Mike Lee Makes Epic Senate Floor Speech Decrying Dems For Blowing Off Mayorkas Impeachment Trial

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In Senate floor remarks prior to the Congressional recess, Sen. Mike Lee (R-UT) slammed Senate Democrats for preventing an impeachment trial for DHS Sec. Alejandro Mayorkas.  Fuel your success with Forbes. Gain unlimited access to premium journalism, including breaking news, groundbreaking in-depth reported stories, daily digests and more. Plus, members get a front-row seat at members-only events with leading thinkers and doers, access to premium video that can help you get ahead, an ad-light experience, early access to select products including NFT drops and more:  https://account.forbes.com/membership/?utm_source=youtube&utm_medium=display&utm_campaign=growth_non-sub_paid_subscribe_ytdescript   Stay Connected Forbes on Facebook: http://fb.com/forbes Forbes Video on Twitter: http://www.twitter.com/forbes Forbes Video on Instagram: http://instagram.com/forbes More From Forbes:  http://forbes.com

Transcript

00:00:00 A different set of political and professional perspectives that help them shed light on

00:00:11 this important issue and provide insights and warnings about the rather grave implications

00:00:21 that we so cavalierly overlooked today. We meaning the Senate as a whole. With 49 of

00:00:32 us trying to stand in the way and raise a word of warning about what we're doing and

00:00:39 what implications that might have for the future. Warning signs are everywhere. And

00:00:46 tragically we've seen just in the last few days with news breaking in recent hours that

00:00:56 the consequences of our open borders policy can touch all of us. With one of our dear

00:01:07 respected colleagues having lost a beloved staff member within the last few days. Having

00:01:14 lost that staff member as a consequence of the actions taken by an immigrant in this

00:01:23 country who is here unlawfully, who shouldn't have been here. That's a troubling thing.

00:01:29 But on a human level this has so many ramifications. There are so many thousands of families, so

00:01:36 many hundreds of thousands, in fact so many millions, and in fact tens, depending on how

00:01:43 you slice it, hundreds of millions of Americans who have been impacted in real meaningful

00:01:49 ways by the open borders policy that has been so prominently featured by these articles

00:02:00 of impeachment. Over three decades ago I spent two years along the U.S. Mexico border down

00:02:14 in the McAllen, Texas region. Served as a missionary. And as a missionary one lives

00:02:21 and works among people of all backgrounds. We spend a lot of time with people of modest

00:02:30 means. And in my case I spent most of my time with people of such humble means that I never

00:02:43 quite witnessed in the United States. Conditions that I didn't know existed on any widespread

00:02:48 basis in the United States. Including some people with dirt floors and no indoor playing.

00:02:58 But in countless cases those were a little bit more rare but they exist or at least they

00:03:03 existed in the early 1990s. Even though those were more rare, those extreme cases, almost

00:03:14 all the people I interacted with on a day to day basis were people of very humble means.

00:03:19 We're living paycheck to paycheck just trying to get by and many of these people were themselves

00:03:25 recent immigrants. Some I suspect were here legally. Others I suspect were here illegally.

00:03:32 It wasn't standard practice at the time for missionaries talking to people to find out

00:03:41 their immigration status. We were there for different reasons. But you get to know people.

00:03:46 You get to know their backgrounds. You get to know their concerns. One of the things

00:03:50 that stands out from my memories of those two years is that I interacted with, as I

00:03:56 interacted with these people and learned their customs and learned their language. Most of

00:04:03 them didn't speak English. Some who didn't speak English had themselves lived in the

00:04:09 United States most or all their lives. In fact, there were some people, especially in

00:04:12 the older generations, whose families had been in Texas for a very long time, for generations.

00:04:20 And some of those older generations of people raised speaking largely, if not exclusively,

00:04:26 Spanish. But regardless of their immigration background or how, whether their family had

00:04:31 been in Texas for generations or for only days or weeks, and whether they came legally

00:04:38 or illegally, something I learned about them was that there's no one who fears uncontrolled

00:04:45 waves of illegal immigration in quite the same way and to quite the same degree as recent

00:04:53 immigrants, especially recent immigrants of humble means living on or near the U.S.-Mexico

00:04:59 border. You see, because, Mr. President, it's their schools, it's their jobs, it's their

00:05:06 neighborhoods, their homes, their children, their families who are most directly affected

00:05:12 by these uncontrolled waves of illegal immigration, because it's those things, Mr. President,

00:05:18 that are at their doorstep. They know that every one of those things are placed in grave

00:05:23 jeopardy every time the floodgates open and people pour across our border into the United

00:05:32 States without legal authority to be here. Every single time that happens, that has adverse

00:05:41 consequences. We've talked a lot about the more obvious and the more newsworthy, the

00:05:48 more news-covered implications of open borders with situations like Lake and Riley hitting

00:06:00 the news, but we don't always talk about how it affects other people in more mundane, more

00:06:07 pedestrian ways. I think we have to be mindful of and really watch out for the tendency of

00:06:18 those of us who are privileged enough to serve in this body to otherize immigrants, to otherize

00:06:27 anyone with an Hispanic surname, to otherize anyone by, among other things, assuming that

00:06:34 those groups of people speak monolithically or that we speak for them insofar as we are

00:06:40 seen as advocating a position that is tolerant of or even eager to embrace open borders.

00:06:50 That's not the full picture. And it's one of the more blatantly awful otherizations

00:06:57 that we bring about in our society, is assuming that someone with an Hispanic surname, someone

00:07:02 who may be a recent immigrant themselves, would necessarily want open borders. It's

00:07:07 simply not true. And it speaks profound ignorance to the plight of these individuals when we

00:07:20 claim that they speak monolithically, especially insofar as we're suggesting, even indirectly,

00:07:27 that they're for open borders just because of their last name or their first language

00:07:35 or how recently they arrived in the United States or where they live in the United States

00:07:40 relative to the border.

00:07:46 Getting back to the bigger picture here and to what specifically happened today, when

00:07:58 I think about the 13, going on 13 and a half years that I've spent in the United States

00:08:03 Senate, I don't think of, I don't think I can remember another day when something of

00:08:12 such profoundly disastrous consequences was done in this body to shatter norms, rules,

00:08:22 precedents, legal traditions, and in this case, constitutional principles, quite like

00:08:30 this decision here today did.

00:08:37 Remember just before Thanksgiving in 2013, I had been in the Senate not yet three years,

00:08:49 just days before Thanksgiving, just before we broke for the Thanksgiving recess, when

00:08:57 a group of my colleagues, all of one particular party, decided to nuke the executive filibuster,

00:09:09 decided to break the rules of the Senate in order to change the rules of the Senate, not

00:09:13 by changing the rules themselves, because changing the rules themselves takes 67 votes,

00:09:22 but instead by a simple majority vote, it created new precedent to undercut and flip

00:09:32 the meaning of one of the Senate rules, getting rid of the cloture rule with regard to the

00:09:42 executive calendar.

00:09:44 I spoke to a lot of people after that happened, people of both political parties, including

00:09:52 some of both political parties even within this body, who serve in this body, who expressed

00:09:59 regret over that day and concerns for where it could lead, but particularly when I heard

00:10:07 from people not serving in this body, I heard from people all walks of life, including people

00:10:14 of all political persuasions, who acknowledged the profound consequences that could have

00:10:21 and would eventually have on the United States Senate, because again, it involved a rather

00:10:28 shameless cynical maneuver whereby the Senate broke the rules of the Senate in order to

00:10:35 change the rules of the Senate without actually changing the rules, pretending that the rules

00:10:42 said A, not B, when in fact they said B, not A.

00:10:50 It may have been Abraham Lincoln who once said that, he asked rhetorically, if you count

00:10:57 a dog's tail as a leg, how many legs does the dog have?

00:11:04 Whenever he asked this to any individual, they tend to say, understandably, accepting

00:11:10 the framework of his hypothetical, that would be five legs.

00:11:18 He would respond by saying, no, it's not five legs.

00:11:21 Even if you call the tail of a dog a leg, it's still not a leg.

00:11:28 That's what we did when we nuked the executive filibuster.

00:11:32 On that fateful day in November 2013, in countless ways what happened today was far worse than

00:11:42 that.

00:11:45 Because what was at stake today was not just the rules, traditions, precedents, and norms

00:11:52 of this body, rules, precedents, traditions, and norms that I would add here have at no

00:12:03 moment in our nearly two and a half century existence countenanced a result like what

00:12:10 we achieved today.

00:12:11 That is to say, we've never had something like this where we've had articles of impeachment

00:12:16 passed by the House of Representatives, transmitted to the United States Senate at a moment when

00:12:24 the person impeached was neither dead nor a person who had left the office that that

00:12:35 person held, nor a person ineligible for impeachment, meaning the member of the House or Senate,

00:12:44 members of the House or Senate can be expelled by their respective bodies by a two-thirds

00:12:49 supermajority vote, but they're not subject to impeachment per se.

00:12:58 If we carve out those narrow, rare exceptions where articles of impeachment have been cast

00:13:05 in a way that were patently wrong, where subject matter jurisdiction in this body was lacking

00:13:13 either at the time the articles were passed or between the time they were passed in the

00:13:17 House and the time that they arrived in the Senate, we have what I think can fairly be

00:13:25 characterized as essentially a perfect record, or at least a consistent record, in that we

00:13:29 at least held a trial.

00:13:31 We at least held the bare bones of a trial in which we had arguments presented by lawyers,

00:13:39 at a minimum, by lawyers representing the House of Representatives.

00:13:44 They're known as impeachment managers, sometimes described colloquially as House prosecutors.

00:13:51 We've at least heard arguments by them.

00:13:54 Normally that involves a presentation of evidence by them, by the House impeachment managers.

00:14:03 Normally it involves both sides having lawyers, not just the House impeachment managers, but

00:14:11 also defense counsel representing the impeached individual.

00:14:16 And normally there's been evidence presented and arguments made about why the articles

00:14:21 of impeachment either were or were not meritorious.

00:14:27 In every one of those circumstances, with the narrow exceptions that I've described

00:14:35 as the sole exceptions, there has been at least some finding on at least some of those

00:14:45 articles in every single case culminating in a verdict, a verdict of guilty or not guilty.

00:14:54 That by itself is a precedent and a norm and a custom and a tradition and a set of rules

00:15:01 that we've overlooked today and that we've run roughshod right over.

00:15:07 But there's something much more at stake, something much more concerning about this

00:15:10 that I find so troubling, and that is that, you know, under Article I, Section 3, Clause

00:15:20 6, the Senate's given the sole power and with it the sacred responsibility and duty to try

00:15:32 all impeachments.

00:15:34 Now, as I've just described, in every circumstance where there wasn't some jurisdictional defect,

00:15:42 and by that I mean a bona fide subject matter jurisdictional defect such that we lacked

00:15:48 jurisdiction to move forward, we've proceeded and reached some kind of a verdict in every

00:15:56 one of those cases, but not today.

00:16:00 You know, Mr. President, I had been concerned for weeks.

00:16:06 I'd heard rumors for weeks that what was going to happen today was that the majority

00:16:10 leader was going to approach these articles with a certain degree of cavalier indifference

00:16:16 and offer up a motion to table.

00:16:21 I immediately became convinced after looking at the rules and studying the precedent on

00:16:26 this that a motion to table would be inappropriate here.

00:16:32 It would be inappropriate because, for the same reasons I've just explained, we've

00:16:37 never done that, never done anything close to that.

00:16:41 The closest precedent for something like that was so far off course that it couldn't

00:16:50 even be relied on.

00:16:51 I recall the only precedent that even sounded like the same thing was, in fact, very different

00:17:00 from that, in that during the trial over the impeachment of President Andrew Johnson, one

00:17:08 senator had made a particular motion to do a particular thing during that trial, and

00:17:15 another senator later moved to table that motion.

00:17:18 There was no motion to table any articles of impeachment.

00:17:22 In any event, I became convinced after studying this that a motion to table would be without

00:17:29 precedent and, you know, contrary to everything I thought I knew about our rule constitutionally

00:17:38 and otherwise, to conduct impeachment trials.

00:17:43 I also became convinced that this would be bad precedent and that it would set a certain

00:17:47 precedent suggesting that it's okay.

00:17:51 If the party occupying the majority position in the United States Senate didn't want

00:17:57 to conduct a trial, then it didn't have to.

00:17:59 It could just sweep them aside.

00:18:03 As I say, channeling the immortal words of Rush in the song "Free Will," if you

00:18:07 choose not to decide, you still have made a choice.

00:18:11 You've made a bad one if you choose to just set aside the impeachment articles without

00:18:16 rendering a verdict of guilty or not guilty, whether pursuant to a motion to table or otherwise.

00:18:26 And I thought that motion to table would be an especially bad basis, an especially bad

00:18:33 strategy and a bad mode for disposing of and otherwise addressing articles of impeachment.

00:18:42 It's important in this context to remember that the United States Senate has exactly

00:18:48 three states of being.

00:18:51 We exist at any given moment, either in our capacity as legislators in legislative session,

00:19:05 secondly in executive session where we consider presidential nominations and also on occasion

00:19:16 treaties for ratification.

00:19:18 Both executive functions carried out under our executive calendar.

00:19:21 Our third state of being exists in this context where we are to operate as a court of impeachment.

00:19:36 It's solely in our capacity as senators sitting in a court of impeachment that we're administered

00:19:48 a second separate oath, different from the oath that we all take each time we're elected

00:19:55 or reelected to the Senate.

00:19:57 It's a different capacity and it's a capacity that requires us to decide the case and to

00:20:04 do so on the merits of the case.

00:20:10 It's also unique in that it's the only mode in which there is a solid expectation, unblemished

00:20:20 until today, in which if we do in fact have articles of impeachment over which we have

00:20:28 subject matter jurisdiction, that the case hasn't been rendered moot, where there is

00:20:34 an expectation backed up by history, tradition, precedent in the text of the Constitution,

00:20:39 that we will do the job.

00:20:42 That in fact, according to these precedents up until today, that we will reach a verdict

00:20:50 of guilty or not guilty by the time that we're done.

00:20:57 You see, those things don't exist in the other two states of being.

00:21:00 In our legislative calendar, there's no expectation or tradition or precedent or implication from

00:21:09 the text of the Constitution that we will affirmatively act upon and ultimately dispose

00:21:17 of every piece of legislation presented to the president, to the United States Senate.

00:21:26 We don't do that.

00:21:27 We've never taken that approach.

00:21:28 And if we did, it would grind the place to a halt.

00:21:32 I don't think it would physically be possible.

00:21:37 Nor has that ever been the expectation on the executive calendar.

00:21:42 Sure, we tend eventually to get to most of them, but there is an understanding that unless

00:21:52 or until such time as we confirm a particular nominee, that nominee is not confirmed, such

00:22:00 that if we get to the end of the road, the end of that Congress, the end even of a session,

00:22:06 if that person is to be confirmed, that person is to be re-nominated first and then considered

00:22:11 by the Senate.

00:22:12 But even then, there's no guarantee as to any final vote disposing of that nomination.

00:22:19 This is different in the context of an impeachment, where we sit as a court of impeachment.

00:22:27 We sit as a court of impeachment.

00:22:29 And in so doing, we become two things.

00:22:32 In any trial, in an ordinary court, there are two functions that a trial involves.

00:22:40 You've got to have finders of fact.

00:22:43 That's a role typically played by a jury in our system, both in civil courts, civil cases,

00:22:50 and in criminal cases.

00:22:52 And you've got to have judges of legal issues.

00:22:56 Typically those are performed by a judge.

00:23:02 In some cases, most commonly, if the parties agree to have the issues of fact decided by

00:23:13 a judge rather than a jury, then you can have the whole thing, you know, the issues of fact

00:23:19 and the issues of law decided by a judge.

00:23:22 We serve both functions.

00:23:24 We're finders of fact and judges of the law relevant to the impeachment case before us.

00:23:29 You know, I think, Mr. President, that's the whole reason why we're given a separate oath

00:23:33 for that.

00:23:34 We don't take a separate oath every time we bring up a bill or every time we get a presidential

00:23:38 nomination or every time we're asked to consider a treaty for ratification.

00:23:45 But we do take a separate oath every time we receive articles of impeachment.

00:23:49 It's not just because these things are more rare than bills as they're introduced or nominations

00:23:56 as they're received or treaties presented to us for potential ratification.

00:24:01 It's because it's a sacred responsibility in which there is an expectation backed up

00:24:12 by centuries of tradition, custom, precedent, and understanding of our constitutional text

00:24:19 that we'll dispose of the case.

00:24:21 We will dispose of it in a way that culminates in a finding of guilty or not guilty, except

00:24:27 in these rare instances where we lack subject matter jurisdiction, most commonly because

00:24:31 the case has been demanded moot, which it is not in this instance.

00:24:40 The particular way in which we went about this today really was crazy and impossible

00:24:46 to defend.

00:24:49 Really impossible to defend on its merits.

00:24:53 Remember there were two articles in these impeachment charges.

00:24:58 Article one alleged that in eight or nine different instances in which Secretary Mayorkas

00:25:10 had an affirmative legal duty to detain illegal immigrants pending adjudication of either

00:25:21 of their asylum claims or of their argument that they might be entitled to some other

00:25:29 form of relief, including immigration parole.

00:25:35 The Secretary of Homeland Security had an affirmative duty to detain them.

00:25:39 All those decisions were pending.

00:25:45 Eight or nine different statutes require that.

00:25:48 Eight or nine different statutes he deliberately violated.

00:25:52 He did the opposite of what the statute required.

00:25:57 And by doing that, he invited and facilitated an invasion at our southern border that's

00:26:03 unprecedented in American history, that's been dangerous, that's resulted in all kinds

00:26:08 of heinous crimes being committed, loss of life, loss of innocence, loss of property.

00:26:18 Many many harms occurring as a result of this.

00:26:22 Occurring as a result of his deliberate decision not only not to do the job he was hired to

00:26:30 do and that he swore an oath to perform well, but to do the exact opposite of what the law

00:26:36 required.

00:26:39 Mentioned a little while ago the writings of Justice Story, Justice Joseph Story, one

00:26:50 of our early Supreme Court justices a couple centuries ago.

00:26:58 Familiar with the Constitution at a time closer to the founding and also very familiar with

00:27:09 the English legal antecedents on which the Constitution was predicated with the legal

00:27:16 terminology incorporated from English law into the American constitutional system.

00:27:24 And in his great treatise on the Constitution in section 798, he explained a few things

00:27:34 about impeachable offenses.

00:27:39 And he said in section 798, "In examining the parliamentary history of impeachments,

00:27:45 it'll be found that many offenses not easily definable by law and many of a purely political

00:27:53 character have been deemed high crimes and misdemeanors worthy of this extraordinary

00:27:58 remedy."

00:27:59 This extraordinary remedy of course referring to impeachment.

00:28:06 It then recites a litany of things that would qualify for this.

00:28:13 And again he just noted they don't necessarily have to be easily definable by law.

00:28:20 They are of a political nature, but he identified some of those things that had been established

00:28:25 through English legal precedent, English parliamentary precedent as worthy of impeachment, qualifying

00:28:32 as high crimes and misdemeanors.

00:28:35 Among other things, he identified what he referred to as attempts to subvert the fundamental

00:28:40 laws.

00:28:44 Attempts to subvert the fundamental laws.

00:28:47 This could have broad application in all sorts of areas, but I can think of few laws more

00:28:53 fundamental to our republic, to our federal legal system, than our fundamental laws governing

00:29:02 who may enter this country and under what circumstances.

00:29:10 He went on to identify a number of other things that fit this definition.

00:29:18 Adding to it, among other things, by saying one thing in particular that would meet the

00:29:26 definition of high crimes and misdemeanors and thus be impeachable would be an instance

00:29:32 in which "a Lord Admiral may have neglected the safeguard of the sea."

00:29:44 Some on the other side of the aisle have argued that, well really what Secretary Mayorkas

00:29:50 did was to just not do as good of a job as he should have and could have in enforcing

00:29:58 the law and that can't be a basis for impeachment, they argue.

00:30:02 Some of them will invoke a line of reasoning that says maladministration, in other words

00:30:09 not doing your job well, isn't a valid basis for an impeachable offense.

00:30:17 I'm not at all sure that that argument even stated in the abstract is accurate.

00:30:22 In fact, I tend to think that it's not because the Constitution itself assigns that job to

00:30:33 this branch of government, to the House as it assesses whether to charge something as

00:30:41 impeachable and to the Senate as it assesses whether an impeachment passed and presented

00:30:48 by the House warrants conviction, removal from office.

00:30:56 That really is our job and as Justice Story noted, it includes offenses of a political

00:31:02 character regardless of whether they would amount to independently prosecutable criminal

00:31:08 offenses in a criminal court of law sense of that word.

00:31:17 But in any event, even if you buy into that reasoning, there are those scholars who believe

00:31:23 that.

00:31:24 I seem to recall Professor Alan Dershowitz, respected Harvard Law professor from whom

00:31:35 we've heard in past impeachment proceedings.

00:31:37 I believe he believes in this approach.

00:31:41 Even under Professor Dershowitz's approach, he's someone for whom I have great respect

00:31:47 even where I disagree with him.

00:31:57 Even if you were to accept that premise, this isn't just that.

00:32:00 This goes far beyond just now administration.

00:32:03 It's not just that Secretary Mayorkas didn't do as good of a job as he could have and should

00:32:09 have and we wish he would have.

00:32:12 It's that he willfully subverted what the law required and did the exact opposite of

00:32:18 what the law required.

00:32:24 That's impeachable.

00:32:25 It's got to be impeachable.

00:32:27 And yet, the majority leader stood up today and he said, "I raise a point of order that

00:32:32 impeachment article one."

00:32:34 Again, impeachment article one is the part that deals with Secretary Mayorkas' decision

00:32:41 to do the exact opposite of what the law requires.

00:32:47 Majority leader continued, "Impeachment article one does not allege conduct that rises to

00:32:53 the level of a high crime or misdemeanor as required under article two, section four of

00:32:56 the United States Constitution and is therefore unconstitutional."

00:32:59 I really don't know how he gets there.

00:33:06 They can't get there except by sheer force and the way you do something by sheer force

00:33:11 here is you produce a simple majority of votes from senators declaring the impeachment equivalent

00:33:27 of defining the tail of a dog to be a leg.

00:33:35 What I found even more stunning was when, as stunning as that first move was and as

00:33:42 disappointing as it was that a simple majority of United States senators, all from the same

00:33:48 political party, I would add, not my own, he somehow managed to outdo that one by later

00:34:00 making the same point of order with respect to article two, arguing that, you know, he

00:34:07 said, "I raise a point of order that impeachment article two does not allege conduct that rises

00:34:13 to the level of a high crime or misdemeanor as required under article two, section four

00:34:17 of the United States Constitution and is therefore unconstitutional."

00:34:20 Let's remember what article two was about.

00:34:27 Article two charged Secretary Mayorkas with knowingly making false statements to Congress.

00:34:42 Because Congress was carrying out its oversight responsibilities with him testifying often

00:34:47 under oath to Congress.

00:34:51 Now unfortunately, we never got to hear any evidence on this.

00:34:55 Therefore we weren't presented with the opportunity to make a final determination on this.

00:35:01 But we instead have the majority simply roll right over all of this by just declaring,

00:35:17 ipse dixit, it is because it is, it is because we say it is, that it's not an impeachable

00:35:24 offense, even if as has been alleged, and as the House impeachment managers, the House

00:35:32 prosecutors, we sometimes call them, were denied the opportunity to try to prove that

00:35:41 he knowingly made false statements to Congress.

00:35:45 To say that that's not impeachable is breathtakingly frightening.

00:35:58 We've now established a precedent in the United States Senate that if you occupy a high position

00:36:06 of trust within the United States government, a cabinet member in this instance, and you

00:36:17 knowingly willfully make false statements to Congress, as Congress is trying to get

00:36:23 to the truth about what you're doing in your job and whether or not you're faithfully executing,

00:36:29 implementing and enforcing the law, that lying to Congress in that sense, even under oath,

00:36:44 isn't an impeachable offense.

00:36:49 That precedent could suggest that we've now effectively immunized from impeachment, doing

00:36:53 that very thing.

00:36:54 Now, how are we to conduct adequate oversight if even the theoretical threat, the theoretical,

00:37:08 hypothetical, potential threat of impeachment isn't on the table?

00:37:14 It severely weakens the fabric of our republic.

00:37:19 It certainly weakens the ability of the United States Senate to push back on abuses by and

00:37:34 within a coordinate branch of government.

00:37:44 You know, when James Madison expressed in the Federalist Papers, among other places

00:37:49 in Federalist 51, that government was sort of an experiment.

00:37:56 It's an exhibit.

00:37:57 It's a display of human nature.

00:38:05 There and in other Federalist Papers, he explains things like the fact that as he continued

00:38:13 in Federalist 51, that if we as human beings were angels, we wouldn't need government.

00:38:19 If we had access to angels to run our government, we wouldn't need all these rules to govern

00:38:23 those responsible for government.

00:38:25 But alas, we're not angels.

00:38:26 We don't have access to angels to run our government, so we need rules.

00:38:32 Madison was also a big believer in the fact that because we're not angels, we don't have

00:38:39 access to angels to run our government, and we do need these rules, you've got to set

00:38:44 up a system in which power can be made to check power.

00:38:49 And you set up each branch with its own set of incentives to guard against abuses of power.

00:38:57 I've wondered over time as I've seen the United States Senate gradually, but very steadily

00:39:05 over many decades, voluntarily relinquishing its power.

00:39:13 Much of it started with our work on the legislative calendar, starting in earnest really in the

00:39:23 1930s, but continuing to the present day, we've gradually, steadily been outsourcing

00:39:30 a lot of our lawmaking power to unelected, unaccountable bureaucrats, pass all sorts

00:39:37 of laws saying essentially we shall have good law with respect to issue X, and we hereby

00:39:45 delegate to department or commission or agency or functionary Y the power to promulgate rules

00:39:54 carrying the force of generally applicable federal law as to issue X.

00:40:01 Little by little, the American people lose control over their own government as this

00:40:05 happens.

00:40:06 Little by little, you start to see that this diminishes the overall accountability of the

00:40:17 United States government, and when agency or department Y promulgates a particular rule

00:40:26 carrying the force of generally applicable federal law, people understandably, predictably,

00:40:31 very consistently come to us to complain, saying this is killing us.

00:40:37 This rule made by unelected, unaccountable bureaucrats is now going to shut down my business.

00:40:44 I'm going to be deprived of life, liberty, or property, or some combination of the three.

00:40:51 Whether I choose to comply or not, it's going to harm me in material ways, and yet, you

00:40:56 know, Article I, Section 1, Clause 1 says that all legislative powers herein granted

00:41:00 shall be vested in the Congress of the United States, which shall consist of a Senate and

00:41:04 a House of Representatives.

00:41:06 Article I, Section 7 makes abundantly clear what Article I, Section 1 sets up, which is

00:41:10 to say you cannot make a federal law without the assent of both the House of Representatives

00:41:18 and the Senate on the same bill.

00:41:21 They've got to pass the same bill text and then present it to the chief executive, the

00:41:28 President of the United States, for signature, veto, or acquiescence.

00:41:30 Unless you follow that formula of Article I, Section 7, you're not supposed to be able

00:41:33 to make a federal law.

00:41:37 One of the more influential political philosophers on the founding generation is Charles de Montesquieu,

00:41:47 who observed that the lawmaking power is itself non-delegable, that the task of lawmaking

00:41:58 involves the power to make law, not other lawmakers.

00:42:01 Because as we see to this very day, when these things happen, when people come back to complain

00:42:06 to us that the administrative regulation carrying the force of generally applicable federal

00:42:11 law, when it causes problems, people come and complain to us, and then members of Congress

00:42:24 predictably and foreseeably beat their chests and they say, "Oh, yes, those barbarians over

00:42:30 at Agency, Commission, Department, why?

00:42:37 We didn't mean to authorize this.

00:42:38 We just said make good law as to Issue X.

00:42:41 We didn't say to make bad law."

00:42:44 And then predictably, the senators, the representatives say something like the following, "You know

00:42:50 what I'm going to do for you, constituent?

00:42:52 I'm going to write them a harshly worded letter.

00:42:55 That's what I'm going to do."

00:42:57 As if that were our job, we were sworn in to do, was to write harshly worded letters.

00:43:03 It's not that, of course.

00:43:04 It's to make laws, not other lawmakers.

00:43:07 You know, I keep these two stacks of documents behind my desk.

00:43:16 One stack is small.

00:43:19 Usually a few inches, no more than a foot or so.

00:43:23 It's the laws passed by Congress in the preceding year.

00:43:27 It's just a few thousand pages long.

00:43:32 The other stack is 13 feet tall.

00:43:34 During a typical year, it'll reach about 100,000 pages stacked up even on very thin paper,

00:43:45 double-sided small print, 13 feet tall.

00:43:50 And then, of course, there's the annual cumulative index of these federal regulations as they're

00:43:56 promulgated, as they're initially released for notice and comment, and later as they're

00:44:00 finalized.

00:44:04 Those rules carry the force of generally applicable federal law.

00:44:07 Failure to abide by those can shut down your business, can result in enormous fines, in

00:44:13 many cases can result in your imprisonment if you don't follow them.

00:44:18 And yet they are not enacted themselves through the formula prescribed by Article I, Section

00:44:23 7.

00:44:24 No, because in that instance, we've authorized the making not of laws, but of other lawmakers,

00:44:34 not ourselves.

00:44:35 And those other lawmakers to whom we've given this assignment, while perhaps however well-educated

00:44:43 and well-intentioned, wise, specialized, well-trained they might be, they don't stand accountable

00:44:52 to the American people, ever.

00:44:56 Their name will never appear on a ballot.

00:44:57 In fact, their name will stand essentially as a secret to nearly every American, including

00:45:10 those who will stand accountable to those laws, who may lose life, liberty, and property

00:45:14 as a result of those things.

00:45:24 It's not right.

00:45:25 We all know deep down that it's not right.

00:45:27 We know that every time we're presented with one of these complaints by our constituents,

00:45:35 and we all have them, in my office it's a nearly constant refrain, and yet they often

00:45:46 precipitate the predictable, harshly worded letter, and not a lot else.

00:45:52 In other instances, they might culminate in the filing of a resolution of disapproval

00:46:01 under the Congressional Review Act.

00:46:05 As fun as those can be, as they do give us at least an opportunity to debate them, those

00:46:09 are privileged resolutions.

00:46:13 You follow the rules of the Congressional Review Act, you can pretty much always get

00:46:17 one of those voted on, you can at least have an opportunity to present those here in the

00:46:22 United States Senate, and to vote up or down as to whether or not you want to disapprove

00:46:28 of the regulation in question.

00:46:31 Ultimately, however, those prove dissatisfying from a constitutional standpoint, in the sense

00:46:39 that with very narrow exceptions, they don't really do any good, because nearly any administration

00:46:51 whose bureaucratic structures will promulgate the administrative rule in question, will

00:46:59 like for policy reasons and political reasons, a policy choice embodied in those regulations.

00:47:10 And consequently, the president whose administration promulgated that regulation being challenged

00:47:20 under the CRA resolution of disapproval, will almost always veto any resolution of disapproval

00:47:29 passed by both houses of Congress.

00:47:32 It's very rare that that doesn't happen.

00:47:37 With only one exception I can think of from a few decades ago, the only time that works

00:47:49 other than that one exception that I'm thinking of, occurs when you've got a holdover, when

00:47:59 you've got a new administration, and you've got regulations that have been promulgated

00:48:03 toward the tail end of the previous administration.

00:48:06 We had a number of those when President Trump took office, following President Obama's time

00:48:14 in office, where regulations from the Obama era were becoming ripe for CRA resolutions

00:48:22 of disapproval, and we were able to get them passed by both houses of Congress, and then

00:48:26 signed by President Trump.

00:48:30 Those circumstances are pretty rare, and every other circumstance.

00:48:34 The voters of this great country, those subject to these administrative regulations that are,

00:48:40 in fact, laws, those things leave us without redress.

00:48:52 It's one of the reasons why I've long advocated for us to pass a measure called the REINS Act.

00:49:01 If a genie appeared to me and said, "You can pass any one bill now pending in front of

00:49:06 the United States Congress," it'd be the REINS Act.

00:49:08 Why?

00:49:09 Because the REINS Act would require us, by statute, to do what I believe the Constitution

00:49:12 already requires, what it, in fact, does contemplate, which is that it's fine for administrative

00:49:22 regulations to be promulgated, to be proposed, but unless or until they're affirmatively

00:49:26 enacted into law by both houses of Congress, and then signed into law, or acquiesced to

00:49:32 by the sitting president, or in the event of a veto, that veto is overwritten by two

00:49:39 thirds of both houses of Congress, then it can take effect.

00:49:41 But short of that, no dice.

00:49:43 You don't get the law.

00:49:47 These do have far-reaching effects, including the fact that, you know, as a member of the

00:49:50 Judiciary Committee, I and a few of my colleagues tried to figure out a few years ago how many

00:49:58 criminal offenses are on the books, how many different provisions of federal law prescribe

00:50:04 criminal penalties that can result in a criminal conviction.

00:50:09 We asked this question of the Congressional Research Service, the entity to which we turn

00:50:18 regularly in order to get answers to questions like those.

00:50:28 The answer came back to us in a way that I found absolutely stunning.

00:50:33 The answer that came back to us from the Congressional Research Service, very talented people at

00:50:38 the Congressional Service who were very good at answering these questions, they did a good

00:50:42 job doing it, and I'm convinced they gave us the answer that was possible to achieve.

00:50:46 They said the answer is unknown and unknowable, but we know that it stands at at least 300,000

00:50:57 separately defined criminal offenses on the books.

00:51:00 Now, this does not mean that on 300,000-plus occasions, both houses of Congress passed

00:51:10 into law a separate statute defining a criminal offense with criminal penalties.

00:51:16 No.

00:51:17 In many, many of these instances, one of the reasons why that number is so difficult to

00:51:21 tie down is because a lot of these are defined administratively.

00:51:26 So that's one area in which the United States Senate has been deliberately shirking its

00:51:32 responsibilities and handing them off to somebody else, refusing to do the job that we've been

00:51:37 given to do.

00:51:38 So that was on the legislative calendar.

00:51:41 We've done that time and time again.

00:51:43 Also on the executive calendar, where we've changed the law so as to limit, changed the

00:51:49 law or in some cases adopted standing orders that have been embraced in subsequent iterations

00:51:56 of the Senate, limiting the number of presidential nominees requiring confirmation.

00:52:05 So we've narrowed our playing field there, too, shirking our responsibility, even as

00:52:10 the size of the federal government has increased inexorably.

00:52:18 We've narrowed our job.

00:52:20 And now we've seen it done again today in our third state of being, in our third category,

00:52:26 where we operate as a court of impeachment, where even here, where our job is really limited,

00:52:32 we have one job in this area to conduct impeachment trials.

00:52:36 There are a thousand ways you can conduct an impeachment trial.

00:52:38 You can conduct an impeachment trial with the whole Senate.

00:52:41 You can specialize the impeachment trial so that it's heard in the first instance by a

00:52:51 select committee with members of both political parties who hear the evidence and then after

00:53:01 doing that, submit the whole matter for a final vote to the whole Senate.

00:53:07 You can hear evidence through individual witnesses.

00:53:12 You can receive evidence in documentary form.

00:53:16 There are a thousand different ways to conduct a trial, some of which allow the trial to

00:53:22 be conducted pretty quickly.

00:53:23 Others might take more time.

00:53:26 But there are a thousand ways we can do it.

00:53:27 And here, as with the other two states of being, first on the legislative counter, then

00:53:34 on the executive counter, now as we sit as a court of impeachment, we've narrowed our

00:53:44 work again, shirking our responsibilities again, again declining to perform our constitutional

00:53:52 duties.

00:53:56 This is shameful.

00:53:59 I'm embarrassed that we as a Senate seem so enamored with the idea that we can't do the

00:54:09 things given to us.

00:54:11 What's especially troubling about this is that, you know, we are in fact a government

00:54:18 of limited enumerated powers.

00:54:21 Our job is not to, as some people put it, run the country.

00:54:27 Our job is not to make law on any matter that we think appropriate or significant.

00:54:34 Our job is not just to enact legislation in any area where we think it might redound in

00:54:41 one way or another to the net benefit of the American people.

00:54:45 So we're supposed to be a government of limited enumerated powers, charged with a few basic

00:54:52 things.

00:54:53 We're in charge of a uniform system of weights and measures, a system of immigration and

00:54:59 nationality laws, regulating trade or commerce between the several states with foreign nations

00:55:05 and with Indian tribes.

00:55:07 We're in charge of declaring war, establishing and regulating an army and a navy, coming

00:55:16 up with rules governing state militias, which we now describe, refer to as National Guard.

00:55:28 Coining money, regulating the value thereof, coming up with bankruptcy laws, postal roads,

00:55:36 post offices, regulating, in some instances, federal land to be used for some military

00:55:52 purpose, regulating what we now call the District of Columbia, adopting rules governing the

00:56:01 disposal, the regulation and disposal of territory and other property owned by the United States.

00:56:09 Then there's one of my favorite powers of Congress, involves granting letters of mark

00:56:15 and reprisal.

00:56:17 Mark in this instance spelled M-A-R-Q-U-E.

00:56:21 We haven't done one of those in over a century.

00:56:23 I hope we will sometime.

00:56:24 I think we should.

00:56:26 Letter of mark and reprisal is basically a hall pass issued by Congress that allows those

00:56:33 acting pursuant to it to engage in acts of piracy on the high seas with impunity offered

00:56:41 by the United States if they're able to make it back with whatever loot they take into

00:56:46 the United States and then divide the spoils and share the spoils with the United States

00:56:52 government.

00:56:55 That's about it.

00:56:56 There are a few other powers of Congress here and there, but it's the lion's share of what

00:57:02 the federal government can do.

00:57:04 Of course, we occupy the most significant, prominent, dominant, and dangerous power within

00:57:11 that because we're the lawmaking branch.

00:57:13 We make the laws.

00:57:14 The executive branch enforces the laws we make, deferring to our policies and enforcing

00:57:20 the policies that we enact.

00:57:22 The judicial branch headed by the Supreme Court just interprets them, not just in the

00:57:28 abstract, but interprets them in a way so as to be able to resolve disputes properly

00:57:32 brought before the jurisdiction of the courts, disputes over the meaning of federal law.

00:57:39 So we get the most dangerous, prominent, dominant position.

00:57:43 It makes sense that the founding fathers entrusted that role only to us because we happen to

00:57:49 be the branch of government most accountable to the people at the most regular intervals.

00:57:52 You can fire all 35 members of the House every two years.

00:57:56 You can fire one third of the body, the members of this body, every two years.

00:58:03 And it's one of the reasons why you know that the founding fathers considered the power

00:58:07 that we wield the most dangerous because they made us subject to the most frequent and regular

00:58:17 and direct kinds of guarantees of accountability, that is, through elections.

00:58:25 So now we've got somebody who's been impeached because a law that we passed that he was charged

00:58:29 with enforcing and administrating, administering and implementing and executing didn't do his

00:58:35 job.

00:58:36 So it falls on us to decide that.

00:58:40 We've got myriad instances in which that violation of the law can't be adjudicated in court,

00:58:48 such as this case we referred to earlier, United States versus Texas, where a majority

00:58:54 of the Supreme Court of the United States, against, by the way, brilliant dissent by

00:59:02 Justice Alito, concluded that the state of Texas didn't have standing to address the

00:59:13 violations of law, the deviations from law of Secretary Mayorkas and the Biden administration.

00:59:24 So we, if not us, who?

00:59:30 In countless instances, the courts can't do it.

00:59:34 The executive branch isn't going to check the executive branch.

00:59:38 The buck stops with us.

00:59:40 It's our job to do this.

00:59:41 And today we failed.

00:59:42 We didn't just fail in the sense that we tried to do it and we didn't.

00:59:46 We, the majority of us, unfortunately, tried not to, went out of our way to define our

00:59:51 role as something that it's not, to define the law as saying something other than what

00:59:55 it in fact says, so that we can shirk our responsibilities yet again.

01:00:00 Shame on us.

01:00:01 Shame on those members of this body who voted to do that today.

01:00:08 I wonder what future generations will say about this.

01:00:12 I wonder how many ways in which future generations will suffer from what we did today.

01:00:17 I hope to shout, they'll take this as a lesson in what not to do and soon depart from this

01:00:26 awful precedent, because otherwise this will lead to the shedding of tears and worse.

01:00:41 We're told that the Senate is apparently just too busy to conduct an impeachment trial.

01:00:47 Just as we're about to be told that the Senate is too busy to require the federal government

01:00:53 to get a warrant before searching the private communications of the American people incidentally

01:00:59 collected and stored in the FISA 702 databases.

01:01:04 Too busy to do those things, but I think we're about to be told that it's not too busy to

01:01:09 send even more money to Ukraine, where we've already sent $113 billion.

01:01:17 Not too busy to do that.

01:01:19 Not too busy to expand FISA without adding a warrant requirement, but just way too busy

01:01:28 apparently to do what the Senate and only the Senate can do and what under the Constitution

01:01:35 we must do.

01:01:43 Madam President, like the ghost of Christmas future and Charles Dickens, a Christmas story.

01:01:59 I hope that as we examine our future and what today's action portends about the future of

01:02:06 the United States and of the United States Senate, I hope we can choose to depart from

01:02:12 this course.

01:02:16 While I fear that our past will prove to be our prologue, I sure hope we won't solidify

01:02:31 and more deeply entrench this unwise, indefensible move that we took today.

01:02:42 But I'm glad we've had the chance today to set the record straight, to make an adequate

01:02:48 record of what really happened, and that while a majority, a bare, slim majority, chose to

01:03:09 choose the inexcusable today, some of us, nearly half of us, tried to stand in front

01:03:21 of that train and stop it.

01:03:30 I hope that this will prove to be an aberration.

01:03:34 Let's all pray that it does.

01:03:37 Thank you, Madam President.

01:03:38 That's all I have for you.

01:03:39 Thank you.

01:03:40 [BLANK_AUDIO]

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