Nomination Objection

Floor Speech

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Mr. LANKFORD. Mr. President, we have witnessed in this administration Executive overreach with increasing boldness. One manifestation of Executive overreach is the shocking indifference with which departmental agencies spurn the congressionally mandated rulemaking processes in favor of regulating under the guise of ``guidance documents.'' Guidance documents in their proper form advise the public of their obligations under existing law and, therefore, merely interpret the law without imposing any additional obligation. Agencies are quick to echo that guidance documents do not have the force and effect of law; yet governmentwide, agencies increasingly have used guidance as an end-run around the rulemaking process in violation of Federal law.

The Department of Education's Office for Civil Rights is such an offender. Their guidance documents, including Dear Colleague letters on harassment and bullying, issued October 23, 2010, and sexual violence, issued April 4, 2011, purport to merely interpret title IX of the Education Amendments of 1972, yet advance troublesome policies not contemplated by the text of title IX or its implementing regulations.

I appreciate the fact that these guidance documents predated Mr. King's service at the Department of Education, and I do not assert that he had any role in developing or issuing the letters. However, in a letter dated January 7, 2016, I asked him to clarify his role as Acting Secretary, in no uncertain terms, that the policies expounded in the 2010 and 2011 letters not required by the terms of title IX cannot be grounds for any adverse action.

To my disappointment, his response failed to do so. Mr. King should commit to use the office of the Secretary to rein in the regulatory abuses within the Department of Education and encourage his Cabinet counterparts to do the same. Until such time as such commitments are made, I intend to object to his nomination.

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