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Providing for Consideration of House Joint Resolution 118, Disapproving Rule Relating to Waiver and Expenditure Authority with Respect to the Temporary Assistance for Needy Families Program; Providing for Consideration of H.R. 3409, Stop the War on Coal Act of 2012; and Providing for Proceedings During the Period from September 22, 2012, Through November 12, 2012

Floor Speech

Location: Washington, DC


Mr. BISHOP of Utah. Mr. Speaker, the question before the House is: Should the House consider H. Res. 788? While the resolution waives all points of order against the consideration of H.J. Res. 118 and H.R. 3409, the committee is not aware of any points of order, and the waiver is basically prophylactic in nature.

We heard a lot of emotional and interesting points as to the basis of the bill that could be debated if, indeed, this rule were to be passed. I don't think it is actually the time right now in a point of order to go over the benefits of the bill or the detriments of whatever may happen if the bill, itself, is actually debated. There is time for that.

We do know that the number of individuals receiving welfare has dropped by 57 percent, that poverty amongst all single mothers has fallen by 30 percent, that the poverty amongst black children has dropped to its lowest level since 2001, and that employment and earnings amongst single mothers have increased significantly.

But that's all debate to the bill, which still has to go through the rule debate, and we're not talking about that. This is a procedural issue.

We could talk about the fact that in '93 the Ways and Means Committee did say that waivers granted after the date of enactment may not override provisions in the TANF law that concern further mandatory work retirements. But, once again, that would be the kinds of things that we should be talking about in the debate of the bill, which will come after the debate on the rule, which will come after our discussion of this procedural point of order.

So, actually, the merits of what the bill is is not the same thing as the purpose of the procedural point of order. The procedural point of order still has to be based on the idea of unfunded mandates within the rule.

The Congressional Budget Office believes that H.R. 3409 would impose an intergovernmental mandate as defined in the Unfunded Mandates Reform Act. However, based on the information for EPA and a small number of public entities would be required to comply with the bill's requirement, the CBO estimates that the cost of those entities to comply would fall below the Unfunded Mandates Reform Act's annual threshold for intergovernmental mandates. It's a threshold that is set and adjusted for inflation.

So the Congressional Budget Office states that H.J. Res. 118 also contains no intergovernmental or private sector mandates as defined by the Mandates Reform Act. That is the basis of the point of order. The bottom line is there is no violation of both an unfunded mandate within the rule or in the bills themselves.

The rest of the discussion is actually to the merits of the legislation and is appropriate at the time as we are debating that legislation.

So, Mr. Speaker, although I really have this great desire to use the full 10 minutes of discussion here, the bottom line still----


Mr. BISHOP of Utah. I appreciate the interruption, but let me finish here. And probably not. Let's get on with the issue at hand here.

The point of order basically, Mr. Speaker, is still specious. It is in order to allow the House to continue its scheduled business for the day because the issue of the point of order is the unfunded mandate, not the other merits towards the legislation.

So I do urge Members to vote ``yes'' on the question of consideration. We will have an additional hour to discuss anything you wish to on the rule debate, as well as a whole lot of time on the merits of the bill when we debate the bill itself.

With that, I yield back the balance of my time.


Mr. BISHOP of Utah. This resolution provides for a closed rule for the consideration of H.J. Res. 118, the congressional disapproval waiver of work requirements, and provides 1 hour of general debate, with 30 minutes equally divided and controlled by the chair and the ranking minority member of the Committee on Ways and Means and 30 minutes equally divided and controlled by the chair and the ranking minority member of the Committee on Education and the Workforce.

This rule also provides for a structured debate for consideration of H.R. 3409, the Coal Miner Employment and Domestic Energy Infrastructure Protection Act, and provides for 1 hour of general debate, with 20 minutes equally divided and controlled by the chair and the ranking minority member of the Committee on Natural Resources, 20 minutes equally divided and controlled by the chair and the ranking minority member of the Committee on Energy and Commerce, and 20 minutes equally divided and controlled by the chair and the ranking minority member of the Committee on Transportation and Infrastructure.

Finally, this rule makes in order a number of important amendments on both sides of the aisle. If staff doesn't change my mind, I believe there are 13--7 Republican and 6 Democrat--amendments which is as close as you can get with an uneven number to a fair rule. So it is a fair rule.

Mr. Speaker, now speaking towards the merits of this particular resolution, I would like to make special mention of Congressman Johnson, who is the base sponsor of H.R. 3409, the Coal Miner Employment and Domestic Energy Infrastructure Protection Act. He definitely has been one of the leaders in this entire area of the issue of coal as it is used in energy. Not only is it important to his constituents, but this is an important issue for the entire country. And I want to recognize Mr. Johnson as having been tireless in committee, asking questions that go to the core of this particular issue, providing amendments, and then finally culminating with his bill which deals with how we actually can use coal to further our energy needs in this particular country. Representative Johnson is a freshman who has learned fast and is a true champion for inexpensive energy that will expand our economy and create jobs for American citizens.

With that, Mr. Speaker, I reserve the balance of my time.


Mr. BISHOP of Utah. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I hope you will forgive me if I try to limit myself to what is actually in the resolutions and the bills that we are presenting today as far as the Rules Committee is concerned.

There is, though, a common thread that runs through the two resolutions that happen to be here and deals with the definition of what is administrative and what is legislative. Even if the current administration seems to have a problem in making that definition of what is administrative, we in Congress need to clearly understand what is our legislative responsibility.

Our good friend, Louie Gohmert of Texas, always says that he who learns the lessons of history will find some other way to screw it up. That's probably true. I don't want to sound like an old history teacher, but I am. I do want to say that there are some things that we in Congress should be doing to learn from our past history.

John Page, in 1771, a Congressman from Virginia, was on the House floor when it was determined while the House was debating whether they stuck around to actually determine where postal routes should be. People wanted to go, and, more importantly, the people trusted the President. The question was, Why don't we just let the President do it all?

It was John Page who stood up and said, and I move to adjourn and leave all objects of legislation to his, the President's, sole consideration and direction. He shamed Congress into doing their job of writing the legislation and not allowing the executive branch, the administration, simply to do everything by fiat. We sometimes have forgotten that.

In the TARP language, we put in language like, the Secretary of the Treasury will be able to purchase troubled assets on such terms and conditions as are determined by the Secretary; or authorize any purchase on which the Secretary determines, promotes financial market stability; or the Secretary is authorized to take such action as the Secretary deems necessary to carry out all authorities in this particular act.

That is legislative authority that we passed on to the executive branch. That was a tragic mistake. We should not incorporate that tragic mistake, wider now, by simply allowing the executive branch to take on responsibilities and authorities of their own free will and volition.

We have this same situation once again in the history of this country. We had a President of the United States who wrote a book about Congress without ever visiting Congress itself, who said what the Founding Fathers realized, in which their effort to have vertical separation of power between State and national government--what we call federalism--and horizontal separation of powers between the three branches, which we call the separation of powers--and every public school student is taught that--they were put in there so that individual liberty, which I always consider to be individual choices and options in running their lives, would be protected against the concentration of power in one branch or another.

Now, this former President of the United States called this separation of powers political witchcraft. He said it was wrong to try and separate powers perplexingly subdivided and distributed to be hunted down in out-of-the-way corners. An earlier President than him thought, you know, the President of the United States is elected by everybody, Congress by a few people, the courts by none. Therefore, ignore the courts, which has some appeal, but at the same time the President should speak for the government.

This other President, coming back later, built upon that so he increased the role and power of the executive branch under the concept the President is the President of the whole people and, therefore, he has the ability to transcend separation of powers.

His effort to improve democracy was to eliminate democracy and instead ensure that the decisions were not made by the people or the voice or representatives of the people, but by experts, experts who were serving in the administrative branches. We, if you like that concept, call it the administrative state. If you don't, we call it ``nanny government.'' Nonetheless, that was the concept.

One of the other Presidents that came shortly before him said there will be little permanent good that can be done by any party if we fail to regard the States as anything other than a convenient unit for local government. He said there is no harm by concentrating power in the hands of one individual. He also said that he would not be content with keeping his talents undamaged in a napkin. That's perhaps why the Speaker of the House at the time said he had no more use for the Constitution than a tomcat has for a marriage license.

The bottom line of what happened in the history is that all of a sudden we found that the Founding Fathers who believed in people and believed in the legislative branch, listening to John Locke, who said you cannot transfer the power of the legislature to another branch, those type of people decided at that time that the people should not be running their own affairs, that government experts should be making that policy.

To be honest, when we're talking about the first resolution that deals with TANF, the welfare issue, I don't care if the waiver is the greatest thing since sliced bread, it is still extra-constitutional and it should not be used and Congress should not allow it to take away what is the role of Congress, and only Congress, to establish these issues and set these boundaries.

In the other bill that we're talking about, we're talking about prohibiting future actions by entities, in this case, specifically the EPA, which would destroy jobs, increase the cost of our utilities that would cause greater costs of lighting homes and heating homes, especially for those who have the least ability to do so.

Congressmen and Congresswomen must stand up and insist that Congress create these standards and create these options, not being made by executive
fiat. That is the very purpose of why we are here.

The first President, to whom I referred, ended up with a legacy of many programs implemented which we still today find controversial. He was labeled by historians as an arrogant President at that time who refused to talk to Congress. Because of that, he lost some of his last, most precious programs in an effort to try and go around Congress rather than working with Congress.

Now, Mr. Speaker, that's why this resolution is before us and why these two separate bills are here. Both of them attempt to set the record straight and show that it is Congress' responsibility to set the rules and the guidelines. It is not an administrative prerogative. And we as Congress need to step forward and say we are the ones who do this. We should not allow it to be done by anyone else, regardless of why it's being done or the merits of why it's being done. It's our job.

We should learn from history. We should be more like John Page and try and make sure the Congress does these types of issues and makes these types of decisions and less like Presidents later on who thought the President speaks for everybody and the President has every right to transcend separation of powers and do it for himself. That's the basis of these two bills. That's the important issue. We should learn the lesson of history.

With that, I reserve the balance of my time.


Mr. BISHOP of Utah. Mr. Speaker, I have some empathy for the gentleman from Iowa, but I will have to say that one of the reasons that those amendments were not made in order was, quite frankly, because both of them were nongermane to the base bill, and that becomes a concept.

One of the reasons that Ms. Slaughter speaks on wishing to stay here until we pass middle class tax cuts--and I think I can approve of that because, actually, when we considered H.R. 8, the Rules Committee took an extraordinary step of waiving the rules of the House--including CutGo and other budget-related points of order--so an amendment could be given by Mr. Levin, and he could have an opportunity to present that amendment. That amendment was debated, and it was rejected on a bipartisan vote of the House in August.

Unlike the amendment, then H.R. 8 passed the House with a bipartisan vote, which means the House has voted for a middle class tax cut. We have done our duty. It is one of the myriad of bills that is sitting over on the Senate side waiting for them to do something so that we can proceed to a conference committee.

So I actually approve of what the gentlelady from New York is saying because basically we've done it, and we did it on August 1.

With that, I reserve the balance of my time.


Mr. BISHOP of Utah. Mr. Speaker, I yield myself such time as I may consume.

In our discussion of this particular rule today, we have, as oftentimes is the case, wandered far and wide.

I would point out to one of the speakers who was just up there saying that we should stay here doing the sequestration act, dealing with the sequestration issue, the House did. On May 10, we passed the Sequestration Replacement Act. Once again, it's sitting over in the Senate. To wait here until we do the middle class tax cuts, we did that in August. It's waiting over on the Senate to do something.

We have issues that are significant in the two that are before us. If we're talking about welfare in some particular way, whether the rule that was made coming out of the executive branch was appropriate or not, we could go back and say why it was done. It is true the President, in 1997 and once again in 1998, said he would not have supported the legislation that created the system that we have. It's also true that in The Washington Post editorial, they made comments that said the Obama administration is waiving the Federal requirement that ensures a portion of able-bodied TANF recipients must engage in work activities. If this is not getting welfare reform, it's difficult to imagine what would be.

But even if the substance of that was inaccurate, the fact that it was done by regulation, by rulemaking coming from the administrative branch, puts us in suspect category. Rules should not be establishing what is our priority; it should be laws made on this body. If you want to change it, if you want to do waivers, it should be coming from this particular body.

The other half of it deals with coal. This is a Nation with the largest coal reserves in the world. We have 500 years of potential electricity at cheap rates coming from coal. A coal plant today is as much as 99 percent cleaner than one built 40 years ago, and yet rules and regulations that have been promulgated or are being threatened to promulgate are one of those that impede the ability of building new plants.

There is no valid reason why the American coal industry should be suffering at the hands of overzealous Washington regulators or why workers are being laid off in the Midwest, in Virginia, Pennsylvania, Ohio, West Virginia, and other places; although, today, it was again announced that there will be 1,200 coal mining jobs that will be eliminated across central Appalachia by a company, one company.

And once again, there is the kind of unfair regulations that are taking place. It is true that H.R. 3409 is cobbled together with other bills that have passed this body, but I would remind you that each of those four that have already passed this body were passed on a bipartisan vote, with anywhere between 16 and 37 Democrats, depending on the bill, joining with Republicans to pass those. And, when put together in a package with H.R. 3409, presents a good package to make sure that we are in favor of cheap energy, energy that will drive and build our economy and provide jobs for those who need those particular jobs.

I went historically in a while earlier because I wanted to say that we have faced these types of situations in the past, where the question was: Should the President make the rules or regulations or should Congress actually pass legislation?

The President to whom I referred ended his tenure in a somewhat bitter way, refusing to work with Congress, instead, trying to go around Congress, which produced, at that time, a historic deadlock between the Presidency and the Congress.

This is a Nation of laws. Laws are made here. It's not a Nation of rules. And if the rules and regulations are going to have the effect on the future and are going to have an effect on the American people, they should not be done by executive fiat. Whether you like them or not, they should not be done in that manner. It should be done here legislatively.

That's the purpose of both of these issues that are tied together in this rule; that's the thread that comes together--whether or not we actually believe Congress should be doing the job of creating the standards and the rules, or we're willing to simply abrogate our responsibility, our power, our options to some other body.

And I would hope that as Congress we would be very careful and considerate about what our responsibility is, and we would take very seriously any encroachment on the role of law that is given to us by the Constitution. It was the vision of the Founding Fathers that this should be the body that makes those decisions, not the executive branch.

This is a good bill, these are good bills, and this is a fair rule.

We haven't even talked about the amendments that were made in order, but they do cover, in fact, we did have one statement about the amendment that was not made in order, and I half wish--the Member is no longer here, but his issue of concern is covered in another amendment that is made in order and will be discussed on this floor.

So it is a fair rule. It will have a vigorous debate. And there are two good bills that would be brought before this body that I hope sincerely pass. I do urge their adoption, and I sincerely urge the adoption of this rule that will move us forward.

The material previously referred to by Ms. Slaughter is as follows:

An Amendment to H. Res. 788 Offered by Ms. Slaughter of New York

At the end of the resolution, add the following new sections:

SEC. 8. Immediately upon adoption of this resolution, the House shall proceed to the consideration in the House of the resolution (H. Res. 746) prohibiting the consideration of a concurrent resolution providing for adjournment or adjournment sine die unless a law is enacted to provide for the extension of certain expired or expiring tax provisions that apply to middle-income taxpayers if called up by Representative Slaughter of New York or her designee. All points of order against the resolution and against its consideration are waived.

SEC. 9. Immediately after House Resolution 746 is no longer pending, Speaker shall, pursuant to clause 2(b) of rule XVIII, declare the House resolved into the Committee of the Whole House on the state of the Union for consideration of the bill (H.R. 15) to amend the Internal Revenue Code of 1986 to provide tax relief to middle-class families. All points of order against consideration of the bill are waived. General debate shall be confined to the bill and shall not exceed one hour equally divided and controlled by the chair and ranking minority member of the Committee on Ways and Means. After general debate the bill shall be considered for amendment under the five-minute rule. All points of order against provisions in the bill are waived. At the conclusion of consideration of the bill for amendment the Committee shall rise and report the bill to the House with such amendments as may have been adopted. The previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions. If the Committee of the Whole rises and reports that it has come to no resolution on the bill, then on the next legislative day the House shall, immediately after the third daily order of business under clause 1 of rule XIV, resolve into the Committee of the Whole for further consideration of the bill.
SEC. 10. Clause 1(c) of rule XIX shall not apply to the consideration of the bill specified in section 9 of this resolution.

Sec. 11. Notwithstanding any other provision of this resolution, the amendment printed in section 12 shall be in order as though printed as the last amendment in the report of the Committee on Rules accompanying this resolution if offered by Representative Boswell of Iowa or a designee. That amendment shall be debatable for one hour equally divided and controlled by the proponent and an opponent.

SEC. 12 The Amendment referred to in section 11 is as follows:

At the end of the Rules Committee Print, add the following new title:


(a) WIND.--Paragraph (1) of section 45(d) of the Internal Revenue Code of 1986 is amended by striking ``January 1, 2013'' and inserting ``January 1, 2017''. (b) BIOMASS, GEOTHERMAL, SMALL IRRIGATION, LANDFILL GAS, TRASH, AND HYDROPOWER.--Each of the following provisions of section 45(d) of such Code is amended by striking ``January 1, 2014'' and inserting ``January 1, 2017'':

(1) Clauses (i) and (ii) of paragraph (2)(A).

(2) Clauses (i) (I) and (ii) of paragraph (3)(A).

(3) Paragraph (4).

(4) Paragraph (6).

(5) Paragraph (7).

(6) Subparagraphs (A) and (B) of paragraph (9).

(7) Subparagraph (B) of paragraph (11).

(The information contained herein was provided by the Republican Minority on multiple occasions throughout the 110th and 111th Congresses.)

The Vote on the Previous Question: What It Really Means

This vote, the vote on whether to order the previous question on a special rule, is not merely a procedural vote. A vote against ordering the previous question is a vote against the Republican majority agenda and a vote to allow the opposition, at least for the moment, to offer an alternative plan. It is a vote about what the House should be debating.

Mr. Clarence Cannon's Precedents of the House of Representatives (VI, 308-311), describes the vote on the previous question on the rule as ``a motion to direct or control the consideration of the subject before the House being made by the Member in charge.'' To defeat the previous question is to give the opposition a chance to decide the subject before the House. Cannon cites the Speaker's ruling of January 13, 1920, to the effect that ``the refusal of the House to sustain the demand for the previous question passes the control of the resolution to the opposition'' in order to offer an amendment. On March 15, 1909, a member of the majority party offered a rule resolution. The House defeated the previous question and a member of the opposition rose to a parliamentary inquiry, asking who was entitled to recognition. Speaker Joseph G. Cannon (R-Illinois) said: ``The previous question having been refused, the gentleman from New York, Mr. Fitzgerald, who had asked the gentleman to yield to him for an amendment, is entitled to the first recognition.''

Because the vote today may look bad for the Republican majority they will say ``the vote on the previous question is simply a vote on whether to proceed to an immediate vote on adopting the resolution ..... [and] has no substantive legislative or policy implications whatsoever.'' But that is not what they have always said. Listen to the Republican Leadership Manual on the Legislative Process in the United States House of Representatives, (6th edition, page 135). Here's how the Republicans describe the previous question vote in their own manual: ``Although it is generally not possible to amend the rule because the majority Member controlling the time will not yield for the purpose of offering an amendment, the same result may be achieved by voting down the previous question on the rule. ..... When the motion for the previous question is defeated, control of the time passes to the Member who led the opposition to ordering the previous question. That Member, because he then controls the time, may offer an amendment to the rule, or yield for the purpose of amendment.''

In Deschler's Procedure in the U.S. House of Representatives, the subchapter titled ``Amending Special Rules'' states: ``a refusal to order the previous question on such a rule [a special rule reported from the Committee on Rules] opens the resolution to amendment and further debate.'' (Chapter 21, section 21.2) Section 21.3 continues: ``Upon rejection of the motion for the previous question on a resolution reported from the Committee on Rules, control shifts to the Member leading the opposition to the previous question, who may offer a proper amendment or motion and who controls the time for debate thereon.''

Clearly, the vote on the previous question on a rule does have substantive policy implications. It is one of the only available tools for those who oppose the Republican majority's agenda and allows those with alternative views the opportunity to offer an alternative plan.


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