Filling the Supreme Court Vacancy

Floor Speech

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Mr. GRASSLEY. Madam President, as my colleagues in the Senate just heard, the tantrums from the other side continue, but I guess it shouldn't surprise anybody because everyone around here knows that nothing makes the minority leader more mad than when his side is forced to play by its own rules.

The American people are divided, and the divided government the American people delivered over the last several election cycles reflects those divisions.

Our constitutional Republic was designed with a series of checks and balances. As any branch gets too powerful or exceeds its authority and tries to impose policies the American people don't want, the people express their will through the electoral process, and that is what we have witnessed during the last several election cycles.

Over the last few years, our current President has engaged in a systematic and very massive overreach of his executive power, way beyond what the Constitution has ever considered, and--thank God for checks and balances--the courts have said as much, and that is why I am here today. I am here today to tell you how the courts have interceded and curbed this massive overreach of Executive power. But as he has done so, the people have responded.

Since he was first sworn into office in 2009, nearly 70 additional Republicans have been elected to the People's House. And there are 13 more Republican Senators today than there were in January of 2009.

In January of 2014, frustrated that the people's representatives wouldn't enact his liberal policies, the President famously said that he would use ``a pen and a phone'' and impose his agenda anyway even though Article One of the Constitution is very clear. It states that the legislative powers of the United States shall be vested in the Congress, not with the President of the United States.

Just a few months later, in November of 2014, the people spoke and sent nine additional Republicans to the U.S. Senate.

This is the beauty of our system of checks and balances, and the Framers of our Constitution designed it that way. The Framers knew a thing or two about Executive overreach, because they had to deal with somebody called George III. They had firsthand experience with an Executive, King George III, who imposed his will on the people unilaterally.

So you wonder why our Constitution has checks and balances? The President holds the Executive power, the Congress writes the laws, and the Supreme Court interprets them. That is what we call separation of powers. That's why we have checks and balances. That's why we have separation of powers. And that is why our Constitution is designed so that no President can appoint a Supreme Court Justice with a pen and a phone.

As we continue to discuss what is at stake during this Presidential election and whether the American people want to elect a President who will appoint yet another liberal Justice, I wanted to take a few minutes to review some of this President's efforts to expand the reach of his power and impose his will on the American people. This President has pushed the envelope at every turn. He has sought to impose his will on the American people in ways and to a degree that this Nation has never before witnessed.

What is striking about this President's record before the Supreme Court is that even with a Court as liberal as ours, the Obama administration still has the lowest winning record of any President going back to at least the Truman administration. When presented with this undeniable fact, the President's apologists quickly grasp for the nearest bogus defense. Most notably, they claim that the Supreme Court is more ideologically hostile to this President than previous Courts were to other Presidents. Now that is a very crafty argument, but it is what Justice Scalia would have called ``pure applesauce.''

Leading Supreme Court analysts declared the last term of the Supreme Court, even with Justice Scalia on that Court, as the most liberal since the 1960s. So the President's defenders can't blame the Court's makeup for its rebuke of his expansive claims of power. And of course this explanation fails to account for the fact that President Eisenhower took office and litigated in a Supreme Court with eight Justices who were appointed by Democrats or that President Nixon's administration began with an even more liberal Court than Eisenhower. No, this President hasn't lost cases because the Court is ideologically hostile to this President and his policy; the Court has rejected this President's power grabs because they are based on ideology and an unwillingness to recognize that the law constrains that power.

All too often the President's claims are supported by an Office of Legal Counsel and a Solicitor General's Office that seem unwilling to tell the President that his impulse for expanded power is flatly contrary to the law. I'd like to describe a few examples. The President's lawyers argued that he could ignore the Senate's determination--this body's determination--of when it was in session in order to make recess appointments. No President in our history ever claimed that recess appointments were permissible in that situation. But the Office of Legal Counsel--once considered the crown jewel of the Department of Justice--offered a tortured justification to sanction that assertion of power.

If this view of Presidential power were allowed to stand, the President could bypass the Senate with ease to install individuals in powerful government positions with no check from the Senate, as the Constitution envisions. Fortunately, the Supreme Court disagreed 9 to 0. That means even this President's appointments to the Supreme Court said that he violated the Constitution with those recess appointments. The Constitution clearly says that the Senate shall determine when we are in session and in recess.

That isn't the only example. The Obama administration argued that the Equal Employment Opportunity Commission could resolve an employment discrimination case between a minister and the church that fired her. The Supreme Court found the Obama administration managed to violate two different provisions of the First Amendment at the same time. It violated the free exercise of religion clause because if the President's argument carried the day, the government could interfere with a church's doctrine. Additionally, it violated the establishment clause of the First Amendment because if this President had his way, the Federal Government could get into the business of selecting a church's ministers. The Supreme Court rejected those claims 9 to 0.

On the regulatory front, in a series of rulings, the Supreme Court rejected the President's arguments that agencies can deny the ability of private citizens to seek relief against regulatory overreach. For instance, the Court rejected the Environmental Protection Agency's powers to force a homeowner, through escalating fines, to comply with an order while at the same time denying that homeowner the ability to challenge the order in court. The Supreme Court rejected Obama's EPA's claims 9 to 0.

In another case, the Court held--contrary to the position advanced by the Army Corps of Engineers--that a landowner could sue in court for just compensation for a taking when the government-caused flooding of his property is temporary and recurring. Again, the Supreme Court rejected the government's position 8 to 0.

When the Internal Revenue Service attempted to enforce a taxpayer's summons while at the same time denying the taxpayer the right to question the IRS official about their reasons for the summons, the Supreme Court rebuked the administration 9 to 0.

In still another case, the Court rejected the Equal Employment Opportunity Commission's argument that its decisions aren't subject to judicial review when that agency concludes by its own estimation it fulfilled its duties to attempt conciliation under title VII of the Civil Rights Act of 1964. Once again, the Supreme Court rejected that claim by this administration 9 to 0.

Similarly, when a veteran's benefits were denied and the appeal wasn't filed within a certain time period, the Department of Veterans Affairs turned around and denied that veteran the ability to seek judicial review. The Supreme Court rejected the position of the Department of Veterans Affairs 8 to 0.

And when the Federal Communications Commission changed its policies midstream regarding isolated examples of indecent language, the Supreme Court found 8 to 0 that the FCC had violated due process.

These are important rulings. Far too often, this administration imposes government power against the people while brushing aside important procedural safeguards. Remember, the Constitution is to protect the people from its government--something we learned from George III.

Justice Frankfurter spoke to this point. He once wrote: ``The history of liberty has largely been the history of the observance of procedural safeguards.''

Consider as well areas in criminal law where the Obama administration pressed positions that erode individual freedom. This President's lawyers argued that the police could install a GPS device on a vehicle, and then use that device to monitor the car's movements without a search warrant under the Fourth Amendment. I don't know what would be left of the Fourth Amendment if the Supreme Court had upheld the President's claim that the government could operate in that manner. Thankfully, the Supreme Court rejected that argument as well. The vote tally was 9 to 0.

The Court blocked the Justice Department's prosecution of a person under the Chemical Weapons Convention because the convention didn't reach the defendant's simple assault. Again, the Supreme Court rebuked the President 9 to 0.

These are not the rulings of a Supreme Court that is ideologically hostile to the Obama administration. Every one of these rulings was unanimous--every one. And there are still other Supreme Court decisions rejecting this President's power grabs where the vote tallies were much closer.

The President and his lawyers made utterly baseless arguments for executive and regulatory power in case after case. In so many of these cases, the unifying thread underlying this President's litigating position is the notion that the people are subservient to the Federal Government and, of course, subservient to its agencies, rather than the other way around. So far the Supreme Court has not agreed.

But during this Presidential election, the American people should consider whether they want to elect a President who may nominate a Justice who will embrace such a vast expansion of executive and regulatory power. This is what I've called for in a number of speeches, both in Iowa and here as well. This is an opportunity for the American people to have their voices heard. Letting the people decide in the election isn't just about who the next Justice on the Supreme Court is going to be. It is about the role of the Supreme Court and the judicial branch in our constitutional process.

We heard just a little while ago the floor leader of the minority party saying that somehow I want to rewrite the Constitution. This isn't about rewriting the Constitution. The Constitution is pretty clear: The Supreme Court interprets law, not makes law. And with the approval rating of the Supreme Court going down from about 50 percent to 28 percent in polls ever since this President took office, and the tendency for some Republican appointees as well as Democrat appointees to make the law the way they want it, that is just getting back to the basics--that the Supreme Court is an interpreter of the law, not a maker of the law.

So I think having a basic debate similar to what people learn in high school isn't a bad thing.

Now, will an election change what the Supreme Court, the people who are on it now, decide to do? I don't know--probably not. But it will allow for the next elected President to have the opportunity to choose which direction they want it to go. Do they want a Justice who is going to interpret the law or a Justice who is going to make the law?

Before the passing of Justice Scalia, we had four conservative justices, four liberal justices, and one in the middle--Justice Kennedy--who could go either way in some cases. We know what kind of judicial activists this President puts on the Supreme Court. Do you want to change the direction so that the Second Amendment rights of guns are in jeopardy or like when we saw attempts by this administration to say who a church can hire or not hire--and violate the freedom of religion--and other very important issues that are at stake?

It is pretty fundamental what is at stake, and I think having this debate is very important. And I think letting the people decide is very important.

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