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Public Statements

Enumerated Powers Act of 2011

Floor Speech

Location: Washington, DC


Mr. COBURN. Madam President, in a few minutes, I will offer an amendment, but first I wish to speak about a bill that myself and 26 other Senators have introduced today, and it is called The Enumerated Powers Act. Our Founding Fathers understood the only way to preserve our freedom for future generations was to limit Federal authority. They understood the tendency of government to seize increasing power, and thus they created protections in our Constitution for posterity.

Earlier this year, newly elected and returning Members of the Senate took an oath to support and defend the Constitution of the United States. In my case, that oath never mentioned the State of Oklahoma or any other State an individual Senator might represent. Rather, the oath each of us took was to uphold the Constitution for the betterment of the country as a whole.

Yet every day, Members of Congress ignore their oath and the protective principles embodied in the Constitution, trampling both the freedom and the prosperity of the American people. This has never been as evident as in the congressional spending spree we have seen over the last 3 1/2 to 4 years.

At the beginning of the 111th Congress, our national debt stood at $10.6 trillion. Today it is over $14.4 trillion, an increase of nearly $4 trillion in the last 3-plus years. How did we get there? How did we get into such deep debt? How did we shackle our children and grandchildren to an increasing deficit and an inevitable decreased standard of living? It doesn't lie with any President having done that. Where it lies is with the Congress of the United States.

Today, along with the Senator from Kentucky, Dr. Rand Paul, and 23 other cosponsors, I am introducing the Enumerated Powers Act. This legislation ensures Members of Congress truly follow article I, section 8 of the Constitution. That section plainly lists the enumerated powers given to Congress, of which there are 18, and they are very well defined.

One of the major reasons why we are facing such tough economic times and such tough fiscal challenges is because Congress routinely in the recent past has ignored this aspect of the Constitution. Until we reconnect Congress with its limited and enumerated powers, we will never put our Nation back on a sustainable basis.

James Madison stated in Federalist 51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.

Clearly, we have a government administered by men over men, and the government has failed to control itself. The best way for the Federal Government to appropriately restrain itself is for Congress to abide by the enumerated powers of the Constitution.

The Supreme Court noted at the beginning of the 21st century:

Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. ``The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.''

In an 1831 letter, James Madison also stated:

With respect to the words ``general welfare''--

Which is what is so often used to justify new government programs--

I have always regarded them as qualified by the detail of [enumerated] powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

Moreover, the 10th amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In other words, everything outside of those 18 enumerated powers are reserved for the States and the people. They are not ours to deal with.

Our Founding Fathers intended for the Federal Government to be one of limited powers that cannot encroach on the powers reserved to the States or to the people. What this bill does is highlight the importance of those principles embodied in our Constitution and gives Members of Congress a new procedural tool to stop unconstitutional legislation.

A former Representative from Arizona, Congressman John Shadegg, took the lead on this issue starting in 1994, and introduced it every year up until he left Congress this last year. I joined Representative Shadegg in offering this bill, starting in the 110th Congress, and again in the 111th. Today I am delighted, along with these 24 cosponsors--and many other Republicans joining me--to reintroduce an updated version of this important legislation.

The Enumerated Powers Act requires each act of Congress, bill, and resolution to contain a concise explanation of the specific authority in the Constitution under which the measure would be enacted. It also states Members cannot merely mindlessly invoke subsections of article I, section 8, such as the Commerce, General Welfare, or Necessary and Proper Clauses to meet that test.

The goal of this legislation is to ensure Congress is accountable to the American people for its actions. The very least we can do--if we are going to violate article I, section 8--is explain our constitutional basis to the American people for that.

With a sufficient two-thirds vote of the Senate, a point of order raised against a bill for failure to cite specific constitutional authority for the legislation can still be overcome. However, the Enumerated Powers Act requires both Houses of Congress to debate that point of order. The American people need to see the transparency when we violate the Constitution and what our basis is for doing that.

As I mentioned earlier, as Members of the Senate, we have each taken an oath to uphold the Constitution, not to put our individual States first. If each of us abides by that oath, we will improve our country as a whole. For Oklahoma, Kentucky, Maine, or any other State to fare well in our country, they cannot do so if the country as a whole is not faring well.


Madam President, let me take a moment and use as an example one of the reasons I would like the Enumerated Powers Act passed, but also why I am going to discuss the amendment I have at the desk.

Here is what we know right now from the first third of the Federal Government that was studied by the Government Accountability Office. They just looked at the first third of the Federal Government. We asked them in the last debt limit increase to give us the list of duplications of programs that do essentially the same thing across that first third. We will get the next third about 6 months from now, and the final third a year from then.

But what you see and what they came up with is we have more than 100 different Federal programs for surface transportation. That is 100 sets of agencies. That is 100 sets of bureaucracies. That is mindless and thousands upon hundreds of thousands of rules and regulations just on surface transportation. Nobody in Congress knew we had 100 agencies.

Teacher quality. We have 82 separate teacher quality programs across 6 different government agencies. One question is whether that is a responsibility of the Federal Government under the Enumerated Powers Act. But to have 82?

Or how about economic development. Eighty-eight programs, eighty of which are under four different agencies. We just had a bill on the floor, the Economic Development Act, and it is one of 80 programs run by those four agencies. None of them have metrics to see if they are effective. They have anecdotal evidence, but there are no metrics to see if they are. Again, 88 sets of bureaucracies within all these agencies--duplication after duplication after duplication.

Transportation assistance. Eighty different programs.

Financial literacy. A government that is $14 trillion in debt, running a $1.6 trillion deficit, has no business telling anybody about financial literacy. Yet we have 56 programs across multiple agencies teaching the American people about financial literacy. I think the source of that wisdom is somewhat questionable.

We have 47 different job training programs that cost $18 billion a year, run across 9 different agencies. Not one of them has a metric, and all but 3 duplicate what the other 44 are doing. Why would we do that? Why would we have all that?

Homeless prevention and assistance. We have 20 programs out of the Federal Government for homeless prevention and assistance.

Food for the hungry. We have 18 separate programs.

Disaster response and preparedness through FEMA. We have 17 different programs.

So the point is, we got there for two reasons. No. 1, we did not look at the enumerated powers; and, No. 2, too often we are trying to fix a problem with great intent, with the right heart, even when it is constitutional and would meet the demands of article I, section 8, and we have no idea what else is out there, so when we see a problem, rather than go see what we are doing now, we create a new program.

I would ask consideration of my amendment, which is amendment No. 500, which is an amendment to change the Standing Rules of the Senate. What it does is it mandates a rule in the Senate that every report that comes to the Senate on every bill or joint resolution shall contain ``an analysis by the Congressional Research Service to determine if the bill or joint resolution creates any new Federal program, office, or initiative that would duplicate or overlap any existing Federal program, office, or initiative with similar mission, purpose, goals, or activities along with a listing of all of the overlapping or [duplication]. ..... '' and ``an explanation provided by the committee as to why the creation of each new program,

office, or initiative is necessary if a similar program or programs, office or offices, or initiative or initiatives already exist.''

So it is a rule change. The reason I bring it to this bill is because this is a bill for rule changes. It requires 67 votes for this to pass. I understand we have heard some concerns from the Congressional Research Service. But with the work the Government Accountability Office has done, and will do, it will be very easy for them to look at the results of the Government Accountability Office and their list of duplications. It is very straightforward. It is less than 100 pages. They can see, and then they can advise the Congress on what we have.

If we cannot depend on the Congressional Research Service to tell us where we have multiple programs when that is available from the Government Accountability Office, and list what their intentions and what their budgets are, then we need to relook at the congressional office and what it does.

They do great work for me. We ask them for things all the time, and they do great. This is something they can accomplish. It is going to get easier as we go forward. But without this knowledge of what we are already doing, we will never solve our problems.

I know my chairman has some concerns with this initiative in terms of how it might affect this bill, but I plan on going right back to the Congressional Research Service to have a discussion with them after I have been on the floor. But if we cannot do this, we cannot do anything. If we cannot change the rules so we actually know what we are doing, so we can actually know if a new bill duplicates something that is already operating, when we have this tremendous list--and this shown on the chart is just a small set of the list. I picked some of the obvious ones. There are hundreds of thousands of duplicate programs in the Federal Government, wasting billions if not trillions of dollars every year. So if we cannot do something like this, then what can we do to solve our problems?

Knowledge is power. Not knowing what programs are intended to do now before we create another new program to me is the height of insanity. We should be aggressively asking for as much information as we can get, so we know what we are doing when we pass new pieces of legislation.

With that, I yield the floor.


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