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Charles G.
Republican IA

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  • Department of Homeland Security Funding

    by Senator Chuck Grassley

    Posted on 2015-02-03

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    GRASSLEY. Mr. President, elections in our representative form of government are supposed to have consequences, and if they don't have consequences, there is not much point of having elections.

    One of the issues in the most recent election for Congress was a promise of some people running for office to overcome the President's constitutional actions, particularly what he did on immigration but on a lot of other things as well. The bill we have before us is a demonstration on the part of people who were victorious in that last election to deliver on the promises of that election.

    So obviously I am here at this time to speak on the Department of Homeland Security appropriations that the Senate is considering today and, as the Senator from Louisiana just said, to urge my colleagues to support the efforts to move ahead.

    In doing so, I wish to discuss what we are doing. This bill is about stopping the unilateral actions the President has taken with respect to the country's immigration laws, doing it without congressional approval or scrutiny. It is our responsibility to check the President and ensure that he does not go beyond the limits of his powers as defined in that basic document, the Constitution. This is about restoring the rule of law. This is about restoring the Constitution by denying that funds be utilized to carry out the President's improper, unconstitutional actions.

    Our government is based on the rule of law. No one is above the law, not even those who were chosen to be leaders among the people. This core principle has kept us free and preserved our rights and liberties for over 200 years.

    However, the rule of law in our country has slowly eroded away. While the current administration is not the only culprit of that corrosion of the rule of law, this administration has expedited its erosion more than others. That is the basis for the President saying: If Congress won't, I have a pen and a phone, and I will.

    Let me explain this erosion. Under article II of the Constitution, the President ``shall take care that the laws be faithfully executed.'' This is not a permissive clause, letting the President pick and choose which laws he will enforce. The article uses the mandatory ``shall,'' which requires him to enforce all laws. However, the President has not done that. He has taken the attitude that he is above the law and is not required to obey it.

    Just in the last couple of years we have seen President Obama's complete disregard for laws passed by Congress. Rather than enforcing the Affordable Care Act, he rewrote the deadlines prescribed by law. He has not enforced the Controlled Substance Act in some States and, even worse, has allowed them to openly defy Federal law.

    [[Page S715]] He released five Taliban prisoners from Guantanamo without first providing 30 days' notice to Congress as required under the National Defense Authorization Act.

    He unlawfully made four appointments to executive positions without authority under the appointments clause of the Constitution. In that regard, he was even overruled by two members he appointed to the Supreme Court in that 9-to-0 decision that says when the Constitution says only Congress can decide when a House is in session, the President can't say on some basis that they aren't in session and proceed to make recess appointments. In other words, what the judges said is that what the Constitution says is what it says. So he took unconstitutional action in making those appointments.

    Lastly, he took the drastic step of changing immigration laws on the books without the authority or approval from Congress.

    When the President acts in contravention to the law, he erodes the rule of law. He sets an example for future Presidents who will expand on his precedent and actions on other laws and policies they don't agree with. By doing this the President sends the message that the laws as written by the legislative branch aren't important, thereby removing and reducing faith in the rule of law.

    The Founders understood the serious dangers of investing all powers of our government in a single body. They understood that because the Revolution was all about colonists being sick and tired of one man-- George III--making decisions. So under the doctrine of separation of powers, they wrote into the Constitution dividing the power among three branches of government so one person could not be George III. They gave all legislative powers to the Congress, all Executive powers to the President, and all judicial powers to the judicial branch. No body of government may exercise the powers of other bodies of the government.

    Separation of power then is fundamental to the Constitution of the United States, and the Constitution of the United States enshrines the spirit of the Declaration of Independence, that we are endowed by our Creator, not by government, with certain inalienable rights.

    Just last week during the nomination hearings of Loretta Lynch as Attorney General, we had an outstanding professor from George Washington Law School testify by the name of Jonathan Turley, and he said this: ``The Separation of Powers is the very core of our constitutional system and was designed not as a protection of the powers of the branches but a protection of liberty.'' We are endowed by our Creator with certain inalienable rights, among them life, liberty, and the pursuit of happiness. The Founding Fathers knew that if the same body had all the powers, that body, no matter how large or small, would be tyrannical, as was George III.

    However, President Obama has overreached the limits of his constitutional authority. He has blurred the lines of separation of powers.

    The executive branch action taken with respect to our immigration laws is only the most recent, if not the most pervasive, of legislative actions he has taken under the proposition that I have a phone and a pen and I can do almost anything Congress isn't doing that I want them to do. In effect, the President has thwarted the immigration laws Congress has written in order to implement the policy he wants. Contrary to the laws on the books, the President's action would give people who have crossed the border illegally the right to remain in the United States and many taxpayer benefits that are only available to lawfully documented immigrants, as well as the right to work.

    The President's action expanded a program he created without congressional approval, the Deferred Action for Childhood Arrivals--or DACA as it is called--and created a new program, the deferred action of parents of U.S. citizens and lawful permanent residents--or DAPA--as it is called.

    But under the Constitution only Congress has the authority to create these types of programs that grant a lawful status to people who have come here undocumented. Let me repeat: Congress has the responsibility of writing laws, not the President. I remind my colleagues that Congress considered a law that resembled the DACA Program, but it never passed that law. So what has the President done? In effect, he has enacted a law Congress rejected.

    The President justifies his actions by saying ``Congress has failed.'' However, that doesn't give him license to act on his own. I wish to again quote Professor Turley: Our government requires consent and compromise to function. It goes without saying that when we are politically divided as a nation, less tends to get done. However, such division is no license to ``go it alone'' as the President has suggested.

    The genius of our government is that it allows for the collection of ideas and opinions. It allows these different ideas and opinions to work together to find common ground. Once common ground is reached, then laws are enacted. The President doesn't represent that many different views in the country, but obviously Congressmen from all over this geographical area represent those views. Congressmen are elected by the people directly, and if there is a disagreement in Congress on how immigration should be handled, that means there is disagreement in the country on how immigration should be handled. The President cannot imagine that everyone agrees his plan is the best plan. It is the job of Congress to find compromises and solutions that most people can agree with and particularly in the U.S. Senate where it takes 60 votes to pass legislation. This is where consensus is built when there are only 54 Republicans and 46 Democrats. If we are going to get anything done, there has to be a consensus.

    The other justification the President is fond of using for his actions is the executive branch's ability to exercise prosecutorial discretion, but while the President does have the authority to decide when to prosecute or where to allocate resources, that authority is not unlimited.

    The President's actions with respect to immigration go far beyond prosecutorial discretion. Lawful prosecutorial discretion is exercised on a case-by-case basis. Lawful prosecutorial discretion isn't excluding entire categories of individuals in a blanket fashion and telling them that going forward the law will be applied to them.

    The PRESIDING OFFICER. The time of the Senator has expired.

    Mr. GRASSLEY. I ask unanimous consent to proceed for 4 minutes.

    The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.

    Mr. GRASSLEY. In addition, lawful prosecutorial discretion doesn't reward illegal behavior by conferring substantive benefits to those who have violated the law. Yet under the President's unilateral action, individuals who have entered without inspection or overstayed their visas unlawfully now will get work permits, Social Security numbers, driver's licenses, employment and education opportunities, and many other benefits only afforded to those who abide by the law.

    Further, the President argues that because the Department doesn't have sufficient resources, he has exercised his prosecutorial discretion by prioritizing the removal of the most dangerous aliens for better security of our country. Yet the reality of his statement is that in fiscal year 2013, 36,007 criminal aliens were released. What is more, a report just issued by the Department of Homeland Security reveals that 1,000 of those criminal aliens have gone on to commit further crimes.

    So the President isn't even doing what he says he is doing. Instead of removing criminals from our country as required by law, he is just releasing them back into the community so they can continue to commit further crimes and jeopardize public safety.

    No matter how the President paints the picture, his Executive action on immigration is an abuse of constitutional duty to faithfully execute the law and an overreach of his executive branch authority under the separation of powers doctrine.

    Under the Constitution, the Congress has several tools it can use to check the President and rein him in when he operates outside of the Constitution. Among the tools Congress has is the power of the purse. Congress appropriates funds and has the authority to [[Page S716]] dictate where and how those funds may or may not be used. If the President exceeds the limits of his Executive authority to create an illegal program such as DACA or DAPA, Congress has the power to defund such a program.

    The Department of Homeland Security appropriations bill is a check on the executive branch. It is a result of the last election, and elections are supposed to have consequences. This bill is our way of showing to the American people we are carrying out a campaign promise to make sure the President doesn't act in an unconstitutional way and abuse his authority.

    So I ask my colleagues to take this under serious consideration when deciding whether to vote in favor or against proceeding to this bill.

    I yield the floor.


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