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Floor Speech
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Ms. KLOBUCHAR. Mr. President, I rise in support of Senator Durbin's simple but necessary resolution. It reaffirms three basic principles that should be self-evident to all Senators serving in this body: one, that there are courts established under the Constitution as a coequal branch of government; two, that in the words of Chief Justice Marshall, in Marbury v. Madison, those courts' role is to say what the law is; and three, that the Constitution requires the executive branch to comply with all Federal court rulings.
As I reminded all of the Senators who were assembled for the President's inauguration, there is a reason that that inauguration is not held in a gilded Presidential palace, like it is in some countries. It is held in the U.S. Capitol, and the President is sworn in by the Chief Justice of the U.S. Supreme Court--and in this case, with all Supreme Court Justices there--to make the point that, in America, we have three coequal branches of government, and they all have a very defined role under the Constitution.
These are things we all learned in high school civics, and they are the bedrock of the rule of law. Yet, today, the President refuses to acknowledge these foundational principles. He claims, in channeling Napoleon, that ``he who saves his country does not violate the law.'' He has asserted that ``I have an article II, where I have the right to do whatever I want as President.'' And he has even used the White House's social media account to post an image of himself wearing a crown, proclaiming: ``LONG LIVE THE KING!''
I call that kind of a smoking gun, when it comes to the evidence that Senator Durbin's very important resolution is necessary.
Judges appointed by Presidents of both parties have found many of the President's actions illegal. You have seen, in the past 30 days, judges appointed by Ronald Reagan, judges appointed by George Bush, judges appointed by Donald Trump himself, along with judges appointed by Democratic Presidents, who have looked at the facts, who have looked at the law, and, in the words of Chief Justice Marshall in Marbury v. Madison, have said ``what the law is.'' They have found the President's actions illegal--from unilateral funding freezes, in direct defiance of statutes in the Constitution's crystal-clear mandate that the power of the purse resides squarely with Congress, to illegal firings of government officials, where they have been reinstated.
Yet the administration continues to question principles at the very heart of our Constitution.
Just last month, the Vice President said:
Judges aren't allowed to control the executive's legitimate power.
In 2021, JD Vance, before he was elected, suggested that the President should dismantle the Federal workforce, and ``when the courts stop you, stand before the country like Andrew Jackson did and say, `The Chief Justice has made his ruling. Now let him enforce it.' ''
Elon Musk, who was here in the House of Representatives just last night, lauded by the President, has said: ``The only way to restore rule of the people in America is to impeach judges,'' citing the purge of judges by the government in El Salvador as an example--the world's greatest democracy, the United States of America, now pointing to the rules in El Salvador.
Aaron Reitz, the nominee to head the Office of Legal Policy, had previously called for defiance of a court order, tweeting himself:
Looking for some Andrew Jackson-level leadership on this one. ``Judge Yeakel has made his decision. Now let him enforce it.''
When asked about this tweet at the hearing that Senator Durbin and Senator Grassley held over his nomination and when asked whether the President can defy a court order, Reitz said, ``There is no hard and fast rule in all instances in which a litigant must comply with all or some or various parts of a judicial decision.''
And when asked for his view on the matter, John Sauer, the President's nominee for Solicitor General, told the committee he did not want to speak to hypotheticals. This is a frightening nonanswer.
It is very clear we are to follow the law in the Senate. The President is to follow the law.
In fact, while the Framers gave the President the power to faithfully execute the law, our Constitution created an accountable President. The Framers, who detested the King's unchecked power, made sure to create an independent judiciary to prevent abuse of power wherever it occurred and ensure that no one is above the law, not even the President.
As James Madison noted, ``Independent tribunals of justice'' serve as ``an impenetrable bulwark against every assumption of power in the legislative or executive.'' That includes, of course, the power to issue binding court orders that the Executive cannot set aside.
Like many of my colleagues, I have vigorously opposed some decisions by judges. But even when I disagree with a decision, I never thought it was an open question about whether that decision should be followed. If you do not like a court ruling, you appeal it. If we think a decision was wrong, we introduce legislation or a constitutional amendment, as we have done, to change it or a reasoned argument before the Supreme Court or we file an amicus brief. I attended hearings in which we filed an amicus brief.
I know many of my Republican colleagues and other prominent conservatives agree.
Speaking to the nominees at last week's hearing, Senator Kennedy of Louisiana said:
Don't ever, ever take the position that you're not going to follow the order of a Federal court, ever.
The majority leader Senator Thune has been very clear that people should follow the law.
Federalist Society cofounder Steven Calabresi wrote in the Minnesota Law Review that a system in which the President had the power to defy court judgments ``would not be so much a system of constitutional government as it would be a system of rule by an elected Napoleonic strongman.''
Calabresi noted that all past Presidents have understood this as well. Even Richard Nixon surrendered the Watergate tapes when ordered by a court.
Ours is a nation of laws, not a nation of Kings. Ours is a nation of laws in which no one is above the law. When taking the oath of office-- this just happened a month ago; we were all there--the President promises to ``preserve, protect and defend the Constitution of the United States.'' That is a pledge to obey court orders. And if the President chooses not to and flouts a court order, he will provoke a constitutional crisis.
As Chief Justice John Roberts made clear at the end of last year, any suggestions that Federal court rulings will be rejected are, in his words, ``dangerous'' and, in his words, ``must be soundly rejected.''
Hagan Scotten, the lead prosecutor in the Mayor Eric Adams case, who resigned instead of carrying out politicized orders, maybe said it best. He wrote in his letter of resignation:
I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.
This comes from a lawyer with an incredible career, someone who was a decorated Iraq war veteran, someone who clerked for Judge Kavanaugh before he got to the Supreme Court and clerked for Justice Roberts himself. But he would not commit an illegal act.
``I expect you will eventually find someone who is enough of a fool,'' he said, ``or enough of a coward, to file your motion. But it was never going to be me.''
To my Republican colleagues, those words, they should be something you keep in your head, something that should haunt you in the middle of the night.
Nominees who won't answer unequivocally that the President must comply with a court order, remember the words, maybe ``you will . . . find someone who is enough of a fool, or enough of a coward. . . . But it [is] never going to be me.''
Our job--our job--is to look at these nominees and make decisions on the facts, to advise and consent, not to accept and acquiesce.
And certainly we should, at the very least, support Senator Durbin's resolution--so simple and such a reinstatement of our actual law--that there are courts established under the Constitution as a coequal branch of government--super not controversial; that, in the words of Chief Justice Marshall in Marbury v. Madison, those courts' role is to say what the law is; and, finally, that the Constitution requires the executive branch to comply with all Federal rulings. That is the law, and we ask our colleagues to support this resolution.
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