Keystone XL Pipeline Act -- Continued

Floor Speech

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Mr. GRASSLEY. Mr. President, we Americans are so fortunate to enjoy
the blessings of liberty. We protect our rights as individuals, and we
have a legal system that demands that government officials respect
those rights and respect the law.

Historically some nations have lost their freedoms in revolutions. In
others a leader gradually undermined the rule of law. Once the rule of
law is dismantled, the road to dictatorship is easily traveled.

In a country under the rule of law, government officials are bound by
that law.

When the Framers wrote our Constitution, they feared that the Federal
Government might grow too strong. They divided and limited the powers
among three branches. They made sure to preserve State power to serve
as a check on the Federal power, and they also provided that where the
Federal Government had the authority to make uniform laws, contrary
State laws gave way.

To make sure everyone would be subject to the law, they entrusted the
President with the duty to ``take Care that the Laws be faithfully
executed.''

President Obama has repeatedly failed to take care that the laws be
faithfully executed. He has repeatedly violated the Constitution. His
administration has not conformed its conduct to law.

His administration therefore has undermined the rule of law. Often
patterns repeat. The President proposes legislation that the American
people do not want, so the Congress naturally refuses to enact it.

The President then decides that he will take Executive action as if
Congress had enacted that law. Another pattern is he claims the
authority to take various actions but fails to produce an opinion from
the Department of Justice that coherently supports his authority. That
creates a terrible lack of accountability.

We have also seen the President pick and choose which laws he will
enforce, claiming that the ability to make individual enforcement
decisions extends to failing to enforce the laws in millions of
instances, and the President has simply failed to take notice when the
Supreme Court has ruled he has exceeded his powers.

I know my colleagues think these are serious charges, and they are.

I wish to outline a number of instances where the President or his
administration, acting at his discretion, has failed to follow the
Constitution or the laws. Regrettably I will only be able to touch on
some of the examples.

The President has attempted to unconstitutionally limit the powers of
States through ObamaCare. He threatened the States that did not expand
Medicaid would lose their existing Medicaid funds. The Supreme Court
ruled 7 to 2 for the first time that a condition on Federal spending
was so coercive to the States as to be unconstitutional.

Another President might have been careful after such a rebuke by the
highest Court in the land to be mindful of State power--after all, it
included one of the Justices that the President himself appointed to
the Supreme Court--but not this President taking notice of what the
Court said.

President Obama's EPA then turned around and has not followed the
rule of law. It wrongly recognizes no limit to Federal power or to its
own power.

Despite the fact that Congress rejected his cap-and-trade proposal,
his EPA issued greenhouse gas regulations that would require States to develop plans that meet EPA-established emission standards. Once EPA approved them, EPA would then order the States to enforce the standards.

Supporters of EPA argued that the threat from pollutants under the
Clean Air Act, a category in which they erroneously include carbon
dioxide, justified EPA's action, but the ``end justifies the means'' is
an argument that is totally at odds with the concept of rule of law.

EPA's approach is unconstitutional. Just as a State cannot be coerced
by Federal spending programs, it cannot be commandeered to enact
Federal dictates. This is a well-established rule of the 10th
Amendment, otherwise the States would lose their sovereignty.

Responsibility and therefore accountability would be blurred as
voters could not tell which level of government to blame for unpopular
policies. Among those who recognize that EPA has acted
unconstitutionally is the President's own liberal constitutional law
professor, Laurence Tribe of Harvard.

He wrote that it was his own view that the EPA is ``asserting
executive power far beyond its lawful authority.''

He also wrote: ``Frustration with congressional inaction cannot
justify throwing the Constitution overboard.''

President Obama also acted unconstitutionally when he made what he
said were valid recess appointments, even though the Senate was not in
recess. Although Presidents had been making recess appointments for
more than 200 years, the President's use of the power was once again
unprecedented.

He was armed with a Justice Department opinion that laughably argued
that the President could ignore when the Senate said it was in session
to make such appointments.

The Supreme Court rejected the President's so-called recess
appointments unanimously. That meant of course that both of the
Justices President Obama appointed rejected his claim that he could
determine when the Senate was in recess, even though the Constitution
makes it very clear, and it also rejected the Justice Department's
arguments that supposedly allowed the President to make that recess
appointment in violation of the Constitution.

But the President, similar to the old French Kings, learns nothing
and forgets nothing when it comes to respecting the limits of
Presidential power.

Despite the lodging of the power in the Constitution to Congress
alone to enact uniform laws of naturalization, the President decided to
enable millions of people who entered the country without documents to
remain without congressional approval.

In fact, at a recent Judiciary Committee hearing we heard testimony
that the administration's misuse of parole authority under this
directive would allow many individuals who are here illegally to obtain
green cards without Congress changing a word of the immigration laws.

This follows the President's earlier decision when Congress would not
pass the DREAM Act to give benefits to undocumented aliens, as if that
bill had been enacted into law.

In both of these instances, the supposed justification for
noncompliance with the law is that the need is so great. This is a
siren song that supporters of the rule of law must reject.

Texas and a number of other States have already filed suit
challenging the immigration order's constitutionality, as well as its
violation of the Administrative Procedure Act.

In an unrelated case, Federal district court has already found parts
of the order to be unlawful. The President also has claimed enforcement
discretion in failing to enforce other Federal criminal laws.

The Controlled Substances Act prohibits marijuana possession
nationwide. Under the supremacy clause of the Constitution, State laws
to the contrary are unconstitutional.

Normally the Federal Government sues States that enact such laws. But
when Colorado and other States legalized marijuana, the Obama
administration directed Federal law enforcement to refrain from using
its resources to enforce Federal law in those States. It did not make
individualized prosecutorial decisions but a very blanket refusal to
enforce Federal law, contrary to the oath.

Nebraska and Oklahoma, rather than the Federal Government, have sued
Colorado, as those neighboring States argue they face a significant
increase in marijuana and other drug-related harms as a result of the
Colorado law.

To make matters worse, Attorney General Holder is expanding his
refusal to apply Federal marijuana laws to Indian reservations. Those
reservations depend upon Federal law enforcement.

He plans to allow tribes to petition unelected local prosecutors to
decide whether the same nonenforcement of marijuana laws' policy will
apply to those reservations. Apart from the rule of law question, it
must be kept in mind that these reservations are in States that still
want to see marijuana illegal. As a matter of policy, rates of illegal
drug use are higher on Indian reservations, with all of the associated
health and crime consequences.

Again, this goes to the heart of the rule of law.

Does anyone believe if a State decided dealers could sell guns
without conducting the federally required background checks, that the
Obama administration would ignore those States? Anyone who approves
what President Obama has done under the guise of enforcement discretion
will have no cause to complain about a future President's decision to
allocate scarce resources.

For instance, he could decide that the ObamaCare individual mandate,
which is constitutional according to the Supreme Court--only because it
is a tax--will not be enforced against anyone who does not buy
government-approved health insurance.

President Obama has also violated the law when he released five
Taliban fighters who were detained at Guantanamo in exchange for an
American sergeant. As the nonpartisan Government Accountability Office
concluded, the failure to notify Congress 30 days before such transfer,
and to provide a justification, was a violation of law.

I have asked the Justice Department for the justification they
prepared for this move by the President. To this day, the President
refuses to produce the Justice Department's opinion that purports to
legally justify this action, contrary to the law passed by Congress.

The American people can draw their own conclusions as to whether that
means a well-reasoned legal argument exists that the President could
legally act as he did.

The rule of law ensures that government officials and agencies obey
the law. Under the Constitution, Federal agencies can only exercise the
power that Congress gives them. They cannot do whatever they want. Now
that is obvious to any high school government class. But in the Obama
administration, where too many agencies do not believe in limited
government, agencies are lawlessly exceeding their powers. This
lawlessness is a major reason why polls show that Americans believe the
Federal Government is overregulated.

Let's take a look at the EPA again. Not only has the EPA violated the
Constitution and exceeded its powers on the Clean Air Act, that agency
has violated a core Federal statute--the Administrative Procedures Act.
The Administrative Procedures Act sets forth the process by which
agencies can issue regulations and conduct other administrative
business.

For instance, under the APA, an agency can issue a regulation that is
binding on citizens with penalties for noncompliance only if that
agency pursues notice-and-comment rulemaking.

This process, consistent with notions of due process and fairness,
requires any agency to issue a proposed rule, seek public comment,
respond to public comment, and modify the proposed rule to reflect
those comments when it issues a final rule. The process is this way to
assure accountability, to ensure transparency and input from regulated
entities. Courts can strike down the regulation if the agency fails to
comply with the Administrative Procedures Act.

They can also strike down the regulation where the agency exceeds its
statutory powers or where the agency's interpretation of law that is
said to justify the regulation does not reflect a legitimate reading of
the statute. Courts give greater deference to an agency's
interpretations of statutes that are taken after proceeding through the
notice-and-comment process.

The EPA recently violated the Administrative Procedures Act in my own
State of Iowa. The EPA wrote letters to Iowa municipalities setting
forth specific requirements that they said must be followed to meet
their obligations under the Clean Water Act. The cities challenged the
EPA because the two letters effectively imposed new regulatory
requirements. They argued the EPA could not impose regulatory
obligations simply by letter but needed to proceed by notice-and-
comment rulemaking--the Administrative Procedures Act requirements.

They also argued that so-called informal guidance imposes subtle
pressures on regulated entities to comply even if the EPA does not call
its actions a regulation.

The U.S. Court of Appeals for the Eighth Circuit agreed and struck
down the requirements EPA imposed on those cities just by issuing
letters. However, the EPA has since publicly stated, as a lot of
government agencies do, that the EPA would only comply with the ruling
in the Eighth Circuit.

So here we have a situation where there is a national law, the
actions of the EPA are struck down in the Eighth Circuit, and now that
law is going to be applied one way in the Eighth Circuit and the other
way in the rest of the States. In other words, the EPA has proclaimed
it intends to continue to impose these illegal requirements on
municipalities in those States outside the Eighth Circuit, in clear
violation of the APA.

The EPA is not alone in failing to comply with the Administrative
Procedures Act. The Department of Education issued what it termed
informal guidance concerning campus sexual assault last year without
public input.

I hope we can see a pattern here, whether it is by letter by the EPA
to Iowa municipalities or whether it is something called informal
guidance by the Department of Education. These are all terms trying to
get around the legal requirements of the Administrative Procedures Act
to get things done faster by these agencies, because following the rule
of law is kind of an encumbrance they do not want to go through.

In regard to what the Department of Education did, at a HELP
Committee hearing the Assistant Secretary for Civil Rights Catherine
Lhamon stated that she expected colleges and universities to comply
with that guidance that was not a regulation under the Administrative
Procedures Act. Of course, that meant what the Department was calling
informal guidance was really a regulation that could only be issued
after engaging in notice-and-comment rulemaking.

When Senator Alexander, who is chairman of the committee now, asked
her who gave her the authority to issue the guidance, she responded,
incredibly--and I emphasize incredibly--``Well, with gratitude, you
did, when I was confirmed.''

So you get confirmed by 100 Members of the Senate and you can do
whatever you want to regardless of law? No. This is the United States,
where we operate under the rule of law and the constitution. It is not
France in the age of Louis XIV where government officials say, L'Etat
c'est moi. I am the State, in other words.

Senate confirmation means only that a person has been legally
installed in a job. But once confirmed, the agency official can only
act in accordance with the laws governing their agency.

I support the Department's overall goal of holding accountable those
who commit campus sexual assault, but it has to be done lawfully. By
issuing so-called guidance that, by her own admission, she expected
colleges and universities to follow, the Department exceeded its lawful
powers.

Separate from excluding the public from having any say in the rules
that have governed their conduct, bureaucrats have many incentives--too
many incentives--to ignore the Administrative Procedures Act.

Imagine: Formal rulemaking takes time. A formal notice of proposed
rulemaking is followed by the public's comment period, then the agency
responds to comments and modifies their proposed rule before it is made
final. The Office of Management and Budget reviews the regulation and
can block or modify it. The Office of Management and Budget makes
agencies justify the costs and benefits of their rules, reduce burdens
under the Paperwork Reduction Act, and also prepare a federalism impact
statement for those proposed rules.

Agencies that want to regulate without oversight can subvert the
whole process of issuing binding rules under the cover of ``informal
guidance.'' It is so much faster for bureaucrats to issue dictates to
whomever they want for whatever reason they want.

By avoiding the Administrative Procedures Act, these unelected
agencies violate the whole separation of powers. They act legislatively
in violation of the limited authority Congress provides a particular
agency. Then they are free to issue even more rules, restricting the
freedom of American people and increasing the role of unelected
bureaucrats in telling other people what to do. Reductions in freedom
are ultimately manifestations of a failure to follow the rule of law.

We are already headed in that direction. The Supreme Court has before
it a case now from the Labor Department, where one of the issues
discussed at oral argument was whether that agency was required to
proceed by notice-and-comment rulemaking rather than through
interpretive rules. We shall see, then, whether the Court addresses
that issue or focuses instead on what level of deference a court gives
when agencies change their position without proceeding through
Administrative Procedures Act rulemaking.

But even if the issue of the necessity of engaging in notice-and-
comment rulemaking is not addressed in that case, the Court, before
long, will reach that question. When it does, I believe it will find
that what the Obama administration has been doing is clearly illegal.

President Obama's claims of Executive power are unprecedented. He is
creating a general precedent of a Presidency unrestrained by law.

When Franklin Roosevelt was inaugurated in the darkest days of the
Great Depression, he called on Congress to act to respond to the
emergency as well as giving him powers to address it. He did issue
Executive orders, such as declaring a bank holiday, but he did not say
that he had a phone and a pen and that he would do whatever he felt was
necessary regardless of whether Congress acted. Rather, he said that if
the powers Congress gave him to address the emergency were inadequate,
he would ask Congress to provide him with the powers Congress would
give a President in the event of a foreign invasion.

Those are extensive powers. But he was determined to ask Congress for
power, not to act unilaterally because the ends justified the means. He
wanted to use all the powers available under the Constitution, not
exceed those powers.

Not only does the Constitution further government compliance with the
rule of law through the separation of powers, it also sets up an
executive branch that can act to check itself. Executive officials have
their own legal powers that the President cannot interfere with. They
can also refuse to carry out illegal Presidential orders.

We have a very good example from the dark days of Watergate. The
Nixon administration exceeded its powers too. When that happened, there
were administration officials who pushed back against their own
President who appointed them. The appropriate Justice Department
official told President Nixon he would haul him into Federal Court if
there were evidence of his criminality. Attorney General Elliott
Richardson and Deputy Attorney General Ruckelhaus resigned rather than
fire the Watergate special prosecutor, as the President had
ordered. People of conscience do sometimes resign or threaten to do so,
and that increases public pressure on the President to obey the law.

Who in the Obama administration has ever stood up against his
lawlessness? No one, as far as I know. No one has resigned from the
Justice Department as it has become a rubberstamp for wild claims of
Presidential power that exceed the Constitution and violate the laws.

What lawyer in the EPA or any other Department has stopped her agency
from acting unconstitutionally by exceeding the powers that Congress
has specifically delegated under various statutes? What lawyer has
stopped an agency from violating the Administrative Procedures Act by
issuing binding rules on the public without public comment?

I regret to say that the Congress up to now has too often been
complicit with Presidential assaults on the rule of law. When President
Obama eviscerated the core Senate prerogative of advice and consent by
making unconstitutional recess appointments, not one single Democrat in
this body objected. This is where the real harm of excessive
partisanship manifests itself.

Time and again, the previous majority in this body refused to take
action against any Presidential action that violated the law if they
agreed with the policy being pursued by the President. This sort of
nonactivity is not why the Constitution created the Congress. Whatever
its flaws, an active Congress that defends its legislative prerogatives
and conducts effective oversight of Executive illegality is vital to
preserving liberty.

In one historical example, the process of transformation from
democracy to dictatorship was completed when the Parliament voted
itself out of existence.

The Framers did not intend a Congress to sit idly by as the President
violates the Constitution and the laws. In Federalist 51, James Madison
wrote that the separation of powers was vital to the preservation of
liberty. He noted that checks and balances would be effective in
keeping each branch within its prescribed constitutional role because
each had, in his words:

. . . the necessary constitutional means and personal
motives to resist encroachments of the others. . . . Ambition
must be made to counteract ambition.

Recently, the Senate has failed to counteract unlimited Executive
ambition. That must change and, as a result of the last election,
should change. Will it change? I sure hope so.

I trust that under our new leadership, the Senate will take action
for the government to control itself, and to restore the rule of law
that has been so badly damaged in recent years, because if we take the
spirit of the Declaration of Independence--and remember, prior to that
Declaration, the colonies decided they did not want one person, George
III, making decisions affecting millions of people on this side of the
ocean. So they were very careful, when they declared independence and
they wrote a Constitution a few years later, to make sure they carried
out the spirit of the Declaration of Independence that:

. . . they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and
the pursuit of happiness.

Not by our government, but by nature or by our Creator.

So they put into this Constitution assurances so there could never be
a George III again, and separated all the powers so one person didn't
have all the power.

Now we see one person trying to exercise the power of several
branches of government, as George III tried to do. So we are over that
hurdle. All we have to do is make sure that the checks and balances the
government worked--the same checks and balances that every high school
kid learns in government class, to make sure that one person doesn't do
it, and that our liberties are protected by a government that operates
under the rule of law. And that Constitution is our rule of law.

I yield the floor, and I suggest the absence of a quorum.

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