Providing for Congressional Disapproval Under Chapter 8 of Title United States Code, of the Rule Submitted By the National Labor Relations Board Relating to ``Standard for Determining Joint Employer

Floor Speech

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Mr. DURBIN. The Senator from Louisiana is my friend. We throw that term around here in the Senate, but it is true. I think he would say the same. We both serve on the Senate Judiciary Committee. We have worked on issues together. We have been adversaries, but we have done it respectfully, and it will continue, I hope, to this day.

But the gentleman, the Senator from Louisiana, brings to the floor of the Senate and to this debate special qualities. He sounds many times like a homespun backwoods lawyer. Don't be fooled. He is a graduate from a famous university in England--I have forgotten which one-- Oxford, Cambridge, one of those. They are not in the Big 10, I am sure of that, but I know they are in England. I congratulate him. I was never even considered for a university of that stature. He is a brilliant lawyer and Senator and raises important questions, not just for the moment but for history.

The question before us today that he is raising is about the purported impeachment--I should say actual impeachment--of a member of President Biden's Cabinet, Mr. Mayorkas, the Secretary of Homeland Security. That is now about to be reported to the Senate, and we have constitutional responsibilities when it is reported.

In this situation, we are waiting for the actual report to arrive. I think it will be momentarily, perhaps this week or next, and we will take up this matter as we are required to do.

The House Homeland Committee engaged in a yearlong investigation of Secretary Mayorkas and his alleged maladministration of the border of the United States. This committee in the House held 12 hearings, testimony from more than two dozen witnesses, producing nearly 400 pages of reports.

The Senate, when sitting as a Court of Impeachment, is not responsible for making the case on behalf of the impeachment managers. We are the jury. We are the ones who will decide the impeachment. Our duty is to make the determination based on the Articles of Impeachment and the facts at hand. We are not a factfinding operation.

My friend from Utah is also on the floor. During the first Trump impeachment, he said that ``the Senate--here sitting as a court of impeachment--has both the authority and the obligation to decline to hold a full trial where the material facts in the case are not in dispute.''

The facts are not in dispute here. This is the first time that the House has successfully impeached a sitting Cabinet-level official without providing any evidence of a high crime or misdemeanor. None. All those hearings, all those pages, all those witnesses--no evidence of high crimes or misdemeanors. And that is a requirement in the Constitution. The Articles of Impeachment that will be before us contain zero evidence that Secretary Mayorkas has committed high crimes and misdemeanors. Instead, it can be read as a summary of Republican grievances with this administration's approach to border policy, immigration, detention, and methods of removal and parole--all of which is conduct that falls squarely within the executive branch's constitutional prerogative. Fortunately, the Constitution was designed to prevent this type of partisan politics driving this effort from contaminating the extraordinary process of impeachment.

The delegates to the Constitutional Convention considered and rejected the concept of maladministration as an impeachable offense, in part, because they feared the misuse of impeachment for purely political retribution.

The Constitution empowers the Senate to have the sole power to try all impeachments and to determine the rules of its proceedings, but the Senate only has the power to convict, remove, and disqualify officers whose conduct meets the constitutional standard. That standard is well known to all Members of Congress and to the Senate particularly.

Given that the Senate only has the power to convict, remove, and disqualify officers who have committed ``Treason, Bribery, or other high Crimes and Misdemeanors,'' the appropriate Senate response to impeachment articles that do not articulate those charges is obvious.

If congressional Republicans were genuinely interested in addressing concerns about our border, they should be willing to work on a bipartisan basis to pass legislation fixing our broken immigration system and give this President and Secretary Mayorkas the tools they have asked for to address the situation at the southern border.

I want to make sure this is clear on the record. The border is broken. It needs to be fixed and what we should do and what we did do was to establish a bipartisan committee. The Republicans said: We insist that James Lankford, a respected Senator from the State of Oklahoma, speak for us and negotiate for us when it comes to changing the rules at the border. We agreed with that.

Senators worked with Senator Lankford, whom I respect, and came up with a bipartisan proposal that gave new authority to the President and to the executive branch to deal with the crisis at the border. What happened on the Republican side of the aisle when James Lankford, the Republican Senator from Oklahoma, came up with this proposal? All but seven of them--I believe that was the number--walked away and said they wouldn't even support it.

Why did they do it? You know why they did it--because Donald Trump announced he wanted no part of any agreement, any bipartisan effort to solve the problem. Then, former President Trump said: And blame me.

Well, I am blaming him. We had an opportunity to actually do something on the floor of the Senate when it came to the border. He stopped it. And so many of the Republican Senators who begged us to work with Senator Lankford turned their backs on him after the yeoman's effort he put into this undertaking. That is the reality.

We had our chance, on a bipartisan basis--and still do--to solve this problem rather than engage in any political stunt. Instead, the vast majority of Republicans, including the Senator from Utah and others on the floor, recently blocked the bipartisan border reform bill that was written by the Republicans' designated negotiator, Senator Lankford. They had their chance. It didn't work; neither will this.
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Mr. DURBIN. Senate we had done something that no one believed could be achieved: We had, through the Gang of 8, established a comprehensive immigration reform bill.

I was part of that Gang of 8--eight Senators, four Democrats and four Republicans--who labored for months to create that legislation. It was comprehensive, as I noted. It covered every aspect, from border all the way through the immigration process.

We brought it to the floor in the hopes that, for the first time in decades, we would finally reach an agreement, a bipartisan agreement. The people who were involved in it--John McCain on the Republican side, Senator Flake from Arizona, Senator Graham from South Carolina, and four Democrats--worked hard to bring this to the floor. It was an opportunity for us to finally do something together.

It got 68 votes. We needed 60, but we got 68 votes. There was a lot of celebration because business and labor and others were supporting us and so happy that we got it done.

We know what happened to that bill. It went over and died in the House of Representatives. The Republican leadership over there refused to even call it for consideration. Of the Republican Senators currently on the floor, two of them were on the floor on June 27, 2013. They both voted no.

Listen to the speeches and ask yourself the question: If the border and immigration policy need to be fixed in America, why weren't you there when we had a chance for a bipartisan approach to comprehensive immigration reform?

And to make it even worse, there was an argument made that we would not provide defense supplemental spending, asked for by the administration, around the world, unless we came up with a border reform bill within the last several months. And the Republicans said: We have a leader on our side of the aisle whom we want to head up our effort to come up with a bipartisan bill to deal with the border. We do believe it needs to be fixed; it is in crisis.

They proffered James Lankford, a conservative Republican Senator from Oklahoma, a highly respected Senator. I may disagree with him on many issues, but I respect him as a Member of the Senate. He was to be the lead negotiator, and we respected that request. Democrats had Chris Murphy and Kyrsten Sinema joining in the effort and prepared to bring to the floor a major--it was a bipartisan approach to solve this problem.

Why is that necessary? Because in this body you need 60 votes. If you don't have 60 votes, you are wasting your time. We needed something bipartisan.

And so this measure was headed to the floor. And at the last minute, former President Donald Trump announced that he wanted to stop the process; he did not want to even attempt to solve the problem with bipartisan legislation. He said: You can blame me if you want to. And I blame him again. Yes, he did that.

And, unfortunately, the Republican Senators were complicit, most of them, in that effort instead of respecting what James Lankford had achieved and what a bipartisan bill would have made.

So you can say what you want and make all the speeches about bodies and suffering, and I am sure most or some of that is true. But the bottom line is, when you had a chance to do something about it with the bipartisan Gang of 8 bill, you voted no, and when you had a chance to support James Lankford's bipartisan approach to fixing the border, you were not there to be seen. You were loyal to Donald Trump and not loyal to the situation that we face in the Senate.
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