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Public Statements

Food Conservation, and Energy Act of 2008

Floor Speech

Location: Washington, DC

FOOD, CONSERVATION, AND ENERGY ACT OF 2008 -- (Senate - June 05, 2008)


Mr. DeMINT. Madam President, in a few minutes the Senate will once again vote on a farm bill that expands the Federal Government's management of farm and food programs while spending over $600 billion during the next 10 years. I do not want to diminish in any way all the hard work of my Republican and Democratic colleagues and their very capable staff, but I rise today to ask my fellow Senators to stop and think about what we are doing to our country--not go just with this bill but what we have done as a Congress and as a Federal Government over the last few decades.

The farm bill is a symptom of a bigger problem. We are often so focused on specific problems and issues and legislation that we fail to see the cumulative effect of our work over many years. We can start with what we have done to our culture and the character of our people. For several decades, this Congress and our courts have turned right and wrong upside down and encouraged all kinds of costly and destructive behavior. Our welfare programs have encouraged an epidemic of unwed births that cost our country over $150 billion a year and is the major contributor to child abuse, crime, poverty, and school dropouts.

Our courts have ruled that pornography, abortion, and gay marriage are constitutional rights. The Federal Government has expanded casino gambling by legalizing it on Indian reservations, even in States where gambling is illegal. All these decisions and policies have proved destructive and costly to our country.

The Federal Government's attempts to manage America's institutional services and economy have been equally devastating. Over the past 10 years, while I have been in the House and the Senate, I have seen this Congress attempt to manage many aspects of our lives and our economy.

I will start with education. The quality of American education has declined since the 1970s, when the Federal Department of Education was established. By the year 2000, when President Bush took office, our Government-run education system was clearly not preparing our children to compete in the global economy.

No Child Left Behind expanded the Federal role and Federal spending even more. But there has been little discernible progress. We see some progress in charter schools and specialty schools and other types of schools that break away from the Federal mold.

But this Congress continues to restrict the flexibility of States and the freedom of parents to choose a school that works for their children.

We should also talk about what this Congress and the Federal Government has done to our health care system. Medicare and the Government fixed-rate system control virtually all the health care in America today. A few years ago, this Congress decided to add prescription drug coverage to Medicare, even though the program was already going broke.

Now, the program is hopelessly underfunded, and we continue to cut what Medicare pays doctors and hospitals to see our senior citizens. The problem is fewer and fewer doctors want to see Medicare patients because they lose money when they treat them. So they charge their patients with private insurance more so fewer Americans can afford private insurance.

And fewer and fewer students are going into medicine because it is clear they are not going to be paid enough to make a decent living. So we now expect and predict a physician shortage crisis as millions of baby boomers are retiring. The solution for us is to make sure every American has an insurance plan they can afford and keep, not to try to manage health care from Washington.

Social Security is another example of Government mismanagement. Instead of saving the taxes we take from workers for Social Security, Congress has spent every dime, trillions of dollars. Now, in less than 10 years, Social Security taxes will not be enough to pay benefits to seniors. Congress refuses to even talk about it.

Let's not forget what the Federal Government has done to our energy situation in this country. Congressional attempts to manage America's energy industry have been disastrous. To supposedly protect the environment, the Democrats shut down the development of new nuclear powerplants back in the 1970s. So America burns a lot more coal, while other countries expanded nuclear and reduced their coal consumption.

Now, the Democrats want to add huge taxes on coal to protect the environment, while still stalling development of nuclear generation. Go figure. Two years ago, in the name of the environment, this Congress mandated a massive increase in the use of ethanol and gasoline. Since then, the price of gasoline has nearly doubled and food prices have increased dramatically around the world.

Why do I mention all these things that do not appear to relate to the farm bill? I do it to remind my colleagues and all Americans that this Congress cannot manage any aspect of our country, and it is not intended to. Our job is to create a framework of law where freedom can prevail.

Instead, we attempt to manage where we cannot, and there is no evidence we have ever created any program that effectively or efficiently managed any aspect of the American economy or any aspect of our lives. Why do we continue to produce these massive Government programs and spend trillions of dollars with the pretense that they will actually work and make America better?

This Congress reminds me of Steve Urkel from the 1990 sitcom series ``Family Matters.'' Steve and his clumsiness regularly created a disaster wherever he went. He would always turn around and look at the destruction he caused and ask innocently: Did I do that?

Well, colleagues, when you look at the price of gasoline, the condition of our economy and our culture, the answer is: Yes, you did do that.

America is the greatest Nation in the world. We have been blessed in ways other nations can only dream of. Yet our future is uncertain. We face deficits as far as the eye can see. We are staring down the barrel of a looming financial crisis that threatens to bankrupt our country. Yet we continue to spend money like there is no tomorrow.

If action is not taken soon, we will reach a tipping point in our two major entitlement programs, Social Security and Medicare, in which the programs will pay out more money than they take in.

Our national debt is over $9 trillion today. And still, Washington will spend over $25,000 per household this year. We are hopelessly addicted to spending. It is no wonder Congressional approval numbers continue on a downward spiral. Nobody trusts us anymore, and, frankly, we do not deserve the trust of the American people because we continue to blindly spend their hard-earned tax dollars while racking up hedge debts for our children and grandchildren that they will be forced to repay.

Now, here we are again, taking a brief break from the climate tax bill that would cost the American people trillions of dollars to reconsider another big-spending boondoggle. The farm bill which weighs in at over $600 billion over the next 10 years, is chock-full of pork and excessive subsidies for favored and special interests groups.

The bill has numerous wasteful spending provisions. I will name a few: New programs for Kentucky horse breeders, Pacific Coast salmon fishermen, and spending to help finance the dairy industry's ``Got Milk?'' campaign, so we should see more commercials soon.

It increases the price supports for the sugar industry and guarantees 85 percent of the domestic sugar market at these guaranteed prices. There is a $257 million tax earmark for the Plum Creek Timber Company, which is the Nation's largest private landowner, and a multibillion dollar company with a market capitalization in excess of $7 billion. They are better off than we are as a government.

The language requires the U.S. Forest Service to sell portions of the Green Mountain National Forest exclusively to the Bromley Ski Resort. There is $1 million for the National Sheep and Goat Industry Improvement Center; politically targeted research earmarks for agricultural policy research centers at specific universities instead of allowing all universities and colleges to fairly compete for funding based on merit.

According to Citizens Against Government Waste, this farm bill includes $5.2 billion annually in direct payments to individuals, many of whom are no longer farming, without any regard to prices or income, 60 percent of which go to the wealthiest 10 percent of recipients.

From where I stand, this bill looks like another big-spending Washington, DC, giveaway to special interests. Do we not understand the mess we are in?

Total Government spending has now reached more than one- third of America's economy. U.S. tax rates keep getting more burdensome. Our top corporate tax rate and income tax rate is 35 percent, while Europeans are undercutting American companies by lowering their rates significantly.

Recently, a front-page article in USA Today found that American taxpayers are on the hook for a record $57.3 trillion in Federal liabilities to cover the lifetime benefits of everyone eligible for Medicare, Social Security, and other Government programs.

USA Today's analysis went on to point out that this is nearly $500,000, $ 1/2 million, for every American household. When obligations of State and local governments are added, the total rises to $61.7 trillion, or $531,000 per household. That is more than four times what Americans owe in personal debt such as mortgages.

While we are spending and taxing our way to reelection, many of our global competitors are lowering their tax rates and streamlining their economies. Countries such as Ireland are lowering their tax rates and encouraging economic growth within their borders.

As a result, they are growing their economies and creating jobs. And we wonder why we are falling behind? We are falling behind because of political mismanagement. This is what happens when politicians think more about their next election than they do about the next generation. When this happens, it becomes all about us and not about the American people.

This big-spending farm bill is a perfect example of this kind of political mismanagement. The leadership of this Congress was in such a hurry to pass a big-spending giveaway to special interests that they actually violated the Constitution to do it. Even a schoolchild knows the Constitution requires the House and the Senate to pass the same bill and then present it to the President for his signature.

But, apparently, the Constitution is not as important to some as passing a $600 billion spending bill. The farm bill that was presented to the President for his signature or veto was not the bill passed by the House of Representatives and the Senate.

The bill Congress voted on differed materially from the version that was presented to the President. It contained a whole additional title, spanning 35 pages, dealing with international aid shipments and foreign trade. Quite simply, what the President vetoed and what the House and the Senate held a veto override vote on was not the bill Congress passed. It, therefore, failed the requirements of the Constitution and could not be treated as law. That is why we have this new bill on the floor today.

Regardless of the reasons for this constitutional, I will not say crisis, but mess, the fact is an officer of the House and an officer of the Senate usurped the will of the two bodies and materially changed the content of legislation.

Even worse, by holding a veto override, Congress attempted to make a bill it never passed the law of the land. This is why I voted ``present'' on the farm bill. Once we were aware of the mistake, we should have stopped and passed a temporary extension. This abuse of power or sloppiness may only be the consequence of incompetence, but if we do not draw the line in the sand and demand that our bills meet constitutional requirements, what will stop even greater, and possibly even more malicious, abuses of power?

The Senate needs to reject this bill, pass a year-long extension of the farm bill, and go back to the drawing board so the policy and the process are something we can be proud of and that will truly strengthen our Nation.

We must come to grips with the fact that our actions are hurting the American people. We cannot continue to spend and spend and expect our economy to remain strong and free. Already our spending is catching up to us. I hope we will think long and hard about our actions. What we are doing will hurt future generations.

I urge my colleagues to vote against the bill. I ask unanimous consent to have printed in the Record some information regarding enrollment and the problems we have been having with getting our bills sent to the President in the correct order.

There being no objection, the material was ordered to be printed in the Record, as follows:


Mr. DEMINT. Mr. President, the Constitution requires Congress to observe certain processes to make statutory law. Contrary to the apparent assumption of some in this body, Congress does not possess the power to intentionally ignore requirements provided in the Constitution's text. Article I, Section 7, prescribes a bicameral requirement to present a bill to the President. H.R. 2419, as enrolled, did not pass both chambers of Congress.

The House and Senate passed Farm Bill included Title III. A clerical error omitted the entirety of Title III in the enrolled bill presented to the President. The bill sent to the President, no matter the significance of the error, did not receive the consent of both chambers of Congress, and therefore fails to fulfill the necessary predicate to presentment contained in the Presentment Clauses of Article I. In fact, the measure sent to the President does not qualify as a ``bill'' at all under Article I, Section 7. I implore the President to disregard H.R. 2419 as an unconstitutional measure, without the status of law.

Despite the dubious status of the Farm Bill, the Majority Leader assured the Senate that:

We have a good legal precedent going back to a case ..... in 1892, when something like this happened before. It is totally constitutional to do what we are planning to do. So no one should be concerned about that.

The Majority Leader alluded to Marshall Field & Co. v. Clark, in which the Supreme Court announced the ``enrolled bill rule,'' to assuage any constitutional consternation held by Senators. However the Senator from Nevada mischaracterizes the Supreme Court's ruling in Marshall Field, as the decision relates only to the:

..... nature of evidence upon which a court may act when the issue is made as to whether a bill, originating in the house of representatives or the senate, and asserted to have become a law, was or was not passed by congress.

The Marshall Field Court did not adjudicate the constitutionality of an improperly enrolled bill, but rather only reached the question of justiciability. The Court did not find the issue of constitutionality justiciable. Marshall Field merely expressed the Supreme Court's deference to a ``coequal and independent'' department's internal authentication processes. A bill signed by the Speaker of the House and the President of the Senate, ``in open session ..... is an official attestation by the two houses'' that a bill received the consent of both chambers for the purpose of justiciability.

Marshall Field received renewed attention in recent years as courts grappled with circumstances similar to those presented by the Farm Bill. The Deficit Reduction Act of 2005 generated litigation that challenged the Act's constitutionality because ``it did not pass the House in the form in which it was passed by the Senate, signed by the President, and enrolled as a Public Law.'' The litigation did not provide any ruling on the merits; the ``enrolled bill rule'' promulgated in Marshall Field precluded the district courts from any examination of ``congressional documents ..... to ascertain whether the language in the enrolled bill comport[ed] with versions that appear in legislative sources which precede[d] enrollment.'' The ``claim of unconstitutionality for a violation of Article I, Section 7, `is not legally cognizable where an enrolled bill has been signed by the presiding officers of the House and Senate as well as the President.' ''

The judiciary's reluctance to entertain the merits of claims under Article I, Section 7 does not bar members of the House and Senate from consideration thereof. President Jackson explicated the authority of each branch to interpret the Constitution independently:

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution ..... It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.

Upon election and in cases of subsequent reelection, every Member of Congress swears allegiance to the Constitution of the United States in an Oath. Members ``solemnly swear ..... [to] support and defend the Constitution ..... [to] bear true faith and allegiance to the same ..... and ..... [to] well and faithfully discharge the duties of the office'' to which elected. The Oath of Office imposes an obligation on Members of Congress to interpret the Constitution and act within its framework.

The Presentment Clauses of the Constitution require the assent of both chambers for each bill presented to the President. Article I, Section 7, Clause 2 provides:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated .....

Article I, Section 7, Clause 3 elaborates:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States .....

The two clauses stipulate ``the exclusive method for passing federal statutes.'' Bills enrolled and presented to the President must have received the assent of both the House and Senate, irrespective of authentication by the Speaker of the House and the President of the Senate.

So we've had bicameralism without presentment for the engrossed bill. And we've had presentment without bicameralism for the enrolled bill. Neither is sufficient. Contrary to the position of the Speaker of the House and the Senate Majority Leader, authentication of an invalid bill does not displace the bill's nugatory status; the signatures of the Speaker of the House and President of the Senate do not represent the will of the House and Senate and fall short of the bicameral requirement in the Presentment Clause. Congress may not jettison or suspend disagreeable parts of the Constitution. The Bill, as presented to the President, did not receive the consent of both chambers. As such, the bill is null and void, for it does not meet the requirements set forth in the Constitution. Shall this Congress crucify the Constitution on the cross of agribusiness?

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