[Congressional Record Volume 162, Number 178 (Friday, December 9, 2016)]
[Senate]
[Pages S6937-S6939]
Executive Actions
Mr. GRASSLEY. Madam President, for the last 8 years, we have seen
President Obama's administration take action after action and do it
without regard for concerns expressed by the American people or their
elected representatives in Congress, which amount to a great deal of
unconstitutional or at least contrary-to-statute Executive overreach.
The Obama administration used Executive fiat to push sweeping
regulations with little thought about damage to American jobs. The
Obama administration has repeatedly stretched its authority beyond
limits set by Congress in law. It has twisted the same laws and even
the Constitution itself to justify this Executive overreach. Despite
early promises of transparency, it has kept the American people and the
Congress in the dark about many of its most significant decisions.
Americans are right, then, to be frustrated with what they see as
more unnecessary burdens and unchecked abuses being handed down by an
out-of-reach bureaucracy. In November, they made their voices heard. So
now we are going to have a new President on January 20. President-Elect
Trump has said that he intends to roll back the mess of harmful
regulations and Executive power grabs of the last 8 years.
He is certainly going to have his hands full, as we all know. But
there is plenty that we can do to begin the process on January 20.
President Obama's tenure has brought about an unprecedented expansion
of the regulatory state. By some estimates, bureaucratic redtape now
places a $2 trillion burden on the Nation's economy. You know who pays
for that? The American people do.
I don't doubt that there are some good intentions behind every new
rule. But the notion that so-called experts in Washington, DC, need to
regulate every aspect of our lives does not make much sense to many of
the Iowans I talk to. They are hoping that a President Trump will bring
common sense to Washington, DC.
Take, for example, the Environmental Protection Agency's waters of
the United States rule. It is often referred to by acronym WOTUS. This
rule seeks to expand what the government can regulate under the Clean
Water Act. Congress intentionally limited EPA's reach under the law to
what is termed navigable waterways. But the WOTUS rule would subject 97
percent of the land in my State of Iowa to EPA bureaucratic burdens.
I assume it does the same in several other States. But I have only
checked on Iowa. So 97 percent of the land to be regulated by the EPA
bureaucracy is just an impossible situation. Think about that. Every
homeowner, every contractor, and every farmer would need to seek a
Federal permit for projects requiring the simple task of moving dirt,
even if it is nowhere near an actual body of water. That, of course,
means more paperwork, more time wasted, and, of course, more money
spent to get Federal permits for activities that this Congress never
intended the Federal Government to regulate.
A bipartisan majority of both Houses of Congress has voiced its
disapproval of the WOTUS rule, and a Federal appeals court has placed a
nationwide stay on its implementation. Yet I continue to hear concerns,
regardless of the court case, that some in the EPA
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are going to move forward with the rule's implementation, causing
unnecessary fear and confusion among farmers and landowners.
So on day one, President Trump should direct his administration to
stop defending the WOTUS rule in the Federal courts where it is now
held up. He should also direct his EPA to immediately stop implementing
or enforcing the rule while the Agency begins the rulemaking process to
take it off the books once and for all. It is not just official
regulations that have sparked concern over the last 8 years, the Obama
administration has also used Executive actions, agency guidance
documents, and legal interpretations to push its agenda, leaving
Congress and the American people in the dark.
Often this has been done with disturbing results. In 2014, the Obama
administration acted unilaterally to release five senior-level Taliban
commanders who were being held at Guantanamo Bay in exchange for SGT
Bowe Bergdahl. Now, that is contrary to law.
Despite the requirements of law, the administration never notified
Congress, as the law requires, prior to this prisoner's transfer. The
law required the administration to provide Congress with a detailed
statement of the basis for the release, an explanation for why it is in
our national security interests, and a plan to prevent the prisoners
from returning to the battlefield.
Instead, Congress heard only crickets. The administration provided no
notice to the Congress, no legal justification for the release, and no
plan to prevent these Taliban commanders from reentering a fight that
has already spilled so much blood of America's sons and daughters.
One reporter said the Taliban has been more transparent about this
exchange than the Obama administration. Even the nonpartisan Government
Accountability Office later concluded that the administration acted
illegally. Well, it is pretty clear. The law says that you have to give
Congress 30 days' notice. They didn't give any notice.
There were and still are, then, serious questions about whether
releasing these detainees from Guantanamo was a good idea, even to the
extent to which the law was violated. So I asked this administration to
disclose the legal advice that the Department of Justice apparently
provided that justified its failure to notify Congress in a timely
way--in other words, a justification for ignoring the law.
But the Department of Justice refused to do that. The public deserves
a full and transparent accounting of why the administration believed it
could disregard the law. On day one, then, President Trump should order
the Justice Department to produce any legal advice that it concocted to
excuse the Obama administration from its obligation to notify Congress
of this decision 30 days before the release, because that is what the
law says.
Unfortunately, this isn't the only legal opinion the Obama
administration has used to avoid scrutiny of its actions. The Justice
Department also brewed up a ludicrous legal opinion to block government
watchdogs from accessing Federal records needed in the course of
congressional oversight. If this year has taught us anything, it is
that the government needs more oversight, not less.
It is unbelievable that a handful of unelected bureaucrats would try
to defy the Congress and the people it represents by ignoring that law.
Unfortunately, it hasn't stopped with the case I just cited.
The Obama administration practically treats a congressional subpoena
as if it were a freedom of information request rather than a
constitutionally mandated inquiry from a coequal branch of government.
This very issue is now being debated in the courts.
But it is not just Congress that can't get information; the press and
private citizens have had their freedom of information requests
regularly met with very long delays, if they get any response at all.
You know it is bad when the New York Times calls this White House the
most secretive in more than two decades.
President Trump should take steps to reverse this trend of more
secrecy in government because more transparency in government will
bring more accountability. On day one, he should direct his agency
heads to cooperate with congressional inquiries, inspector general
investigations, and FOIA requests, and he should empower government
whistleblowers.
Whistleblowers expose facts about wrongdoing and incompetence inside
the vast Federal bureaucracy, often at risk of their own career and
their own reputations and, in some cases, I found out, even their
health.
Without whistleblowers, Americans would be none the wiser that, for
instance, the Justice Department walked guns that put law enforcement
agents in jeopardy--that is the Fast and Furious investigation I did--
or that the EB-5 investor visa program is riddled with fraud, or that
agencies spend tens of millions of taxpayer dollars every year to pay
employees under investigation for misconduct who simply sit at home on
paid leave. Information provided by whistleblowers under the Securities
and Exchange Commission Whistleblower Program has brought in more than
$584 million in financial sanctions. The Internal Revenue Service has
collected more than $3 billion in tax revenues since 2007 thanks to
whistleblowers under a piece of legislation I got passed in 2006, I
believe it was.
Since I pushed to empower and protect whistleblowers under the False
Claims Act way back in 1986, the Federal Government has recovered more
than $48 billion in taxpayers' money lost to fraud. That simple,
quantifiable information is a good deal. But these brave employees
often face retaliation from their own ranks. So I am going to suggest
that if President Trump is going to be very serious about fixing the
Federal bureaucracy, he should empower these patriotic citizens to help
us identify fraud, abuse, and misconduct so that we can get this
government working again.
I will propose to the President-elect, when I get a chance to talk to
him, something I have proposed to every President since Reagan. And no
President, of course, has done this, and maybe it is ridiculous for me
to think President Trump will do it, but he is coming to Washington to
shake things up. I will suggest to him, to empower whistleblowers, who
know there is fraud and who are patriotic people who want fraud
corrected, that he hold a Rose Garden ceremony honoring whistleblowers,
and maybe do it once a year so that they know that the tone from the
top--that the new Commander in Chief has the backs of these patriotic
soldiers for good government whom we call whistleblowers.
Of course, what I have gone through in these remarks as I finish is
far from an exhaustive list, but the common thread in all of this is
that the Obama administration frequently failed to take care that the
laws be faithfully executed as required by our Constitution. When that
doesn't happen and Congress lets a President get away with it, then we
are not upholding our oath to the Constitution, which basically says
that Congress passes the law and they ought to be a check on the
executive branch to see that the laws are faithfully executed. The
person coming to town to drain the swamp--a person by the name of
Trump--should prioritize these failures and begin to restore the
executive branch to its proper place in government consistent with the
checks and balances outlined in our Constitution. These actions will
help the new President make good on his pledge to fix the Federal
bureaucracy and do what he said last night on television in Des Moines,
IA--put Americans first.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
Ms. HEITKAMP. Madam President, before I begin my remarks on why I
came down to the floor today, I would like to join with my colleague
from Iowa in saying it is a very good idea to have a Rose Garden
ceremony talking about whistleblowers, supporting people who want to do
the right thing in the bureaucracy, and I am willing to work with him
in any way that is appropriate to talk about what we need to do to make
sure that whistleblowers in our bureaucracy have the protection and the
appreciation. There are many great people in government who see things
every day. We spend a lot of time in our Subcommittee on Homeland
Security talking about what we can do to get those good ideas from the
bureaucracy, those good ideas from
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folks who actually work in the government percolated up to the Congress
and implemented. So I applaud the work he has done on whistleblowers.
Senator Grassley, I look forward to having another conversation about
what we can do to put America first by making sure our public employees
have an opportunity to feel pride in what they do every day, knowing
that they are working for a cause in the most efficient, effective
manner for the American people. I applaud your work.
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