by Democrats or that President Nixon's 
administration began with an even more liberal Court than Eisenhower. 
No, this President hasn't lost cases because the Court is ideologically 
hostile to this President and his policy; the Court has rejected this 
President's power grabs because they are based on ideology and an 
unwillingness to recognize that the law constrains that power.
  All too often the President's claims are supported by an Office of 
Legal Counsel and a Solicitor General's Office that seem unwilling to 
tell the President that his impulse for expanded power is flatly 
contrary to the law. I'd like to describe a few examples. The 
President's lawyers argued that he could ignore the Senate's 
determination--this body's determination--of when it was in session in 
order to make recess appointments. No President in our history ever 
claimed that recess appointments were permissible in that situation. 
But the Office of Legal Counsel--once considered the crown jewel of the 
Department of Justice--offered a tortured justification to sanction 
that assertion of power.
  If this view of Presidential power were allowed to stand, the 
President could bypass the Senate with ease to install individuals in 
powerful government positions with no check from the Senate, as the 
Constitution envisions. Fortunately, the Supreme Court disagreed 9 to 
0. That means even this President's appointments to the Supreme Court 
said that he violated the Constitution with those recess appointments. 
The Constitution clearly says that the Senate shall determine when we 
are in session and in recess.
  That isn't the only example. The Obama administration argued that the 
Equal Employment Opportunity Commission could resolve an employment 
discrimination case between a minister and the church that fired her. 
The Supreme Court found the Obama administration managed to violate two 
different provisions of the First Amendment at the same time. It 
violated the free exercise of religion clause because if the 
President's argument carried the day, the government could interfere 
with a church's doctrine. Additionally, it violated the establishment 
clause of the First Amendment because if this President had his way, 
the Federal Government could get into the business of selecting a 
church's ministers. The Supreme Court rejected those claims 9 to 0.
  On the regulatory front, in a series of rulings, the Supreme Court 
rejected

[[Page 2776]]

the President's arguments that agencies can deny the ability of private 
citizens to seek relief against regulatory overreach. For instance, the 
Court rejected the Environmental Protection Agency's powers to force a 
homeowner, through escalating fines, to comply with an order while at 
the same time denying that homeowner the ability to challenge the order 
in court. The Supreme Court rejected Obama's EPA's claims 9 to 0.
  In another case, the Court held--contrary to the position advanced by 
the Army Corps of Engineers--that a landowner could sue in court for 
just compensation for a taking when the government-caused flooding of 
his property is temporary and recurring. Again, the Supreme Court 
rejected the government's position 8 to 0.
  When the Internal Revenue Service attempted to enforce a taxpayer's 
summons while at the same time denying the taxpayer the right to 
question the IRS official about their reasons for the summons, the 
Supreme Court rebuked the administration 9 to 0.
  In still another case, the Court rejected the Equal Employment 
Opportunity Commission's argument that its decisions aren't subject to 
judicial review when that agency concludes by its own estimation it 
fulfilled its duties to attempt conciliation under title VII of the 
Civil Rights Act of 1964. Once again, the Supreme Court rejected that 
claim by this administration 9 to 0.
  Similarly, when a veteran's benefits were denied and the appeal 
wasn't filed within a certain time period, the Department of Veterans 
Affairs turned around and denied that veteran the ability to seek 
judicial review. The Supreme Court rejected the position of the 
Department of Veterans Affairs 8 to 0.
  And when the Federal Communications Commission changed its policies 
midstream regarding isolated examples of indecent language, the Supreme 
Court found 8 to 0 that the FCC had violated due process.
  These are important rulings. Far too often, this administration 
imposes government power against the people while brushing aside 
important procedural safeguards. Remember, the Constitution is to 
protect the people from its government--something we learned from 
George III.
  Justice Frankfurter spoke to this point. He once wrote: ``The history 
of liberty has largely been the history of the observance of procedural 
safeguards.''
  Consider as well areas in criminal law where the Obama administration 
pressed positions that erode individual freedom. This President's 
lawyers argued that the police could install a GPS device on a vehicle, 
and then use that device to monitor the car's movements without a 
search warrant under the Fourth Amendment. I don't know what would be 
left of the Fourth Amendment if the Supreme Court had upheld the 
President's claim that the government could operate in that manner. 
Thankfully, the Supreme Court rejected that argument as well. The vote 
tally was 9 to 0.
  The Court blocked the Justice Department's prosecution of a person 
under the Chemical Weapons Convention because the convention didn't 
reach the defendant's simple assault. Again, the Supreme Court rebuked 
the President 9 to 0.
  These are not the rulings of a Supreme Court that is ideologically 
hostile to the Obama administration. Every one of these rulings was 
unanimous--every one. And there are still other Supreme Court decisions 
rejecting this President's power grabs where the vote tallies were much 
closer.
  The President and his lawyers made utterly baseless arguments for 
executive and regulatory power in case after case. In so many of these 
cases, the unifying thread underlying this President's litigating 
position is the notion that the people are subservient to the Federal 
Government and, of course, subservient to its agencies, rather than the 
other way around. So far the Supreme Court has not agreed.
  But during this Presidential election, the American people should 
consider whether they want to elect a President who may nominate a 
Justice who will embrace such a vast expansion of executive and 
regulatory power. This is what I've called for in a number of speeches, 
both in Iowa and here as well. This is an opportunity for the American 
people to have their voices heard. Letting the people decide in the 
election isn't just about who the next Justice on the Supreme Court is 
going to be. It is about the role of the Supreme Court and the judicial 
branch in our constitutional process.
  We heard just a little while ago the floor leader of the minority 
party saying that somehow I want to rewrite the Constitution. This 
isn't about rewriting the Constitution. The Constitution is pretty 
clear: The Supreme Court interprets law, not makes law. And with the 
approval rating of the Supreme Court going down from about 50 percent 
to 28 percent in polls ever since this President took office, and the 
tendency for some Republican appointees as well as Democrat appointees 
to make the law the way they want it, that is just getting back to the 
basics--that the Supreme Court is an interpreter of the law, not a 
maker of the law.
  So I think having a basic debate similar to what people learn in high 
school isn't a bad thing.
  Now, will an election change what the Supreme Court, the people who 
are on it now, decide to do? I don't know--probably not. But it will 
allow for the next elected President to have the opportunity to choose 
which direction they want it to go. Do they want a Justice who is going 
to interpret the law or a Justice who is going to make the law?
  Before the passing of Justice Scalia, we had four conservative 
justices, four liberal justices, and one in the middle--Justice 
Kennedy--who could go either way in some cases. We know what kind of 
judicial activists this President puts on the Supreme Court. Do you 
want to change the direction so that the Second Amendment rights of 
guns are in jeopardy or like when we saw attempts by this 
administration to say who a church can hire or not hire--and violate 
the freedom of religion--and other very important issues that are at 
stake?
  It is pretty fundamental what is at stake, and I think having this 
debate is very important. And I think letting the people decide is very 
important.
  I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. CORNYN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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