Constitutional Duties

Floor Speech

Mr. DeSANTIS. Mr. Speaker, I rise today to discuss an issue of increasing relevance to our national affairs and to constitutional government properly understood--and that is the requirement that the President faithfully enforce the laws of the land and the failure of the current incumbent to satisfy that obligation.

The Constitution sets out a simple yet effective structure: the major powers of government--legislative, executive, and judicial--are divided into three separate branches of government. The legislative branch--the Congress--passes laws, makes law; the executive branch--the President--enforces law; and the judicial branch--the Supreme Court and inferior courts--interprets laws.

Article II, section 3 of the Constitution imposes upon the President the duty to ``take care that the laws be faithfully executed.'' This duty has roots in Anglo American law dating back to the Glorious Revolution of 17th century Britain. In fact, the English Bill of Rights of 1689 provided that:

The pretended power of suspending laws, or the execution of laws, by regal authority, without the consent of parliament, is illegal.

For his part, the Founder of our country, George Washington, saw the faithful execution of the law to be one of the President's core responsibilities. In a letter to Alexander Hamilton, then-President Washington explained that the Constitution's ``take care'' clause meant:

It is my duty to see the laws executed: to permit them to be trampled with impunity would be repugnant to that duty.

The duty of the President to ``take care that the laws be faithfully executed'' is a central component not simply of the executive branch of government, but to the entire constitutional system.

Yet the conduct of the current incumbent has evinced a disregard for this core constitutional duty. By picking and choosing which laws to enforce, the President has undermined the constitutional order and has failed to keep faith with the basic idea that ours is a government of laws, not of men.

Now the most conspicuous vehicle for the President's disregard of the Take Care duty has been the implementation of the law that bears his name--the Patient Protection and Affordable Care Act, aka ObamaCare.

Now, it is interesting that of all the arguments that have been put forward to counter those who seek to defund, delay, or repeal this law, the one that ObamaCare supporters have embraced most frequently as of late goes like this: ObamaCare is the law of the land and has been upheld by the Supreme Court; therefore, it cannot be repealed, defunded, or delayed.

Now, this is a nonsensical argument on its face. Congress has the authority to legislate, per article I of the Constitution, and can amend, supercede, or repeal ordinary legislation as it sees fit. But this argument is particularly rich regarding ObamaCare. Because if this law is somehow sacrosanct, then why is the President not enforcing it as written? It is untenable to assert that Congress cannot change the law through legislation but that the President can delay or waive provisions of the law by executive fiat. Exhibit A for this, as it relates to ObamaCare, is the President's unilateral decision for 1 year to delay the enforcement of the so-called employer mandate, a central provision of ObamaCare requiring most businesses to provide government-sanctioned insurance to their employees.

Now, section 1513(d) of that law states that the employer mandate ``shall apply to the months beginning after December 31, 2013.'' Note the statutory command of ``shall.'' This is not discretionary, and there is no provision of the law permitting the Executive to delay it.

Incredibly, the President has not offered any coherent rationale for his actions. He was asked in an interview with The New York Times whether his critics were justified in asserting that he lacked authority to delay the mandate. He responded by saying:

If Congress thinks that what I've done is inappropriate or wrong in some fashion, they're free to make that case. But there's not an action that I take that you don't have some folks in Congress who say that I'm usurping my authority. Some of those folks think I usurped my authority by having the gall to win the Presidency. And I don't think that's a secret. But ultimately, I'm not concerned about their opinions--very few of them, by the way, are lawyers, much less constitutional lawyers.

In other words, the President doesn't care what Congress thinks, as elected Representatives of the people, and feels no need to justify his official conduct.

Now, a couple weeks later he was asked again about this decision to unilaterally delay the mandate, and he said, look, he ``didn't simply choose to delay this on my own'' because the decision was made ``in consultation with businesses all across the country.''

Now, I have searched the Constitution in vain for the provision allowing the President to suspend article II, section 3 of the Constitution so long as he consults with business, but I have not found it.

What is even worse, though is that the President further justified his conduct by stating:

In a normal political environment, it would have been easier for me to simply call up the Speaker and say, you know what, this is a tweak that doesn't go to the essence of the law. Let's make a technical change of the law. That would be the normal thing that I would prefer to do, but we're not in a normal atmosphere around here when it comes to ObamaCare.

That's the end of the President's quote.

Now, this is absurd. The Constitution doesn't relieve the President of his duty to faithfully enforce the law simply because the political environment is difficult. Second, the President didn't, in fact, need to call the Speaker, because a couple weeks before his comment, this House voted 264-161--with 35 Members of the other party voting ``yes''--to delay the mandate by law for 1 year. Most of us in the House actually think that, as a matter of policy, the employer mandate is bad for the economy. The President responded to our request to delay the employer mandate by threatening to veto the bill.

Now, with respect to the employer mandate, the emperor truly has no clothes. The unilateral delay of this mandate is not consistent with the Constitution's Take Care clause and is an abridgement of Congress' constitutional duty to make the law. The separation of powers is designed to ensure a government of laws, not of men. This President is content to be a law unto himself.

Now, the employer mandate delay is not an exception that proves the rule, unfortunately. Far from it. The entire enterprise of ObamaCare implementation has been an exercise in the administration picking and choosing which provisions to enforce and which provisions to delay or waive. Rather than implement the law as written, the President is rewriting the law as he goes along.

The following list represents a pretty impressive display of this lawlessness:

ObamaCare contains a statutory cap on out-of-pocket health costs, yet the President suspended this provision, most likely because he feared it would lead to health insurance premiums rising even more than they already are.

Second, the law requires the State-based ObamaCare health insurance exchanges to verify whether applicants for exchange subsidies qualify for subsidies based on their income level. Yet the President suspended this requirement, thereby allowing taxpayer money to be handed out based on the ``honor system''; and we know that it's going to hit the taxpayer more than if you actually enforce the regulations.

The plain text of ObamaCare also provides that subsidies can only flow through State-based exchanges, yet the President's IRS is disregarding this requirement and is allowing subsidies to flow to Federal exchanges.

So this is creating, I think, a patently unjust scenario: The law imposes substantial burdens on society as a whole, but those with political connections--employers, insurance companies, what have you--are granted delays and/or waivers from the law's burdens. This is precisely contrary to James Madison's admonition in the Federalist No. 57 that there should be ``no law which will not have its full operation on the political class and their friends, as well as on the great mass of society.''

The most egregious example, though, of political favoritism via executive branch lawlessness has got to be the illicit bailout for Members of Congress with respect to congressional health plans. Now, when the bill was being debated several years ago, the American people were told we have to pass the bill to find out what is in the bill. And sure enough, the law contained all sorts of surprises, including an interesting provision regarding health care for Members of Congress.

Now there is broad agreement among analysts who have looked at the effects of ObamaCare that the law's

structures and incentives will cause millions of Americans to lose their employer-provided coverage and get pushed into these health care exchanges. The only dispute really is how many millions of Americans will suffer this fate. The Congressional Budget Office said 7 million. Other analysts have said it's going to be tens of millions of Americans.

Perhaps recognizing this possibility, one section of ObamaCare makes Congress eat its own cooking. The idea behind the provision is that, because ObamaCare will upend the health care arrangements of other Americans, Members of Congress and other political insiders should be placed in exactly the same position as their fellow citizens whom they have burdened, and thus Members of Congress must go and get insurance through these ObamaCare exchanges. No more gold-plated plans for Washington, given Washington is having a negative effect on other Americans.

Now, one can search the health care law in vain for any provision providing Members of Congress taxpayer-financed subsidies for use on these ObamaCare exchanges. It's just not there. In fact, as Politico reported, the Office of Personnel Management initially said that lawmakers and staffers couldn't receive subsidies once they went into the exchange because there was no authority to give them subsidies. This is probably also because any other American who loses their health coverage and goes into the exchanges is prohibited from getting a tax-excludable employer contribution.

This state of play didn't sit well with a lot of Members of Congress. So after being lobbied by Members of both the House and Senate, the President pledged to ``fix the issue.'' He ordered OPM to reverse course and grant unique taxpayer subsidies to Members of Congress and other Washington insiders--again, without having a statutory authority to do so.

So this is a lawlessness in service of liberating Members of Congress from having to live under the terms of the laws that they impose on others, And this is creating all sorts of problems of fairness and equity.

I think the Founding Fathers had it right when they said that the President did have a duty to take care that the laws would be faithfully executed. And that word ``faithfulness'' means something. Yes, you have discretion as an executive to enforce laws to a certain degree or not, depending on the situation. That is a natural aspect of prosecutorial discretion. But the idea that you can just supercede or delay laws by executive fiat is something that's foreign to our constitutional tradition.

I'm going to yield in a second to the gentleman from Oklahoma, but think about this: Had Mitt Romney won the 2012 election and he came in and started delaying or waiving parts of ObamaCare with impunity and with no congressional authorization, can you imagine the uproar that we would be hearing from the press and from our friends on the other side of the aisle? I think it would be very loud in here if that were the case.

At this time, I thank my friend from Oklahoma for coming, and I yield to him.

BREAK IN TRANSCRIPT

Mr. DeSANTIS. I thank the gentleman from Oklahoma. Thank you for those comments, and thank you for the service that you have given to the country, here in the Congress, but particularly as a naval aviator flying more than one platform--the E-2D Hawkeye and then also the F-18 Super Hornet.

You have been deployed in harm's way numerous times, and you speak with a great deal of authority, not only on these issues, but on issues related to national security. I think it has been great that the gentleman and I have had a mutual pact to be supporting our blue-water Navy because there is no other weapon in the world like it when you can move a carrier 90 miles off somebody's coast and project power.

With that, I would like to recognize another one of my colleagues, the gentleman from Oklahoma (Mr. Salmon), a guy who has been here before, he has walked the walk, and one of the few guys who will tell you what his principles are and will come here and will actually put those principles into action. He did it in the '90s and he is doing it again.

BREAK IN TRANSCRIPT

Mr. DeSANTIS. I thank the gentleman from Arizona for those great comments.

I think he brings up a great point about the funding bill that was sent the day before the fiscal year ended was not demanding that the President fully repeal the health care law; it basically had two very reasonable policy asks:

One, that Members of Congress live under the exact terms of the law that they passed and not get any type of special unauthorized treatment; and then

Two, that individuals be given the same courtesy that the President gave to Big Business.

That was very reasonable. The press hasn't really reported that. That is not really the way they framed it. I am not surprised at that. But that is a vote--by standing beside the Senate majority leader, all those Senators who did that--that is going to be a vote that is going to reverberate into the future.

I think it is interesting because when we are talking about the proper constitutional authority of the President, our primary means to check the President is the power of the purse. That is basically what we are doing in terms of we are sending the funding bill, but we are saying, look, we cannot afford to continue going with this disparate treatment throughout society. You have got to treat everybody the same.

BREAK IN TRANSCRIPT

Mr. DeSANTIS. Thank you for that. It's interesting. As you bring up former Secretary Napolitano, that brings up the Presidential appointment and confirmation process. The Constitution provides for Cabinet officers and judges, that the President will nominate, the Senate votes to advise and consent to confirm, and then at that point they can become appointed and fill the office.

There is also another provision in article II of the Constitution, in section 2, involving what are called recess appointments, and it says:

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

This made a lot of sense at the time, especially because you'd be in session, people lived all over the country. They'd take a horse-drawn carriage to get to Washington and back, so the Senate may be out for months and months. The Founders didn't want government ground to a halt. It's been used more recently if the Senate is on a recess, the President can kind of strategically figure that out and appoint somebody who might not otherwise be confirmed. Well, what this President did was a step further than that. He actually said that if the Senate says that it's not in recess, if they are just adjourned for say a day, a couple days and they are having pro forma session, that that doesn't actually count as a recess in his judgment and he can go ahead and do recess appointments, people to the National Labor Relations Board and the Consumer Financial Protection Board that would not otherwise be able to be confirmed. A lot of people cried foul about this, and it actually got tied up in the courts. Normally, we have to check some of these things, but there was somebody who had standing to bring a lawsuit. It has gone to two different Circuit Courts of Appeal and they both said, Look, the President can't just unilaterally determine when the Senate is in recess. The Senate is either in recess or they are not. If it is just that they go to sleep at night and come back the next morning, the President can't wait until midnight and just thrust somebody into office. So both of those courts have said that the President has overstepped his authority by shoving these recess appointments in office while the Senate was not in a formal recess; they were just adjourned within that term of service. And so I think the Supreme Court is going to hear that this time. I think they are definitely very likely to agree with those courts and say if the President can determine when it is a recess, then the whole idea of advise and consent gets swallowed up by the exception, and that's just not something that's going to work.

The gentleman from Arizona is interesting with his history because I listed some major pieces of legislation and how they all got broad bipartisan support. And the last one I mentioned was the 1996 Welfare Reform Act which Congress basically passed. It got vetoed and passed again, and finally President Clinton signed it. And the core of that, as I understand it, was that you would actually try and incentivize work instead of dependency, and so it had work requirements for able-bodied folks. I think the results of that were very, very positive. It essentially changed the incentive structure and actually gave people hope to get off dependency and into a productive life.

I yield to the gentleman from Arizona because the President has basically watered down those work requirements unilaterally, and I think that will have a negative effect.

BREAK IN TRANSCRIPT

Mr. DeSANTIS. I thank the gentleman from Arizona for that.

You mentioned just as the President came into office, and I remember the first thing, and I wasn't here. None of us were in Congress at the time. Just as a citizen, I was Active Duty Navy. You were probably too, Mr. Bridenstine. But we had this stimulus bill that had been passed. This was a huge thing. Part of that, as I've learned more about it, is that there were actually requirements that the executive branch was supposed to submit timely reports that would document the different spending and what was going on. I think even the Vice President said, Hey, I am going to be the watchdog on this. It is, in fact, the case that most of those deadlines have just been completely disregarded, that you haven't seen the type of reporting that was envisioned by the law, and that's perhaps because the law wasn't successful at engineering an economic recovery.

Shortly after that, though, one of the biggest issues that happened in 2009 was the auto bankruptcy. This was something that was unusual because the White House actually got very involved on the ground in terms of refereeing the rights of the various parties, including the creditors.

I now yield some time to the gentleman from Arizona to discuss that because you had mentioned that was something that had bothered you at the time. The floor is yours.

BREAK IN TRANSCRIPT

Mr. DeSANTIS. I thank both the gentleman from Oklahoma and the gentleman from Arizona for coming here today to offer their views. Their comments are much appreciated. The great thing about these two guys is they will stand up to people, regardless of party. They will stand up to people in their own party. They will stand up to people in the other party if what they're trying to do is not the right thing because these guys want to do the right thing.

I just want to conclude by invoking two giants in American history in terms of some of the issues that we discussed today and kind of what they mean.

The first is the Father of the Country, George Washington. When he took the reins as the first President of the United States, he made the comment ``I walk on untrodden ground.'' So he had a great sense that it wasn't just about him. He was already the biggest hero in the country. He could have taken over the country after defeating the British. He could have been king, but he surrendered his sword and retired to Mount Vernon until he was called back to further service. He was very sensitive to the idea that he was trying to establish a framework for freedom that could last generations, and it wasn't just about his own personal glory. What he tried to establish was the proper role of an executive in a constitutional system. There's a lot of people that said you either have a strong executive and it is a monarchy, or you just can't have a strong executive. I think he laid the foundation to say, actually, you can have a constitutionally circumscribed executive power that was nevertheless a force of good for the country.

The other gentleman that I would like to mention is Abraham Lincoln, who's obviously one of the greatest presidents we have ever had. His earliest recorded speech was a speech before the Young Men's Lyceum of Springfield, Illinois. This was in the 1830s, so he still had decades before he was President. I don't think he had been elected to anything even locally at the time. He was really concerned about the future of the country because he said you had this great Revolution, you had this great Constitution, you had these wonderful decades where people were actually living and breathing that. Obviously, he felt that there was a lot of work to do because he spoke out against things like slavery, but he thought that the ball was moving in the right direction in terms of individual freedom. But he feared that as the Founding Fathers and their generation passed away, that people really wouldn't have something that they could all have to organize around and be faithful to in terms of our country. So what he told people to do was to really embrace constitutional principles and the rule of law.

In his speech, he said:

As the patriots of '76 did to support the Declaration of Independence, so to the support of the Constitution and laws let every American pledge his life, his property, and his sacred honor. Let every man remember that to violate the law is to trample on the blood of his father and to tear the charter of his own and his children's liberty.

He went on to say:

And, in short, let it become the political religion of the Nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues and colors and conditions sacrifice unceasingly upon its altars.

I think what Lincoln was getting at was this idea of American exceptionalism. It is not because we as Americans are anything special. I am certainly not anything special. It is not that we are so much better than anybody as people. The exceptional part of the country is the origins of the country and the principles that the country is designed to further. That, I think, is what Lincoln was talking about; that when you embrace the Declaration, when you embarrass the Constitution, you're embracing a framework in which individual liberty is the paramount objective of society, and that is why things like the separation of powers and proper lawfulness from the legislature and executive are so important. It is not just because this is all a game and we want to try to blow the whistle on people who are in the other party. It is because ultimately this constitutional structure and these protections are what make us different from all the countries that have come before and all the countries that have been founded since.

Mr. Speaker, I yield back the balance of my time.

Source