Nomination of Pamela Harris to be United States Circuit Judge for the Fourth Circuit - Continued

Floor Speech

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Mr. SESSIONS. Mr. President, we are dealing with a very disturbing crisis on our borders. The situation that has developed is unbelievable. It is unbelievable how rapidly it has developed, but it has, indeed, been building up for more than a year. It is a direct and predictable result of the President's policies and not enforcing the laws of the United States when it comes to immigration. It is a very sad day, and it can only end when the President stops suspending laws and starts enforcing laws.

The President is the chief law enforcement officer in America. Every Border Patrol officer, every ICE officer, every Coast Guard officer, every military officer, every Department of Justice employee, and FBI employee works for him. He supervises them and directs them. He has been directing them not to enforce the law rather than to enforce the law. The evidence of that is undeniable.

The law enforcement officers--the ICE officers, Immigration and Customs Enforcement officers--sued their supervisor directly appointed by President Obama for blocking them from fulfilling their oath to enforce the laws of the United States of America. There is a Federal court case that is still ongoing, and the judge found, at least at one point in his order, that the President has no right to direct officers not to comply with the law.

We now know that we are facing an exceedingly grave threat of an unbelievable expansion of his unilateral Executive orders of amnesty that go beyond anything we have ever seen in this country and which threatens the very constitutional framework of our Republic and the very ability of this Nation to even have borders, it seems to me, and certainly to create a lawful, equitable, consistent enforcement in our country.

The respected newspaper National Journal, which is here in Washington, a nonpartisan and respected organization, reported on July 3--and a lot of people have missed this, and we need to know what this is saying. We need to know what it means, and we need, as Members of Congress and this Senate, to resist it. We cannot allow it to happen. We will not allow it to happen. The American people, when they find out what is being discussed, will not allow it to happen, in my opinion. Congress needs to be directed by the people--I hate to say--to resist it. It says:

Obama made it clear he would press his executive powers to the limit. He gave quiet credence to recommendations from La Raza and other immigration groups that between 5 million to 6 million adult illegal immigrants could be spared deportation under a similar form of deferred adjudication he ordered for the so-called Dreamers in June 2012.

The DREAMers being the young people. Five to 6 million would be given legal status in the United States of America when they have entered contrary to law or are in the country contrary to law and are not entitled to work in America.

The article goes on to say:

Obama has now ordered the Homeland Security and Justice departments to find executive authorities that could enlarge that non-prosecutorial umbrella by a factor of 10. Senior officials also tell me Obama wants to see what he can do with Executive power to provide temporary legal status to undocumented adults.

What we know is with the children's group, they were provided with an ID card that at the top of it, in big print, says, ``employee authorization card.'' This is exactly what is being talked about here, what the President of the United States is saying.

Remember, the Congress has been asked by activist groups and certain business interests to provide an amnesty for people who are here. The Congress has declined to do so. It has been fully and openly debated and has not passed into law. That is the decision of the Congress. That is the decision we have made--the duly elected body that passes laws. As such, they not having been given amnesty, the President of the United States is not entitled to do so. By declaration of duly passed law, people aren't entitled to come to America unlawfully, to come to America and stay unlawfully. They are not entitled to do that. How simple is this? They are not entitled to be able to take jobs if they do. They are not entitled to certain government benefits if they come illegally. Of course they are not. Of course they are not able to work and take jobs and get benefits if they came into the country illegally.

So when this first got talked about in more general terms, 22 Members of the Senate wrote President Obama and questioned what we are hearing. The Senators wrote this:

These policies have operated as an effective repeal of duly enacted federal immigration law and exceed the bounds of the Executive Branch's prosecutorial discretion. It is not the province of the Executive to nullify the laws that the people of the United States, through their elected representatives, have chosen to enact. To the contrary, it is the duty of the Executive to take care that these laws are faithfully executed. Congress has not passed laws permitting people to illegally enter the country or to ignore their visa expiration dates, so long as they do not have a felony conviction or other severe offense on their record. Your actions demonstrate an astonishing disregard for the Constitution, the rule of law, and the rights of American citizens and legal residents.

Our entire constitutional system--

The letter goes on to say--

is threatened when the Executive Branch suspends the law at its whim and our nation's sovereignty is imperiled when the commander-in-chief refuses to defend the integrity of its borders.

You swore an oath--

The letter says to the President-- to preserve, protect and defend the Constitution of the United States. We therefore ask you to uphold that oath and to carry out the duties required by the Constitution and entrusted to you by the American people.

The President is limited. He is not all-powerful. He is entrusted with certain limited powers by the people of the United States of America.

Now we understand he intends to go even further. In the response we got back, he never addressed it at all, except for his Secretary of Homeland Security, Mr. Jeh Johnson. He announced that, yes, he is indeed, at the order of the President of the United States, conducting a review of how many other people he can provide this amnesty for and work authorization for.

So last week one of our able colleagues, Senator Ted Cruz--a former solicitor general for the attorney general's office in Texas who has argued cases in appellate courts in the country--identified this problem and proposed I think a legislative fix that every Member of this body should sign. Some may say, Well, the President, I don't think he is going to do this. OK. Why not bar him from doing it? Some say, I don't think we should sign it. Why not? He basically said he has already done it with the younger group, and he said it is going to be a tenfold increase in the 5 million to 6 million people who are suggested to be legalized by the President's unilateral Executive order; represents about 10 times the number of people who have already been given lawful status, in effect, by the President's unlawful Executive order.

At this time perhaps it would be appropriate, and I would appreciate it, if the Senator from Texas would explain his analysis of this issue and how his legislation would be effective in ensuring that we don't go down this illegal road any further.

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Mr. SESSIONS. Mr. President, I thank the Senator from Texas because it, indeed, is the face of amnesty. He has documented for us, I think indisputably, that this surge of immigration was a result of the amnesty provided for these children by the President of the United States. I think that has been shown. I think we have never had a clearer analysis of it.

I am reading now further in the National Journal article about what the President plans to do next. The concern we have is about the future. I am not making this up, colleagues. This is a very real action the President is considering, as I read from that chart on amnesty. He would execute, contrary to law, what would give legal status and work status to 5 to 6 million people, 10 times the number that he has been provided for in this action.

What did the National Journal report? Well, I am quoting here.

The President also told a group--This is the group of La Raza and other activist groups that are demanding amnesty and, really, open borders. He told them that Boehner, the Speaker of the House ``urged him not to press ahead with executive actions because that would make legislating more difficult next year.''

In other words, Speaker Boehner said: Do not use this executive amnesty in the future, Mr. President. So now the President is talking to the group, these activists that have been pushing him and demanding things. This is what the article says.

Obama told the group, according to those present, his response to Boehner was: `Sorry about that. I'm going to keep my promise and move forward with executive action soon.'

It makes the hair stand up on the back of my neck as a former Federal prosecutor in Federal court for almost 15 years to have the President say this. The article went on to say:

In the room, there was something of a collective, electric gasp. The assembled immigration-rights groups had been leaning hard on Obama for months to use executive action to sidestep Congress and privately mocked what they regarded as Pollyanna hopes that House Republicans would budge ..... Obama told the groups what they had been dying to hear--that he was going to condemn House Republicans for inaction and ..... provide legal status to millions of undocumented workers--all by himself.

Mr. CRUZ. Would the Senator yield for a question?

Mr. SESSIONS. I would be pleased.

Mr. CRUZ. The junior Senator from Alabama has just described President Obama's stated intention to grant amnesty to an additional 5 to 6 million people here illegally in the months preceding this next election. As the junior Senator from Alabama is certainly aware, there are a number of Senators up for reelection, including a number of Democrats in bright red States where the constituents of those States, whether in Louisiana or Arkansas or North Carolina or many other States, do not support amnesty for another 5 to 6 million people here illegally.

The question I would ask my friend from Alabama: Is he aware of any Democrat in this Chamber, including those Democrats running for reelection in conservative States where the citizens strongly oppose amnesty--is he aware of any Democrat in this Chamber who has had the courage to stand with him in standing up to President Obama and saying: Do not grant amnesty illegally? Is he aware of any Democrat who has joined the two of us in our legislation to prohibit President Obama from illegally granting amnesty to 5 to 6 million people?

Mr. SESSIONS. Well, I am not. One of the things I think the American people do need to understand is when Majority Leader Reid, in conjunction with the President of the United States, blocks even amendments up for a vote, where does he get his power? He gets his power from every Member of his conference.

None of them are breaking in and saying: This is not right.

Senator Cruz's bill would deal with this future danger, that the President might do this again. I think--and we have looked at it hard, our Judiciary staff--we both serve on that committee--and have said this will actually work to ensure that we don't have another rogue action, unlawful, by the President of the United States, directly contrary to deciding the will of the American people and congressional action.

The President is happy that Congress doesn't pass his law, and he says: They won't act, so I will.

But, colleagues, when we don't act, we act. That is an act. It is a decision as sure as if we had passed a law. A decision not to act is a decision. The President of the United States can't simply go around and say: I can do anything I want because Congress won't act. How ridiculous is that? A National Journal article calls this policy explosive, and I believe that is a direct action.

One more question. Senator Cruz, I know, is a student of the Constitution, and Professor Turley at George Washington University has testified numerous times before Congress. I think he considers himself a Democrat, a liberal, but he is deeply concerned about the future of our Republic because of the President's overreach and exceeding the lawful powers given to the President.

Is some other President going to expand it further and very soon Congress becomes nothing? I would ask if the Senator shares this concern, because he was very active in the attorney general's office in Texas. Professor Turley said:

The President's pledge to effectively govern alone is alarming, and what is most alarming is his ability to fulfill that pledge. When a president can govern alone, he can become a government unto himself, which is precisely the danger the framers sought to avoid .....

What we're witnessing today is one of the greatest crises that members of this body will face. ..... It has reached a constitutional tipping point that threatens a fundamental change in how our country is governed.

Does that cause the Senator concern and does he have any thoughts about that?

Mr. CRUZ. Senator Sessions, it causes me great concern. One of the most troubling aspects of the Obama Presidency has been the persistent pattern of lawlessness from this President. We have never seen a President who, if he disagrees with a particular law, so frequently and so brazenly refuses to enforce it, refuses to comply with it, and asserts the power to unilaterally change it.

The President famously said: I have a pen and I have a phone, and he seems to confuse his pen and his phone for the constitutional process of lawmaking our country was built on.

Rule of law does not mean you have a country with a whole lot of laws. Most countries have laws, and many totalitarian countries have a whole lot of laws. Rule of law means no man is above the law. It means that everyone, everyone, everyone, and especially the President, is bound by the law.

President Obama openly defies his constitutional obligation under article 2 of the Constitution to take care that the laws will be faithfully executed.

I would note that Professor Turley, as the junior Senator from Alabama quoted, is a liberal Democrat who in 2008 voted for President Obama. Professor Turley also testified before the House that President Obama has become the embodiment of the imperial President. Barack Obama has become the President Richard Nixon always wished he could be.

Those are the words of a liberal Democratic constitutional law professor who voted for Barack Obama.

But my friend the junior Senator from Alabama is learned and experienced in the ways of the Senate. He has seen lions of the Senate walk this floor. It is unprecedented to have a President so brazenly defy the rule of law, but I state what is equally unprecedented, to have the Senate lie down and meow like kitty cats.

Abuse of power by the President is not a new phenomenon. Presidents of both parties have abused their power. That is a job, sadly, where that tendency has been significant. But in the past, when Presidents have abused their power, Members of their own party stood and called them to account for it. When Richard Nixon abused his power, Members of both parties rightfully decried his abuse of power, so much so that he was forced to resign.

I can state when George W. Bush was President, he signed a two-paragraph order that purported to order the State courts to obey the World Court. I know this because I was at the time serving as the solicitor general of Texas, and it was our State courts that the President's order purported to bind.

George W. Bush is a good man. He is a former Governor of Texas, he is a Republican, and he was a friend and is a friend. Yet I was proud that the State of Texas did not hesitate to stand up to that abuse of power. I went before the U.S. Supreme Court on behalf of the State of Texas and argued that President George W. Bush's order was unconstitutional, that no President has the authority to give up U.S. sovereignty. I am pleased to say the U.S. Supreme Court agreed and struck down the President's order by a vote of 6 to 3.

What is unprecedented today is that on the left side of the Chamber it is both literally and figuratively empty.

We had, not too long ago, the President abuse his power with recess appointments. One of the important checks and balances the Constitution creates on Presidential authority is it gives this body, the Senate, the power of confirmation. President Obama apparently didn't like any checks and balances on his power, so he made a series of recess appointments when the Senate wasn't in recess. It was brazen, it was naked. The President simply asserted: I say the Senate is in recess. Mind you, the Senate didn't say we were in recess, but the President claimed the power to declare us in recess when we weren't.

Do you want to know how extreme that was? Do you want to know how brazen that was? Do you want to know how extraordinary that was?

Just a few weeks ago the Supreme Court unanimously struck it down as unconstitutional.

It is important to underscore that. There is a lot of coverage in the newspaper that suggests we have liberal Justices, conservative Justices, and on any close issue it is going to be 5 to 4. This wasn't 5 to 4, it wasn't 6 to 3, it wasn't 7 to 2, and it wasn't even 8 to 1--9 to 0. Every Democratic appointee on the Court--both of President Obama's appointees on the Court. They looked at the substantive issue and they said: This ain't hard. The President doesn't get to say when the Senate is in recess, the Senate gets to say when the Senate is in recess. And if the Senate isn't in recess, the President has to respect the checks and balances of confirmation.

So we have an easy, no-brainier layup of a constitutional law question about the President usurping the constitutional prerogatives of the Senate, and how many Senate Democrats stood up to their party's President? Not a single one. Not the majority leader of the Senate, who we would think might have some interest in the credibility of this institution and, I am sorry to say, not a lone Democratic Senator. It wasn't that long ago there were lions of the Senate on the Democratic side who prided themselves on defending this institution: Robert Byrd, who stood for years defending this institution; Ted Kennedy.

I would say to my friend the junior Senator from Alabama, what is truly unprecedented is that there are no Senate Democrats who say: Enough is enough.

I am hopeful at some point we will see a Senate Democrat listen to their constituents, listen to the Constitution, and listen to the rule of law.

I can assume the reason why Senate Democrats don't do it and why our friends in the press often don't report on this. I can assume their reasoning goes something such as: Well, I basically agree with the policies of President Obama. I like the policies. I agree with what he is doing, and he is our guy. We kind of have to back our guy.

I am guessing that is a reason, but I will note, as the Scriptures say: There came a pharaoh who knew not Joseph and his children.

President Barack Obama will not always be President of the United States. There will be another President. And even to my friends on the Democratic side of the aisle--I must say something shocking and terrifying to you--there will come another Republican President.

If the President has the authority to do what President Obama is claiming, with ObamaCare--28 times--he simply unilaterally changed the text of the law, said: It doesn't matter what the law says, I say it is something different. If the President has that power, a Republican President has that power too.

So I would encourage all of my friends on the left who like these policy issues--well, imagine some of the policy issues you don't like, whether on labor law or environmental law or tort reform or let's take tax law. I will give an example.

Imagine a subsequent Republican President who stood up and stated quite sensibly the economy might do much better if we move to a flat tax, so I am therefore instructing the IRS: Do not collect any tax above 20 percent.

Now one might say, well, that sounds extreme. That sounds radical. As a policy matter, that would be a terrific policy.

But could the President instruct the IRS not to enforce tax laws? Fifty-five Members of this body are already on record saying yes. Do you know why? Because when the President suspended the employer mandate for big business, the text for ObamaCare says the employer mandate kicks in on January 1, 2014. The President said: I am suspending that provision of law. I am granting my buddies in big business a waiver. That was a tax law.

The PRESIDING OFFICER. The Senator from Alabama.

Mr. SESSIONS. I thank the Senator from Texas.

I think what he is saying is reflected in what Professor Turley said. It is almost like a plea to his colleague, maybe his Democratic colleague, his friend. He said: ``The President's pledge to effectively govern alone is alarming, and what is most alarming is his ability to fulfill that pledge.''

In other words, his ability to get away with it; that Congress acquiesces in it. Let me say this the President is not going to get away with a unilateral amnesty. We are going to take this to the American people, and at some point this Congress will be held to account if he does so. Remember, every Member is going to have to vote and be responsible for allowing a President to run roughshod over the law of this country, the people's representatives, and, in effect, the people of the United States.

His plan for amnesty, under the circumstances he advocated them, has been rejected.

Congress is always available to consider any issue and make any decision it chooses, but it has, under the circumstances driven in this body, been rejected.

He has no power to go forward and beyond that, and we are not going to allow it to happen. It is wrong. Whether we agree or disagree about how amnesty should be given, it is wrong for the President to unilaterally execute such a policy, as Professor Turley said and as the Senator from Texas has said, the former solicitor general of the State of Texas. He understands it is law, and this matter is not over. We will continue to advocate.

I yield the floor.

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