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Public Statements

Presidential Appointment Efficiency and Streamlining Act of 2011

By:
Date:
Location: Washington, DC

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Mr. HATCH. Mr. President, when Thomas Jefferson wrote the Declaration of Independence, he produced an argumentative masterpiece. He announced to a candid world that all people--regardless of their circumstances--are created free and equal in their natural God-given rights to life, liberty, and the pursuit of happiness.

After announcing these fundamental principles, this great lawyer then turned to proving his case--that King George III and Parliament had violated these principles so repeatedly, and so extensively, that Americans were justified in a revolution that would secure us as a free nation committed to the principles of the Declaration.

Though it does not compare to the ringing rhetoric of the philosophical commitment to rights in the Declaration, we should not forget Jefferson's listing of the colonists' grievances--the long train of abuses that justified our revolution against King George.

Among those grievances, Jefferson and the Second Continental Congress claimed that the King ``has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.'' Since 1776, even before our Constitution was conceived of, much less written, Americans have resented their subjugation to unelected and unaccountable bureaucrats. Americans strove to establish an accountable government that left them free to build their own families and livelihoods.

King George had fair warning. A government that views the people as a draft horse to be exploited for power and resources will be bucked off, and that is what the colonists did.

Following the Revolution, our Founding Fathers sought to construct a government consistent with the principles of the Declaration of Independence. In an effort to keep their new republic accountable to the people, and to provide for the balance of powers between our three branches of government, our forefathers were careful in their assignment of powers regarding executive branch personnel in article II, Section 2 of our Constitution. In speaking of the powers of the President, that section reads in part, ``he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:''

Let me repeat that.

By and with the advice and consent of the Senate.

In our country, the people are sovereign, and that sovereignty is reflected in the accountability of executive branch officials not only to the President but to the people's elected representatives in Congress.

Even with these constitutional safeguards, we have met with only mixed success in making sure that government officials are accountable to the people. In remarks originally delivered in 1980, former-Senator James L. Buckley--who also went on to be one of our Nation's great appellate court judges here on the DC Circuit--issued the following lament about the growing power of government bureaucrats. ``We have, in short, managed to vest these individuals with a degree of authority over others that the Founders of the Republic went to great pains to prevent anyone from acquiring.''

Things have only gotten worse since Senator Buckley gave that warning, and I think that in no small measure this growing lack of accountability is reflected in citizens' growing despair, and occasional anger, about the responsiveness of their government.

That is why I am very surprised that this body is considering legislation that would further eliminate the accountability of roughly 200 powerful executive branch positions.

I can tell you that I am hearing from my constituents on this. For them, this is more than an academic separation of powers, or checks and balances, issue, where Congress further delegates authority to the executive branch. For them, it is another example of Congress permitting the government bureaucracy to operate with less and less public accountability.

Quite simply, the Federal Government is massive.

And for all of the increases in its size since the founding, for all of the traditional powers of the States that it has displaced, the increases of the last few years stand out as historic.

Congress passed a $1 trillion stimulus, on a largely partisan basis.

It has passed Dodd-Frank, massively burdening our financial and banking sectors with new government mandates.

And the icing on the cake was ObamaCare, a $2.6 trillion spending bill that has resulted in tens of thousands of pages of regulations drafted secretively by unaccountable Washington bureaucrats.

And in this environment, we are urging legislation that would decrease oversight of the executive branch?

With a national debt of more than $14 trillion and deficits that have topped $1 trillion in each of the last 3 years, we are ready to give the President greater discretion?

We are going to give the administration more freedom to act without the oversight of the people's elected representatives?

It is little wonder that the American people are increasingly concluding that no matter what they say or do, Washington won't listen to them.

Commensurate with the increase in the size of government is the employment by the executive branch of unelected and unconfirmed special assistants and advisers with substantial power. These positions are commonly referred to as czars. President Obama is not the first President to appoint these so-called czars, but over the past few years their numbers seems to have increased. In a 2009 Washington Post editorial, current House Majority Leader Eric Cantor discussed his concerns with the administration's reliance on 32 identified czars who have not been examined by the legislative branch.

The legislation before us will only increase the number of executive branch staff that are beyond the scope of effective congressional oversight.

I appreciate the arguments of my colleagues who are promoting this legislation, but I respectfully disagree with their conclusions. Proponents believe that many of the positions where advice and consent is eliminated do not exercise a substantive policy role, have responsibilities that are managerial in nature, or have responsibilities that overlap or are duplicative of those of another confirmed officeholder. I am not able to speak on behalf of other committees, but as ranking member of the Finance Committee I can say that the Finance Committee was not consulted on this legislation until less than a week before the Committee on Homeland Security and Government Reform reported its bill.

I am concerned that, though well-intentioned, the architects of this bill did not have the detailed knowledge of the positions being impacted to determine fully the appropriateness of advice and consent. A list of the positions that was circulated by the Rules Committee prior to the Homeland Security markup actually misidentified several Finance Committee nominees as falling within the jurisdiction of the Committee on Health, Education, Labor, and Pensions, and to my knowledge an updated list has not been made available.

Chairman Baucus and I sent a letter to the leadership of the Homeland Security Committee before their markup, and I will ask that the letter be printed in the Record. That letter discusses the impact of this legislation on seven positions currently subject to the Finance Committees jurisdiction, and we both oppose this bill's removal of our constitutional power of advice and consent with respect to these nominees.

However, the fundamental matter of accountability that we raise in that letter is an issue far broader than the Finance Committee's jurisdiction. I would like to highlight the position of Assistant Secretary for Legislation, and Assistant Secretary for Public Affairs at the Department of Health and Human Services. In light of the controversial passage, and now implementation, of ObamaCare, does it really make sense to relinquish direct oversight over the Assistant Secretary of Legislation, a position which, according to the HHS Web page, ``is responsible for the development and implementation of the Department's legislative agenda''? Regardless of how one voted on the passage of the health care law, does anyone in this body really think that it makes sense for Congress to deliberately minimize oversight of its implementation?

Additionally, I know some Members of this body have been concerned with how HHS has publicly discussed health care reform and have taken issue with the accuracy of information provided to the public. Regardless of whether this applies to any particular Senators, don't all of us want to ensure that HHS provides accurate and substantive information to the public regarding health reform?

The Constitution in general terms provides Congress with the vital function of exercising oversight over the executive branch to ensure that our laws are carried out appropriately.

Let me put that another way.

The people, in ratifying their Constitution, gave to their elected representatives in Congress the solemn duty of supervising the administration of the law.

And the constitutional power that guarantees this critical responsibility is the power of Senate confirmation.

Some justify the legislation before us on the grounds that the Senate takes too long to process nominations for various reasons. I'm not here to say that these claims are totally without merit.

However, I am confident that eliminating the constitutional requirement for advice and consent for hundreds of positions is the wrong solution. Any issues with the nomination process could and should be handled at the committee level, if not by the Senate as a whole, through the rules adopted by this Chamber. If some of us believe that we could carry out our responsibilities better, I am open to those ideas. However, I do believe that each Senate Committee should be able to determine how that committee will handle nominees, and then reexamine that decision as time passes. Enacting this legislation would significantly diminish, if not completely destroy, the possibility for reexamination of our decisions. If we surrender our jurisdiction over hundreds of executive branch positions and turn them into czars, that decision will likely be permanent.

The choice we have to make now is whether we will abdicate part of our constitutional responsibilities or gives ourselves the opportunity to examine how we exercise those responsibilities. Will we share in the madness of King George?

Or will we follow the trail blazed by or forefathers, like Thomas Jefferson?

I think it is critical that we recommit ourselves to a government of the people, one that guarantees the representative character of executive branch officials.

For that reason, I will be voting against cloture on the motion to proceed to this bill, and I urge my colleagues to do the same.

Mr. President, I ask unanimous cnosent to have printed in the Record the letter to which I referred.

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