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Department of Defense Appropriations Act, 2007

Location: Washington, DC

DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2007 -- (House of Representatives - June 20, 2006)


Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the requisite number of words.

Mr. Chairman, I congratulate the authors of this amendment. The debate here and potentially the outcome confirm a very important point: We do not suffer in this country from a problem of the Presidential usurpation of power. We suffer from congressional dereliction of duty. It is not a case of the President overreaching. It is a case of us ducking and dodging and letting him do all the tough issues.

This amendment is a very simple one. Now, Members have said on the other side, I heard the gentleman from Kansas say, why don't you bring in a bill? Two reasons: First of all, if we brought in a bill, it would never see the light of day. How can a majority party which has specialized in strangling legislation at its birth complain when we don't think that is a good way to debate important issues?

But there is another reason. This is one that can sustain a veto. The Supreme Court has made it very clear: It will not referee disputes between the executive and legislative branches. The only way you can put some restraint on a President who is acting without restraint is by an amendment that says there are limits on what he can do with the money.

Now, we have heard selected quotations from John Jay. Poor old John Jay hasn't been mentioned in years. I am glad his spirit has been invoked. But nobody much cares about John Jay most of the time.

We have had some Supreme Court cases cited. Youngstown Sheet and Tube against Sawyer, which restricted the President in a time of war, was not mentioned.

Let's be very clear: History does not dictate the answer. This calls on every Member of this House to say what kind of Constitution do you want? Do you want one in which the President can have unchecked executive power, not just in time of war, but any time?

We are in what the President now says is a war against terrorism that is unlikely to have an end. So we are not talking about temporary wartime powers. We are talking about what kind of Constitution do you want?

We have a President who has asserted his right to do whatever he thinks necessary to protect the country, including, remember, arresting American citizens and having them incarcerated indefinitely with no chance to present a case. The Supreme Court said, whoa, that goes a little too far. But this is what the President has asserted with regard to FISA.

One gentleman said, well, remember what Griffin Bell said. I will be honest with you, I have found that as a general principle, ignoring Griffin Bell is a good idea. I have always done that in important cases. But what Griffin Bell said or didn't say doesn't tell us.

And this is the question, not what John Jay said or this one said, because you can quote each other to death. What kind of Constitution do you want? Do you want one where the President of the United States without any check can do what he thinks best? Because, by the way, the courts won't be involved here, because they can avoid a court decision by never prosecuting based on this evidence.

So the only potential check here is if we say no. Yes, you can wiretap, as long as you can get a warrant. And getting warrants under FISA is not hard. But we do not like the principle of an unchecked Presidential power.

I will yield to my friend from California if he will begin by answering this question: Conservatives tell me they like to be textual with regard to the Constitution. Would he cite for me, I thought maybe the Constitution got changed while I wasn't looking, so I went and read article II, it took about a minute and a half, it is a pretty small article. I am glad to see the President can get paid. It is right there in the Constitution.

But would he cite for me the text of the Constitution, article II, which empowers the President to do this, even if Congress tells him not to?

I will just add this. With regard to Youngstown Sheet and Tube, as I recall the analysis, it was there are three situations. I will ask for additional time, because I would like to have a colloquy. The President acting alone, the President acting with Congress, and the President acting in contradiction to what Congress has said.

The analysis has always been acting with Congress, the President is at the peak of his powers. Acting alone, it is unclear. Acting in contravention to what Congress has said, he is at his weakest. Here, since we have FISA, this is in contravention to what Congress has told him to do.

So I would now yield to the gentleman. Would he begin just by citing the parts of the Constitution that are relevant, and then, obviously, he is free to say what he wishes.


Mr. FRANK of Massachusetts. I take back my time. So the gentleman then agrees with this point. There is nothing inappropriate about this amendment. So while he believes the President is within his power to do this, does the gentleman agree that if this amendment is adopted by a majority, the President would be bound by it?

Mr. DANIEL E. LUNGREN of California. He would be bound by it with respect to the expenditure of funds in this particular bill. I don't think there is any question about that.

Mr. FRANK of Massachusetts. So that if he can find, I thank the gentleman and I appreciate that. I take back my time. The gentleman knows the rules. The gentleman knows the rules. He may not know the Constitution, but he knows the rules. I take back my time just to say, so we understand----


Mr. FRANK of Massachusetts. Let us have the common ground. The question here, and I think I will accept this, we are not debating constitutionality here; we are debating what public policy ought to be. The gentleman from California agrees it is appropriate for us to consider it and agrees that, if it passes, the President is bound by it.

Now, I would yield to the gentleman. Are there other places the President can then find this money? Is that what the gentleman is saying? If the President were to be bound by this, would the gentleman suggest the President could then do this anyway in some other fashion? I would yield to him.


Mr. FRANK of Massachusetts. We are beyond that. Look, I do not think the Constitution, I will be honest with you, I think people decide and then they pick the----

Mr. DANIEL E. LUNGREN of California. Can we talk about----

MR. FRANK of Massachusetts. I am taking back my time. Let us debate the merits. Let us not hide behind----


Mr. FRANK of Massachusetts. I just want to say, stop hiding behind varying degrees of constitutional interpretation. By hiding behind them, I mean this: I don't think that people sat and said, oh, geez this is what John Jay told me and this is what I am bound by. I think we are talking here about what we think public policy ought to be. Should the President or should not the President have to get a warrant through FISA? That is the text of this amendment. Let us debate the public policy.

I yield first to the gentleman from Washington.

Mr. DICKS. I just want to say to the gentleman, I agree with that. I also think that the American Bar Association looked at this. They came to the conclusion that the President had to comply with the FISA law.

Mr. FRANK of Massachusetts. Let me just say this. Here is the constitutional text that my friend from California invoked, and pretty accurately. Good memory the gentleman has. Article II, section 1: The executive power shall be vested in a President of the United States of America, period.

Now, he says that gives him the power. This is circular. Why does the President have the power? Because he has the executive power. But we are precisely here defining for ourselves, as Americans today, what the executive power is and has meant to be. All this says is that he has the executive power. Does the executive power mean he can lock somebody up without a trial as he has said it does? Does the executive power mean he can ignore an act of Congress and wiretap when he wants to? That is the question. Saying that the executive power is vested in him simply is a way of putting the question. The question is, What is the executive power?


Mr. FRANK of Massachusetts. I will answer the gentleman's question: because the President and his supporters do not want to concede that there is any limit on his power even if he could get this done through FISA, and that is the----


Mr. FRANK of Massachusetts. In my remaining minute, I understand, I will say that my good friend from Pennsylvania I think is probably not distressed that we are talking about something that is not the heart of the bill. But the fact is, I will close by this, we are talking about it here because this is the only enforceable way to put restraints on the President. And I will tell you why I think it is important. Chaplain Yee at Guantanamo, Burton Mayfield in Oregon, Wen Ho Lee under the Clinton administration, there are, sadly, cases of entirely innocent individuals who were prosecuted and gone after.

I don't think the President is ill intended here. And I think the law enforcement people are the good guys; I just don't think they are the perfect guys. So I want to give them power, but I want to subject that to some check beforehand and some process afterwards. And that is what we are saying here. We are fully in favor of empowering law enforcement, but we do not want them to be exclusive in the exercise of that power. And asking that they go before a judge to justify it when they are going to be wiretapping an American seems to us to be reasonable and to do no harm to America.

And to repeat my answer to the gentleman from California: the opponents of this amendment are the proponents of the view that the President's power should be entirely unchecked, and that is dangerous.


Mr. FRANK of Massachusetts. Mr. Chairman, the Supreme Court has made it very clear it will not referee fundamental constitutional debates over power between the executive and legislative branches. Only if you got a case would this get to the Court, and they will dodge and duck and never allow there to be a case. This is the only constitutional way to confront it.


Mr. FRANK of Massachusetts. Mr. Chairman, we are further along than we were, but the phrase ``consensus,'' consensus is nice, but nothing in the House rules or the Constitution or the writings of John Jay say that it is a prerequisite for moving legislation.

I would hope that the gentleman would say on an issue that we all agree is important, a bill will come to the floor, the majority will decide, but I do not think those of us not on the committee ought to only get an opportunity to legislate on this if there is a consensus.

Now, if you are telling us do not do it as an amendment to the appropriations bill, Mr. Chairman, because the bill is going to come forward, we need to know that a bill is going to come forward, consensus or not, and then the House can decide what it wants to do.


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