Nomination of Gerald J. Pappert to be United States District Judge for the Eastern District of Pennsylvania

Floor Speech

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Mr. KING. Madam President, Senator Kaine has spoken eloquently about events of today. I wish to speak for a few moments about events of 200-plus years ago.

On Tuesday, August 17, 1787, at the Constitutional Convention in Philadelphia, the delegates debated the question of war. They debated it passionately and with a sense of history and human nature. They understood the propensity of the Executive--any Executive throughout history, a prince, a king, a potentate, a sultan--to lead their country into war for good reasons or no good reasons. They understood that this was a basic question before the body--before the Constitutional Convention, and I would assert that the Framers knew what they were doing.

Interestingly, in the first draft of the Constitution, the clause in article I, section 8 that says the Congress shall have the power to declare war, said: The Congress shall have the power to make war. That was the first draft.

The debate was about whether Congress could effectively make and execute war. They wisely, I believe, realized that was impractical, given the nature of Congress and the large number of representatives, and the exigencies of war. So they left the power to the Commander in Chief, to the Chief Executive.

They also recognized the Chief Executive's inherent power to repel an attack on this country. But in all other cases what the Constitution says is very clear. Article 1, section 8, says the Congress shall declare war. There was some discussion about this. Some people said, well, we don't want to tie the hands of the Executive, but others made it more clear.

Madison's notes are a fascinating source of information about the history of the Constitution. The notes were taken the day of the debate on Tuesday, August 17, 1787. Mr. Ellsworth of Connecticut stated that ``it should be more easy to get out of war than into it.'' He understood this principle.

Pierce Butler of South Carolina said the Executive should have the power to repel sudden attacks. That is common sense. But then Elbridge Gerry of Massachusetts, I think, put it most succinctly. He said, ``I never expected to hear in a Republic a motion to empower the Executive alone to declare war.'' That is the fundamental issue that is before us today.

Then George Mason of Virginia later in the debate used a wonderful phrase that I think aptly captures what the Framers were after. He said: ``I am for flogging rather than facilitating war.'' That is what we are supposed to do, is to debate, discuss, and have the people engaged in the discussion before this country is committed to war.

The Constitution in the Preamble makes it very clear that one of the fundamental purposes of this government or any government is to provide for the common defense. Nobody questions that. Neither Senator Kaine nor myself nor anyone else who is talking about this issue questions, A, whether we should be debating it and, B, that it is our solemn responsibility to provide for the common defense. I happen to think, as Senator Kaine does, that the fight against ISIL is worthy of national attention, worthy of national effort, and should be debated and circumscribed through some form of authorization in this body. There has not been a declaration of war by the Congress since 1942.

I will conclude with the observation that power doesn't spring from one branch of our government to the other overnight or in some flash of inspiration or change. I would argue more aptly it oozes from one branch to the other, not necessarily through Executive usurpation as through congressional application. For us to go home, to take a recess, to say: We don't really want to be talking about this, we don't want to be responsible for this, I think is unfair to the American people. It is unfair to the people who are being put into harm's way. It is unfair and not responsive to the basic principles of the Constitution.

We owe it to our country to have this debate, and it is one that I believe is important and is constitutionally based. We are very good in Congress about not making decisions and then criticizing the Executive for what they do. This is an opportunity where we have the power, the constitutional power and the constitutional responsibility to discuss, debate, and authorize the Executive's actions against this terrible foe. I believe it is our responsibility to do so. To not do so is simply one more sliding away, one more giving away of our constitutional authority to the Executive that I think is in detriment not only to the Constitution itself, clearly, but also to the interests of the American people.

I thank the Presiding Officer.

I yield the floor, and I suggest the absence of a quorum.

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