Nomination of Chai Rachel Feldblum to Be a Member of the Equal Employment Opportunity Commissionby Senator Mike Lee
Posted on 2013-12-11
LEE. Mr. President, I first thank my distinguished colleague, the
senior Senator from Wyoming, who is a good friend and a fine example to
all those who know him. People from both sides of the aisle can learn
and benefit from my friend from Wyoming who, as a businessman, later as
a mayor, as a devoted husband and father, has served his country well
and has served his colleagues in the Senate well.
His remarks on the Senate floor tonight have been especially insightful, and I have learned something from him [[Page S8687]] this evening as I do every time he speaks. He is one who reached out to me shortly after I arrived here in the Senate and has always shown to me great kindness. I have always been grateful for that, and I look forward to continuing to work with him in the Senate.
What is happening in the Senate right now is more than just an attempt by the majority to end debate on nominees. It is an attempt to shut out the American people from the political process.
President Obama and the majority party in the Senate are so dedicated to enacting their progressive agenda that they will do anything, even if it means running roughshod over the minority and ignoring the will of the people.
Our Founding Fathers drafted the Constitution to prevent this sort of thing from happening and to protect the rights of all Americans. They devised a constitutionally limited government, with a system of checks and balances, so that no one branch of government would wield unlimited power. The whole idea of this system was to prevent the excessive abrogation of power, the excessive accumulation of power within the hands of a few.
Under our Constitution, the President's representative function is to faithfully execute the law and not to make it. Congress as a whole alone makes the laws, including a deliberative Senate whose majorities reflect minority views. Senate Democrats' recent actions are an assault on republican institutions and on the protections that they provide to all Americans.
The current administration and Senate Democrats view the Constitution as an impediment to the enactment of their agenda. This is why the President illegally amended the Affordable Care Act--a law passed by Congress--through executive action instead of asking Congress to amend it. It is also why Democrats are willing to break the rules of the Senate in order to change the rules of the Senate so that they can more quickly, more easily confirm the President's nominees.
Make no mistake. The executive and judicial nominees we are considering will be tasked with implementing and upholding President Obama's agenda. Congress is a representative body and is the only branch of government given the constitutional authority to make laws. We represent the people. When the President illegally changes the law or when he tramples on the rights of the minority in the Senate, he guarantees that the people will have no voice and no representation. These are not trivial matters. These are not matters that we can casually cavalierly cast aside. These are matters of great importance.
We have to remember what happened just a few short months ago, when we were told on July 2 of this year that President Obama had decided to change the Patient Protection and Affordable Care Act in several meaningful ways.
This of course was a law that was passed without consensus. It was passed without any semblance of bipartisanship. It was a law that was passed without a single Republican vote. Not a single Republican voted for it in the Senate; not a single Republican voted for it in the House. All 2,700 pages of this law--a law that wasn't read before it was passed, a law that we were told Members would have to pass in order to find out what was in it--this law took effect. Over time, as the American people learned about the law's contents, they didn't grow more favorably predisposed toward the law.
The law has in fact never enjoyed the support of a solid majority of Americans, but over time its popularity has tended to diminish. Perhaps seeing this, President Obama on July 2 of this year chose to wield his executive pen in such a way as to amend that law.
He chose, among other things, to announce that although the law contains a number of deadlines, a number of start dates, that he would not be enforcing the employer mandate in the Patient Protection and Affordable Care Act. He would of course still be enforcing, as of the January 1 start date, the individual mandate. But he would not be implementing or enforcing, at least for the first year of the law's full operation, the employer mandate. Of course, he had no authority to do this. The Constitution sets in place a system for making law.
In order to become law, a legislative proposal has to make its way through the House of Representatives, has to make its way through the Senate, has to be passed by most of the people in the House and in the Senate, and then it has to be presented to the President consistent with article I, section 7, clause 2 of the Constitution before it may become law.
But of course, once it is law, it is law; and a law passed under one administration can't simply be vetoed or fundamentally altered by a subsequent President. In fact, it can't be vetoed or subsequently altered by even the same President who signed it into law in the first place. And yet, that is in some respects exactly what happened here.
The President modified the law. He was too impatient, too unwilling-- too unwilling to defer to the legislative branch, too unwilling to respect the oath that he took to uphold, protect, and defend the Constitution from all enemies, foreign and domestic, too disrespectful of that very document, our founding document that has fostered the development of the greatest civilization the world has ever known. Too unwilling to defer to that document in order to follow its most basic precepts and its most basic commands.
He suggested that he needed to do this because the law wasn't ready to be implemented. He later suggested that he did this because he had to do it because, as he put it: Under normal conditions, under more ideal conditions, obviously the thing to do if you wanted to change the law would be to go back with that branch of government charged with making the law--that branch of government which passed it into law in the first place--Congress. But, as he pointed out, these are not ideal circumstances.
No, they are not ideal. Not ideal, because he controls only one division of the legislative branch of government, the Senate. The Senate is under the control of his party and the House of Representatives isn't.
This can hardly justify this kind of blatant usurpation of legislative authority. This can hardly justify a President taking upon himself the sole task of changing legislation. It is in fact an act of legislation unto itself. Yet this is what he did by a stroke of the executive pen. This is exactly what the Founding Fathers tried to protect against, this kind of unilateral action by the executive, this kind of accumulation of power in the hands of the few--or, in this case, the hands of one person. Yet this is what he did, and he has done it on several occasions.
Some people have suggested that if what the President did was wrong, if it was unconstitutional, if it wasn't authorized by the Constitution--which it wasn't--if it wasn't authorized by an act of Congress, either the Affordable Care Act or some other statute--and it wasn't--then perhaps the courts can and should and must and will remedy the constitutional problem embodied in that act. There are some problems with that.
First of all, as we all know, not every unconstitutional act can necessarily be remedied in court. Many unconstitutional acts are themselves outside the purview of the Federal courts' ability to review. In some cases, an unconstitutional act might be something that the courts consider a nonjusticiable political question, not subject to the court's authority, or something that the courts aren't willing to wade into.
In other circumstances, an unconstitutional act might occur in a situation in which no one party is likely to be able to develop and establish article III standing in order to challenge that unconstitutional act.
In order to establish article III standing--in other words, in order to establish the right to sue in Federal court--article III of the Constitution requires that the plaintiff be able to establish that the plaintiff has suffered an injury in fact, an injury in fact that is fairly traceable to the conduct of the defendant, and, thirdly, that it is subject to redress by the authority of the court.
In this circumstance, one must ask the question: Does anyone really have standing? Can anyone really establish the kind of standing in order to challenge the President's refusal to implement and enforce the individual mandate while refusing or declining to enforce and implement the employer mandate of the Patient Protection and Affordable Care Act? Who has standing to do that? Who has been harmed by that? One could [[Page S8688]] suggest, I suppose, that an employer might want to look into that. But when they would examine the situation, most or all employers would probably have to acknowledge that they have been given a reprieve. So employers, No. 1, are not likely to be aggrieved by it in the sense that they are not likely to feel the need to sue; and, No. 2, if they were to try to sue, it seems to me they would have a very difficult time establishing in a court of law the fact that they had suffered an injury in fact.
Who else might do it? Most constitutional scholars would conclude-- probably correctly--that a Member of Congress would lack article III standing under the applicable Supreme Court precedent, Flast v. Cohen and other Supreme Court precedents. Merely being a Member of Congress is not necessarily enough to give a person article III standing.
So I think it is very difficult to reach the conclusion that anyone-- at least obviously--has article III standing to sue.
So we cannot necessarily rely on the courts to be able to undo this constitutional damage, to be able to seek an adequate remedy in a court of law for this blatant insult to the U.S. Constitution. Even if they could, moreover, even if somebody could establish article III standing, even if somebody could come before an article III Federal judge and convince that judge that they have standing, would that Federal court be in a position to dispose of this case within the roughly 1-year period in which this provision of the law is effectively suspended? It takes a lot of time to litigate a case all the way through to completion, and I think it is doubtful whether somebody would be able to bring an action in Federal court and have it be fully litigated all the way through to judgment in the roughly 1-year period in which it would still be relevant.
If you could not get it done in that time period, then it would appear very likely that the case would be rendered moot at that point. So this, quite simply, is the kind of case in which no Federal suit is likely to be brought and if one is brought it would likely fail. So that is yet another reason why we as a Congress ought to be looking very closely at this, you see, because this is one of those many instances in which it is possible that someone can violate the U.S. Constitution, here the President of the United States, without the courts being in a position to effectively remedy that constitutional defect.
We too as Members of this body have taken an oath to uphold the Constitution of the United States. In my mind, that means doing more than simply refraining from that which the Supreme Court of the United States would obviously invalidate. To my mind, that means more than simply saying: If someone has violated the U.S. Constitution, then I am sure the courts will take care of it. We simply know that is not true. We know that in many circumstances--and I have just outlined a couple of them--the courts are not in a position to be able to remedy a constitutional defect, to be able to remedy a blatant insult to the Constitution and an absolute violation of the Constitution's provisions.
So we need to continue to hold this President accountable when he fails, quite blatantly in this circumstance, to do that which the Constitution requires. This is a question that I think is particularly important, not only in light of how this particular act of Congress came to be, not only in light of how it was enacted and the fact that it is 2,700 pages long, that it has now resulted in 20,000 pages of regulatory implementing text but also in light of the fact that it was challenged in court; that is, the Patient Protection and Affordable Care Act was challenged in court as to its constitutionality, but it was upheld by the Supreme Court of the United States in a most unusual fashion. Let's talk about that for just a moment.
A number of States and a few others banded together and challenged in Federal court a few years ago Congress's power to enact certain provisions of the Patient Protection and Affordable Care Act. Among those provisions that they challenged were the individual mandate. The argument was Congress lacks the power asserted by Congress in the Affordable Care Act, pursuant to article I section 8 clause 3, the commerce clause, to tell individual Americans that they must buy a product--health insurance; not just any health insurance but that specific kind of health insurance that Congress in its infinite wisdom deemed absolutely essential for every American to purchase. The challenge asserted that Congress lacks this power under the commerce clause.
The lawsuit also alleged among other things that Congress lacked the power to tell States that the States had to expand their Medicaid Programs and gave the States no choice; that this, too, violated the Constitution, that it exceeded certain limitations on Congress's power because the courts have long recognized that Congress lacks the power to commandeer the States' legislative and administrative machinery in order to carry out a Federal program.
Congress has the power to encourage States, to ask States to do this, but it lacks the power to direct a State to do X or Y or Z. We cannot just tell a State to do something just because we want it to be done. We might be able to persuade the State to do something. We might even be able to fund the State, to offer funding in case a State wants to participate in a given program, but we lack the power to dictate to States that they do such a thing.
In this circumstance, the Patient Protection and Affordable Care Act was unmistakable in its clarity. It simply told the States they had to expand their Medicaid programs in the fashion outlined in the Act itself.
So these two core pieces, these two core aspects of this judicial challenge made their way up through the Federal court system, made their way up to the Supreme Court of the United States. The Court decided these two issues, as I said a moment ago, in a most unusual fashion. Turning to the commerce clause issue, the Court addressed that issue right after addressing another issue that was sort of a jurisdictional question, an introductory question. The Court had to determine first of all, before it even got to the merits of the constitutional challenge as to the individual mandate in the Affordable Care Act--it had to address the question of whether the individual mandate and the enforcement mechanism attached to it could fairly be characterized as a tax, for purposes relevant to the so-called anti- injunction act, a Civil War-era statute that basically says that any time someone wants to challenge a tax in Federal court they have to wait until such time as that tax is actually being collected. Then that challenge is brought as against the attempted enforcement of the tax statute.
The Supreme Court of the United States, using centuries' worth of jurisprudence, looked at the language of the Patient Protection and Affordable Care Act, it looked at the manner in which it was written, and easily concluded, no, this is not a tax. This is a penalty. Because it is a penalty and it is not a tax, we, the Court, may proceed to consider the merits of the arguments brought up in this case, the merits of this challenge brought as to Congress's authority, vel non, to enact something like this, the individual mandate under the commerce clause. So the Court quickly dispensed with that issue and reached the merits of the constitutional question before it.
The Court then went on to conclude that Congress does, in fact, lack the power under the commerce clause, under article I, section 8, clause 3 of the Constitution, to tell individual Americans they must buy a particular product, health insurance; not just any health insurance but the specific kind of health insurance that Congress told the American people they have to buy in the Affordable Care Act.
The Court fairly easily and, in my opinion, correctly, decided that Congress lacks that power because of the fact that the power Congress has to regulate interstate commerce is meaningfully different than the power to compel individuals to enter into commerce, to regulate inactivity, to punish inactivity, to punish the failure to buy a particular product that the people might not want to buy.
You see, for a long time we had this understanding as Americans that the power given to Congress was in fact limited. We look at all the authorities granted to Congress under the Constitution, the overwhelming majority of which can be found in article I, section 8. All of these were limited and [[Page S8689]] they were limited with good reason. They were limited with good reason because that played a very large part, that played a very significant role in how and why we became a country.
We broke away from Great Britain, not just because we grew tired of having a monarch but because we grew tired of the authority of a parliament--a parliament that not only refused to grant us any representation but also a parliament that refused to acknowledge any natural limit on its power to regulate us, and it did in fact regulate us and it regulated us heavily, mercilessly. It taxed us overwhelmingly and it refused to recognize any meaningful--failed, refused to recognize any meaningful limit on its own authority.
That is one of the reasons we became our own country. That is one of the reasons the Founding Fathers put in place this system in which our national legislative body would be vested with only a few specifically listed or enumerated powers. The founding generation understood that each of those powers would in fact be limited, so much so, in fact, that James Madison described the powers given to Congress as few and defined and characterized those reserved to the States as numerous and indefinite.
During the first 140, 150 years or so of our Republic's existence, we as a people continued to recognize the necessarily limited nature of Congress's power. Much of that started to change during the New Deal era in which President Franklin D. Roosevelt, with the assistance of Democratic majorities in the House and in the Senate, pushed forward with a very progressive agenda, one that expanded not only the role of government in general but also the role of the Federal Government in particular.
Initially, the Supreme Court resisted and the Supreme Court acknowledged the fact that the powers granted to Congress under the spending clause and the commerce clause were, in fact, limited. But the more FDR and the more Congress pushed back against the Supreme Court, the more the Supreme Court seemed inclined to relent. Ultimately, we saw the Supreme Court of the United States back down in the late 1930s from its what had been previously more rigorous, more restrictive interpretations of the spending clause and of the commerce clause.
The Supreme Court ended up adopting a set of rules that would basically say that as long as Congress was acting broadly within the field of what could be loosely considered a regulation of interstate commerce, that the courts would stay away in second-guessing Congress's determinations.
The Court, starting out with a case called NLRB v. Jones & Laughlin Steel in 1937 and culminating in another case 5 years later in Wickard v. Filburn in 1942, ended up concluding that Congress may, without interference from the courts, regulate any activity that when measured and evaluated in the aggregate, has a substantial effect on interstate commerce. Regardless of whether the discrete activity in question might actually occur entirely intrastate, Congress would be able to regulate that activity pursuant to its commerce clause authority, regardless of how intrastate that activity might be when viewed in isolation.
Under this very broad interpretation, Congress's power could, in a sense, be viewed as extending to virtually every aspect of human existence because, after all, almost everything we do when measured in the aggregate might well be understood to have a substantial effect on interstate commerce. Yet even under that broad analysis, that couldn't extend to what was being regulated in the Patient Protection and Affordable Care Act--in the individual mandated provision, which was inactivity. Remember, this is an enormous breadth that the Supreme Court said Congress could, without interference from the courts, regulate under its commerce clause authority.
In Wicker v. Filburn what was at issue was the cultivation of wheat. Congress adopted a statutory framework in which farmers would be severely restricted in how much wheat they could grow--how much they could produce of this or that agricultural commodity.
There was a farmer named Roscoe Filburn who committed a grave offense against the Republic. His offense did not involve dealing drugs; it didn't involve murder or kidnapping. His offense involved growing too much wheat.
Roscoe Filburn grew more wheat than Congress--in its infinite wisdom--viewed appropriate for any American to grow. He was fined many thousands of dollars, which during the New Deal era was an enormous amount of money because of the fact that he grew too much wheat.
Roscoe Filburn was fortunate in that he had access to some good lawyers, and his lawyers advised him on this. They represented him aggressively and competently in court. What they argued, relying on true facts, was that, yes, our client Roscoe Filburn did, in fact, grow wheat in excess of the limit imposed by Federal law, but the amount of wheat he grew in excess of the grain production limit applicable to his farm that year was grain that never entered interstate commerce.
In fact, it never entered commerce at all. You see, that grain never even left Roscoe Filburn's farm. He used it on his farm to feed his family, to feed his livestock, and he held on to the remainder of it to use as seed for a subsequent planting season.
In a very real sense that wheat was not part of interstate commerce at all. Nevertheless, the Supreme Court of the United States, lacking nothing in imagination, said that even that wheat was within Congress's almighty grasp--within the all-knowing, wise reach of the Federal sovereign. What the Court said was that the wheat grown by Roscoe Filburn in excess of the grain production quota was itself something that when viewed in the aggregate, could substantially affect interstate commerce.
In other words, if lots of farmers everywhere--just like Roscoe Filburn--grew too much wheat, even if their wheat never entered instate commerce, the growing of all of that excess wheat would inevitably have an impact on the supply and demand and ultimately the price and availability of wheat on the interstate market. Therefore, even that wheat which was entirely locally grown and locally consumed would be subject to Congress's reach.
Wicker v. Filburn thus erected an extraordinarily low barrier for Congress to clear in establishing that it had properly invoked its authority under the commerce clause. Yet even that extraordinarily low barrier was high enough to stop Congress from acting pursuant to the commerce clause in enacting the individual mandate under the Patient Protection and Affordable Care Act. Thus ended the Supreme Court's analysis in June 2012 when it ruled that Congress had exceeded its constitutional limits under the commerce clause in enacting the individual mandate.
Significantly, this was only the third time in about 75 years--only the third time since NLRB v. Jones and Laughlin Steel and Wicker v. Filburn--in which the Supreme Court of the United States recognized Congress had overstepped its limits under the commerce clause. This was a rare thing for the court to do. It was foreseeable because the individual mandate in the Patient Protection and Affordable Care Act went so far beyond anything that had ever been seen before. Yet it was only the third time in the last 75 years in which that had happened.
Then something different happened--something very few people on either side of the aisle in this body or on either side of the political divide in America generally had seen. After concluding that Congress lacked this power under the commerce clause, the Supreme Court, under the pen of Chief Justice John Roberts, proceeded to analyze the government's backup argument; that is, the argument that even if, as the Court had now concluded, Congress lacked the power to do this under the commerce clause, Congress still had the power to do this consistent with its power to impose taxes.
The Court went on to conclude that Congress did have this power. Strangely, the Court also went on to conclude that is essentially what Congress had done here.
This was odd on many levels. No. 1, the Court had already concluded, as it had to conclude in order to proceed to the case--as it had to conclude in order to exercise jurisdiction over this case--prior to the implementation of the law, prior to the collection of this alleged tax, that it was, in fact, not a tax but [[Page S8690]] a penalty. It was very strange that the Court was now basically saying: OK, it is a penalty and not a tax for some purposes, but it is a tax and not a penalty for other purposes. Yet that is what the Court did.
It was also strange that the Court did this for the additional reason that Congress had considered legislative proposals in a different, earlier iteration of the Patient Protection and Affordable Care Act that would have enforced the individual mandate by means of a tax.
Congress considered language that would have done that. Congress knew, and still knows, how to enact legislative language that imposes a new tax. Yet when it tried to use that language, language that under 100 years' worth of jurisprudence everyone understands would have imposed a tax, Congress could not get the votes to pass it even in what was then a Congress in which the Democratic Party dominated both Houses.
Even in that Congress they tried but failed to get the requisite number of votes to pass the individual mandate enforced by means of a tax. They could not do it. It was therefore very odd that the Supreme Court of the United States would interpret what Congress couldn't pass as a tax in such a way as to make it a tax for constitutional purposes when Congress itself didn't have the votes to do it.
In order to pass legislation raising revenue--in other words, in order to pass legislation imposing a new tax--the Constitution requires that legislation of that sort originate in the House of Representatives. Why is this? I think most who looked at the issue would agree it has do with the fact that the House of Representatives is the entity within our Federal Government structure that is, by design, most representative of the people.
In the Senate we have elections every 6 years. In the House it is every 2 years. From the outset the House was the body in which the people were represented because, of course, at the outset the Senate was the body in which the States were represented. That is no longer the case. We are directly elected by the people.
But it was always the case, and still is the case, that tax legislation must start in the House because it is the body closest to the people and most responsive to the needs and the desires and the concerns of the people. It is therefore quite ironic that this law-- this tax, as the Supreme Court called it--was put into place as a tax, not by the body within the Federal Government that is most accountable to the people, the House of Representatives, but instead by the body within the Federal Government that is the very least accountable to the people, the Supreme Court of the United States.
I believe this amounted to a usurpation of constitutional authority. I believe this amounted to a betrayal of the judicial oaths of the five robe-wearing men and women who signed on to that opinion. They did not have the power to legislate. They did not have the power to create a tax. They did not have the power to create out of whole cloth tax language out of penalty language--language that under a century's worth of jurisprudence, the Court's own precedence carrying stare decisis effect made clear it was a penalty and not a tax. Yet that is exactly what the Court did.
When people discover this--when they learn about and hear about it and dare to plow through the Supreme Court's opinion so they can understand what happens, they will inevitably ask: How can the Court do this? Does the Court have that power--the power to legislate, the power to impose a tax where Congress has not chosen to impose a tax? No, the Court doesn't have that power.
Then how can the Court do that? How could the Court do that? Why did the Court do that? The Court did that because it could, not because it could in the sense that it had the constitutional power to do it but because the Court has an exercise of raw political power. It chose to do so and did do so.
This was a tragic day in American history. It is a day we should not soon forget and a day we should do all in our power to remedy. This decision was wrong. It was unconscionable. As a matter of jurisprudence, it was unforgivable.
The Court then went on to address the challenge related to Congress's power to compel the States to expand their Medicaid Programs. Medicaid, as we all know, is a program that is partially funded by the Federal Government but administered and partially funded by the States. In the Affordable Care Act, Congress directed the States--whether the States were so inclined--to expand their Medicaid Programs. It gave them no choice but to expand them and to expand them to a very significant degree. It expanded them in a way that would bring about not only significant costs to the States over the years but also very substantial administrative burdens as well. Yet the Affordable Care Act left the States with no choice. You must do this. Just do it because we are Congress and we are all powerful. You have to do it because we say so.
There is this anticommandeering principle embedded within our constitutional jurisprudence, rooted in the enumerated powers doctrine and rooted partially in the Tenth Amendment as well. It says that Congress lacks the power to commandeer States' administrative or legislative machinery to put in place, to carry out the legislature, to administer a Federal program. The Supreme Court of the United States concluded that Congress had violated this anti-commandeering principle in passing the Patient Protection and Affordable Care Act, and in doing so in a way that left the States with no other alternative.
So this was the second constitutional defect in the Patient Protection and Affordable Care Act.
But, here again, the Supreme Court chose to rewrite the law a second time in order to save it. Ordinarily, what the Court would do in this circumstance--in that circumstance, after concluding that Congress had violated this anti-commandeering principle and that this aspect of the Affordable Care Act was, in fact, unconstitutional--the Court would be under an obligation to go into what is called severability analysis, to analyze whether or to what extent or in what way Congress might have intended to allow the rest of the statute's provisions to operate independently, notwithstanding the unconstitutionality of the provision deemed invalid by the court. In this case, quite steadily, the Supreme Court engaged in no such analysis. It never reached the severability question, even though it had been the discussion of extensive briefing and conversation and oral argument.
The Supreme Court didn't get into severability at all. The Court decided it just didn't need to. It didn't need to because the Court rewrote the statute in order to make it constitutional. The Court wrote into the law a carve-out provision. It simply said, We are going to read this law as though it gave the States an opt-out provision, as though it gave the States an option of deciding whether or not to expand their own Medicaid programs.
The only problem is the text of the Patient Protection and Affordable Care Act contained absolutely no such language. We can read through all 2,700 pages of that law, and we won't find any opt-out provision such as what I just described. No, the Court created this too from whole cloth. The Court did this in the absence of any text. This too amounted to a betrayal of the judicial oaths of those who signed their names to that opinion. This too was a blatantly unconstitutional act that was an insult to the high judicial office that those individuals occupy. That too is an insult to the constitutional system, which has fostered the development of the greatest civilization the world has ever known.
We can't likely overlook crimes against the Constitution. We can't likely overlook the usurpation of authority by the few. We can't likely overlook the fact that laws--our most fundamental laws--have been openly flouted in this case, nor will we soon forget the fact that it has occurred here.
So here are all of these reasons why some of us feel so strongly, so passionately that this law started with some unconstitutional premises and has had its constitutional defects compounded over and over and over, as we have had the Supreme Court of the United States rewriting it, not just once but twice, in order to save it. We have the President of the United States rewriting it, in effect, legislating through the [[Page S8691]] stroke of the executive pen several times now, because, among other things, he says the law is not ready to implement. He doesn't have the power to legislate on his own any more than the Supreme Court of the United States has the power to legislate, any more than the Queen of England has the right to legislate for the United States of America.
The legislative power belongs here. It belongs here in the Congress of the United States, and we must exercise that power. When someone else takes that power from us, when someone else independently exercises the legislative power, we must guard it jealously. We must protect it. I don't care whether one is a Republican or a Democrat, and I don't care whether one is President Obama's biggest fan or his most aggressive critic. The office we occupy here requires us, compels us to defend our institutional prerogative as Federal lawmakers. When someone else exercises that power--a power that does not belong to them but to us--we must protect it, not because it is ours but because it belongs to those we represent. It belongs to those who elected us to serve here, those who elected us and not someone else to make the laws. Whenever--to any degree--we overlook the fact that someone else has legislated, someone not vested with lawmaking authority, we do ourselves and our country a disservice and we reflect a certain cavalier disregard for the oath we have taken to uphold the Constitution of the United States, which was put in place to make the men and the women of the United States of America free.
There is another issue related to all of this that I think we need to touch on, which is the issue of excessive delegation of legislative authority to the executive branch. In some circumstances, we have a situation in which Congress may voluntarily relinquish some of its lawmaking power to the executive branch. I say it may do that, that it can do that, but that is not necessarily saying that it should do that. Perhaps the most influential political philosopher in America's founding era was Charles de Montesquieu. Charles de Montesquieu wrote that the power to legislate is the power to make laws, not the power to make legislators. He recognized, I think, that there was a natural temptation among elected lawmakers to want to pass the buck along to someone else, to want to give to someone else the task of making law.
We do this sometimes when we pass an extraordinarily broad law and then we direct some executive branch agency to simply fill in the gaps, to effectively make the laws. The Affordable Care Act is replete with instances in which this kind of thing occurs, in which certain broad parameters are spelled out and in which we then say to this department or that department that it will have the power to promulgate rules carrying the force of generally applicable Federal law, which that same department or that same agency will then have the power to enforce.
So that is part of how we end up with 20,000 pages of implementing regulations already under ObamaCare--20,000 pages and counting--because we have a lot of instances in which we have delegated de facto lawmaking power. That too presents its own kind of constitutional problem--not necessarily a constitutional problem that the courts are inclined to recognize, but a sort of constitutional problem nonetheless, because the more we delegate de facto lawmaking power to an executive branch agency, the less we see that anyone is accountable to the people for our laws.
One can imagine, for example, if taken to an extreme, what this could look like. Let's suppose one day we just decide we are tired of debating and discussing and voting on and having to pass laws that are controversial, laws that are specific, laws that require us to get our hands dirty, laws that require us to make difficult decisions, so, once and for all, we are going to pass a law that everyone can get behind. It will be called the law of good laws. A law that says we shall have good laws and we hereby delegate to the herewith created U.S. Department of Good Laws the power to make and enforce good laws. We then pass that and we give this Department of Good Laws the power to issue regulations and to enforce those regulations. This is actually not all that different from what we do all the time and what has been done under ObamaCare to a very significant degree--about 20,000 pages of regulations so far, and that is still building.
One of the reasons this is a problem is because when the people don't like our laws, they can come to us and they can hold us accountable for laws that we may have voted to enact. They can choose to replace us with someone else, someone who wouldn't vote for that kind of law the next time they have the chance. But when the law that they don't like is not one that we have enacted but instead one that has been promulgated by an executive branch agency, the people come to complain to us and, in that circumstance, we say: Don't look at me; go to the executive branch agency; they are the ones who did it. They go to the executive branch agency, and they see that the people occupying the executive branch agency, as well mannered, well educated, well intentioned, and well groomed as they might be, are not subject to elections, so they can't be voted out. They can't be fired by the people. That is why we are entrusted with the lawmaking power. It is not necessarily that we are the best equipped in every way to do it; it is that we stand subject to elections in 6-year intervals in the case of the Senate, and in 2-year intervals in the case of the House of Representatives. It is yet another reason why we ought to be more resistant, more concerned when it comes to enacting legislation that delegates an excessive amount of de facto law-making power to an executive branch agency.
It is yet another reason why I think we need to pass something akin to the proposal that has been introduced as the REINS Act, which would say anytime an executive branch agency issues a new rule, a new regulation deemed by the Office of Management and Budget to constitute a major rule, that major rule will take effect if, and only if, it is first passed into law by the House and then by the Senate and then signed into law by the President. Then and only then do I think we will be able to start to reclaim that legislative power which is rightfully ours, and that, more importantly, the American people will be able to hold Congress accountable for the responsibilities properly given to Congress under the Constitution. This is about allowing the people to be governed by those they choose. When we delegate excessively our own lawmaking power to executive branch agencies, we deprive the people of their right to have their laws written and enacted by men and women of their own choosing.
This is important, and it should be important to people of all political backgrounds, to people at every end, at every step, at every stage along the political continuum. This is an issue this is neither Republican nor Democratic, it is neither liberal nor conservative, it is simply American.
When we pass laws, we pass laws through democratically elected Senators and Representatives. We do not do it through nameless, faceless bureaucrats who, regardless of how well-educated and well- intentioned they may be, do not serve the people in the sense that they are not elected by the people. They are not subject to reelection. They are not subject to dismissal by the people.
We must hold that power here. That power belongs to us, not to bureaucrats. It belongs to us, not the President. It belongs to us and not to nine Justices wearing black robes across the street in the Supreme Court of the United States.
These are some of the things that are at stake. These are some of the reasons it is so significant that we have this prolonged, protracted effort by the President of the United States to usurp power that is not his own. We must not facilitate the President in his ongoing effort to aggregate power, to accumulate power within the executive branch of government that is not his own.
That is why we need to stand up to the President. I am against some of these nominees he has pushed forward again and again and again trying to trample over the rights of the minority. We have to do that. We have an obligation to stand up to the President, especially because he is taking power that is not his own, and he is doing it, among other things, to move forward with ObamaCare, a law that a majority [[Page S8692]] of the American people have never approved of and a law the American people are growing steadily more against every single day.
I see my time is expired.
I yield the floor.
The PRESIDING OFFICER. The Senator from Louisiana.