tv Key Capitol Hill Hearings CSPAN December 12, 2013 2:30am-4:31am EST
committee. they really do a good job. i'm pleased with the people that are on it. unfortunately, again, we're missing an enforcement piece to that so that, again, the regulation disappears for small businessmen if it's going to be really detrimental. we try to do these one-size-fits-all around here. that's what obamacare is. well, that's four sizes fit all. but one-size-fits-all or four-sizes-fit-all won't take care of america. this is the most diverse country probably in the whole world, and the most successful country in the world because it is so diverse, because we have so many people doing so many different things, and it's also been one of the most invo innovative cous in the world. we want to be innovating things for the whole world and have the other countries stealing them.
that's the way it's always worked. we're taking away the incentives for people to use their minds to create new things that will sell all over the world. that's what's brought prosperity to the united states, inventiveness. we invented a new government, and it's worked pretty good up till now. and we've invented all kinds of things that the world has benefited from. we need to make sure that what we do encourages that, instead of discourages it. this thing that the government knows best? i just don't run into many people that think that's right. most of them think that the government doesn't have enough experience in business. i go back to wyoming almost every weekend and i travel to a different part of the state all the time and over the weekend i try to get into a business or two. i try to find out what it is they do, how they do it, and most importantly how the federal government might interfere or help them. and it's very valuable. i have found that if a person
hasn't been in business, that every business looks simple. and you can take a look at how people look at our job. it looks pretty simple. they don't expect that anybody is going to be speaking at 2:30 in the morning. they think that all we do is vote, which is not true. you have to draft bills. but it's more difficult in the private sector than it is in government, because people's wages, people's food, people's housing rely on that business paying them. i'm on the small business committee, and i keep explaining that you really haven't been in business unless you've had to wake straight up in the middle of the night in a sweat saying, tomorrow is payday, how do i meet the payroll? that's being in business. and it happens to every small businessman out there once in a while. some of them, it's the end of that small business. but we got to watch out for
those small businesses, because those are the ones that grow into big businesses. those are the ones that become part of the world market. there's more opportunity thoor tha-- there's more opportunity r that now than there ever was. but there isn't if we keep piling more regulations on so all they have time for is to read the regulations that we did. thousands of pages of regulations are turned out here all the time. i know. i read the "federal register," and it's getting heavier to carry owl the time. -- all the time. so we know that small businesses across the country are not hiring new workers because of the impact of the health care law. and what it'll have on their bottom lines. if they're not profitable, they're out of business. tear a nothey're not like the g. they can't spend more money than they have. and they don't understand why we don't understand that. why do we keep spending more thoamoneythan we have in?
i guess it's because we think we can keep selling bonds. if interest rates keep going up, we're not going to be able to do even national defense. so we need to be more careful on what we're doing and doing things more timely. so, millions of medicare beneficiaries will face reductions in their existing benefits. as a result of the billions that were taken from medicare, and that was to fund the new law. it wasn't to provide more combiestbenefits for sns much mf the seniors have figured that owvment i already mentioned that they have caps on their benefits even though the president promised there wouldn't be caps on benefits. and there aren't caps on benefits if you're out there working in the private sector which makes it very hard to figure out the actuarial cost of a plan. so it's not quite 2014 yet, and most of the thousands of pages of the new law haven't even gone into effect. but each day, it seems, there is a new breaking story about what
this debacle health care law is turning out to be. i got a letter from jessica in laramie who tells how this health care law is affecting her. her health care plan according to healt.gov is $29 a month. this is with premium support from the federal government. i repeat, this is with the subsidy. the university of wyoming health insurance rate for a semester is $452. that's offer the course of four -- that's over the course of four months. that's nothing new. it's been available for students long before the democrats forced their health care disaster through congress. today jessica's premiums would cost more than any of her medical bills to date. jessica recently fractured her foot, and this cost her less than $300 in medical bills. now, when they get to looking on
the web site here, they're going to find out that the deductibles have gone up dramatically, and one of the things that's been constrained and in some cases eliminated is health savings accounts. that's the right thing for the young people to have. of course that doesn't pay for the older, sicker people, so we had to force them out of that system and get them into the regular system with everybody else and compress the prices so that the younger people are paying for the older people. i don't think they're going to stand for that very long. i think they're going to be upset about it. i think they're already upset about t health savings accounts providing them a way to have catastrophic insurance and the right to put many -- money tax-free into an account that could grow over time and provide for that deductible that they have. that's pretty essential. you know, and if they keep putting money in there, tax-free, and it keeps growing, it might take care of health care for the rest of their life.
i think it's a solution actually for everybody. again, it's one of those where one size doesn't fit all, but it fits a the although of people, and they ought to -- but it fitzs a lot ofitzfitsa lot of ph to have the option. some people have the right thriewr theithrough their compah insurance plan to set aside some additional health plan to pay for health care. so we're going to eliminate that. i don't want that. that side of the aisle decided that we ought to eliminate it or reduce it and put extra requirements on it so there were less that you could get with it, even though those are individual choices on health care expenditures that the person has to make with what's their own money. that's one of the keys to bringing down health care expenditures. have people make their own
choices from their own money. if you're making it with the company's money or the federal government's money, it doesn't make nearly as much difference. if you're not participating in a plan at all and you can go in and get whatever you need and you can go to a really expensive place instead of a less expensive place, it is going to break the system. and that's some of what -- where we are. i mentioned jessica, her plan, and how it's going to go up considerably, considerably higher than what they are costs are, normal medical. jessica's mother also works for the state government. she has health care through the state. however, even though she's under the age of 26, jessica is not allowed to join her mother's insurance plan. this is yet another example of a broken promise from the obama administration. the president's flawed health care bill is a raw deal for our students and for our nation.
jessica said it and i quote, "it feels like the government is punishing everyone for the few people who have health care bills worth more than a house." it isn't remotely fair. yes, so students are paying the price. and they're realizing it, and they know what a bad deal was hoisted on them. karen from cody contacted me because her construction company had to drop her blue crossing -s blueshield health care plan. the company was already providing health care plans for their employees and now these folks can't keep their health care plan they liked. their employees are mostly young americans and they're trying to make their budgets work. they couldn't afford to sign up for health care plans that would reduce their pay. as a result, all of her
employees will have to seek individual policies in 2014. karen also said there is a lack of information on the insurance plans. she doesn't know what doctors and what medical facilities will be included or even available. karen is upset. i'm upset, too. i've said for five other six years that if you can't see a doctor, you don't have any kind of insurance. and that's what we're running into. doctors are changing the way that they operate and they're saying, unless you'r i see you'n medicare. i don't think i'll be able to take you. we have some problems with doctors who deliver babies because of potential liability which goes until the child is of age. that creates a the love costs -- that creates a lot of costs. but that's a whole nother story. it is time for congress to heed
the calls of the majority of americans and repeal this partisan law. but that isn't going to happen unless ordinary americans continue to speak out and demand those who brought them obamacare keep their promises, every one of them. well, i could go on about health care a lot more. i may come back to it. but i want to talk a little emit abou-- but i want to talk a lite bit about the budget deal. we're now in the mode of making deals instead of legislationing. this body isn't signed to make deals, to send half a dozen people off to solve a problem. or in the case of the budget deal, two people, one from the house and one from the senate. everybody else feels like they ought to have some input for it. no, everybody feels that their constituents should have some input for it. and that's what we're missing. when we send off two people or six people or ten people to come up with a deal and we set a date
that the media can crescendo up to that point and they bring us this thing, like the budget deal is going to be, and we get to vote "yes" or "no," we don't get to do any amendments, that's not how we're designed, and that won't work either. so i want to talk about the recently aons no announced murrn budget deal. i hope we have a solution to our nation's spending problems. but that didn't havmen happen. instead, we have another backroom deal put together by two members. they worked hard and came up with something, but they didn't have all of the input from everybody. and that makes it difficult, too. and that's usually done through amendments, amendments that are debated and voted up or down. but that doesn't happen around here anymore. this budget deal increases spending and shows that one thing democrats and republicans
can agree on is putting off the tough decisions. we can't keep on doing that. we just -- i just showed you how we're piling it onto the young people with obamacare. now we're filing on to them with a -- now we're piling it on to them with a budget deal. a child just born today already owes $50,000 in national debt. how would you like to carry that burden around and then be looking at student loans? incidentally, student loans were part of paying for obamacare. you probably heard the controversy where the rates were to go to 6.88% and tha at that e the federal government was paying .88% for its investments. the kids found out and say, that's not fair. the we're going to change that. we're going to knock it down to 3.44%. well, that's still 3% that the kids are paying on obamacare.
but the real kicker is that it was just extended for one year, and it was just extended for 40% of the kids going to college. that's wrong. so when it came up the next time, several of us got together and did a bill and that bill makes it a little more fair for 100% of the kids going to college. we said it has a slight fee above whatever the federal government is borrowing their money at. and twha fe what that fee is whu entered into the loan will be the price of the fe loan. and it will apply for 100% of the individuals. we fiewngdz a way. it actually -- we found a way. it actually passed. we have that habit around here of wanting to hold people hostage six months at a time. that's what we've been doing on the doc fix quoo for quiet quita while. the plan does spend more than the current law.
it charges people staintdzs for more things an uses the money to increase the spending in nonrelated amples areas. spending cuts are scheduled for outlying years. now we say, oh, yeah, we're going to cut that stuff, but we're going to do it on the end of tenge years. and the so-called savings from that are used up right now. now, is there anybody in america that can go ahead and spend their future earnings now and not have to do it on the other end then when it actually comes do? that's what we've been doing for far too long. those spending cuts that are scheduled for outliepg lieg years and they're called savings, they're used up right away, that just isn't real. call it what it is. it's not real and it's wrong. this bill has a lot of problems. it again raises rates for premiums that private companies pay the federal government to guarantee their pension benefits.
i worked on a bill, the pension protection act several years other ago, and the goal of that will was to make sure that companies that promised people pensioned would result in people getting pensions and we wanted to do it without putting the companies out of business because then it falls on the federal government with this pension benefit guaranty corporation. two years ago we raised the rates and the pbgc could use the money but we put it into highways for two years. pen years' -- ten years' worth of money, two years worth of highways. now we're raising that pension benefit -- that pension guarantee again by $200 per person. how many companies do you think are going to keep their pension plan? people might not be aware that pensions are voluntary in this country. they're not mandated. unfortunately, there are a lot
of companies that -- fortunately a lot of people realize the value of maintaining their employees and they have pension plans and they worry about those pension plans. they want them to be solvent to provide what they need to. they're liable for it. so it's wrong for us to increase a tax to say we're going to help make sure those are more secure and then the money never goes into the fund that insures it? let's see, should that come under the category of fraud? so those savings from these rate increases will be spent on federal discretionary programs and employers are still in the process of implementing a $9 billion rate increase to pay for the highways in last year's transit bill. so to put it simply, over two years the flat rate premium will have increased 40% and over three years the variable rate premium will have increased over 100%. if you're in business and you're looking at a 100% increase in
your pension costs, you got to take a look at it and say there's got to be a different way we can go. and that's going to mean a lot of people are not going to have the pensions -- they'll have the pensions they've been promised to that date but not the pensions that they were looking forward to at the time that they retire. that is a huge tax, it will cause companies to end their voluntary pension and their retirement plans. these pensions are completely voluntary and if the cost to keep them goes up, companies may have to reevaluate. workers and their families will be forced to find other ways to save for retirement due to this increased tax on companies. and there isn't anything else you can call it. i noticed that they're trying to call it a fee. well, the definition on a fee is if you don't participate, then you don't have to pay it. well, that isn't what we're trying to do. we're trying to have companies provide pensions. we're not trying to have them realize that they can't afford
the pensions that they're giving out was of increased charges by the federal government. so that's wrong. and under this budget deal they're again telling wyoming, montana, utah, colorado, new mexico and other states that allow for the production of minerals on their land that the federal government deserves more than half the revenues. under federal law, states are entitled to half the royalties collected by the federal government for energy production on their lands. to distribute the state's share, the law intends for the minerals management service to divide the amount of mineral royalties collected by the two and to write a check for that amount and mail it to the states. but an even split isn't enough under this new budget. an attempt to satisfy an insatiable appetite for spending, the budget bills plan to take more money away from our states, about $40 million each year. we had an interesting situation this last year when they did the
sequester. the federal government said okay, our half of the money when it comes in is revenue. your half of the money when it goes out is an expenditure. therefore we need to paying the 5.75% out of that. when we heard that we started passing a bill around and getting a lot of traction on it from both red and blue states saying that's wrong. you can't take our money away. if you're going to take something out for sequester it ought to come out of both halves but it dunl doesn't -- definitely doesn't deserve to come out of what by law is money that belongs to the state. we raised enough fewer orr and -- fewer or and looked like this bill could pass and i'm sorry we didn't pass it. the federal government decided they were wrong and so they've agreed that they're going to pay back that 5.75% they stole from the states. but this budget puts about another $40 million each year in
there that the federal government is going to keep out of the states' half. that's money that the states use for roads, for health care -- yes, health care -- education for children, and more efficient and environmentally friendly development of our energy resources. it's money that finds its way directly to the people, not down some bureaucratic black hole. a disproportionate share of this funding, about $20 million, comes from my home state of wyoming which supplies a disproportionate share of energy to this country. yet the federal government still wants more. unlike bureaucrats, we have to answer to our constituents. my -- mine are telling me they don't want tochg to take any more of our state's money. i'm sure yours will stem cell you the same thing whenever you have some money, they're saying the states are rich now compared to the federal government and that's the truth truth with almost every state. so they're planning on how we can steal the money from the states and give it to the federal government. so worst of all the so-called
budget conference committee for all practical purposes did not exist. the agreement was the sole product of one house member and one senate member. i sat on the conference committee and i can tell you that i learned the particulars of the deal at the same time as the public. they weren't part of the process or the negotiations. and neither were we. so we did have a meeting to begin with and everybody got to give statements for how they thought this deal ought to go. there were no further meetings of the conference. any conference that i've ever been on, once there was a deal made you met again and you got an explanation of the deal and then all the sides voted. and if it didn't receive a positive vote in the senate and in the house it wasn't passed on as a conference that was finished yet. it went back to the drawing boards again. i guess we're in a crisis here and decided we have had to do something in a hurry but that's
the worst of all worlds when you do that. when we're not a part of the process of the negotiations, it's not the way this body was designed. conference committees have a definite purpose. actually the task should not have even been assigned to the budget committee. it should have been assigned to the spending committees. we were at the point where in the -- in the calendar business , there are already bills that the appropriations, the spending people have put together for all 12 items. and those could have been brought up one at a time. probably take a week for each of them if amendments were allowed. and we would have wound up with a pretty good -- pretty good budget. pretty good spending. of course, i'm fascinated, we're about to january and starting in january i'll have
dozens of people from wyoming visit me. it's a long trip from wyoming to come here and they'll come here on individual programs of the federal government and they will say please, this is how important this particular program is. please make sure that we get funding for it. one of them is head start. and they actually think that we get to look at the head start budget and make additions or subtractions from it. we don't even get to look at health and human services or transportation or any of those. they all get lumped together sometime in the year. there is no oversight. there are no decisions by the main body on how to spend a trillion dollars a year. that's the wrong way to do it. so this is a symptom of the abandonment of the committee process. instead of representatives and senators offering constructive amendments and debating spending bills in public, a couple people and their staff it this is it in a room and present a take it or leave it right before
a holiday or a manufactured crisis deadline and we're going to have that yet on the omnibus spending bill. right now we're just doing a continuing resolution and allowing those agencies to spend 1/12 of what they spent the year before essentially so they don't know what they get to do for the rest of the year. when the sequester hit it was intoas to be 3.2% but we were eight months into the year and they had to take the cuts out of the last four months. head start came to me and said we can't afford to have 7.5% cut every year. i said where would 7.5% come from? they said that's what we're being cut. looks to me the bureaucracies in washington took their 5.3% cut but stole 2.3% from the local folks in order to pay for the washington bureaucracy. so it was the kids that suffered. the kids didn't get the money. more kids 4 to be taken off the
roll instead of more kids put on the roll. if it's going to hurt it ought to hurt in washington, not where the kids are. i have some solutions for it. one of them is the no government shutdowns and the way that would work if those spending committees don't have their work done by the time they're supposed to, october 1, each spending committee would have to take 1% off of what they're allowed to spend. each quarter until they actually get their work done. i think that would be a incentive for them to get their work done. i also have a penny plan. a penny plan would cut one cent offer every dollar the federal government spends. that in conjunction with scwemb would balance our budget in just two years. that would be 3.3% for two years. i think people would say you know that wasn't too bad provided we didn't make it hurt. that's one of the terrible things about government. they always like to pick the things that people really notice instead of eliminating things
like duplication and there's plenty of duplication out there. there's $900 billion a year in federal government on duplication. that would be a better deal than the sequester. but we don't do that. we make it hurt. we want people to notice their item is being cut and they complain and then we restore it and that's how you get to $17 trillion worth of debt. everything would be on the table, it would have flexibility so it didn't have to hurt, it could get rid of that duplication and then, of course, i'm prowfg a biennial budget. -- proposing a biennial budget. the way that would work we would appropriate for every agency for a two-year period. they could actually do some planning, not wait until we're eight months for the year before we tell them how to spend their money for the last four months. i have a twist in my biennial budgeting. i would split them into two categories and right after an
election we would do six bills, that year the six bills that are really tough and the next year we do the six bills that are really easy. then we'd be able to look at those individual items and a lot of these things that come up on the floor as extraneous amendments to other bills wouldn't need to be done. they'd be done with the spending part they're supposed to do. those are a few plans right there. we do have a spending brob, we don't have a revenue problem. we shouldn't raise taxes in order for washington to spend more. we can't spend our way to prosperity. that's more people getting in the wagon and less people pulling the wagon. identifying a process forward for tax reform, that's where part of the efforts of the budget conference should be focused. if done correctly, tax reform will represent help generate additional revenue through economic growth. let me repeat that. f not through new taxes but through economic growth to reduce the of deficits and pay down the debt. we need to prioritize spending.
finding the spending cuts that do the least harm and work about had there. it worked in wyoming. our governor knew he might have an 8% cut in the revenues that the state was going to get. so what did he do? got a hold of all the agencies and said i want to know what you would cut if you had to cut 2%, what you would cut to cut 4%, what you'd have to cut if you had to cut 6% and what you'd tax cut cut if you had to give 8%. that gives him four lists to look at and see what he thinks the agency is the most important to cut. what would be the least hurt to cut and that's what they did. they had to do a 6% cut and there wasn't a whimper. we could do that, too. i sit up nights worrying about our nation's debt and how it will affect wyoming's children, my children, grandchildren. there's a chance to apply reasonable constraints to impossibly high future spending but instead we get more spending and no plan to solve the problem. america wants a plan.
there's nothing as universal as that. they tell me every time in wyoming you got to quit spending more than you take in and i agree with them. congress should be working on federal spending bills in a responsible budget for months, and the senate majority put that work off. i could go into some things on the defense bill, i got a lot of things here and over the next few days i'll be talking about some of these. but what we're going through right now is instead of these things that i'm talking about that are really important to the american people that will really make a difference in their lives, we're doing some judges that it doesn't make any difference on. there are plenty of judges out there already. but that's to detract us from these problems of obamacare and a budget. we got to solve the real problems and quit worrying about whether the judges can be stacked in the district of columbia so that the president can have his way. that's wrong.
mr. president, i yield the floor. a senator: mr. president? the presiding officer: the senator from utah. mr. lee: mr. president, i'd first like to thank my distinguished colleague, the senior senator from wyoming, who is a good friend and a final example to all those who know him. people from both sides of the aisle can learn and benefit from my friend from wyoming who as a businessman, later as a mayor, as a devoted husband and father, has served his country well and has served his colleagues in the senate well. his remarks on the senate floor tonight have been especially insightful and i've learned something from him this evening as i do every time he speaks. he's one who reached out to me shortly after i arrived here in the united states senate and one who has always shown to me great kindness.
and i've always been grateful for that and i look forward to continuing to work with him in the senate. you know, mr. president, what's happening in the senate right now is more than just an attempt by the majority to end debate on nominees. it's an attempt to shut out the american people from the political process. you see, president obama and the majority party in the senate are so dedicated to enacting their progressive agenda that they'll do anything, even if it means running roughshod over the minority and ignoring the will of the people. our founding fathers drafted the constitution to prevent this sort of thing from happening and to protect the rights of all americans. they devised a constitutionally limited government with a system of checks and balances so that no one branch of government
would wield unlimited power. you see, the whole idea of this system was to prevent the excessive aggregation of power, the excessive accumulation of power within the hands of a few. under our constitution, the president's representative function is to faithfully execute the law and not to make it. congress as a whole alone makes the laws, including a deliberative senate whose majorities reflect minority views. senate democrats' recent actions are an assault on republican dismiewtionz oinstitutions and s they provide to all americans. the current administration and senate democrats view the constitution as an impediment to the enactment of their agenda. this is why the president illegally amended the affordable
care act, a law passed by congress, through executive action instead of after asking congress to amend it. it's also why democrats are willing to break the rules of senate -- rules of the senate in order to change the rules of the senate so that they can more quickly, more easily confirm the president's nominees. make no mistake, the executive and judicial nominees we're considering will be tasked with implementing and upholding president obama's agenda. congress is a representative body and is the only branch of government given the constitutional authority to make laws. we represent 9 peopl the people. when the president illegally changes the law or when he tramples on the rights of the minority in the senate, he guarantees that the people will have no voice and no representation. these are not trivial matters. these are not matters that we can casually, cavalierly cast
aside. these are matters of great importance. we have to remember what happened just a few short months ago when we were told on july 2 of this year that president obama had decided to change the patient protection and affordable care act in several meaningful ways. this, of course, was a law that was passed without consensus. it was passed without any semblance of bipartisanship. it was a law that was passed without a single republican vo vote, not a single republican voted for it in the senate. not a single republican voted for it in the house. all 2,700 pages of this law, a law that wasn't read before it was passed, a law that we were told members would have to pass in order to find out what was in it, this law took effect. and over time, as the american people learned about the law's
contents, they didn't grow more favorably predisposed toward the law. the law, has, in fact, never enjoyed the support of a solid majority of americans. but over time, its popularity has tended to diminish. and perhaps seeing this, president obama on july 2 of this year chose to wield his executive pen in such a way as to thamed la amend that law. he chose, among other things, to announce that the law contains a number of deadlines, a number of start dates that he would not be enforcing the employer mandate in the patient protection and affordable care act. he would, of course, still be enforcing, as of the january 1st start date, the individual mandate, but he would not be
implementing or enforcing, at least for the first full year of the law's operation, the employer mandate. of course he had no authority to do. this the constitution sets in place a system for making law. in order to become law, a legislative proposal has to make its way through the house of representatives, has to make its way through the senate, has to be passed by most of the people in the house and in the senate, and then it has to be presented to the president, consistent with article 1, section 7, clause 2, of the constitution before it may become law. but of course once it's law, it's law. and a law passed under one administration can't simply be vetoed or fundamentally altered by a subsequent president. in fact, it can't be vetoed or subsequently alters b altered br the same president who signed it into law in the first place.
and yet that is, in some respects, exactly what happened here. the president modified the law. he was too impatient, too unwilling, to unwilling to defer to the legislative branch, too unwilling to respect the oath that he took uphold, protect and definite the constitution from all enemies, foreign and domestic. too disrespect of that very document or founding document that has fostered the nation the world has ever known. now, he suggested that he needed to do this because the law wasn't ready to be implemented. he later suggested that he did this because he had to do it, because, as he put it, under normal conditions, under more ideal conditions, obviously the thing to do if you wanted to change the law, would be to go back to that branch of
government charged with making that law, that branch of government that passed it into law in the first place, congress. but as he pointed out, these are not ideal circumstances. no, they're not ideal. not ideal because he controls only one branch, one division of the legislative brafnl legislatf government. the senate. the senate is under control of his party and the house of representatives isn't. this can hardly justify this kind of blatant usurpation of legislative authority. this can hardly justify a president, in taking upon himself, the sole task of changing legislation. it is, in fact, an act of legislation on to itself and yet this is what he did by the stroke of the executive pen. this is exactly the kind of thing that the founding fathers tried to protect against,this
kind of unilateral action by executive, this kind of accumulation of power in the hands of a few, or, in this case, the hands of one person and yet this is what he did. he's done it on several occasions. now, some people have suggested, well, if what the president did was wrong, if it was unconstitutional, it wasn't authorized by the constitution, which it wasn't, it wasn't authorized by the act of congress, either the affordable care act or some other statute, and it wasn't, then perhaps the courts can and should and must and will remedy the constitutional problem embodied in that act. well, there are some problems with that. first of all, as we all know, not every unconstitutional act can necessarily be remedied in court.
many unconstitutional acts are themselves outside the purview of the federal court's ability to review. in some cases, an unconstitutional act might be something that the courts can consider nonjusticiable question, not subject to the court's authority or something that the courts aren't willing to wade into. in other circumstances, an unconstitutional act might occur in a situation in which no one party is likely to be able to develop and establish article 3 standing in order to challenge that unconstitutional act. in order to establish article 3 standing, in other words, in order to establish the right to sue in federal government, article 3 of the constitution requires that the plaintiff be able to sta to establish that te plaintiff has suffered an injury, of in fact, an injury in
fact that is fairly traceable to the conduct of the defendant. and, thirdly, that is subject to redress by the authority of the court. in this circumstance, one must ask the question: does anyone really have standing? can anyone really establish the kind of standing in order to challenge the president's refusal to implement and enforce the -- the individual mandate while refusing, declining to enforce and implement the employer mandate of the patient protection and afor thible care act -- affordable care act. who has stand willining to do t? who's been harmed by that? well, one could suggest, i suppose, that an employer might want to look into that. but most employers, when they would examine the situation,
most or all employers would have to acknowledge that they've been before given a reprieve. so employers, nowc one, are not likely to be -- so employers, number one, are not likely to be aggrieved by it, in a sense they're not likely to feel the need to sue. and number two, if they were to try to sue, they wouldly have a very difficult times, it seems for me, establishing in a court of law the fact that they had suffered an injury in fact. supplwho else might do it? most constitutional scholars would conclude, probably correctly, that a member of congress would lack article 3 standing under the applicable supreme court precedent, plunder flas v. quo men and other supreme court precedents. merely being a member of congress is not necessarily enough to give a person article
3 standing. and so i think it's very difficult to reach the conclusion that anyone at least obviously has article 3 standing to sue. so we can't necessarily rely on the courts to be able to undo this constitutional damage, to be able to seek an adequate remedy in a court of law for this blatant insult to the united states constitution. even if they could, mowfer more, even if somebody could get standing and come in front of an article 3 federal judge and convince that judge that they've got standing, would that federal court be in the position to dispose of this case within the roughly one-year period in which this provision of the law is
effectively suspended. it takes a lot of time to litigate a case all the way through to completion, and i think it's doubtful whrl somebody woulwhethersomebody wog an action in federal court and have it be federally litigated, all the way through to judgment in the roughly one-year period in which it still would be relevant. and if i couldn't get it done in that time period, then it would appear very likely that the case would be rendered moot at that point. and so this, quite simply, is the kind of case in which no federal suit is likely to be brought, and if one is brought, it would likely fail. and so that's yet another reason why we as a congress ought to be looking very closely at this. you see, because this is one of
those many instances in which it's possible that someone can violate the u.s. constitution, hear the president of the united states without the courts being in a position to effectively remedy that constitutional defect. now we, too, as members of this body, have taken an oath to uphold the constitution of the united states, and in my mind that means doing more than simply refraining from that which the supreme court of the united states would obviously invalidate. and to my mind, that means more than simply saying, well, if someone has violated the u.s. constitution, then i'm sure the courts will take care of it. we systemly know that isn't true -- we simply know that isn't true. knowe know that in many, many circumstances, the courts are not in a position to be able to remedy a constitutional defect, to be able to remedy a blatant insult to the constitution and
an absolute violation of the constitution's provisions. and so we need to continue to hold this president accountable when he fails, quite blatantly in this circumstance, to do that which the constitution requires. this is a question that i think is particularly important, not only in light of how this particular act of congress came to be, not only in light of how it was enacted and the fact that it's 2,0700 pages long thargs hs now resulted in 27,000 pages of regulatory implementing text, but also in light of the fact that it was challenged in court; that the patient protection affordable care act was
challenged in court as to its constitutionality. but it was upheld by the supreme court of the united states in a most unusual fashion. let's talk about that for just a moment. a number of states and a few others banded together and challenged in federal court a few years ago congress's power to enact certain provisions of the patient protection and affordable care act. among those provisions that they challenged were the individual mandate. the argument was, congress lacks the power asserted by congress in the affordable care act pursuant to article 1,section 8, clause 3, the commerce clause, to tell individual americans that they must buy a product --
health insurance; not just any health insurance but that specific kind of health insurance that congress in its infinite wisdom deemed absolutely essential for every american to purchase. so it asserted that congress lacks this power under the commerce clause. the lawsuit also alleged that congress lacked the power to tell states that the states had to expand their medicaid programs and gave the states no choice; that this, too, violated the constitution; that it exceeded certain limitations on congress's power because the courts have long recognized that congress lacks the power to commandeer the stat states' legislative machinery mured to carry out a -- in order to carry out a federal program.
congress has the power to ask states to do this, but it lacks the power to direct a state to do "x" or "y" or "z." we can't tell a state just because we want it to be done. we might be able to persuade the state to do something. we might even be able to fund the states, to offer funding in case a state wants to participate in a i have goin' program, but we look -- to participate in a given program, but we lack the power to dictate to a state that it do such a thifnlgt in this circumstance, the patient protection and affordable care act was unmust stakable in its -- unmistakable in its clarity. it told the states that they had to expand their programs. so these two core pieces, these two core aspects of this judicial challenge made their way up through the federal court system, made their wa way up toe
supreme court of the united states. the court decided these two issues, as i said a moment ago, in a most unusual fashion. turning to the commerce clause issue, the court addressed that issue right after addressing another issue that was sort of a jurisdictional question, an introductory question. the court had to determine, first of all, before it even got to the merits of the constitutional challenge, as to the individual mandate in the affordable care act, it had to address the question of whether or not the individual mandate and the enforcement mechanism attached to it could fairly be characterized as a tax for purposes relevant to the so-called anti-injunction act, a
civil war-era statute that basically says that anytime someone wants to challenge a tax in federal court, they have to wait until such time as that tax is actually be collected, and then that challenge is brought as against the attempted enforcement of the tax statute. well, the supreme court of the united states, usin using centu' worth of jurisprudence, looked at the language of the patient protection and affordable care act, looked at the manner in which it was written and easy concluded -- no, this is not a tax; this is a penalty. and because it's a penalty and it's not a tax, we, the court, may proceed to consider the merits of the arguments brought up in this case, merits of this challenge brought as to
congress's authority fell none to enact the individual mandate under the commerce clause. and so the court quickly dispense with that issue and reached the merits of the constitutional question before it. the court then went on to conclude that congress does in fact lack the power under the commerce clause, under article 1, section 8, clause 3, of the constitution to tell individual americans that they must buy a particular product -- health insurance. not just any type of health insurance, but thed kipped that congress told americans they have to buy in the affordable care act. well, the court fairly easy and in my opinion correctly, says that congress lacks that power because of the fact that the power congress has to regulate
interstate commerce is meaningfully different than the power to compel individuals to enter into commerce, to regulate inactivity, to punish inactivi inactivity, to punish the failure to buy a particular product; that th, that the peopt not want to buy. you see, for a long time, we had this understanding as americans that the power given to congress was in fact limited. you look at all the authorities granted to congress under the constitution. the overwhelming majority of which can be found in article 1, section 8. all of these are limited, and they were limited with good reason. they were limited with good reason because that really was -- played a very large part, it played a very significant role in how and why we became a
country. we broke away from great britain, not just because we grew tired of having a monarch but because we grew tired of the authority of parliament, a parliament which not only refused to grant us any representation but also a parliament that refused to acknowledge any natural limit on its power to regulate us, and it did in fact regulate us and it regulated us heavily, mercilessly. it taxed us overwhelmingly, and it refused to recognize any meaningful -- it fail, refused to recognize any meaningful limit on its own authority. so that's one of the reasons why we became our own country, and i.t. one of the reasons why the
-- and it's one of the reasons why the founding fathers put in place this natural system put in place this legislative body would be vested with a few enumerated powers. the founding generation understood that each of those powers would be limited. so much so, in fact, that james madison described the powers given to congress as few and defined and characterized those reserved to the states as numerous and indefinite. during the first 140, 150 years or so of our republic's existence, we, as a people, continued to recognize the necessarily limited nature of of congress's power. much of that started to change during the new deal era in which president franklin d. roosevelt, with the assistance of
democratic majorities in the house and in the senate, pushed afford with a very progressive agenda, one that exspannedded not only the role of government in general but also the role of the federal government in particular. initially, the supreme court resisted, and the supreme court acknowledged the fact that the powers granted to congress under the spending clause and the commerce clause were in fact limited, but the more f.d.r. and the more congress pushed back against the supreme court, the more the supreme court seemed inclined to relent. and ultimately we saw the supreme court of the united states back down in the late-1930's from its -- what had been previously more rigorous,
more restrictive interpretations of the spending clause and of the commerce clause. the supreme court ended up ado adopting a set of rules that would basically say that, as long as congress was acting broadly within the field of what could be loosely considered a regulation of interstate commerce, that the courts would stay away from second-guessing congress's determinations. the court, starting out with a case called nlrb v. jones and laughlin steel in 1937 and culminating with another case five years later in 1942 ended up concluding that congress may without interference from the courts regulate any activity that when measured and evaluated in the aggregate has a
substantial effect on interstate commerce. regardless of whether the discrete activity in question might actually occur entirely intrastate, congress would be able to regulate that activity pursuant to its commerce clause authority, regardless of how intrastate that activity might be when viewed in isolation. under this very broad interpretation, congress's power could, in a sense, be viewed as extending to virtually every aspect of human existence because, after all, almost everything we do, when measured in the aggregate, might well be understood to have a substantial effect on interstate commerce. and yet, even under that broad
analysis, that couldn't extend to what was being regulated in the patient protection and affordable care act, in the individual mandate prigs provision, which was inactivity. rerks this is an enormous breadth that we're talking about. enormous breadth that the supreme court said congress could, without interference from the courts, regulate under its commerce clause authority. in wick earth v. filburn what was at issue was the cultivation of wheat. farmers would be severely restricted in how much wheat they could grow, how much they could produce of this or that agricultural commodity and there was a farmer named roscoe filburn who committed a grave
offense against the republic. his offense did not involve dealing drugs, didn't involve murder or kidnapping, his offense involved growing too much wheat. roscoe filburn grew more wheat than congress in its infinite wisdom viewed appropriate for any american to grow. and he was fined many thousands of dollars, which during the new deal era was an enormous amount of money. because of the fact that he grew too much wheat. now, roscoe filburn was fortunate in that he had access to some good lawyers, and his lawyers advised him on this and they represented him aggressively and competently in court and what they said, what they argued relying on true facts was that yes, sure, our client, roscoe filburn, did,
in fact, grow wheat in excess of the limit imposed by federal law. but, significantly, that wheat, the amount of wheat that he grew in excess of the grain production limit applicable to his farm that year, was grain that never entered interstate commerce. in fact, it never entered commerce at all. you see, that grain never even left roscoe filburn's farm. he used it on his farm to feed his family, to feed his livestock, and he used the remainder, held onto the remainder of it to use as seed for a subsequent planting season. so in a very real sense that wheat was not part of interstate commerce at all. nevertheless the supreme court
of the united states lacking nothing in imagination said that even that wheat was within congress' almighty grasp within the all-knowing, wise reach of the federal sovereign. what the court said was that the wheat grown by roscoe filburn in excess of the grain production quota was itself something that when viewed in the aggregate could substantially affect interstate commerce. in other words, if lots of farmers everywhere just like roscoe filburn grew too much wheat, even if their wheat never entered interstate commerce, the growing of all that excess wheat would inevitably have an impact on the supply and the demand and ultimately the price and the availability of wheat on the
interstate market. therefore, even that wheat which was entirely locally grown and locally consumed would be subject to congress' reach. wickert v. filburn thus erected an extraordinarily low barrier for congress to clear in establishing that it had properly invoked its authority under the commerce clause and yet even that extraordinarily low barrier was high enough to stop congress from acting pursuant to the commerce clause in enacting the individual mandate under the patient protection and affordable care act. thus ended the supreme court's analysis in june, 2012, when it ruled that congress had exceeded its constitutional limits under the commerce claws
in enact -- claws in enacting the individual mandate. significantly, this was the third time, only the third time since wickert v. filburn in which the supreme court realized the congress had. it was a rare thing, it was foreseeable because the individual mandate in the patient protection and affordable care act went so far beyond that anything had been seen before. and yet it was only the third time in the last 75 years in which that had happened. but then something different happened. something that very few expected. very few people on either side of the aisle in this body, on either side of the political divide in america generally.
after concluding that congress lacked this power under the commerce clause, the supreme court under the pen of chief justice john roberts, proceeded to analyze the government's backup argument, that is the argument that even if as the court had now concluded congress lacked the power to do this under the commerce clause, that congress still had the power to do this consistent with its power to impose taxes. the court went on to conclude that congress did have this power. strangely, the court also went on to conclude that that's essentially what congress had done here. now, this was odd on many levels. number one, the court had already concluded as it had to conclude in order to proceed to
the case, was it had to conclude in order to exercise jurisdiction over this case, prior to the implementation of the law, prior to the collection of this alleged tax, that it was, in fact, not a tax but a penalty. so it was very strange that the court was now basically saying okay, it's a penalty and not a tax for some purposes, but it's a tax and not a penalty for other purposes. and yet that's what the court did. it was also strange that the court did this for the additional reason that congress had considered proposals, legislative proposals in a different, earlier iteration of the patient protection and affordable care act that would have enforced the individual mandate by means of a tax. congress considered language
that would have done that. congress knew and still knows how to enact legislative language that imposes a new tax. and yet when it tried to use that language, language that under a hundred years' worth of jurisprudence everyone understands would have imposed a tax, congress could not get the votes to pass it, even in what was then a congress in which the democratic party dominated both houses. even in that congress, they tried but failed to get the requisite number of votes to pass the individual mandate enforced by means of a tax. they couldn't do it. and it was therefore really odd that the supreme court of the united states would interpret
what congress couldn't pass as a tax in such a way as to make it a tax for constitutional purposes when congress itself didn't have the votes to do it. now, in order to pass legislation raising revenue -- in other words, in order to pass legislation imposing a new tax, the constitution requires that legislation of that sort originate in the house of representatives. why is this? i think most who look at the issue would agree it has a lot to do with the fact that the house of representatives is the entity within our federal government structure that is by design most representative of the people. in the senate we have elections every six years, in the house it's every two years. and from the outset, the house was the body in which the people were represented because, of
course, at the outset the senate was the body in which the states were represented, that's no longer the case, where we are directly elected by the people. but it was always the case and still is the case that tax legislation must start in the house. because it's the body closest to the people and most responsive to the needs and the desires and the concerns of the people. it's therefore quite ironic that this law, this tax as the supreme court called it, was put into place as a tax not by the body within the federal government that is most accountable to the people, the house of representatives, but instead by the body within the federal
the federal government that is the very least accountable to the people, the courts, the supreme court of the united states. this i believe amounted to a ewe surpaition of constitutional authority. this i believe amounted to a betrayal of the judicial oaths of the five robe-wearing men and women who signed on to that opinion. they did not have the power to legislate. they did not have the power to create a tax. they did not have the power to create out of whole cloth tax language out of penalty language, language that under a century's worth of jurisprudence the court's own presence carrying stare decisis history made clear was a penalty, not a tax and that's what the court did. now, when people discovered this, when they learn about it, when they hear about it,
when those who -- who dare to plow through the supreme court's opinion and understand what happens, they will inevitably ask how can the court do this? does the court have that power, the power to legislate, the power to impose a tax where congress has not chosen to impose a tax? no, the court doesn't have that power. how can the court do that, why did the court do that? well, the court did that because it could. not because it could in the sense it had the constitutional power to do it but because the court as an exercise of raw political power chose to do so and did do so. this was a tragic day in american history. a day that we should not soon forget. and a day that we should do all in our power to remedy. this decision was wrong, it was
unconscious shabl -- uncon shunnable. as a matter of jurisprudence it was unforgivable. the court then went on to address the challenge related to congress' power to compel the states to expand their medicaid programs. now, medicaid as we all know is a program that is partially funded by the federal government but administered and partially funded by the states. in the affordable care act congress directed the states whether the states were so inclined or not to expand their medicare program -- medicaid perhaps. it gave them no choice but to expand them and to expand them to a very significant degree.
to expand them in a way that would bring about not only significant costs to the states over the years but also very substantial administrative burdens as well. and yet the affordable care act left the states with no choice. you must do this. just do it because we're congress and we're all powerful and have you to do it because we say so. well, there is this anti-commandeering principle embedded within our constitutional jurisprudence in the enumerated powers doctrine, partially in the tenth amendment as well that congress lacks the power to commandeer a state's administrative or legislative machinery to put in place, the, to legislate or to administer a federal program.
the supreme court of the united states concluded that congress had violated this anti-commandeering principle in passing the patient protection and affordable care act. and in doing so in a way that left the states with no other alternative. so this was the second constitutional defect. in the patient protection and affordable care act. but here again the supreme court chose to rewrite the law a second time in order to save it. ordinarily what a court would do in this circumstance -- in that circumstance after concluding that congress has violated this anti-commandeering principle and this aspect of the affordable care act was, in fact, unconstitutional, the court would be under an obligation to
go into what's called severability analysis, to analyze whether, to what extent or in what way congress might have intended to allow the rest of the statute's provisions to operate independently notwithstanding the unconstitutionality of the provision deemed invalid by the court. in this case, quite stunningly, the supreme court engaged in no such analysis. it never reached the severability question even though it had been the question of extensive briefing and conversation at oral argument. the supreme court didn't get into severability at all. the court decided that it just didn't need to. it didn't need to because the
court rewrote the statute in order to make it constitutional. the court wrote into the law a carveout provision that simply said we're going to read this law as though it gave the states an optout provision, as though it gave the states an option of deciding whether or not to expand their own medicare programs. -- medicaid programs. the only problem is, the text of the patient protection and affordable care act contained absolutely no such language. you can read through all 2,700 pages of that law and you won't find any optout provision like what i just described. no, the court discriminated cread this, too, from whole cloth. the court did this in the absence of any text. this, too, amounted to a betrayal of the judicial oaths of those who signed their names
to that opinion. this, too, was a blatantly unconstitutional act that was an insult to the high judicial office that those individuals occupy. that, too, is an insult to the constitutional system which has fostered the development of the greatest civilization the world has ever known. we can't lightly overlook crimes against the constitution. we can't lightly overlook the use your paition of authority by the few -- usurpation by the few. we winter can't lightly overlook that laws are most fundamental
laws have been openly flouted in this case, nor will we soon forget the fact that that has occurred here. so all of these are reasons why some of us feel so strongly, so passionately that this law, started with some unconstitutional premises and has had its constitutional defects compounded over and over and over again as you've had the supreme court of the united states rewriting it not just once but twice in order to save it. and as you've had the president of the united states rewriting it in effect legislating through the stroke of the executive pen, several times now because, among other things, he says the law is not ready to
implement. he doesn't have the power to legislate on his own any more than the supreme court of the united states has the power to legislate. any more than the queen of england has the right to legislate for the united states of america. the legislative power belongs here in the congress of the united states and we must exercise that power and when someone else takes that power from us, when someone else independently exercises the legislative power, we must guard it jealously. we must protect it. the and i don't care whether you're a republican or a democrat. i don't care whether you are president obama's biggest fan or his most aggressive critic. the office that we occupy here requires us, compels us to defend our institutional prerogative as federal lawmake
lawmakers. and when someone else exercises that power, the power that does not belong to them but to us, we must protect it. not because it is ours but because it belongs to those we represent. it belongs to those who elected us to serve here, those who equity willeelected us and not e to make laws. and whenever to any degree we overlook the fact that someone else has legislated, someone not vested with law-making authority, we do ourselves and our country a disservice, and we reflect a certain cavalier disregard for the oath that we've taken to uphold the constitution of the united states, which was put in place to make the men and women of the united states of america free.
there's another issue related to all of this that i think we need to touch on here, which is the issue of excessive delegation of legislative authority to the executive branch. you see, in some circumstances, we have a situation in which congress may voluntarily relinquish some of its law-making power to the executive branch. i say "it may do that," "it can do that. " that's not necessarily saying that it should do that. perhaps the most influential political philosopher in america's founding era was charles de montesquieu.
charles de montesquieu wrote that the power to legislate is the power to make laws, not the power to make legislators. he recognized, i think, that there was a natural temptation among elected lawmakers to want to pass the buck along to someone else, to want to give to someone else the task of making law. and we do this sometimes when we pass an extraordinarily broad law and then we direct some executive branch agency to simply fill in the gaps, to effectively make the laws. the affordable care act is replete with instances in which this kind of thing occurs, in which certain broad parameters are spelled out and in which we then say to this department or that department that it will have the power to promulgate
rules carrying the force of generally applicable law which that same department or that same agency will then have the power to enforce. so that's part of how we end up with 20,000 pages of implementing regulations already under obamacare. 20,000 pages and counting. because we've got a lot of instances in which we've delegated de facto law-making power. that, too, presents it's own kind of constitutional problem, not necessarily a constitutional problem that the courts are inclined to recognize but a sort of constitutional problem nonetheless. because the more that we delegate de facto law-making power to an executive branch agency, the less we see that anyone is accountable to the people for our laws. one can imagine, for example, if
taken to an extreme, what this could look like. let's suppose that we just one day decide, you know, we're tired of debating and discussing and voting on and having to pass laws that are controversial, laws that are specific, laws that require us to get our hands dirty, laws that require us to make difficult decisions. so once and for all we're going to pass a law that everyone can get behind. it'll be called "the law enforcement good laws." -- the law of good laws." a law is a they's we shall have good laws. and we hereby delegate to the herewith created u.s. department of good laws the power to make and enforce good laws. we then pass that and we give this department of good laws the power to issue regulations and to enforce those regulations.
this is actually not all that different from what we do all the time. and what's been done under obamacare to a very significant degree, about 20,000 pages regulations so far, and that's still building. one of the reasons this is a problem, you see, is because when the people don't like our laws, they can come to us and they can hold us accountable for laws that we may have voted to enact. they can choose to replace us with someone else, someone who wouldn't vote for that kind of law the next time they have the chance. but when the thraw they don't like -- but when the law that they don't like is not one that we have enacted but instead one that has been promulgated by an executive branch agency, the people come to complain to us, and in that circumstance we say, well, don't look at me; go to the executive branch agency, they're the ones that did t the-
that did it. they see that the people occupying the executive branch agency as well-mannered, well-educated, and well-intentioned and well-groomed as they might be are not subject to elections. so can'tin they can't be voted . they can't be fired by the people much that's why we're entrusted with the law-making power. it is not necessarily that we're the best-equipped in every way to do t it's that we stand subject to elections in six-year intervals in the case of the senate, in two-year intervals in the case of the house of representatives. it's yet another reason why we ought to be more resistant, more concerned when it comes time to enacting -- when it comes to enacting legislation that delegates an excessive amount of de facto law making power to an
executive branch agency. yet another reason why i think we need to pass something akin to the proposal that has been introduced as the rains act. any time an executive branch agency issues a new rule, a new regulation deemed by the office of management and budget to constitute a major rule, that that major rule will take effect if and only if it's first passed into law by the house and by the senate and then signinged into you a by the president -- and then signed in to law by the president. then and only then can -- do i think that we'll be ail to start to -- be able to start to reclaim that legislative power which is rightfully ours and that more importantly the american people will be able to hold congress accountable for the responsibilities properly given to congress under the constitution.
this is abouts allowing the people to be governed by those that they choose. when we delegate excessively our own law-making power to executive branch agencies, we deprive the people of of their right to have their laws written and enacted by men and women of their own choosing. now, this is important, and it should be important, to people of all political backgrounds, people at every end, at every step, at every stage along the political continu continuum. this is an issue senior senator neither democratic nor republican, it is neither liberal or conservative. it is simply american that when we pass laws we pass laws through democratically elected senators and representatives. that we don't do it through nameless, fail faceless bureaucrats who, regardless of how well-educated and
well-intentioned they may be, do not serve the people in the sense that they're not elected by the people. they're not subject to reelection. they're not subject to dismissal by the people. we must hold that power here. that power belongs to us, not to bureaucrats. it belongs to us, not the president. it belongs to us and not to nine judges wearing black robes across the street in the supreme court of the united states. these are some of the things that are at stake. these are some of the reasons why it's so significant that we have this prolonged protracted effort by the president of the united states to usurp power that is not his own. we must not facilitate the president, in his ongoing effort to aggregate power, to accumulate power within the executive branch of government
that is not his own. that's why we need to stand up to the president against some of these nominees that he pushed forward again and again and again trying to trample over the rights of the minority. we have to do that. we have an obligation to stand up to the president, especially because he's taking power that is not his own and he's doing it, among other things, to move forward with obamacare, a law that a majority of the american people have never approved of and a law that the american people are growing steadily more against every single day. mr. president, i see my time has expired and i yield the floor. a senator: mr. president? the presiding officer: the senator from louisiana. mr. vitter: mr. president, i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call: