Clarifying Jurisdiction with Respect to Certain Bureau of Reclamation Pumped Storage Development

Floor Speech

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Mr. PAUL. Mr. President, we are currently considering the Defense authorization bill. We have considered this most years annually for many decades. Typically, though, we will have a robust debate, we will have amendments offered, and we will try to have participation by Senators from all over the United States geographically represented in the debate.

That won't happen this year. There will be no debate. It will be very controlled and circumscribed, and there won't be amendments. This is disappointing to me because I think there are some very important issues that need to be brought up, and one of those is emergency powers.

Our Founding Fathers understood that it was very important to divide these powers between the executive branch, the legislative branch, or the judiciary. Over the past hundred years though, we have had a gradual evolution of these powers toward the executive branch. And we now have a very, very strong executive branch that, in many ways, is able to control the narrative and ultimately to control the country.

In the 1970s, Frank Church wrote these words, which I think represent a problem that existed then and even more so now. He wrote:

Hundreds of statutes clothe the President with virtually unchecked powers with which he can affect the lives of American citizens in a host of all-encompassing ways. This vast range of powers, taken together, confers enough authority on the President to rule the country without reference to normal constitutional processes.

Under the authority delegated by these statutes, the President may: seize property; organize and control the means of production; seize commodities; institute martial law; seize and control all transportation and communication; regulate the operation of private enterprises; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens.

These words were written by Senator Frank Church in a 1977 law review article, but they are still true to this day and even more worrisome.

The Church Committee's investigatory work famously convinced many in Congress that the time had come to reassert congressional checks and balances on the Executive that had become all too powerful.

It is ironic that the powers-that-be still conspire to this day to hide the work of the Church Committee. I have been trying for over a year to read the classified version of the Church Committee. All right. This is not some sort of new document; this is a document from 1976. But the powers-that-be have prevented me for over a year from reading the classified report. You got to wonder--does that mean they have something to hide or does that mean they love power so much that they don't want to share it?

The National Emergencies Act of 1976 was supposed to be a reform of Presidential emergencies. It was supposed to limit the power of Presidents. In that act, they actually gave a legislative veto. If an emergency were invoked by a President and the majority of Congress voted it, they would be legislatively able to reject that emergency.

The Court ultimately ruled, though, that that would have to be signed by the President, effectively meaning that if a President declares an emergency, a majority of us say ``We don't think that should be declared,'' and he vetoes it, it now takes two-thirds of us to overcome a Presidential emergency. This is a very high bar and makes it nearly impossible to stop a Presidential emergency.

Essentially, the National Emergency's Act enforcement mechanism became toothless when the Court got rid of the legislative veto. Subsequently, Congress must muster this veto-proof or two-thirds vote. To thwart a rogue President, it currently takes a two-thirds majority vote in both Houses to overturn a veto. This is a very high bar. Consequently, we live in a country Frank Church would barely recognize.

In some ways, the United States of America is a monarchy in disguise. The United States maintains the veneer of a constitutional republic but often operates as an elected monarchy in which the President exercises awesome and unchecked power by decree and in perpetuity.

If you look at the emergencies on the books, some of them have been on the books for 50 years. If you look at the potential emergencies that could be declared, you would be shocked.

This dangerous imbalance of the constitutional separation of powers is not simply aggrandizement by the executive branch; it is something that Congress has actually been complicit with. Congress has essentially made itself a feckless branch of the Federal Government by granting the President so many emergency powers and refusing to regularly vote on the termination of national emergencies, as required by current law. The emergencies go on and on.

Our concern should not merely be to restore Congress to its proper role in our Madisonian system of government; rather, our true focus should be to restore the Founders' vision of a government of limited and diffuse powers that is devoted to securing our inalienable rights. A government that disperses power among separate, distinct, and competing branches is a government that is less likely to violate our liberties.

We owe the people nothing less than the restoration of the constitutional principles of separation of powers and of checks and balances among the branches of the Federal Government.

I have offered a significant step towards revivifying the Founders' vision. I have introduced a bill called the REPUBLIC Act, which is an amendment to this bill but likely will not be considered because the powers-that-be don't want debate or amendments. But this amendment, were it considered, would restore Congress's role in governance by requiring that declarations of national emergency expire after 30 days. The President would still have the power to declare an emergency, but it would expire after 30 days unless approved affirmatively by Congress. What this does is essentially switches the role we currently have. Currently, it takes two-thirds of Congress to stop an emergency; now it would take 50 percent of Congress to affirm an emergency.

We did this in my State for our Governor. It is a good reform and goes a long way towards restoring the faith that people have in the separation of powers and the limitation of powers.

This simple reform allows the President to respond to genuine crises but ensures that the Executive cannot rule by unchecked perpetual emergency.

My bill includes other reforms that are designed to safeguard the country from emergency rule. My bill would repeal the provisions of the Communications Act of 1934--also known as the internet kill switch-- that allow the President, if he declares an emergency, to take over all communications.

Now, this emergency fortunately has never been declared, but simply having this on the book for so long is a threat that someday a President might occur who says: I am going to take over all communications, and I will shut them down. That is a power so ominous, no President of either party should ever have that power, and this bill would remove that power.

Today, though, with the power still in place, with the stroke of a pen, the President could use this power to monitor emails, restrict access to the internet, control computer systems, television, radio broadcast, and cellphones. Longstanding use of this power would effectively eviscerate the First Amendment.

If the REPUBLIC Act, my amendment today, were accepted, the President would no longer be able to utilize this power--at least would have limited power during a limited time, and a majority of Congress would have to affirm the continued use of this emergency.

Emergency powers were not the type of rule our Founders anticipated for our country. The other name for emergency rule is ``martial law.'' It is something all of us should object to and say that this should only happen in an exceptional case, be very limited, and have the ability of Congress to overturn.

If anyone doubts that emergency powers can be abused, just look to Canada. Gene Healy of the Cato Institute wrote:

America's neighbor to the north offers a cautionary tale about the risks that broad emergency powers could be turned inward against political dissent. In early 2022, Canadian Prime Minister Justin Trudeau faced a mass protest against COVID-19 restrictions, in which Canadian truckers obstructed key border crossings and effectively shut down the capital city with their rigs. Instead of simply clearing out the protesters and punishing them via conventional legal means, Trudeau invoked emergency powers broad enough to permit the financial ``un-personing'' of anyone participating in the protests.

He went to their bank accounts and took their money. When people raised money voluntarily through crowd financing to help these truckers, he stole that money as well through martial rule. Without any rule of law, he took the money. No transaction with the protesters; he took their money. People were locked up under martial law.

Canada's 1988 Emergencies Act gave the Trudeau government staggering powers to subject individual protesters to ``de- banking'' without due process.

This is the danger of Presidential power--of excessive Presidential power. It isn't about any individual President; it is about all Presidents of either party because men and women will succumb to the desire for power. It is inherent in all. That is why we must have checks and balances.

Deputy Prime Minister and Finance Minister Chrystia Freeland put it this way in describing Trudeau's martial law in a February 2022 warning to the truckers:

As of today, a bank or other financial service provider will be able to immediately freeze or suspend an account without a court order.

The Government of Canada--essentially Trudeau--could freeze a bank account without a court order, without due process of law.

We are today serving notice: If your truck is being used in these protests, your corporate accounts will be frozen. The insurance on your vehicle will be suspended. Send your . . . trailers home.

While native-born Americans may think that emergency powers are to be used to target others, I would venture to guess that the Canadian truckers protesting COVID-era mandates didn't expect that their government would treat them as foreign adversaries and freeze their accounts.

If it can happen in Canada, it can happen in the United States.

Expansive emergency powers do not end there. Today in the United States--a country that owes its very existence to tax revolt--the President can unilaterally impose and raise taxes on foreign imports. Now, some of that power, unfortunately, Congress gave to the President, but it was a mistake, and we should take the power back.

The rallying cry of our American Revolution--``no taxation without representation''--was not just a protest of the past, it is a core principle of American governance. Yet Congress, in its feckless desire to abscond on all responsibilities, said to the President: You can have it; we don't want it. You can raise taxes anytime you want without a vote of Congress.

Terrible idea. Our Constitution was designed to prevent any branch from overstepping its bounds.

Unchecked Executive actions--enacting tariffs on our citizens without a vote of Congress threatens our economy, raises prices on everyday goods, and erodes the system of checks and balances that our Founders so carefully crafted.

The REPUBLIC Act, the reform of emergency powers, the limitation of emergency powers, would correct this. We end up saying to the President: You can't declare an emergency to raise a tax.

Our Founding Fathers were very specific. Not only did taxes have to originate in Congress, they had to originate in the House before coming to the Senate because the House was seen as being closer to the people. Yet here we are talking about vast taxes being levied by one person through emergency powers. We should not let this stand.

Finally, the REPUBLIC Act, my reform, requires the President to disclose Presidential emergency action documents to the Congress. What are these? These are Executive orders that are prepared in anticipation of a wide range of emergency scenarios. These documents are kept secret, and Congress has historically had little oversight or insight into how many exist, what they say, and what are the powers that the President anticipates taking in an emergency.

Although the documents have never been made public, there have reportedly been emergency orders designed to unilaterally suspend habeas corpus, impose censorship, and seize property without warrants. We don't know for certain because they will not reveal these Executive orders, but we do know that they exist. Congress desperately needs to see these documents to conduct oversight of these secret plans that can threaten basic constitutional rights.

We do not have to accept as inevitable or as an inevitability the degeneration of a republic into rule by an all-powerful Executive. We do not have to live in a monarchy disguised as a republic.

We would do well to remember Montesquieu, who wrote that ``when the executive and legislative powers are combined into one branch, no liberty will remain.''

It is time to reclaim the authority of Congress and protect the liberties of people by paring back the vast emergency powers delegated to the President.

I hope the powers-that-be will change their mind and see fit to allow a vote on this amendment. There is significant bipartisan support. We passed it out of committee I believe 13 to 1. The Democrat chairman is a cosponsor of this bill. I think this is a bill that really should bring both sides together.

There used to be pride in our country, pride in the legislative branch to hold firm against usurpation of power by the other branches. This was a pride that went beyond party label and brought legislators together. In recent years, it has been disappointing.

Some people are for reform of Presidential emergencies when their party is not in power, and some people are for it until they are against it when their guy or their woman is in power.

I can tell you this: I have been for this emergency reform under the previous President. I am for this emergency reform under the next President because this is about power. It is about the dispersion of power. It is about decentralizing power. It is about the constitutional separation of powers. It is about checks and balances.

It is important enough that it should be considered. I think it would pass were it considered. But the American people need to know that important debates like this will only occur if the powers-that-be allow the vote to occur. So I would beseech the powers-to-be to allow a vote on this amendment and for my colleagues to vote yes.

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