Chuck Grassley

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There be no objection, the text of the bill was ordered to be printed in the Record, as follows:

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There be no objection, the text of the bill was ordered to be printed in the Record, as follows:

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise today to introduce an important piece of regulatory reform legislation. A study released this past fall by the National Association of Manufacturers estimates that U.S. Federal Government regulations imposed over $2 trillion in compliance costs on American businesses in 2012. This is an amount equal to 12 percent of our Nation's GDP. The study also demonstrated--and this should come as no surprise-- that the cost of complying with all those regulations falls disproportionately on small businesses. Small manufacturing firms, in particular, grapple with regulatory compliance costs that are more than three times those felt by the average company in the United States. It is no wonder why many American businesses are shuttering or moving their entire operation overseas. And how many folks dreamed of starting a small business but ultimately decided against taking the risk because of the overwhelming burden and uncertainty of our regulatory state? We have to do better. Small businesses are fed up with excessive Federal regulation, and they are making sure we know about it. A November 2014 survey conducted by the National Federation of Independent Business asked small business owners across the country to rank the ten most pressing problems they face. Overwhelmingly, the top two answers from small business owners were taxes and complying with government red tape. I am happy to say that this Congress intends to confront these issues head-on. The Federal Government needs to do everything possible to promote an environment that will allow private sector employers to create jobs. To accomplish that, common sense would tell us that the government needs to remove barriers to job creation rather than put up new ones. Unfortunately, the Obama administration has proven time and again that it would rather push forward with its interest-driven regulatory agenda than ease the heavy burden upon our economy and our entrepreneurs. To make matters worse, this administration is pursuing new regulations through litigation tactics that take an end-run around the laws enacted by Congress to ensure transparency and accountability in the regulatory process. This strategy has come to be known as sue-and- settle, and regulators have been using it to speed up rulemaking and to keep the public, industries, and even the States away from the table when regulatory decisions are negotiated behind closed doors. Sue-and-settle cases typically follow a similar pattern. First, an interest group files a lawsuit against a Federal agency, claiming that the agency has failed to take a certain regulatory action by a statutory deadline. Through the complaint, the interest group seeks to compel the agency to take action by a new, often-rushed deadline. The plaintiff-interest group frequently will be one that shares a common regulatory and policy agenda with the agency that it sues, such as when an environmental group sues the Environmental Protection Agency, EPA. Next, the agency and interest group enter into friendly negotiations to produce either a settlement agreement or consent decree behind closed doors that commits the agency to satisfying the interest group's demands. The agreement is then entered by a court, binding executive discretion to undertake a regulatory action. And noticeably absent from these negotiations are the very parties who will likely be most impacted by the new regulation. Sue-and-settle tactics by advocacy groups and complicit government agencies have severe consequences on transparency, public accountability, and ultimately on the quality of the resulting public policy. Such tactics undermine congressional intent by shutting out affected parties, such as industries and even the States that are charged with implementing new regulations. The Administrative Procedure Act, APA, which has been characterized as the citizens' ``regulatory bill of rights,'' was enacted to ensure transparency and public accountability in our Federal rulemaking process. A central aspect of the APA is the notice-and-comment process, which requires agencies to notify the public of proposed regulations and to respond to comments submitted by interested parties. Rulemaking driven by sue-and-settle tactics, however, frequently results in reprioritized agency agendas and truncated deadlines for regulatory action. This renders the notice-and-comment requirements of the APA a mere formality, depriving regulated entities, the States and the public of sufficient time to have any meaningful input on the final rules. The resulting regulatory action is driven not by the public interest, but by special interest priorities, and often comes as a complete surprise to those most affected by it. Sue-and-settle litigation also helps agencies avoid accountability. Instead of having to answer to the public for controversial regulations and policy decisions, agency officials are able to simply point to a court order entering the agreement and maintain that they were required to take action under its terms. Further, the abuse of consent decrees as a method for taking regulatory action can have lasting negative impact on the ability of future administrations to adapt the Federal regulatory scheme to changing circumstances. Not only does this raise serious concerns about bad public policy; it also puts into question the constitutional impact of one administration's actions binding the hands of its successors. Sue-and-settle, and the consequences that come with such tactics, is not a new phenomenon. Evidence of sue-and-settle tactics and closed- door rulemaking can be found in nearly every administration over the previous few decades. But there has been an alarming increase in sue-and-settle tactics under the Obama administration. A study by the U.S. Chamber of Commerce shows that just during President Obama's first term, 60 Clean Air Act lawsuits against the EPA were resolved through consent decrees or settlement agreements, an increase from 28 during President George W. Bush's second term. Since 2009, sue-and-settle cases against the EPA have imposed at least $13 billion in annual regulatory costs. In November 2010, environmental advocacy groups filed a complaint against the EPA under the Clean Water Act to compel the agency to revise wastewater regulations. Interestingly, the same day that the complaint was filed, the plaintiff-advocacy groups filed a proposed consent decree already signed by the EPA and requiring prompt regulatory action. As is characteristic of sue-and-settle cases, potentially affected parties were kept out of the lawsuit and negotiations. Such a scenario should raise serious concerns over how truly adversarial these lawsuits really are. In another case, environmental advocacy groups filed suit against the EPA to compel the agency to issue new air quality standards for pollutants from coal and oil-fired power plants. The plaintiff-advocacy groups alleged that the EPA had violated its statutory duty to issue new standards. An industry group intervened in the case to represent utility companies but was ultimately left out of subsequent negotiations between the plaintiffs and the EPA, which resulted in a consent decree. The industry group challenged the consent decree on numerous grounds, including the rulemaking timeframe established under the decree which was arguably too short to allow the public to participate fully in the rulemaking process. Nevertheless, the court approved and entered the consent decree, with the judge concluding that ``[s]hould haste make waste, the resulting regulations will be subject to successful challenge. . . If EPA needs more time to get it right, it can seek more time.'' The resulting rule, despite its opaque promulgation, was estimated by the EPA to cost $9.6 billion annually by 2015. And according to estimates by the American Coalition for Clean Coal Electricity, the rule promulgated under the consent decree would contribute to a loss of 1.44 million jobs in the U.S. between 2013 and 2020. The EPA could have done things right the first time by crafting a sensible, workable rule that protects the environment without causing unnecessary job losses or higher electricity prices for hard-working American families. But as a result of backroom, sue-and-settle tactics, we were left with a controversial regulation that fails to properly take into account the impact on affected parties and that remains the subject of litigation to this day. The EPA, it seems, has turned a blind eye to the calls for more transparency and public accountability in our Federal rulemaking process. In February 2014, EPA's General Counsel issued a statement declaring: The sue and settle rhetoric, strategically mislabeled by its proponents, is an often-repeated but a wholly invented accusation that gets no more true with frequent retelling. I think many would take issue with that assessment. In fact, the Environmental Council of the States, or ECOS--a national non-profit, non-partisan association made up of State and territorial environmental agency leaders--adopted a resolution entitled ``The Need for Reform and State Participation in EPA's Consent Decrees which Settle Citizen Suits,'' stating, among other things: [S]tate environmental agencies are not always notified of citizen suits that allege U.S. EPA's failure to perform its nondiscretionary duties, are often not parties to these citizen suits, and are usually not provided with an opportunity to participate in the negotiation of agreements to settle citizen suits[.] ECOS further resolved that: [G]reater transparency of citizen suit settlement agreements is needed for the public to understand the impact of these agreements on the administration of environmental programs[.] I agree. Clearly, the EPA has no intention of acknowledging the use or consequences of sue-and-settle tactics. And unfortunately, I think this sentiment is shared by other executive branch agencies today. That is why today I am introducing the Sunshine for Regulatory Decrees and Settlements Act of 2015. Senators Blunt, Hatch, Cruz, Paul, Cornyn, Rubio, Inhofe, Fischer, Flake, Lee, Capito and Gardner are cosponsors of this important bill, and I thank them for their support. In the House, Representative Doug Collins of Georgia is introducing a companion bill. By enacting reasonable, pro-accountability measures, the Sunshine bill aims to address many of the problems I have outlined so far. This bill provides for greater transparency by shedding light on sue- and-settle tactics. It requires agencies to publish sue-and-settle complaints and notices of intent-to-sue in a readily accessible manner. The bill requires agencies to publish proposed consent decrees and settlement agreements at least 60 days before they can be filed with a court. This provides a valuable opportunity for affected parties to weigh-in, which will increase public accountability in the rulemaking process. It will also prevent those scenarios where lawsuits are filed on the same day as previously negotiated agreements, a practice that effectively blocks any meaningful participation by affected parties. The bill also makes it easier for affected parties such as States and business owners to take part in both the lawsuit and settlement negotiations to ensure that their interests are properly represented. It requires the Attorney General or, if appropriate, the head of the defendant-agency, to certify to the court that he or she has personally approved certain proposed consent decrees or settlement agreements that, for example, convert a discretionary authority of an agency into a non-discretionary duty to act. It requires that courts consider whether the terms of a proposed agreement are contrary to the public interest. The bill promotes greater transparency by requiring agencies to publicly post and report to Congress information on sue-and-settle complaints, consent decrees and settlement agreements. Finally, the bill resolves key constitutional concerns by making it easier for succeeding administrations to modify the effect of a prior administration's consent decrees. It does so by providing for de novo review of motions to modify existing consent decrees due to changed circumstances. The Sunshine for Regulatory Decrees and Settlements Act will shed light on the problem. It will help rein in backroom rulemaking, encourage the appropriate use of consent decrees and settlements, and reinforce the procedures laid out decades ago to ensure a transparent and accountable regulatory process. I urge my colleagues to work with me and support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise today to introduce an important piece of regulatory reform legislation. A study released this past fall by the National Association of Manufacturers estimates that U.S. Federal Government regulations imposed over $2 trillion in compliance costs on American businesses in 2012. This is an amount equal to 12 percent of our Nation's GDP. The study also demonstrated--and this should come as no surprise-- that the cost of complying with all those regulations falls disproportionately on small businesses. Small manufacturing firms, in particular, grapple with regulatory compliance costs that are more than three times those felt by the average company in the United States. It is no wonder why many American businesses are shuttering or moving their entire operation overseas. And how many folks dreamed of starting a small business but ultimately decided against taking the risk because of the overwhelming burden and uncertainty of our regulatory state? We have to do better. Small businesses are fed up with excessive Federal regulation, and they are making sure we know about it. A November 2014 survey conducted by the National Federation of Independent Business asked small business owners across the country to rank the ten most pressing problems they face. Overwhelmingly, the top two answers from small business owners were taxes and complying with government red tape. I am happy to say that this Congress intends to confront these issues head-on. The Federal Government needs to do everything possible to promote an environment that will allow private sector employers to create jobs. To accomplish that, common sense would tell us that the government needs to remove barriers to job creation rather than put up new ones. Unfortunately, the Obama administration has proven time and again that it would rather push forward with its interest-driven regulatory agenda than ease the heavy burden upon our economy and our entrepreneurs. To make matters worse, this administration is pursuing new regulations through litigation tactics that take an end-run around the laws enacted by Congress to ensure transparency and accountability in the regulatory process. This strategy has come to be known as sue-and- settle, and regulators have been using it to speed up rulemaking and to keep the public, industries, and even the States away from the table when regulatory decisions are negotiated behind closed doors. Sue-and-settle cases typically follow a similar pattern. First, an interest group files a lawsuit against a Federal agency, claiming that the agency has failed to take a certain regulatory action by a statutory deadline. Through the complaint, the interest group seeks to compel the agency to take action by a new, often-rushed deadline. The plaintiff-interest group frequently will be one that shares a common regulatory and policy agenda with the agency that it sues, such as when an environmental group sues the Environmental Protection Agency, EPA. Next, the agency and interest group enter into friendly negotiations to produce either a settlement agreement or consent decree behind closed doors that commits the agency to satisfying the interest group's demands. The agreement is then entered by a court, binding executive discretion to undertake a regulatory action. And noticeably absent from these negotiations are the very parties who will likely be most impacted by the new regulation. Sue-and-settle tactics by advocacy groups and complicit government agencies have severe consequences on transparency, public accountability, and ultimately on the quality of the resulting public policy. Such tactics undermine congressional intent by shutting out affected parties, such as industries and even the States that are charged with implementing new regulations. The Administrative Procedure Act, APA, which has been characterized as the citizens' ``regulatory bill of rights,'' was enacted to ensure transparency and public accountability in our Federal rulemaking process. A central aspect of the APA is the notice-and-comment process, which requires agencies to notify the public of proposed regulations and to respond to comments submitted by interested parties. Rulemaking driven by sue-and-settle tactics, however, frequently results in reprioritized agency agendas and truncated deadlines for regulatory action. This renders the notice-and-comment requirements of the APA a mere formality, depriving regulated entities, the States and the public of sufficient time to have any meaningful input on the final rules. The resulting regulatory action is driven not by the public interest, but by special interest priorities, and often comes as a complete surprise to those most affected by it. Sue-and-settle litigation also helps agencies avoid accountability. Instead of having to answer to the public for controversial regulations and policy decisions, agency officials are able to simply point to a court order entering the agreement and maintain that they were required to take action under its terms. Further, the abuse of consent decrees as a method for taking regulatory action can have lasting negative impact on the ability of future administrations to adapt the Federal regulatory scheme to changing circumstances. Not only does this raise serious concerns about bad public policy; it also puts into question the constitutional impact of one administration's actions binding the hands of its successors. Sue-and-settle, and the consequences that come with such tactics, is not a new phenomenon. Evidence of sue-and-settle tactics and closed- door rulemaking can be found in nearly every administration over the previous few decades. But there has been an alarming increase in sue-and-settle tactics under the Obama administration. A study by the U.S. Chamber of Commerce shows that just during President Obama's first term, 60 Clean Air Act lawsuits against the EPA were resolved through consent decrees or settlement agreements, an increase from 28 during President George W. Bush's second term. Since 2009, sue-and-settle cases against the EPA have imposed at least $13 billion in annual regulatory costs. In November 2010, environmental advocacy groups filed a complaint against the EPA under the Clean Water Act to compel the agency to revise wastewater regulations. Interestingly, the same day that the complaint was filed, the plaintiff-advocacy groups filed a proposed consent decree already signed by the EPA and requiring prompt regulatory action. As is characteristic of sue-and-settle cases, potentially affected parties were kept out of the lawsuit and negotiations. Such a scenario should raise serious concerns over how truly adversarial these lawsuits really are. In another case, environmental advocacy groups filed suit against the EPA to compel the agency to issue new air quality standards for pollutants from coal and oil-fired power plants. The plaintiff-advocacy groups alleged that the EPA had violated its statutory duty to issue new standards. An industry group intervened in the case to represent utility companies but was ultimately left out of subsequent negotiations between the plaintiffs and the EPA, which resulted in a consent decree. The industry group challenged the consent decree on numerous grounds, including the rulemaking timeframe established under the decree which was arguably too short to allow the public to participate fully in the rulemaking process. Nevertheless, the court approved and entered the consent decree, with the judge concluding that ``[s]hould haste make waste, the resulting regulations will be subject to successful challenge. . . If EPA needs more time to get it right, it can seek more time.'' The resulting rule, despite its opaque promulgation, was estimated by the EPA to cost $9.6 billion annually by 2015. And according to estimates by the American Coalition for Clean Coal Electricity, the rule promulgated under the consent decree would contribute to a loss of 1.44 million jobs in the U.S. between 2013 and 2020. The EPA could have done things right the first time by crafting a sensible, workable rule that protects the environment without causing unnecessary job losses or higher electricity prices for hard-working American families. But as a result of backroom, sue-and-settle tactics, we were left with a controversial regulation that fails to properly take into account the impact on affected parties and that remains the subject of litigation to this day. The EPA, it seems, has turned a blind eye to the calls for more transparency and public accountability in our Federal rulemaking process. In February 2014, EPA's General Counsel issued a statement declaring: The sue and settle rhetoric, strategically mislabeled by its proponents, is an often-repeated but a wholly invented accusation that gets no more true with frequent retelling. I think many would take issue with that assessment. In fact, the Environmental Council of the States, or ECOS--a national non-profit, non-partisan association made up of State and territorial environmental agency leaders--adopted a resolution entitled ``The Need for Reform and State Participation in EPA's Consent Decrees which Settle Citizen Suits,'' stating, among other things: [S]tate environmental agencies are not always notified of citizen suits that allege U.S. EPA's failure to perform its nondiscretionary duties, are often not parties to these citizen suits, and are usually not provided with an opportunity to participate in the negotiation of agreements to settle citizen suits[.] ECOS further resolved that: [G]reater transparency of citizen suit settlement agreements is needed for the public to understand the impact of these agreements on the administration of environmental programs[.] I agree. Clearly, the EPA has no intention of acknowledging the use or consequences of sue-and-settle tactics. And unfortunately, I think this sentiment is shared by other executive branch agencies today. That is why today I am introducing the Sunshine for Regulatory Decrees and Settlements Act of 2015. Senators Blunt, Hatch, Cruz, Paul, Cornyn, Rubio, Inhofe, Fischer, Flake, Lee, Capito and Gardner are cosponsors of this important bill, and I thank them for their support. In the House, Representative Doug Collins of Georgia is introducing a companion bill. By enacting reasonable, pro-accountability measures, the Sunshine bill aims to address many of the problems I have outlined so far. This bill provides for greater transparency by shedding light on sue- and-settle tactics. It requires agencies to publish sue-and-settle complaints and notices of intent-to-sue in a readily accessible manner. The bill requires agencies to publish proposed consent decrees and settlement agreements at least 60 days before they can be filed with a court. This provides a valuable opportunity for affected parties to weigh-in, which will increase public accountability in the rulemaking process. It will also prevent those scenarios where lawsuits are filed on the same day as previously negotiated agreements, a practice that effectively blocks any meaningful participation by affected parties. The bill also makes it easier for affected parties such as States and business owners to take part in both the lawsuit and settlement negotiations to ensure that their interests are properly represented. It requires the Attorney General or, if appropriate, the head of the defendant-agency, to certify to the court that he or she has personally approved certain proposed consent decrees or settlement agreements that, for example, convert a discretionary authority of an agency into a non-discretionary duty to act. It requires that courts consider whether the terms of a proposed agreement are contrary to the public interest. The bill promotes greater transparency by requiring agencies to publicly post and report to Congress information on sue-and-settle complaints, consent decrees and settlement agreements. Finally, the bill resolves key constitutional concerns by making it easier for succeeding administrations to modify the effect of a prior administration's consent decrees. It does so by providing for de novo review of motions to modify existing consent decrees due to changed circumstances. The Sunshine for Regulatory Decrees and Settlements Act will shed light on the problem. It will help rein in backroom rulemaking, encourage the appropriate use of consent decrees and settlements, and reinforce the procedures laid out decades ago to ensure a transparent and accountable regulatory process. I urge my colleagues to work with me and support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, elections in our representative form of government are supposed to have consequences, and if they don't have consequences, there is not much point of having elections. One of the issues in the most recent election for Congress was a promise of some people running for office to overcome the President's constitutional actions, particularly what he did on immigration but on a lot of other things as well. The bill we have before us is a demonstration on the part of people who were victorious in that last election to deliver on the promises of that election. So obviously I am here at this time to speak on the Department of Homeland Security appropriations that the Senate is considering today and, as the Senator from Louisiana just said, to urge my colleagues to support the efforts to move ahead. In doing so, I wish to discuss what we are doing. This bill is about stopping the unilateral actions the President has taken with respect to the country's immigration laws, doing it without congressional approval or scrutiny. It is our responsibility to check the President and ensure that he does not go beyond the limits of his powers as defined in that basic document, the Constitution. This is about restoring the rule of law. This is about restoring the Constitution by denying that funds be utilized to carry out the President's improper, unconstitutional actions. Our government is based on the rule of law. No one is above the law, not even those who were chosen to be leaders among the people. This core principle has kept us free and preserved our rights and liberties for over 200 years. However, the rule of law in our country has slowly eroded away. While the current administration is not the only culprit of that corrosion of the rule of law, this administration has expedited its erosion more than others. That is the basis for the President saying: If Congress won't, I have a pen and a phone, and I will. Let me explain this erosion. Under article II of the Constitution, the President ``shall take care that the laws be faithfully executed.'' This is not a permissive clause, letting the President pick and choose which laws he will enforce. The article uses the mandatory ``shall,'' which requires him to enforce all laws. However, the President has not done that. He has taken the attitude that he is above the law and is not required to obey it. Just in the last couple of years we have seen President Obama's complete disregard for laws passed by Congress. Rather than enforcing the Affordable Care Act, he rewrote the deadlines prescribed by law. He has not enforced the Controlled Substance Act in some States and, even worse, has allowed them to openly defy Federal law. He released five Taliban prisoners from Guantanamo without first providing 30 days' notice to Congress as required under the National Defense Authorization Act. He unlawfully made four appointments to executive positions without authority under the appointments clause of the Constitution. In that regard, he was even overruled by two members he appointed to the Supreme Court in that 9-to-0 decision that says when the Constitution says only Congress can decide when a House is in session, the President can't say on some basis that they aren't in session and proceed to make recess appointments. In other words, what the judges said is that what the Constitution says is what it says. So he took unconstitutional action in making those appointments. Lastly, he took the drastic step of changing immigration laws on the books without the authority or approval from Congress. When the President acts in contravention to the law, he erodes the rule of law. He sets an example for future Presidents who will expand on his precedent and actions on other laws and policies they don't agree with. By doing this the President sends the message that the laws as written by the legislative branch aren't important, thereby removing and reducing faith in the rule of law. The Founders understood the serious dangers of investing all powers of our government in a single body. They understood that because the Revolution was all about colonists being sick and tired of one man-- George III--making decisions. So under the doctrine of separation of powers, they wrote into the Constitution dividing the power among three branches of government so one person could not be George III. They gave all legislative powers to the Congress, all Executive powers to the President, and all judicial powers to the judicial branch. No body of government may exercise the powers of other bodies of the government. Separation of power then is fundamental to the Constitution of the United States, and the Constitution of the United States enshrines the spirit of the Declaration of Independence, that we are endowed by our Creator, not by government, with certain inalienable rights. Just last week during the nomination hearings of Loretta Lynch as Attorney General, we had an outstanding professor from George Washington Law School testify by the name of Jonathan Turley, and he said this: ``The Separation of Powers is the very core of our constitutional system and was designed not as a protection of the powers of the branches but a protection of liberty.'' We are endowed by our Creator with certain inalienable rights, among them life, liberty, and the pursuit of happiness. The Founding Fathers knew that if the same body had all the powers, that body, no matter how large or small, would be tyrannical, as was George III. However, President Obama has overreached the limits of his constitutional authority. He has blurred the lines of separation of powers. The executive branch action taken with respect to our immigration laws is only the most recent, if not the most pervasive, of legislative actions he has taken under the proposition that I have a phone and a pen and I can do almost anything Congress isn't doing that I want them to do. In effect, the President has thwarted the immigration laws Congress has written in order to implement the policy he wants. Contrary to the laws on the books, the President's action would give people who have crossed the border illegally the right to remain in the United States and many taxpayer benefits that are only available to lawfully documented immigrants, as well as the right to work. The President's action expanded a program he created without congressional approval, the Deferred Action for Childhood Arrivals--or DACA as it is called--and created a new program, the deferred action of parents of U.S. citizens and lawful permanent residents--or DAPA--as it is called. But under the Constitution only Congress has the authority to create these types of programs that grant a lawful status to people who have come here undocumented. Let me repeat: Congress has the responsibility of writing laws, not the President. I remind my colleagues that Congress considered a law that resembled the DACA Program, but it never passed that law. So what has the President done? In effect, he has enacted a law Congress rejected. The President justifies his actions by saying ``Congress has failed.'' However, that doesn't give him license to act on his own. I wish to again quote Professor Turley: Our government requires consent and compromise to function. It goes without saying that when we are politically divided as a nation, less tends to get done. However, such division is no license to ``go it alone'' as the President has suggested. The genius of our government is that it allows for the collection of ideas and opinions. It allows these different ideas and opinions to work together to find common ground. Once common ground is reached, then laws are enacted. The President doesn't represent that many different views in the country, but obviously Congressmen from all over this geographical area represent those views. Congressmen are elected by the people directly, and if there is a disagreement in Congress on how immigration should be handled, that means there is disagreement in the country on how immigration should be handled. The President cannot imagine that everyone agrees his plan is the best plan. It is the job of Congress to find compromises and solutions that most people can agree with and particularly in the U.S. Senate where it takes 60 votes to pass legislation. This is where consensus is built when there are only 54 Republicans and 46 Democrats. If we are going to get anything done, there has to be a consensus. The other justification the President is fond of using for his actions is the executive branch's ability to exercise prosecutorial discretion, but while the President does have the authority to decide when to prosecute or where to allocate resources, that authority is not unlimited. The President's actions with respect to immigration go far beyond prosecutorial discretion. Lawful prosecutorial discretion is exercised on a case-by-case basis. Lawful prosecutorial discretion isn't excluding entire categories of individuals in a blanket fashion and telling them that going forward the law will be applied to them.

Mr. GRASSLEY. I ask unanimous consent to proceed for 4 minutes.

Mr. GRASSLEY. In addition, lawful prosecutorial discretion doesn't reward illegal behavior by conferring substantive benefits to those who have violated the law. Yet under the President's unilateral action, individuals who have entered without inspection or overstayed their visas unlawfully now will get work permits, Social Security numbers, driver's licenses, employment and education opportunities, and many other benefits only afforded to those who abide by the law. Further, the President argues that because the Department doesn't have sufficient resources, he has exercised his prosecutorial discretion by prioritizing the removal of the most dangerous aliens for better security of our country. Yet the reality of his statement is that in fiscal year 2013, 36,007 criminal aliens were released. What is more, a report just issued by the Department of Homeland Security reveals that 1,000 of those criminal aliens have gone on to commit further crimes. So the President isn't even doing what he says he is doing. Instead of removing criminals from our country as required by law, he is just releasing them back into the community so they can continue to commit further crimes and jeopardize public safety. No matter how the President paints the picture, his Executive action on immigration is an abuse of constitutional duty to faithfully execute the law and an overreach of his executive branch authority under the separation of powers doctrine. Under the Constitution, the Congress has several tools it can use to check the President and rein him in when he operates outside of the Constitution. Among the tools Congress has is the power of the purse. Congress appropriates funds and has the authority to dictate where and how those funds may or may not be used. If the President exceeds the limits of his Executive authority to create an illegal program such as DACA or DAPA, Congress has the power to defund such a program. The Department of Homeland Security appropriations bill is a check on the executive branch. It is a result of the last election, and elections are supposed to have consequences. This bill is our way of showing to the American people we are carrying out a campaign promise to make sure the President doesn't act in an unconstitutional way and abuse his authority. So I ask my colleagues to take this under serious consideration when deciding whether to vote in favor or against proceeding to this bill. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. I suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I am glad to be joined by Senator Casey of Pennsylvania in introducing bipartisan legislation to improve upon the already immensely successful college 529 savings programs. Those are savings plans to go to college. The 529 plans have helped millions earn a college degree without piling up a mountain of debt. These plans have long had strong bipartisan support, and I am glad the introduction of this bill today continues that tradition. Given the bipartisan nature of 529 plans, it came as a shock to me, and I am sure to most of my colleagues, when the President put forth a proposal that would undermine years of hard work toward making savings for college as accessible as it is today. College savings vehicles, we now know by the Tax Code section--that is where section 529 comes from--were first started by States in the late 1980s. However, it was only after a bipartisan effort led by then-Senator Bob Graham of Florida and Senator McConnell, now our majority leader, in 1996 that these savings plans were finally enshrined in section 529 of the Tax Code. By recognizing college savings plans in the Tax Code, States and participants could now be certain about the favorable tax treatment they would receive and thus the plans flourished. During this time, individuals' parents and grandparents were able to contribute to savings plans with certainty that the college savings for themselves and their loved ones would accumulate tax free. However, while 529 plans could accumulate interest tax free, tax was still owed once money was distributed to pay for college. So in 2001, as chairman of the Finance Committee, I worked with Senator Baucus of Montana and others to advance a proposal to further enhance college savings by excluding distributions from 529 plans from income tax so long as the money was used to pay for college education costs. We were then successful in making this provision permanent in the tax law as part of the Pension Protection Act of 2006. This change helped 529 plans take off to even new heights. From 2001 to 2002 assets in these plans doubled from $13 billion to $26 billion and totalled nearly $245 billion by July last year. The total number of accounts also nearly doubled. The number of accounts increased from 2.4 million in 2001 to 4.4 million in 2002 and increased to nearly 12 million by July of last year. The misguided proposal put forth in the President's State of the Union Address has a potential to reverse these gains by once again subjecting distributions to tax. The policy rationale given by the President was that too much of the benefit for 529 plans went to more affluent households and individuals. I believe a big reason the President's proposal was met with bipartisan disapproval is that we all know firsthand through communications with our constituents back home that the typical family with a 529 account is one with only modest means. We hear about how they have scrimped and pinched pennies so they could put money away for their child's college. They have a dream of sending their child to college and graduating without a crushing amount of debt holding them back as they start their new career post-college. Data from the College Savings Plans Network backs up this anecdotal evidence that we receive at the grassroots from our constituents. On a national basis the average account balance is under $21,000 and for Iowans the average balance is slightly lower than $17,878. This is obviously hard evidence that a typical family contributing to a 529 account is far from being part of the wealthy elite the President wants us to believe they are. A private study commissioned by the College Savings Foundation further demonstrates that these accounts are largely held by middle- class families. According to this study, about 10 percent of 529 accounts are owned by households with income below $50,000, over 70 percent are owned by households with income below $150,000, and almost 95 percent of 529 accounts are in households with incomes below $250,000. The bill I introduced today with Democratic Senator Casey will help build on the success that has so far been achieved by increasing the attractiveness of 529 plans. This bill has three primary provisions: The first provision recognizes the reality that in today's world a computer is just as much a necessary educational tool--and the expense associated with it--as a required class textbook. As such, this bill allows 529 funds to purchase a computer on the same tax payroll basis as other required materials. The second provision eliminates an outdated and unnecessary aggregation rule that increases paperwork and costs for plan administrators. The final provision provides tax and penalty relief in instances where a student may have to withdraw from school for illness or other reasons. Under current law, any refunds from the college are subject to immediate taxation and a 10-percent tax penalty. This provision eliminates this tax and penalty if the refund is redeposited in a 529 account. This permits a family to set the refund aside to pay for the student's education should that student be able to return to college or to use it for another family member. The reforms in 529 plans included in Senator Casey's and my bill are very modest but will help keep administrative costs low and provide a little extra incentive for parents to put money away for their child's education. The bill further demonstrates a renewed bipartisan commitment to 529 plans that will hopefully help erase concerns some may have in contributing to 529s given the President's misguided proposal. I hope Congress will act on this legislation and speak with a loud bipartisan voice on its commitment to college savings.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I am glad to be joined by Senator Casey of Pennsylvania in introducing bipartisan legislation to improve upon the already immensely successful college 529 savings programs. Those are savings plans to go to college. The 529 plans have helped millions earn a college degree without piling up a mountain of debt. These plans have long had strong bipartisan support, and I am glad the introduction of this bill today continues that tradition. Given the bipartisan nature of 529 plans, it came as a shock to me, and I am sure to most of my colleagues, when the President put forth a proposal that would undermine years of hard work toward making savings for college as accessible as it is today. College savings vehicles, we now know by the Tax Code section--that is where section 529 comes from--were first started by States in the late 1980s. However, it was only after a bipartisan effort led by then-Senator Bob Graham of Florida and Senator McConnell, now our majority leader, in 1996 that these savings plans were finally enshrined in section 529 of the Tax Code. By recognizing college savings plans in the Tax Code, States and participants could now be certain about the favorable tax treatment they would receive and thus the plans flourished. During this time, individuals' parents and grandparents were able to contribute to savings plans with certainty that the college savings for themselves and their loved ones would accumulate tax free. However, while 529 plans could accumulate interest tax free, tax was still owed once money was distributed to pay for college. So in 2001, as chairman of the Finance Committee, I worked with Senator Baucus of Montana and others to advance a proposal to further enhance college savings by excluding distributions from 529 plans from income tax so long as the money was used to pay for college education costs. We were then successful in making this provision permanent in the tax law as part of the Pension Protection Act of 2006. This change helped 529 plans take off to even new heights. From 2001 to 2002 assets in these plans doubled from $13 billion to $26 billion and totalled nearly $245 billion by July last year. The total number of accounts also nearly doubled. The number of accounts increased from 2.4 million in 2001 to 4.4 million in 2002 and increased to nearly 12 million by July of last year. The misguided proposal put forth in the President's State of the Union Address has a potential to reverse these gains by once again subjecting distributions to tax. The policy rationale given by the President was that too much of the benefit for 529 plans went to more affluent households and individuals. I believe a big reason the President's proposal was met with bipartisan disapproval is that we all know firsthand through communications with our constituents back home that the typical family with a 529 account is one with only modest means. We hear about how they have scrimped and pinched pennies so they could put money away for their child's college. They have a dream of sending their child to college and graduating without a crushing amount of debt holding them back as they start their new career post-college. Data from the College Savings Plans Network backs up this anecdotal evidence that we receive at the grassroots from our constituents. On a national basis the average account balance is under $21,000 and for Iowans the average balance is slightly lower than $17,878. This is obviously hard evidence that a typical family contributing to a 529 account is far from being part of the wealthy elite the President wants us to believe they are. A private study commissioned by the College Savings Foundation further demonstrates that these accounts are largely held by middle- class families. According to this study, about 10 percent of 529 accounts are owned by households with income below $50,000, over 70 percent are owned by households with income below $150,000, and almost 95 percent of 529 accounts are in households with incomes below $250,000. The bill I introduced today with Democratic Senator Casey will help build on the success that has so far been achieved by increasing the attractiveness of 529 plans. This bill has three primary provisions: The first provision recognizes the reality that in today's world a computer is just as much a necessary educational tool--and the expense associated with it--as a required class textbook. As such, this bill allows 529 funds to purchase a computer on the same tax payroll basis as other required materials. The second provision eliminates an outdated and unnecessary aggregation rule that increases paperwork and costs for plan administrators. The final provision provides tax and penalty relief in instances where a student may have to withdraw from school for illness or other reasons. Under current law, any refunds from the college are subject to immediate taxation and a 10-percent tax penalty. This provision eliminates this tax and penalty if the refund is redeposited in a 529 account. This permits a family to set the refund aside to pay for the student's education should that student be able to return to college or to use it for another family member. The reforms in 529 plans included in Senator Casey's and my bill are very modest but will help keep administrative costs low and provide a little extra incentive for parents to put money away for their child's education. The bill further demonstrates a renewed bipartisan commitment to 529 plans that will hopefully help erase concerns some may have in contributing to 529s given the President's misguided proposal. I hope Congress will act on this legislation and speak with a loud bipartisan voice on its commitment to college savings.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I would like to speak on Amendment No. 133, offered by Senator Heitkamp of North Dakota. The amendment is a sense of Congress that the renewable electricity tax credit should be extended for 5 years. While I supported the amendment, I would like to express my concerns regarding the consideration of this amendment at this time. I have been an outspoken supporter of renewable energy for many years. In fact, I first authored the wind production tax credit in 1992 to drive this renewable energy technology. I have worked for many years to provide as much certainty as possible to grow the domestic wind industry. Iowa has seen an enormous investment in wind energy manufacturing and wind farm development. I know firsthand the boom-and- bust cycle that exists for renewable energy producers when Congress fails to extend these critically important tax incentives. But I also know this credit won't go on forever. It was never meant to, and it shouldn't. In 2012 the wind industry was the only industry to put forward a phaseout plan. A number of my colleagues here in the Senate have been working to construct a responsible, multiyear phaseout of the wind tax credit. That is why I am somewhat puzzled by an amendment that suggests a 5-year extension of this credit. It seems disconnected with reality. I would remind my colleagues on the other side that in November of 2014, the House offer on tax extenders included a multiyear extension of the wind production tax credit that would have provided the certainty and soft landing that most of us and the industry support, but President Obama issued a veto threat before the ink was dry, and as a result the wind incentive expired. Again, I strongly support wind energy, but I support a prudent way forward on an extension of the production tax credit. This amendment fails terribly in that regard. That is why I am disappointed that the Senator from North Dakota insisted on going forward with a 5-year extension on this bill. This is not a real effort to extend the wind incentive. I am afraid this was simply a politically motivated effort designed to score political points. It is unfortunate that in this case, politicking has trumped efforts to achieve sound, responsible policy. Rather than offer ``gotcha'' amendments on an unrelated bill, we should be working together to craft an extension of these important tax incentives that work for the wind industry, that are realistic politically, and that make sense for the American taxpayer. That effort requires regular order, working through the Finance Committee, to determine the most prudent path forward. It should be done in the context of comprehensive tax reform, where all energy tax provisions are on the table, rather than as a sense of the Congress on the unrelated Keystone XL bill. I hope that with this political exercise behind us, those of us who seek to ensure a responsible transition for the wind production tax credit can get to work and achieve a sensible policy for those who depend on it. It is too bad that this ill-timed, ill-conceived amendment may have actually harmed those efforts.

Mr. GRASSLEY

Mr. GRASSLEY. I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GRASSLEY. I ask unanimous consent to speak as in morning business

Mr. GRASSLEY. Mr. President, we Americans are so fortunate to enjoy the blessings of liberty. We protect our rights as individuals, and we have a legal system that demands that government officials respect those rights and respect the law. Historically some nations have lost their freedoms in revolutions. In others a leader gradually undermined the rule of law. Once the rule of law is dismantled, the road to dictatorship is easily traveled. In a country under the rule of law, government officials are bound by that law. When the Framers wrote our Constitution, they feared that the Federal Government might grow too strong. They divided and limited the powers among three branches. They made sure to preserve State power to serve as a check on the Federal power, and they also provided that where the Federal Government had the authority to make uniform laws, contrary State laws gave way. To make sure everyone would be subject to the law, they entrusted the President with the duty to ``take Care that the Laws be faithfully executed.'' President Obama has repeatedly failed to take care that the laws be faithfully executed. He has repeatedly violated the Constitution. His administration has not conformed its conduct to law. His administration therefore has undermined the rule of law. Often patterns repeat. The President proposes legislation that the American people do not want, so the Congress naturally refuses to enact it. The President then decides that he will take Executive action as if Congress had enacted that law. Another pattern is he claims the authority to take various actions but fails to produce an opinion from the Department of Justice that coherently supports his authority. That creates a terrible lack of accountability. We have also seen the President pick and choose which laws he will enforce, claiming that the ability to make individual enforcement decisions extends to failing to enforce the laws in millions of instances, and the President has simply failed to take notice when the Supreme Court has ruled he has exceeded his powers. I know my colleagues think these are serious charges, and they are. I wish to outline a number of instances where the President or his administration, acting at his discretion, has failed to follow the Constitution or the laws. Regrettably I will only be able to touch on some of the examples. The President has attempted to unconstitutionally limit the powers of States through ObamaCare. He threatened the States that did not expand Medicaid would lose their existing Medicaid funds. The Supreme Court ruled 7 to 2 for the first time that a condition on Federal spending was so coercive to the States as to be unconstitutional. Another President might have been careful after such a rebuke by the highest Court in the land to be mindful of State power--after all, it included one of the Justices that the President himself appointed to the Supreme Court--but not this President taking notice of what the Court said. President Obama's EPA then turned around and has not followed the rule of law. It wrongly recognizes no limit to Federal power or to its own power. Despite the fact that Congress rejected his cap-and-trade proposal, his EPA issued greenhouse gas regulations that would require States to develop plans that meet EPA-established emission standards. Once EPA approved them, EPA would then order the States to enforce the standards. Supporters of EPA argued that the threat from pollutants under the Clean Air Act, a category in which they erroneously include carbon dioxide, justified EPA's action, but the ``end justifies the means'' is an argument that is totally at odds with the concept of rule of law. EPA's approach is unconstitutional. Just as a State cannot be coerced by Federal spending programs, it cannot be commandeered to enact Federal dictates. This is a well-established rule of the 10th Amendment, otherwise the States would lose their sovereignty. Responsibility and therefore accountability would be blurred as voters could not tell which level of government to blame for unpopular policies. Among those who recognize that EPA has acted unconstitutionally is the President's own liberal constitutional law professor, Laurence Tribe of Harvard. He wrote that it was his own view that the EPA is ``asserting executive power far beyond its lawful authority.'' He also wrote: ``Frustration with congressional inaction cannot justify throwing the Constitution overboard.'' President Obama also acted unconstitutionally when he made what he said were valid recess appointments, even though the Senate was not in recess. Although Presidents had been making recess appointments for more than 200 years, the President's use of the power was once again unprecedented. He was armed with a Justice Department opinion that laughably argued that the President could ignore when the Senate said it was in session to make such appointments. The Supreme Court rejected the President's so-called recess appointments unanimously. That meant of course that both of the Justices President Obama appointed rejected his claim that he could determine when the Senate was in recess, even though the Constitution makes it very clear, and it also rejected the Justice Department's arguments that supposedly allowed the President to make that recess appointment in violation of the Constitution. But the President, similar to the old French Kings, learns nothing and forgets nothing when it comes to respecting the limits of Presidential power. Despite the lodging of the power in the Constitution to Congress alone to enact uniform laws of naturalization, the President decided to enable millions of people who entered the country without documents to remain without congressional approval. In fact, at a recent Judiciary Committee hearing we heard testimony that the administration's misuse of parole authority under this directive would allow many individuals who are here illegally to obtain green cards without Congress changing a word of the immigration laws. This follows the President's earlier decision when Congress would not pass the DREAM Act to give benefits to undocumented aliens, as if that bill had been enacted into law. In both of these instances, the supposed justification for noncompliance with the law is that the need is so great. This is a siren song that supporters of the rule of law must reject. Texas and a number of other States have already filed suit challenging the immigration order's constitutionality, as well as its violation of the Administrative Procedure Act. In an unrelated case, Federal district court has already found parts of the order to be unlawful. The President also has claimed enforcement discretion in failing to enforce other Federal criminal laws. The Controlled Substances Act prohibits marijuana possession nationwide. Under the supremacy clause of the Constitution, State laws to the contrary are unconstitutional. Normally the Federal Government sues States that enact such laws. But when Colorado and other States legalized marijuana, the Obama administration directed Federal law enforcement to refrain from using its resources to enforce Federal law in those States. It did not make individualized prosecutorial decisions but a very blanket refusal to enforce Federal law, contrary to the oath. Nebraska and Oklahoma, rather than the Federal Government, have sued Colorado, as those neighboring States argue they face a significant increase in marijuana and other drug-related harms as a result of the Colorado law. To make matters worse, Attorney General Holder is expanding his refusal to apply Federal marijuana laws to Indian reservations. Those reservations depend upon Federal law enforcement. He plans to allow tribes to petition unelected local prosecutors to decide whether the same nonenforcement of marijuana laws' policy will apply to those reservations. Apart from the rule of law question, it must be kept in mind that these reservations are in States that still want to see marijuana illegal. As a matter of policy, rates of illegal drug use are higher on Indian reservations, with all of the associated health and crime consequences. Again, this goes to the heart of the rule of law. Does anyone believe if a State decided dealers could sell guns without conducting the federally required background checks, that the Obama administration would ignore those States? Anyone who approves what President Obama has done under the guise of enforcement discretion will have no cause to complain about a future President's decision to allocate scarce resources. For instance, he could decide that the ObamaCare individual mandate, which is constitutional according to the Supreme Court--only because it is a tax--will not be enforced against anyone who does not buy government-approved health insurance. President Obama has also violated the law when he released five Taliban fighters who were detained at Guantanamo in exchange for an American sergeant. As the nonpartisan Government Accountability Office concluded, the failure to notify Congress 30 days before such transfer, and to provide a justification, was a violation of law. I have asked the Justice Department for the justification they prepared for this move by the President. To this day, the President refuses to produce the Justice Department's opinion that purports to legally justify this action, contrary to the law passed by Congress. The American people can draw their own conclusions as to whether that means a well-reasoned legal argument exists that the President could legally act as he did. The rule of law ensures that government officials and agencies obey the law. Under the Constitution, Federal agencies can only exercise the power that Congress gives them. They cannot do whatever they want. Now that is obvious to any high school government class. But in the Obama administration, where too many agencies do not believe in limited government, agencies are lawlessly exceeding their powers. This lawlessness is a major reason why polls show that Americans believe the Federal Government is overregulated. Let's take a look at the EPA again. Not only has the EPA violated the Constitution and exceeded its powers on the Clean Air Act, that agency has violated a core Federal statute--the Administrative Procedures Act. The Administrative Procedures Act sets forth the process by which agencies can issue regulations and conduct other administrative business. For instance, under the APA, an agency can issue a regulation that is binding on citizens with penalties for noncompliance only if that agency pursues notice-and-comment rulemaking. This process, consistent with notions of due process and fairness, requires any agency to issue a proposed rule, seek public comment, respond to public comment, and modify the proposed rule to reflect those comments when it issues a final rule. The process is this way to assure accountability, to ensure transparency and input from regulated entities. Courts can strike down the regulation if the agency fails to comply with the Administrative Procedures Act. They can also strike down the regulation where the agency exceeds its statutory powers or where the agency's interpretation of law that is said to justify the regulation does not reflect a legitimate reading of the statute. Courts give greater deference to an agency's interpretations of statutes that are taken after proceeding through the notice-and-comment process. The EPA recently violated the Administrative Procedures Act in my own State of Iowa. The EPA wrote letters to Iowa municipalities setting forth specific requirements that they said must be followed to meet their obligations under the Clean Water Act. The cities challenged the EPA because the two letters effectively imposed new regulatory requirements. They argued the EPA could not impose regulatory obligations simply by letter but needed to proceed by notice-and- comment rulemaking--the Administrative Procedures Act requirements. They also argued that so-called informal guidance imposes subtle pressures on regulated entities to comply even if the EPA does not call its actions a regulation. The U.S. Court of Appeals for the Eighth Circuit agreed and struck down the requirements EPA imposed on those cities just by issuing letters. However, the EPA has since publicly stated, as a lot of government agencies do, that the EPA would only comply with the ruling in the Eighth Circuit. So here we have a situation where there is a national law, the actions of the EPA are struck down in the Eighth Circuit, and now that law is going to be applied one way in the Eighth Circuit and the other way in the rest of the States. In other words, the EPA has proclaimed it intends to continue to impose these illegal requirements on municipalities in those States outside the Eighth Circuit, in clear violation of the APA. The EPA is not alone in failing to comply with the Administrative Procedures Act. The Department of Education issued what it termed informal guidance concerning campus sexual assault last year without public input. I hope we can see a pattern here, whether it is by letter by the EPA to Iowa municipalities or whether it is something called informal guidance by the Department of Education. These are all terms trying to get around the legal requirements of the Administrative Procedures Act to get things done faster by these agencies, because following the rule of law is kind of an encumbrance they do not want to go through. In regard to what the Department of Education did, at a HELP Committee hearing the Assistant Secretary for Civil Rights Catherine Lhamon stated that she expected colleges and universities to comply with that guidance that was not a regulation under the Administrative Procedures Act. Of course, that meant what the Department was calling informal guidance was really a regulation that could only be issued after engaging in notice-and-comment rulemaking. When Senator Alexander, who is chairman of the committee now, asked her who gave her the authority to issue the guidance, she responded, incredibly--and I emphasize incredibly--``Well, with gratitude, you did, when I was confirmed.'' So you get confirmed by 100 Members of the Senate and you can do whatever you want to regardless of law? No. This is the United States, where we operate under the rule of law and the constitution. It is not France in the age of Louis XIV where government officials say, L'Etat c'est moi. I am the State, in other words. Senate confirmation means only that a person has been legally installed in a job. But once confirmed, the agency official can only act in accordance with the laws governing their agency. I support the Department's overall goal of holding accountable those who commit campus sexual assault, but it has to be done lawfully. By issuing so-called guidance that, by her own admission, she expected colleges and universities to follow, the Department exceeded its lawful powers. Separate from excluding the public from having any say in the rules that have governed their conduct, bureaucrats have many incentives--too many incentives--to ignore the Administrative Procedures Act. Imagine: Formal rulemaking takes time. A formal notice of proposed rulemaking is followed by the public's comment period, then the agency responds to comments and modifies their proposed rule before it is made final. The Office of Management and Budget reviews the regulation and can block or modify it. The Office of Management and Budget makes agencies justify the costs and benefits of their rules, reduce burdens under the Paperwork Reduction Act, and also prepare a federalism impact statement for those proposed rules. Agencies that want to regulate without oversight can subvert the whole process of issuing binding rules under the cover of ``informal guidance.'' It is so much faster for bureaucrats to issue dictates to whomever they want for whatever reason they want. By avoiding the Administrative Procedures Act, these unelected agencies violate the whole separation of powers. They act legislatively in violation of the limited authority Congress provides a particular agency. Then they are free to issue even more rules, restricting the freedom of American people and increasing the role of unelected bureaucrats in telling other people what to do. Reductions in freedom are ultimately manifestations of a failure to follow the rule of law. We are already headed in that direction. The Supreme Court has before it a case now from the Labor Department, where one of the issues discussed at oral argument was whether that agency was required to proceed by notice-and-comment rulemaking rather than through interpretive rules. We shall see, then, whether the Court addresses that issue or focuses instead on what level of deference a court gives when agencies change their position without proceeding through Administrative Procedures Act rulemaking. But even if the issue of the necessity of engaging in notice-and- comment rulemaking is not addressed in that case, the Court, before long, will reach that question. When it does, I believe it will find that what the Obama administration has been doing is clearly illegal. President Obama's claims of Executive power are unprecedented. He is creating a general precedent of a Presidency unrestrained by law. When Franklin Roosevelt was inaugurated in the darkest days of the Great Depression, he called on Congress to act to respond to the emergency as well as giving him powers to address it. He did issue Executive orders, such as declaring a bank holiday, but he did not say that he had a phone and a pen and that he would do whatever he felt was necessary regardless of whether Congress acted. Rather, he said that if the powers Congress gave him to address the emergency were inadequate, he would ask Congress to provide him with the powers Congress would give a President in the event of a foreign invasion. Those are extensive powers. But he was determined to ask Congress for power, not to act unilaterally because the ends justified the means. He wanted to use all the powers available under the Constitution, not exceed those powers. Not only does the Constitution further government compliance with the rule of law through the separation of powers, it also sets up an executive branch that can act to check itself. Executive officials have their own legal powers that the President cannot interfere with. They can also refuse to carry out illegal Presidential orders. We have a very good example from the dark days of Watergate. The Nixon administration exceeded its powers too. When that happened, there were administration officials who pushed back against their own President who appointed them. The appropriate Justice Department official told President Nixon he would haul him into Federal Court if there were evidence of his criminality. Attorney General Elliott Richardson and Deputy Attorney General Ruckelhaus resigned rather than fire the Watergate special prosecutor, as the President had ordered. People of conscience do sometimes resign or threaten to do so, and that increases public pressure on the President to obey the law. Who in the Obama administration has ever stood up against his lawlessness? No one, as far as I know. No one has resigned from the Justice Department as it has become a rubberstamp for wild claims of Presidential power that exceed the Constitution and violate the laws. What lawyer in the EPA or any other Department has stopped her agency from acting unconstitutionally by exceeding the powers that Congress has specifically delegated under various statutes? What lawyer has stopped an agency from violating the Administrative Procedures Act by issuing binding rules on the public without public comment? I regret to say that the Congress up to now has too often been complicit with Presidential assaults on the rule of law. When President Obama eviscerated the core Senate prerogative of advice and consent by making unconstitutional recess appointments, not one single Democrat in this body objected. This is where the real harm of excessive partisanship manifests itself. Time and again, the previous majority in this body refused to take action against any Presidential action that violated the law if they agreed with the policy being pursued by the President. This sort of nonactivity is not why the Constitution created the Congress. Whatever its flaws, an active Congress that defends its legislative prerogatives and conducts effective oversight of Executive illegality is vital to preserving liberty. In one historical example, the process of transformation from democracy to dictatorship was completed when the Parliament voted itself out of existence. The Framers did not intend a Congress to sit idly by as the President violates the Constitution and the laws. In Federalist 51, James Madison wrote that the separation of powers was vital to the preservation of liberty. He noted that checks and balances would be effective in keeping each branch within its prescribed constitutional role because each had, in his words: . . . the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition. Recently, the Senate has failed to counteract unlimited Executive ambition. That must change and, as a result of the last election, should change. Will it change? I sure hope so. I trust that under our new leadership, the Senate will take action for the government to control itself, and to restore the rule of law that has been so badly damaged in recent years, because if we take the spirit of the Declaration of Independence--and remember, prior to that Declaration, the colonies decided they did not want one person, George III, making decisions affecting millions of people on this side of the ocean. So they were very careful, when they declared independence and they wrote a Constitution a few years later, to make sure they carried out the spirit of the Declaration of Independence that: . . . they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of happiness. Not by our government, but by nature or by our Creator. So they put into this Constitution assurances so there could never be a George III again, and separated all the powers so one person didn't have all the power. Now we see one person trying to exercise the power of several branches of government, as George III tried to do. So we are over that hurdle. All we have to do is make sure that the checks and balances the government worked--the same checks and balances that every high school kid learns in government class, to make sure that one person doesn't do it, and that our liberties are protected by a government that operates under the rule of law. And that Constitution is our rule of law. I yield the floor, and I suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I ask unanimous consent that Mary Future and Carter Burwell, detailees from the Department of Justice, be given the privileges of the floor during the 114th Congress.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, the Committee on the Judiciary has adopted rules governing its procedures for the 114th Congress. Pursuant to rule XXVI, paragraph 2, of the Standing Rules of the Senate, I ask unanimous consent that a copy of the committee rules be printed in the Record.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise today to introduce, along with Senator Franken, the Family Farmer Bankruptcy Clarification Act of 2015. I thank Senator Franken for his work on this bill and for his support. We introduced identical legislation in the 113th Congress and similar legislation in the 112 Congress. Unfortunately, the Senate has never had the opportunity to consider these bills and the problem we seek to correct. This bipartisan bill addresses the 2012 United States Supreme Court case Hall v. United States. In a 5-4 decision, the Supreme Court ruled that a provision I inserted into the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act didn't accomplish what we in Congress intended. The Family Farmer Bankruptcy Clarification Act of 2015 corrects this and clarifies that bankrupt family farmers reorganizing their debts are able to treat capital gains taxes owed to a governmental unit, arising from the sale of farm assets during a bankruptcy, as general unsecured claims. This bill will remove the Internal Revenue Service's veto power over a bankruptcy reorganization plan's confirmation, giving the family farmer a chance to reorganize successfully. In 1986 Congress enacted Chapter 12 of the Bankruptcy Code to provide a specialized bankruptcy process for family farmers. In 2005 Chapter 12 was made permanent. Between 1986 and 2005 we learned what aspects worked and didn't work for family farmers reorganizing in bankruptcy. One problematic area was where a family farmer needed to sell assets in order to generate cash for the reorganization. Specifically, a family farmer would have to sell portions of the farm to generate cash to fund a reorganization plan so that the creditors could receive payment. Unfortunately, in situations like this, the family farmer is selling land that has been owned for a very long time, with a very low cost basis. Thus, when the land is sold, the family farmer is hit with a substantial capital gains tax, which is owed to the Internal Revenue Service. Under the Bankruptcy Code, taxes owed to the Internal Revenue Service receive priority treatment. Holders of priority claims must receive payment in full, unless the claim holder agrees to be treated differently. This creates problems for the family farmer who needs the cash to pay creditors to reorganize. However, since the Internal Revenue Service has the ability to require full payment, they hold veto power over a plan's confirmation, which means in many instances the plan will not be confirmed. This does not make sense if the goal is to give the family farmer a fresh start. Thus, in 2005 Congress said that in these limited situations, the taxes owed to the Internal Revenue Service would be stripped of their priority and treated as general unsecured debt. This removed the government's veto power over plan confirmation and paved the way for family farmers to reorganize. Unfortunately, in Hall v. United States, the Supreme Court ruled that despite Congress's express goal of helping family farmers, the language inserted into the Bankruptcy Code in 2005 conflicted with the Tax Code. The Hall case was one of statutory interpretation. There is no question what Congress was trying to do; rather, did Congress use the correct language? My goal, along with others at the time, was to relieve family farmers from having their reorganization plans fail because of huge tax liabilities to the Federal Government. Justice Breyer noted this in the dissent: ``Congress was concerned about the effect on the farmer of collecting capital gains tax debts that arose during (and were connected with) the Chapter 12 proceedings themselves. . . . The majority does not deny the importance of Congress' objective. Rather, it feels compelled to hold that Congress put the Amendment in the wrong place.'' Hall v. United States, 132 S.Ct. 1882, 1897, 2012. As a result of the Hall case, family farmers facing bankruptcy now find themselves caught in a tough spot. The rules have now been changed and must be corrected in order to provide certainty and clarity in the law. The Family Farmer Bankruptcy Clarification Act of 2015 will provide the clarity needed to help family farmers. This bill adds a new section 1232 to title 11 of the United States Code. This new section, along with other conforming changes to the Bankruptcy Code, gives guidance and certainty to debtors, practitioners, and courts as to how these claims are to be treated during bankruptcy. I am pleased that the bill we are introducing today will help family farmers who are facing hard times. The Family Farmer Bankruptcy Clarification Act of 2015 ensures that what Congress sought to do in 2005 actually occurs. In the wake of the Hall decision, this bill is needed in order to help family farmers reorganize successfully. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise today to introduce, along with Senator Franken, the Family Farmer Bankruptcy Clarification Act of 2015. I thank Senator Franken for his work on this bill and for his support. We introduced identical legislation in the 113th Congress and similar legislation in the 112 Congress. Unfortunately, the Senate has never had the opportunity to consider these bills and the problem we seek to correct. This bipartisan bill addresses the 2012 United States Supreme Court case Hall v. United States. In a 5-4 decision, the Supreme Court ruled that a provision I inserted into the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act didn't accomplish what we in Congress intended. The Family Farmer Bankruptcy Clarification Act of 2015 corrects this and clarifies that bankrupt family farmers reorganizing their debts are able to treat capital gains taxes owed to a governmental unit, arising from the sale of farm assets during a bankruptcy, as general unsecured claims. This bill will remove the Internal Revenue Service's veto power over a bankruptcy reorganization plan's confirmation, giving the family farmer a chance to reorganize successfully. In 1986 Congress enacted Chapter 12 of the Bankruptcy Code to provide a specialized bankruptcy process for family farmers. In 2005 Chapter 12 was made permanent. Between 1986 and 2005 we learned what aspects worked and didn't work for family farmers reorganizing in bankruptcy. One problematic area was where a family farmer needed to sell assets in order to generate cash for the reorganization. Specifically, a family farmer would have to sell portions of the farm to generate cash to fund a reorganization plan so that the creditors could receive payment. Unfortunately, in situations like this, the family farmer is selling land that has been owned for a very long time, with a very low cost basis. Thus, when the land is sold, the family farmer is hit with a substantial capital gains tax, which is owed to the Internal Revenue Service. Under the Bankruptcy Code, taxes owed to the Internal Revenue Service receive priority treatment. Holders of priority claims must receive payment in full, unless the claim holder agrees to be treated differently. This creates problems for the family farmer who needs the cash to pay creditors to reorganize. However, since the Internal Revenue Service has the ability to require full payment, they hold veto power over a plan's confirmation, which means in many instances the plan will not be confirmed. This does not make sense if the goal is to give the family farmer a fresh start. Thus, in 2005 Congress said that in these limited situations, the taxes owed to the Internal Revenue Service would be stripped of their priority and treated as general unsecured debt. This removed the government's veto power over plan confirmation and paved the way for family farmers to reorganize. Unfortunately, in Hall v. United States, the Supreme Court ruled that despite Congress's express goal of helping family farmers, the language inserted into the Bankruptcy Code in 2005 conflicted with the Tax Code. The Hall case was one of statutory interpretation. There is no question what Congress was trying to do; rather, did Congress use the correct language? My goal, along with others at the time, was to relieve family farmers from having their reorganization plans fail because of huge tax liabilities to the Federal Government. Justice Breyer noted this in the dissent: ``Congress was concerned about the effect on the farmer of collecting capital gains tax debts that arose during (and were connected with) the Chapter 12 proceedings themselves. . . . The majority does not deny the importance of Congress' objective. Rather, it feels compelled to hold that Congress put the Amendment in the wrong place.'' Hall v. United States, 132 S.Ct. 1882, 1897, 2012. As a result of the Hall case, family farmers facing bankruptcy now find themselves caught in a tough spot. The rules have now been changed and must be corrected in order to provide certainty and clarity in the law. The Family Farmer Bankruptcy Clarification Act of 2015 will provide the clarity needed to help family farmers. This bill adds a new section 1232 to title 11 of the United States Code. This new section, along with other conforming changes to the Bankruptcy Code, gives guidance and certainty to debtors, practitioners, and courts as to how these claims are to be treated during bankruptcy. I am pleased that the bill we are introducing today will help family farmers who are facing hard times. The Family Farmer Bankruptcy Clarification Act of 2015 ensures that what Congress sought to do in 2005 actually occurs. In the wake of the Hall decision, this bill is needed in order to help family farmers reorganize successfully. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, before I speak, I have two unanimous consent requests: No. 1, that Senator Whitehouse be allowed to follow me and, No. 2, that my remarks not break up the debate on the pipeline bill.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise to speak about the issue of EPA regulation of waters of the United States rule. I see it as one of the biggest power grabs by an agency in a long time--particularly the EPA. Before I speak on that issue, I wish to bring attention to some headlines that appeared both in Iowa and nationally on this issue. I will quote the Wall Street Journal: ``Watch Out For That Puddle, Soon It Could Be Federally Regulated.'' The next quote is from an Iowa Farm Bureau spokesman: ``Water rule is really about control of land.'' The next quote is from a Farm Bureau spokesman: ``Water rule intrudes on property rights, hurts conservation.'' Farm Bureau spokesman said: ``EPA proposal would regulate all water wherever it flows.'' Farm Bureau spokesman: ``Water rule threatens U.S. agriculture.'' The last quote is also from the a Farm Bureau spokesman: ``Rule is threat to conservation momentum . . . a flood of red tape.'' Last spring the EPA and Army Corps of Engineers published a proposed rule to define ``waters of the United States.'' This is part of a long history of attempts to determine the scope of the Federal Government's jurisdiction under the Clean Water Act. The latest proposal has generated no shortage of rhetoric from those concerned about the rule as well as those defending the rule. However, you would be hard pressed to call it a true debate. Rather than making a serious attempt to address the numerous legitimate concerns with the rule, the Environmental Protection Agency and their allies in the professional advocacy community have attempted to push a narrative that tries to portray critics of the rule as misinformed, nutty or in favor of water pollution. They, the advocacy community, claim the rule simply clarifies the jurisdiction of Federal agencies, and they also claim it does not expand that jurisdiction in any way. The EPA also promises that it will not interfere with the farmer's routine use of their own land. Given its history of ignorance and indifference toward the needs of rural America, it is no wonder EPA's assurances are met with skepticism by many in America, but it is particularly met with skepticism by America's farmers. The EPA will have another chance to consider the concerns of farmers and many other Americans as it reviews the formal comments it collected before issuing the final rule. Still, given the fact that EPA officials--starting with Administrator McCarthy--went out of their way to be dismissive of legitimate criticisms even while the comment period was still open, I am not going to hold my breath hoping for a change of heart on the part of the EPA. First, it is important to understand that this debate is not about whether we should have clean water protections but which level of government is in the best position under our laws, and the intent of those laws, to manage which bodies of water. Despite what some interest groups would have you believe, no one is arguing that farmers or anybody else should be allowed to dump pollutants in the waterway. There is also no question that there is a very important role for the Federal Clean Water Act to protect interstate bodies of water. However, the Clean Water Act itself clearly states: It is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter. That is in the law right now, and it has been there a long time. The complicated Federal clean water permitting process is appropriate if a factory is looking to discharge waste into a river, but does it make sense to require a farmer to apply for a Federal permit to build a fence on his own land? There is clearly a limit to where Federal regulation is appropriate, where Federal regulation is effective, and where Federal regulation is legal. In fact, expanding the cumbersome Federal permitting process to cover lands it was not designed for would actually be counterproductive in my State of Iowa and probably a lot of other States as well. Forcing farmers to file for a Federal permit would add significant redtape for Iowa farmers as they make routine decisions about how best to use their land. Ironically, that could delay or deter farmers from undertaking projects to improve water quality, and that is why I quoted some members of the Farm Bureau earlier. There was one story that very specifically said farmers in Iowa were willing to spend a lot of their own money to do some conservation practices that everybody would be very happy with, but they are not going to spend their own money because they cannot even get an answer from the Corps and the EPA on whether they even need a permit. They are not going to pursue their conservation practices and invest all of their money if they could be violating a law, so you can see why they are very upset. Under the existing law, the EPA cannot even tell a farmer whether they need a permit, and they want to assume a lot more responsibility. It is kind of concerning considering that they cannot do their job right now. Having to constantly apply for Federal permits just to farm their land would be unnecessarily burdensome to farmers, a waste of Federal resources, and an intrusion on State and local land use regulations. What about the EPA's assertion that its proposed rule simply clarifies its existing jurisdiction and restores it to what it used to be? The fact is that in the past, the EPA has attempted to claim nearly unlimited jurisdiction well beyond what the law says and well beyond even an expansive reading of the Federal Government's constitutional authority to regulate interstate commerce. However, those attempts were repeatedly struck down by our U.S. Supreme Court. The Court decisions in 2001 and 2006 made very clear that the Federal Government does not have unlimited authority over all bodies of water but left the precise division between State and Federal or local jurisdictions somewhat unclear. In response, the U.S. Army Corps of Engineers and the EPA issued guidance in December 2008 in an attempt to comply with the Supreme Court's rulings but did not engage in any formal rulemaking. Significantly, legislation was routinely proposed in Congress by those who wanted to push aside the Supreme Court rulings and give the EPA unlimited jurisdiction, but it never garnered enough support. While legislation would not have resolved the constitutional limitations to the EPA's authority, it is important to know Congress passed on several opportunities to amend the Clean Water Act to expand Federal jurisdiction. Nevertheless, in April 2011, the Obama administration proposed to replace the existing guidance with revised guidance that provided a very expansive reading of Federal authority, leaving very little land under State and local control. This unilateral reassertion of expansive authority--in defiance of the other two branches of government--was made even more egregious by being proposed through guidance outside of the formal rulemaking process. Fortunately, the outcry from the Republican Congress against this power grab caused the administration to scrap guidance and pursue a formal rule with public comment. I do believe we need clarity about what is and is not covered by the Clean Water Act, and particularly its permitting process, and that a formal rule with public comments is the best route. However, the proposed rule that was formally published in April of 2014 once again asserted an extremely expansive view of Federal authority. This would increase the Federal Government's jurisdiction to regulate waters that had previously been the sole jurisdiction of States and local governments. Moreover, rather than clarifying points of uncertainty remaining from original guidance, court decisions, and precedents, the proposed rule would create a whole new definition of waters of the United States that opens new areas of uncertainty and confusion. Rather than fixing the problem, this rule would make it much worse. It would lead to another round of court cases and overwhelm the Federal agencies with requests for jurisdictional determinations, diverting scarce Federal resources away from enforcement in more critical areas. The EPA and the Corps should withdraw the proposed rule and work collaboratively with the States and other stakeholders to craft a sensible rule that will ensure clean water and provide much needed clarity about the scope of the Federal Clean Water Act jurisdiction.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, Members of the Senate, in a few hours, maybe within this day or tomorrow, the Senate will be voting on several nominees to be district judges. I come to the floor to speak about one of these, Stephen Bough, of Missouri, for a seat on the District Court of the Western District of Missouri. As I do with every nominee, I thoroughly examined Mr. Bough's record with an eye at giving him and others the benefit of the doubt if problematic issues arose. After full consideration of that record, I am regrettably unable to support this nominee. There are just too many data points--red flags, if you will--which tell me that Mr. Bough doesn't have what it takes to serve in a lifetime appointment on the Missouri District Court. These red flags all relate to one troubling question the nominee's record raises: whether Mr. Bough has the temperament to be a Federal judge. I have come to the conclusion that he doesn't have that type of temperament. So I would explain my conclusion. First, there is the issue of this nominee's professional conduct. A specific incident from last year demonstrates how Mr. Bough has engaged in what I believe to be unethical behavior that precludes him from service on a Federal bench. Last October, a member of the Mississippi bar drew my attention to the nominee's participation in a civil case in Federal District Court. The presiding judge on that case was the nominee's former employer, Senior District Judge Scott O. Wright. About a week before the nominee signed on to the case, the plaintiff's attorney asked the court to transfer the case to another judge. Judge Wright denied that motion the next day. Then, just 1 week later, the nominee entered his appearance in the case. Mere hours after that, Judge Wright recused himself without any motion from the parties. Now why did Judge Wright do that? Well, when Mr. Bough joined the case, he created a conflict of interest with Judge Wright. You see, Mr. Bough was Judge Wright's law clerk and remains his close personal friend today. In fact, Judge Wright had added the nominee to his personal conflicts list in January 2006, and Mr. Bough was well aware that he was on the conflicts list. So Mr. Bough knew that by joining the case Judge Wright was guaranteed to recuse himself--and that is exactly what the plaintiffs tried unsuccessfully to do just 1 week before Mr. Bough signed on and forced that recusal by creating the conflict with the judge. Now we can reasonably ask, why is this significant? Well, what the nominee did here is known as judge shopping. It is an unethical litigation practice that has been strongly criticized by courts throughout the country. Essentially, it is when a lawyer knowingly creates a conflict with a judge in order to get the judge kicked off a case and replaced with a new and perhaps more favorable judge. That is the shopping part. The Michigan Supreme Court has explained that judge shopping ``exposes the legal profession and the courts to contempt and ridicule.'' The Fifth Circuit calls judge shopping ``sheer manipulation of the justice system.'' Another Federal court has noted that the practice is ``universally condemned.'' This isn't the kind of professional conduct we can accept in a nominee to the Federal bench. I gave Mr. Bough several opportunities to explain his conduct in questions for the record that I submitted to him. What I learned from his responses was this: The nominee knew that by joining the case he created conflict requiring Judge Wright's recusal. I also asked the nominee to provide our Judiciary Committee with the work he says he did while he was an attorney on that case. You see, I wanted to know whether the nominee joined the case in good faith to work and to do it for the client, or joined just to create a conflict with the judge. Mr. Bough responded that he provided advice and edits on only three documents. I requested those documents twice, and I told the nominee to redact any content protected by attorney-client privilege. The nominee has refused to provide those documents to me. The nominee has not provided to me memorandums, billing records, or any other materials to support his claim that he actually was working on that case; nor did the nominee attend any depositions or other pretrial hearings in that case. He made no filings with the court. In short, Mr. Bough has provided me with almost nothing to support his claim that he actually did substantial work on the case during the 7 months he represented the client. It is for this reason and for the circumstances I have already described that I am led to believe that the nominee's entry of appearance was not in good faith. It looks to me like a textbook case of judge shopping. But the judge shopping is only one of many red flags. Let me discuss another that gives me serious pause. The nominee has been active in Democratic Party politics in the Kansas City area for a number of years. Now I want to make it very clear that I don't hold that against him. I have said frequently over the years that I never disqualify a judicial nominee just because he or she has been politically active. Instead, the issue for me is whether a nominee has shown that they can shift gears and put aside their previous political advocacy once they put on the judge's robe. This nominee's record makes it abundantly clear that he wouldn't be able to make the switch from political advocate to impartial arbiter of law. I will give you an example. In recent years the nominee has written a number of blogs and those posts have been about national politics. I have read his posts. I would say some are of a stridently political nature. Those don't bother me. Others though are simply too crude and sexist for me to quote. I challenge any Democrat who is voting for this nominee to read those blogs aloud to the public. I am confident none of my colleagues will do that. So I will just say that the sheer coarseness of those posts led me and other members of our Judiciary Committee to question whether Mr. Bough has a temperament suited to the lifetime judicial service. Unfortunately it is not just the blog posts that make me ask that question. The nominee has shown in other contexts that he is first and foremost a political operative rather than a zealous advocate for a client or officer of the court. For example, Mr. Bough has lodged two obviously frivolous and abusive complaints with the Federal Elections Commission against a congressional candidate whom he opposed ideologically. In 2008 the Commission dismissed the first of these complaints in a brief opinion. But in 2012, Mr. Bough redoubled his efforts and filed a second 93-page complaint against the same candidate. This time the Commission responded with a lengthy and meticulous opinion that is striking in its strong language dismissing each of Mr. Bough's allegations. The Commission criticized Mr. Bough's allegations as ``vague and speculative'' and said any violation which may have occurred was so minor as to not merit consideration. The opinion concluded that Mr. Bough's complaint had no basis for its allegations and was without merit. So the bottom line is that the nominee was using a government agency as a tool to harass a political opponent. As I said earlier, that is behavior indicative of a political operative, someone who is not going to be able to put it all aside and consider cases objectively once he becomes a judge. From time to time some of my colleagues on the Judiciary Committee have commented that the best evidence for the type of judge a nominee will be is the type of lawyer they have been. So I think there is a lot of wisdom in that view. With this nominee we know what kind of lawyer he has been, defending an unsavory client or representing an unpopular cause is one thing; we expect lawyers to do that--our system in fact demands that they do that--but acting as a political operative is an entirely different matter, and that is the kind of lawyer this nominee's record shows him to have been: a lawyer steeped in bare- knuckled political combat. I said at the beginning of this statement that I am inclined to give nominees the benefit of the doubt when I come across something in their record that raises my eyebrows. I probably would have done that with this nominee, too, if there had been just an isolated issue or a noncharacteristic lapse in judgment. But that is not what we have here with Mr. Bough. Not only do we have unethical judge shopping, to that we have to add a number of crass, sexist, and insulting blog posts, and to that we also add a pair of frivolous complaints that abused the jurisdiction of a government agency in order to harass a political opponent. There are too many red flags for me to support this nominee. I yield the floor and suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I wish to clarify my understanding of the following report language included with H.R. 83, the Omnibus Appropriations Act: The Secretary is directed to operate the marketing assistance loan program in a way that encourages redemption and minimizes forfeitures of loan commodities to the Federal government, and enables the orderly marketing of loan commodities throughout the year. Further, the Secretary shall ensure that the marketing assistance loan program remains a viable tool for all producers to use in marketing loan commodities freely and competitively. The Senate Agriculture Committee has confirmed this language simply intends to encourage USDA to better inform farmers of the status of any marketing loan gains they may receive during a marketing year for eligible commodities. Furthermore, it was also conveyed by minority staff of the Senate Agriculture Committee that the referenced language in no way seeks to change implementation or enforcement of Section 1603 of the Agricultural Act of 2014.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I rise to correct the Record on the claim that we typically confirm judges during a lameduck session. However, we do confirm judges during a lameduck if those judges were reported to the floor before the election. What we typically don't do is report judges out of committee during a lameduck and then also confirm them that same year, and that is what the majority is attempting to do here, and, of course, I object. We need to follow precedent on these nominees. I will use 12 years as an example to illustrate what really happened. In 2002, 20 judges were confirmed during the lameduck, but 18 of those judges had been reported out of committee before the midterm election. Only two of those judges were reported during the lameduck, and that was because these two judges waited for more than a year for a hearing. In 2004, four judges were confirmed during the lameduck session, but none were reported out during that lameduck session. In 2006, one judge was confirmed, but again, that judge was not reported out of committee during the lameduck session. In 2008, there were no confirmations in the lameduck session. In 2010, again, no judges were confirmed, but that year 15 judges were reported out of committee during the lameduck and every one of those 15 judges was returned to the White House. Finally, in 2012, no judges were confirmed. That year, again, five judges were reported out of committee during the lameduck, but all five were returned to the White House. That is the raw data. The data confirms that since 2002, with only two exceptions for special circumstances, no judges have been reported out and confirmed during the lameduck session. The reason is simple. It gives our newly elected Senators the opportunity to have their voices heard, and that is what this is all about. That is the reason the judicial nominees, which are lifetime appointments, are typically returned to the President if they come out of committee during a lameduck session. It gives the new Members an opportunity to have their voices heard. I am raising this objection today, although I know we are going to proceed, to protect the prerogatives of newly elected Members. Frankly, I am disappointed that the Members are not willing to stand up and protect those rights and prerogatives. I believe I have a pretty good reputation for working across the aisle on a lot of issues, and I expect that somebody would realize that next year these people would get a fair hearing just as they did before they were reported out of committee. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, my colleagues who are waiting to speak to honor Senator Harkin, I am not going to take the amount of time I did on his birthday. I want to tell my colleagues that what I said on his birthday, on November 19, I probably should have waited and said today. But I want to speak about our working relationship, and I want Senator Harkin to know that I have enjoyed my working relationship with him, together working for Iowa. I compliment him on the many accomplishments he has made. I consider him a friend. And as he goes back to Iowa, we will maintain that friendship, I am sure. I would ask my colleagues if they would think about looking at what I said before on his birthday, because I am not going to repeat that here. But I think we ought to recognize that Senator Harkin worked hard up to his last day in the United States Senate, because one of his works over the last 25 years was on inhumane labor issues around the world, and he traveled to Oslo very recently to honor a person who received the Nobel Peace Prize for that crusade, as well as all the good work that Senator Harkin has done on it. And probably that person received the award because of Senator Harkin so long suggesting that the individual deserved that attention. I am going to be very brief today, since my prior remarks outlined our friendship and his record in some detail. It is in the Congressional Record for posterity. Senator Harkin and I have been a duo from our home State of Iowa for a long period of time. His voice is familiar. So is his point of view, so is his work ethic for the people of Iowa. He has been a champion for individuals with disability, for the elderly, for early childhood education, nutrition, and wellness; for conservation, renewable energy, and the environment. We could go on and on about his passion for these causes, and many others. Senator Harkin's legislative accomplishments are numerous. He leaves a lasting body of work that improves the quality of life for people who don't always have a high profile in the Halls of Congress. One of Senator Harkin's greatest legacies is his ability to translate his drive and passion into legislative accomplishments. As the saying goes: He doesn't just talk the talk, he walks the walk. Senator Tom Harkin lives and breathes the causes important to him, and the United States and Americans have a better quality of life because of it. It will be a new era when the Senate doesn't see him rising to speak in his characteristic fiery delivery. And it may not have been so fiery today, but he did speak with emotion about the things he believes in. I am grateful for his friendship and his long service to the people of Iowa and the Nation. While I will miss him around the Capitol, I am confident I will see him at home in Iowa. Senator Harkin is not one to turn off his enthusiasm for important issues, and I feel sure--and he has already told us today--he will continue his contribution to public service wherever and whenever the spirit moves him. And we know by his statement today it is already moving him. He has plans for the future to continue these crusades. With that in mind, I will say so long rather than goodbye. Thank you. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I have said before on the Senate floor that the proposed Environmental Protection Agency regulations to limit carbon dioxide are an example among far too many of Executive overreach by this administration. Anyone who knows the history of the Clean Air Act--and I was here for the last major revision in 1990--or who has read the text of that law knows it was never intended to address greenhouse gases or climate change. The Clean Air Act is designed to address traditional pollutants that have a direct impact on human health and the environment. However, when Congress declined to pass legislation supported by President Obama that would have created a cap-and-trade system targeted at greenhouse gases, the President gave a speech saying he would act on his own. In trying to regulate greenhouse gases under the Clean Air Act, which was not designed for that purpose, the EPA had to fit a square peg in a round hole. As a result, when a number of key provisions in the Clean Air Act didn't say what the EPA would like them to say, the EPA simply reinterpreted those provisions to say something different or ignored them. In effect, the EPA was unconstitutionally rewriting a law passed by the Congress. We all know what article I, section 1 of the U.S. Constitution says: ``All legislative Powers herein granted shall be vested in a Congress of the United States . . . '' Regardless of where you stand on climate change, we ought to be able to agree that it is not appropriate for the EPA or, for that matter, any administrative agency to twist the law passed by Congress to mean something other than what it says. This isn't a partisan position, and you don't have to take my word for it. Just listen to what President Obama's Harvard professor, renowned liberal constitutional scholar Lawrence Tribe, has written: The defects in the Proposed Rule transcend political affiliation and policy positions and cut across partisan lines . . . Continuing: The central principle at stake is a rule of law--the basic premise that EPA must comply with fundamental statutory and constitutional requirements in carrying out its mission. The Proposed Rule should be withdrawn. It is a remarkable example of executive overreach and an administrative agency's assertion of power beyond its statutory authority. Indeed, the Proposed Rule raises serious constitutional questions. In addition to his reputation as one of the country's most prominent constitutional scholars, Professor Tribe is also a long-time Democratic Party activist. In fact, he served as a judicial adviser to President Obama's 2008 Presidential campaign, briefly worked in his administration, and has been a very vocal supporter of the President. When Professor Tribe says the Obama administration has exceeded its authority, you can take it to the bank. I should also add, in response to concerns that the EPA regulations are not a legitimate or appropriate response to climate change, I often hear that at least EPA is doing something. Well, aside from the fact that regulatory approach is not legally justified, it is also ineffective. As Professor Tribe points out on his treatise in this matter: The Regulatory Impact Analysis (RIA) for the Proposed Rule states that the impact of ``reduced climate effects'' has been ``monetized'' but not ``quantified.'' In other words, EPA does not claim that the Proposed Rule would affect the climate. The mismatch and lack of social benefit distinguish the Proposed Rule from other actions by EPA under the Clean Air Act. This isn't news. President Obama's first EPA Administrator, Lisa Jackson, confirmed in testimony before a Senate committee that: ``U.S. action alone will not impact world CO2 levels.'' So these regulations will have no measurable environmental benefit, but will have tremendous costs, particularly for the Midwest, given our energy mix. The EPA rules are all pain and no gain. This is not an argument about environmental policy. I am proud to be a leading advocate for renewable energy, and I believe there is room for some bipartisan agreement about diversifying our Nation's energy sources. However, I want you all to know that I agree with Professor Tribe that regardless of the underlying policy goals, the rule of law must be respected and the proposed rule should be withdrawn. I hope President Obama will learn from his former Harvard professor and end with the President of the United States doing the right thing. I yield the floor.