Terrorism Risk Insurance Program Authorization Act - Motion to Proceed - Continued

Floor Speech

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Mr. HATCH. Mr. President, the great pamphleteer of the American Revolution, Thomas Paine, famously characterized our Nation at its founding by asserting that in America the law is king. This sentiment has undergirded centuries of our Nation's political culture: The rule of law protects us from arbitrary government actions. It is what guarantees our liberties, it is what fosters our prosperity and our flourishing as a free people, and it is a source of our Republic's legitimacy. For as the Declaration of Independence teaches, governments derive their just powers from the consent of the governed.

For these reasons, when drafting the Constitution, the Framers obligated the President to take care that our laws be faithfully executed, but they were careful not to give the President the authority to make or change the law on his own.

Our Nation's Founders knew, in the sage words of Montesquieu, that ``in all tyrannical governments ..... the right both of making and of enforcing the laws is vested in one and the same man, or ..... body of men; and wherever these two powers are united together, there can be no public liberty.''

To safeguard our liberties as the Constitution requires, the Constitution vests Federal legislative powers in the Congress--the House of Representatives and the Senate--which were designed to engage in a particularly thorough and deliberative legislative process. By ratifying the Constitution, the American people established this system as the supreme law of the land applying to all of us--including the President.

Despite these Constitutional foundations, President Obama has simply decided that he ``won't take no for an answer'' when Congress refuses to go along with his far left agenda. In direct opposition to our centuries-old system of legislation and the binding authority of the Constitution, the President has audaciously declared that ``when Congress won't act, I will.'' And he has followed up these threats with a variety of unilateral executive actions, many of which are flatly inconsistent with the law and the Constitution.

Over the past weeks and months I have come to the Senate floor to speak out about a series of specific instances that exemplified the brazen lawlessness of this administration. This pervasive and illegitimate outreach has come in many different forms. We have seen the President regulate contrary to the plain text of the law, simply ignoring the clear commands of duly enacted Federal statutes. For example, a hallmark of the President's so-called pen-and-phone strategy has been an Executive order forcing contractors to raise their minimum wage. He issued this directive despite the fact that a Federal statute already governs the minimum wage for Federal contractors.

Although a different statute gives the President some discretion in the area of Federal procurement, its plain language demands, as courts of law have upheld, that there be a sufficient nexus between the President's orders and the statute's stated goal of efficiency and economy in Federal procurement. President Obama's order increasing contractors' labor costs by hiking their minimum wage is thus wholly inconsistent with the law.

We have seen the Obama administration seek to rewrite existing law and thereby usurp Congress's legislative authority through the use of conditioned waivers. Consider how the Department of Education has issued waivers of No Child Left Behind's requirements to 43 of the 50 States and the District of Columbia.

Even when Democrats had large majorities in both the House of Representatives and the Senate, President Obama refused to pursue legislative reauthorization of the statute to set realistic goals going forward. Apparently, he wanted to avoid spending his energies and political capital on a legislative process that might expose divisions within his own party or force him to compromise.

The President chose simply to establish an entirely different set of education policies by attaching his own conditions to the waivers that States need to receive Federal money. His administration has not been shy about enforcing conditions that bear little resemblance to provisions of the law itself.

The State of Washington learned this recently when it became the first to lose its waiver and much of its Federal funding primarily because it did not meet the administration's mandate for teacher and principal evaluation--a mandate that has no grounding in the actual statute.

We have seen President Obama and his subordinates stretch what lawful authorities the executive branch does have beyond recognition to advance its preferred policies. Take, for example, the Nation's drug laws, an area in which the Obama administration decided it disagrees with the criminal statutes on the books and wants to implement a different policy. The President has demonstrated an eagerness to do so unilaterally, no matter the governing Federal law, and no matter the broad and bipartisan support for sentencing reform in Congress. The administration's new clemency push for drug offenders seeks to employ the President's specific constitutional power--one limited to relieve individual instances of injustice--to provide relief to large swaths of criminals who fit a few broad criteria. The President has also directed major changes over which Federal drug crimes are charged and at what level to do this. His administration has cited prosecutorial discretion--a limited authority derived from the power to adapt enforcement for an individual's specific circumstances--to implement what are, in fact, broad standards affecting thousands upon thousands of prosecutions.

Given the scope of these actions, compared to the Executive's narrowly tailored authorities, the administration's invocation of prosecutorial discretion and the clemency power have become transparent excuses to justify flouting existing Federal law.

We have seen President Obama claim the power to gut the law by unilaterally creating gaping enforcement carve-outs, thereby effectively rewriting policy set by legislation. Take immigration, an area in which many of us--myself included--support reform but which is currently governed by existing law. For years the Obama administration has advanced a growing number of enforcement carve-outs for increasingly expansive classes of illegal immigrants. First, it exempted those brought here as children, then veterans, then their families. Now the administration is contemplating excluding from the application of duly enacted immigration law anyone who has not committed serious felonies. While nearly everyone agrees that violent criminals should be our highest priority, the administration has gone much further and essentially declared its intention to make current immigration law a dead letter in virtually every other case.

We have seen the Obama administration openly ignore its statutory obligations without meaningful justification. Consider the President's decision to release the top five Taliban leaders in U.S. custody without notifying Congress, as required by Federal law. The administration's excuses for delaying notification could not stand up to scrutiny under the President's own rationales. Indeed, the administration's own statements demonstrate that it deliberately withheld advance notification of the release from Congress for the illegitimate purpose of minimizing congressional opposition.

We have seen some of the Obama administration's worst abuses of executive power in creating and implementing its signature legislative programs. In Dodd-Frank, for

example, the administration created a new agency with unprecedented and unchecked power--no meaningful administrative controls on its power, no congressional control over its budget, and no effective judicial review of its far-reaching decisions.

And of course, any discussion of executive overreach by this administration must include ObamaCare. Back when the administration was writing that 2,000-plus page monstrosity, the bill's proponents argued that its length and complexity were necessary evils--that its many intricate parts were essential to achieving the bill's promised objectives.

The individual mandate, the employer mandate, the minimum coverage requirements, the cuts to Medicare Advantage, and the limits for subsidies to State-run exchanges--we were promised these provisions and others were both critical and carefully timed to expand coverage and rein in costs. Yet, when the time came to implement the law, the administration's tune changed. To justify violating a number of clear statutory mandates, the administration has mustered a weak and unconvincing hodgepodge of legal acrobatics--all for the purpose of allowing the administration to avoid enforcing the central provisions of its own signature law.

Consider some of these particularly egregious justifications: claiming that limited transition authority exercised by one agency justified another agency exerting that power even more broadly; or asserting that subjective impressions of excessive cost could justify a hardship exemption, when the statute specifically defines excessive costs in objective terms; or defining explicit, carefully timed deadlines written into the law by Congress, the timing of which is supposed to anchor the whole statutory scheme; or abusing a small pilot program to mitigate the law's vast cuts to Medicare Advantage; or simply ignoring a critical provision limiting how billions of dollars in tax subsidies are to be spent.

These are only a few examples of this administration's lawlessness in implementing ObamaCare. I could continue on about the significant legal concerns surrounding this administration's abusive handling of high-risk pools, its dubious actions involving the small business exchange, its sweetheart deals granting unauthorized exemptions for labor unions, and many other similarly problematic actions.

But the point is clear: Time and again, the Obama administration has flouted its constitutional responsibilities, exceeded its legitimate authority, ignored duly enacted law, and sought to escape any accountability for its unilateralism.

Today I have simply scratched the surface of the Obama administration's legally dubious actions. I could also discuss the way the administration is manipulating the Endangered Species Act to assert control over private property, or the EPA's many abuses: its existing source rule, its cross-State air pollution rule, its waters of the United States rule, and its CAFE standards. Or I could catalog the illegal actions of the President's appointees to the National Labor Relations Board, the Nuclear Regulatory Commission or the Federal Communications Commission.

In each of these areas, the Obama administration's executive overreach simply cannot stand--and it won't. The President is rightly facing increased scrutiny and criticism in a range of areas for his illegitimate approach. Over the past two weeks, the Supreme Court strongly rebuked the President's lawlessness in three key cases.

The Utility Air Regulatory Group v. EPA case involves one of the most controversial issues debated today: regulating carbon dioxide emissions in an effort to stop global warming. Americans and their elected representatives have been seriously debating whether and how to pursue that, just as we should when weighty matters of national policy are considered. Congress has considered various pieces of legislation over the years to grant Federal authority to regulate carbon dioxide emissions, most notably President Obama's 2009 cap-and-trade bill. Each time we have considered such legislation, the majority of us have made the careful choice that the purported benefits are not worth the undeniably massive costs: hundreds of thousands of jobs destroyed and gas and electricity prices sent soaring.

President Obama, though, told us again that he ``won't take no for an answer''--or, in other words, that he refuses to accept that the Constitution delegates to the people's representatives in Congress--and not to him alone--the power to make or change the law. Defying Congress and the law, he claimed authority under the Clean Air Act to regulate carbon emissions from powerplants. But the Clean Air Act plainly does not provide him that authority.

In attempting to provide a shred of legal justification for its actions, the Obama administration took a detailed provision of the law, complete with precise numerical thresholds, and unilaterally rewrote it through regulation to claim power Congress never, in fact, gave.

The Supreme Court rightly struck down the administration's abuse of authority in this instance, as it has done in past cases. But, unfortunately, such regulatory overreach has become so common in the Obama administration that Federal bureaucrats have become experts in manufacturing supposed legal authority out of thin air. And the courts are simply unable to keep up with the explosion of executive overreach by President Obama's administration.

Perhaps the most extreme example of such executive abuse was at issue in the Burwell v. Hobby Lobby case. Under the auspices of ObamaCare, the Department of Health and Human Services issued a regulation requiring employers to pay for a full complement of birth control methods for every employee. The Obama administration applied this mandate to almost all employers--even those who run small, closely-held businesses and whose deeply-held religious beliefs conflict with the mandate.

Some media outlets have focused on the conflict between this latest ObamaCare abuse and the principles enshrined in the First Amendment's protection of the free exercise of religion. Others have focused on the Obama administration's argument that corporations are not people--as if the particular form of how individuals organize themselves to do business somehow allows the Federal Government to trample their religious liberties.

But in all of the sound and the fury, a central point has been lost: The Hobby Lobby case was actually about a direct threat to the separation of powers. It pitted the Obama administration's unilateral mandate against a law passed by Congress.

In issuing this regulation, the Obama administration completely disregarded a duly enacted Federal statute, the Religious Freedom Restoration Act, which specifically bars such government infringement on Americans' right to exercise their religious beliefs. The ObamaCare contraception mandate flies in the face of the law's requirement that the government not substantially burden the exercise of religion unless it is the least restrictive means of furthering a compelling government purpose. I know. I was the prime sponsor of that bill in the Senate, and I got my friend Senator Kennedy to go along with me. The President said it was one of the most important bills in history, that religious freedom may be the most important of all of our freedoms.

As a lead author of the Religious Freedom Restoration Act, it has been particularly frustrating to see the Justices of the Supreme Court wrongly criticized for supposedly limiting access to birth control. In reality, all the Court did was hold the Obama administration accountable to the law--specifically, a law that passed Congress with near unanimity and was signed by President Clinton, who lauded the law. I was there. I was on the south lawn when he signed that. So were many others.

In the NLRB v. Noel Canning case, by contrast, the administration violated one of the Constitution's central checks on Presidential power, the requirement that nominations of principal officers receive the advice and consent of the Senate except during the recess of the Senate.

Concern about Executive appointment abuse was on the minds of our Fathers when they devised the Senate's role in the process. Their fears were strikingly similar to what President Obama has sought to make reality: a radical set of National Labor Relations Board appointees who promised to tip the balance of the Board toward an extreme and divisive agenda and a Consumer Financial Protection Bureau Director nominee endowed with unprecedented power--no checks on his removal, no congressional control over his budget, and no effective judicial review of his actions.

But President Obama again proclaimed he would not take no for an answer and claimed the power to use the recess appointment power to install these four nominees, even though the Senate had completely different rules. But even the Department of Justice admitted that a 3-day adjournment was too short to give the President lawful authority to bypass the Senate.

Instead, the President audaciously claimed the power to decide that, in his opinion, our so-called pro forma sessions during this period did not count as sessions of the Senate, even though they had always counted, and the Senate should decide its own rules, and that has always been the rule around here.

Not only, as Hamilton explained in Federalist 69, did the Framers specifically deny our President the King's power to deem the legislature out of session, but during these sessions the Senate was fully capable of engaging in its business. In fact, during similar sessions the previous fall, the Senate had twice passed legislation that President Obama himself signed.

So extreme were the administration's arguments that the Supreme Court unanimously held President Obama's actions unconstitutional. In doing so, the Court confirmed that the Constitution does not create in the President an endlessly flexible power to bypass Congress when he happens to disagree with us--as if our advice-and-consent role were merely an inconvenience to be avoided, rather than the organizing principle of how the constitutional process is designed to work.

Taken together, these three cases represent a resounding victory for the rule of law and the Constitution over the President's unilateralism, and they are far from unique examples. The Court has ruled unanimously, by a vote of 9 to 0, against the Obama administration 20 times--20 times, 9 to zip. These include many significant cases, such as the Hosanna-Tabor case, in which the Obama administration tried to control a religious organization's hiring of its ministers; the Sackett case, in which the Obama administration tried to take away the lawful right to challenge unlawful EPA fines of up to $75,000 a day on a poor couple who were just trying to improve their property; and the Arizona case, in which the Obama administration tried to displace State law with mere Federal enforcement priorities.

But instead of taking these rebukes to heart, the President has doubled down on his go-it-alone attitude. He has vowed more Executive orders of questionable legality, he has reaffirmed his commitment to an extreme anti-energy agenda and a willingness to abuse his legal authorities to unleash an onslaught of new regulations, and he has used the mistrust he created by refusing to enforce existing immigration law to justify further nonenforcement.

President Obama's shameful defiance in the face of the Supreme Court's rulings means our fight against his lawless overreach has only just begun. While we should applaud the Court's recent decisions, we should also realize the limits of courtroom litigation to check executive branch abuse. Indeed, the Obama administration has gone to great lengths to shield its lawlessness from judicial review by surreptitiously crafting many of such actions to prevent any plaintiff from having legal standing to launch a challenge in court, by aggressively challenging the legitimacy of suits that have been filed, by significantly curtailing the availability of judicial review, and by brazenly packing the DC Circuit--the Nation's most important court for most regulatory cases--with compliant judges.

The Speaker of the House has announced plans to vote on a measure to authorize a lawsuit against President Obama for his unfaithful execution of the law. While I support the legislative branch using every tool at our disposal to hold this President accountable to his constitutional obligations, we should also be mindful of our decades-long fight to limit the judicial power to its proper role under the Constitution. We should not seek to replace one constitutional travesty--the lawlessness of this President--with another by breaking down the structural limits on the

judicial power. On the other hand, the House may very well succeed because of the actions of this President because something has to be done to curtail these inappropriate, unilateral, illegal actions.

In the end, we cannot rely on the courts alone. With such a powerful and aggressive President, all of us must stand and fight back against this executive lawlessness. I urge all my colleagues--both Democratic and Republican--to use the rightful and legitimate constitutional authorities the Framers gave us to stand and resist the President's recklessness.

But whether blinded by partisan loyalty to the President or too inexperienced to understand this body from any other perspective than having a like-minded Senate majority and President, my colleagues on the other side of the aisle have allowed--even facilitated--this administration's attempts to break down the constitutional checks on Executive power.

I urge them to change course. That is the tradition of some of the greatest Senators on both sides of the aisle--of Mike Mansfield, Howard Baker, and Robert Byrd. That is the purpose of the Constitution's division of powers, for as Madison counseled in Federalist 51, Ð``..... the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others.''

If this body is to maintain a meaningful role in preserving liberty and prosperity, we must dutifully fulfill our constitutional obligation of checking the President's unlawful attempts to assert illegitimate power.

I began my service here in 1977. Bob Byrd was the newly elected majority leader. R.C. Byrd was one of the alltime procedural experts in this body. He was a very strong personality. He would not be putting up with what this President is doing. He would not be putting up with the usurpation of the Senate's power or of the legislature's power, the Congress's power.

I call on my Democratic friends on the other side to start standing up. If they do not start standing up, I think the people are going to hold them accountable because these are separated powers and the legislative body is supposed to handle these matters and not some President unilaterally changing the law at his whimsy.

With that, I suggest the absence of a quorum.

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