John Cornyn

Mr. CORNYN

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 I ask unanimous consent that the order for the quorum call be rescinded.

Mr. CORNYN. The following Senator is necessarily absent: the Senator from Oklahoma (Mr. Coburn).

Mr. CORNYN. The following Senator is necessarily absent: the Senator from Oklahoma (Mr. Coburn).

Mr. CORNYN

Mr. CORNYN. Mr. President, I mentioned yesterday in my remarks on the floor that the Obama administration has had 3\1/2\ years to prepare for the rollout of the President's signature health care law. It has had 3\1/2\ years to get the Web site right and ready for its big debut. It has had 3\1/2\ years to take all of the necessary safeguards to protect privacy and the integrity of the Internet, particularly the Web site, and make sure it is not ripe for identity theft and other cyber attacks. It has had 3\1/2\ years to get together a proper vetting system for the so-called navigators. But despite all of that, despite all of that time, it is quite apparent that ObamaCare is not yet ready for prime time yet. In fact, it has been a slow-moving train wreck. The President is in Dallas today meeting with a number of the so-called navigators to thank them for their work. I was able to ask Kathleen Sebelius, Secretary of Health and Human Services, about the navigators this morning. She admitted there is no background check done on the navigators, even though they will collect some of the most sensitive personal information one can have, including things such as your Social Security number, that can be then used to hack into your accounts; your health information, whether it is mental or physical, which is among the most sensitive personal information each of us has. She admitted that since they do not do any background check, she could not guarantee that a convicted felon could not be a navigator. She said that was possible. I think that is something that grabbed a lot of people's attention because they just naturally assumed that sort of thing has been taken care of in the 3\1/2\ years leading up to the rollout of ObamaCare. We know the more people find out about this law--I liken it to an onion. With each layer of the onion you peel back, it just keeps getting worse and worse and worse. The law is proving to be even more unworkable and even more disruptive than its biggest critics could have even imagined. But I wanted to focus my remaining moments on the floor on two issues: privacy and security. The ObamaCare Web site went live on October 1. But according to CBS News, a deadline for final security plans was delayed three times this summer. A final top-to-bottom security check was never finished before the launch. That is pretty astonishing, something as big, as widely anticipated, and as long planned for as the rollout of ObamaCare and its Web site, a security check was not even completed before it was rolled out on October 1. Just think what it means. It means the administration was encouraging Americans to enter sensitive personal information onto the ObamaCare Web site, even though it knew the Web site was not secure. Of course, we know the Web site is not functioning properly now. White House officials continue to refuse to even give Congress the number of people who successfully navigated the ObamaCare Web site and signed up under the exchanges. You know what that must mean. That must mean the number is embarrassingly small. But they are also scrambling to do damage control. The President is urging people to contact their local ObamaCare navigators to sign up for health insurance and suggesting: Maybe you ought to do it by paper or by telephone. We found out that the same queue or foulup that makes it impossible to sign up over the Internet is present with paper applications or telephone applications as well. As I said, the President met with some of the ObamaCare navigators in Dallas, TX, today. I trust that the overwhelming number of these navigators are people who can be trusted with some of the most sensitive personal information we Americans have. But the problem is, we do not know for sure because they have not been vetted. There is not even a criminal background check required. Remember, the navigators are going to be collecting some of the most sensitive personal information you have, including your Social Security number, your protected health information such as your past, present or future physical or mental health. We passed a law, the Health Insurance Portability and Accountability Act, known as HIPAA, to protect this information because we recognized how sensitive it can be. Of course, the navigators are also collecting information about your physical or e-mail address, tax information, because, of course, the Internal Revenue Service is going to be instrumental in the implementation of ObamaCare. There is no Federal requirement for background checks for individuals serving as navigators. This has to be a glaring oversight, something I would hope even the most ardent advocates for ObamaCare would acknowledge is a big mistake and needs to be fixed. But in the absence of thorough background checks and reliable oversight mechanisms, the navigator program could easily become a magnet for fraud and abuse. We know what a big problem identity theft is already and how much havoc it can present for people's personal financial affairs and information. We also know how vulnerable things such as Web sites can be to cyber attacks, where people can collect information unbeknownst to the consumer. We have already heard some anecdotal reports about ObamaCare navigators, including a woman who had an outstanding arrest warrant at the time she was hired, along with former members of an organization known as ACORN that has had its own share of problems with corruption and lawbreaking. As I said a moment ago, those people will be allowed to collect some of the most sensitive personal information that we have as Americans. Thinking of sensitive information, the most important provisions of ObamaCare, including the individual mandates, the employer mandates and the premium subsidies, will be administered by, you guessed it, the Internal Revenue Service, words that strike fear and trepidation in the hearts of many Americans, especially given the scandals the Internal Revenue Service has been embroiled in and the bipartisan investigations that are ongoing into the cause and solution to these scandals. I know I speak for many of my constituents back home in Texas and perhaps many other Americans when I say that the last thing we ought to be doing is giving the IRS additional responsibilities until we have gotten to the bottom of the current scandals we are investigating on a bipartisan basis. We do not need to be giving them vast new powers to intrude into the lives of families and small businesses. As a matter of fact, I have introduced legislation that would prevent the IRS from performing this act. The last thing we want to do when they are having problems, when they are already having problems doing what they should be doing, is to give them more to do without solving the underlying problem. Unfortunately, our friends across the aisle have blocked that legislation that would ban the IRS from its current role in administering ObamaCare. I would like to remind them that even if we ignore the agency's harassment of conservative organizations and ordinary American citizens engaging in their constitutional right to participate in the political process, we know the IRS has already shown contempt for the law by announcing it will issue ObamaCare's premium subsidies through the Federal exchanges, even though the law makes clear that premium subsidies are not available in the Federal exchange but only through the State exchange. That is only a minor technical detail to the IRS. They are going to paper that over even though Congress provided to the contrary. At some point the President needs to concede that the costs of ObamaCare far outweigh its benefits. We can do better. The choice is not between ObamaCare and nothing; the choice is between ObamaCare and consumer- oriented alternatives that will increase competition, lower health care costs, and enable more people to be covered, together with reforms to Medicaid and perhaps even Medicare to make sure people have true access to health care coverage and not only a hollow promise. At some point even the most ardent advocates for ObamaCare have to concede that it is broken beyond repair. I have to say that time is not on ObamaCare's side because each day brings a new revelation of more and more problems. Even some of our colleagues who voted in a party- line vote for ObamaCare and who voted in a party-line vote against any opportunity to reform ObamaCare are now saying--such as Senator Max Baucus, one of the chief architects--hey, maybe we need to delay the penalties. Senator Mary Landrieu has or will introduce a bill saying we ought to enforce in law the President's promise that if you like what you have, you can keep it, which we now know is not true. Indeed, HHS and the administration knew in 2010 that tens of millions of Americans who liked what they had would not be able to keep their health care plan because of restrictive grandfathering provisions. When the moment comes that Democrats and Republicans have come together to try to solve this problem--not by shoring up this fatally flawed structure known as ObamaCare which will never work--when they are ready to work with us across the aisle to enact alternative health care reform that reduces costs, expands coverage, and improves equal access to care--I look forward to that debate and that opportunity. I only hope that day arrives sooner rather than later, before ObamaCare wreaks more havoc and causes more uncertainty and hardship on the American consumer. I yield the floor, and I suggest the absence of a quorum.

Mr. CORNYN

Mr. CORNYN. I see my colleague from Maryland is here. I promise I will not take all of that time. During the debate over ObamaCare back in 2009 and 2010, the President repeatedly and unequivocally promised his fellow Americans that if they liked their current health care plan, they could keep it. By one account, there were as many as 29 different times where the President was captured on videotape making that same unequivocal commitment. This was not an off-the-cuff remark or a casual throwaway comment, it was essential to the President's entire argument selling ObamaCare. I heard the distinguished majority whip from Illinois talking about the reasons why ObamaCare was so important, suggesting that you could not cover preexisting conditions or even young adults up to the age of 26 unless you accepted the whole package, the whole enchilada, as we would say in Texas. Well, that is not true. The truth is we are committed to dealing with preexisting conditions, we are committed to helping people be able to buy and afford health care coverage. What the President sold in 2009 and 2010 was basically sold under false pretenses, as it turns out. If Americans had known that ObamaCare would result in them losing their current coverage which they like, it never would have become law. According to one estimate, as many as 3.5 million people will lose their current health insurance coverage. I have heard the revisionist history here on the floor and elsewhere. They are trying to change the commitment. Rather than: You can keep your current coverage if you like it, period, which is what I know the President said at the American Medical Association and many other times, now they are trying to tweak that and say: If it is not otherwise changed or canceled by our insurance company. Well, that is not what the President said then. That is not what the American people heard. That is not the basis upon which ObamaCare was sold to the American people in 2009 and 2010. When President Obama campaigned for reelection in 2012, he reiterated his promise from 2009 and 2010, again a remarkably consistent message from the President. He said: If you liked your existing plan and you wanted to keep it, you had nothing to worry about. Here is the exact statement the President made on June 28, 2012, at a White House press conference. ``If you are one of the more than 250 million Americans who already have health insurance, you will keep your health insurance.'' That is a direct quote, no qualifiers, no caveats-- a simple unequivocal promise. However, way back in 2010 we now learn that the Obama administration itself issued the very regulations which have made, keeping this promise impossible. Indeed, the 2010 ObamaCare regulations acknowledged that between 40 to 67 percent of all policies in the individual market would lose their grandfathered status by 2014 and must be required to meet the costly mandates in ObamaCare. In other words, at the same time the President was making the promise, his own administration acknowledged that the regulations they were passing would make it impossible to keep it. Well, as you can imagine, people are increasingly frustrated by these broken promises. I recently set up a Web site in my office where my constituents can let me know how their personal health care coverage has been affected by the implementation of ObamaCare. I hope if others who perhaps may hear my comments on the floor this morning have stories they would like for us to be able to tell to explain how these broken promises have resulted in their inability to keep what they have, they will let us know on our Web site. It is cornyn.senate.gov. I plan to forward these stories to the President. One woman from Livingston, TX, over in East Texas, writes: My health insurance is being canceled due to the Affordable Care Act. My insurance company offered a plan . . . that I can keep until 2014. Guess what? It's 19 percent more a month than my current plan and drops coverage for laboratory and imaging studies. So not only is it more expensive, it actually reduces the coverage. Going on, she said: In December 2014, I'll have to change it again. Premiums for myself and my husband at that time will increase 100 percent each, which will equal just about half--50 percent-- of our gross monthly income. What exactly are we supposed to do? Another woman from Pampa, TX, up in the Texas Panhandle, writes that her monthly health insurance premiums have increased by 30 percent already over last year, and now her policy is being canceled altogether because of ObamaCare, so she has to purchase a new health insurance policy that will cost, in her words, ``much more'' than her existing coverage. As her letter indicates, many of the folks losing their insurance will be forced to buy a new ObamaCare-approved policy from an online exchange which does not even work yet. It is no wonder that a growing number of our friends across the aisle are beginning to wonder: Why did the administration not extend the open enrollment period beyond March 2014? They realize they were marching in lockstep with the President when he made these promises, and the fact that these promises are not being kept is a political liability for them. At the very least it is a hardship for their constituents that they would like to see rectified. Why is the ObamaCare Web site malfunctioning? It is an important question. But it is again just the tip of the iceberg. Remember, ObamaCare became the law of the land more than 3\1/2\ years ago. I think most people are astonished to learn that. Some news reports I have read said that people thought ObamaCare had already been fully implemented, we have been talking about it for so long. But by design, it was created to be implemented over a many-year period of time. I think that was a terrible mistake, because the political accountability that comes with implementing a law and then having to live with the political consequences of not delivering on your promises has now been delayed. But 3\1/2\ years ago the administration should have gotten prepared to roll out its signature legislative achievement. According to CBS News, one of President Obama's top outside health care advisors sent the White House a memo back in May of 2010 warning them that ObamaCare was spiraling out of control. This memo came from Harvard economist David Cutler and reads in part: I do not believe the relevant members of the Administration understand the President's vision or have the capability to carry it out. . . . You need to have people who have the understanding of the political process, people who understand how to work within an Administration, and people who understand how to start and to build a business, and unfortunately, nationally they just didn't get all of those people together. Republicans have for years been warning that this government takeover of one-sixth of our economy, this central planning scheme, social engineering, if you will, would not work. At the very least, the Federal Government has proven itself incompetent on making something this big and this complicated and this expensive work as advertised, it is becoming increasingly clear. We spent years warning that ObamaCare would force many Americans to lose their existing coverage. We spent years warning that ObamaCare would limit patient choices and reduce health options. We have spent years warning that the law itself would prove to be unworkable. Now it appears that many of those warnings have come true. We are reiterating our call to dismantle ObamaCare and to replace it with patient-centered reforms that will help bring down the cost, will not limit patient choices, and which will address most of the biggest problems in our broken health care system. There are other areas such as preexisting conditions, young adult coverage, that we could readily agree on. Those are not debatable. I think the fact that the distinguished majority whip has suggested you have to have ObamaCare in order to get those is a gross exaggeration. Remember, ObamaCare was sold as a policy that would expand health care coverage without raising costs, and without disrupting anyone's existing health care arrangement. It has proven to be a false promise on both of those counts. Despite the promises made in 2009 and 2010, promises that were repeated on the campaign trail in 2012, it is becoming increasingly evident that ObamaCare is making it harder for Americans to get or to keep the insurance coverage they already have, and which they want. By the way, ObamaCare was sold to the American people as a way to get everybody covered with insurance. The Congressional Budget Office has documented that as many as 30 million Americans will remain uncovered even after ObamaCare is fully implemented. So you have not met the goal of universal coverage, the CBO says. We are finding that rather than your costs going down, they are going up; you are finding that if you like what you have, you cannot keep it. Well, as Republicans have said all along, there are much better ways to expand health insurance coverage. I heard the majority whip this morning say they would like to hear our plan. Well, either their memory is faulty or they just were not listening. ObamaCare regulations are incompatible with the genuine marketplace in health care insurance. They are incompatible with cost control. I think perhaps the best example I can think of is where the market actually works in conjunction with a government program, such as Medicare prescription drug coverage. Remember when the Medicare prescription drug coverage plan was adopted, Medicare Part D, true competition in the market was created and vendors competed for the business of beneficiaries when it came to selling them their prescription drug plan. Lo and behold, due to the discipline and the competition, not only did quality of service go up and cost go down, we have seen that actually there is a 40-percent reduction, or I should say the cost of the plan is 40 percent under what was originally projected. That is something we could use with ObamaCare, which has been completely rejected. But that is why we believe we can replace ObamaCare with reforms that will make it easier for people to acquire or keep a health insurance plan that meets their actual individual needs. My friends across the aisle continue to say we have not offered a practical alternative, but that is not true. Just to remind them, some of the alternatives we offered include equalizing the tax treatment of health care so individuals purchasing insurance on their own are on the same level playing field as those who have employer-provided coverage. We would let Americans buy their health insurance coverage across State lines, something that is now not currently permitted, which would increase competition and increase consumer choice. So if I found a policy I needed from Maryland or Massachusetts or anywhere else around the country, I could buy it. So could my 26 million constituents. We would let individuals in small businesses form risk pools in the individual market, which is the most expensive part of the insurance market, helping to bring costs down. We would make price and quality information more transparent, again to increase that discipline known as market forces, which would help improve consumer choice and, in the process, bring down cost, while improving quality of service. We would also expand the power of individuals to control their own health care spending through tax-free health savings accounts, which also have the additional benefit of providing skin in the game for consumers. One of the reasons why our health care spending is so high and so worrisome is that for too long our health care coverage was like a credit card that each of us, or many of us--not all of us--85 percent of us had in our pocket, where we could continue to charge and charge, but we would never see the bill. Well, that is a recipe for a runaway system, which is the reason we do need true health insurance reform. Part of that reform would be to control frivolous malpractice lawsuits that help drive up costs by increasing the incentives for defensive medicine, doctors treating patients not because they think it is called for based on clinical guidelines but, rather in their effort to say: I have conducted every test, I have done everything possible so I cannot get sued successfully. We would use high-risk pools to ensure that people with preexisting conditions could get coverage. We would give the States a lot more flexibility in how to manage Medicaid. I read with interest that a lot of the increased coverage since ObamaCare passed is not in the exchanges but it is Medicaid, the Medicaid expansion. Well, in my State, Medicaid pays a doctor about 50 cents on the dollar for what private insurance pays that doctor. So only about one-third of doctors will actually see a new Medicaid patient, because the cost of doing so eats into their profit, and, indeed, may make their doing so completely unprofitable and nonviable. But we could improve Medicaid by creating more flexibility in the States to manage that beneficiary population and to expand coverage. Then we would expand provider competition and patient choice and Medicare. Those are nine different reform proposals we have been making since 2009 when ObamaCare was first being debated, but it is clear our colleagues across the aisle were so concentrated on this huge takeover of our health care system--one-sixth of our economy, in a way that we now know is not going to work--that they weren't even listening. I hope they will now. While the reforms I have described enjoy broad support among Republicans on Capitol Hill, my hope is whether you were a critic of ObamaCare, as I was, or you were a skeptic and thought, well, maybe it will work but I am not sure it will, or whether you were one of its biggest cheerleaders--now that we are seeing these promises that were made by the President and others in order to sell this to the American people are not true, I am hopeful Democrats and Republicans can come together to try to fix our broken health care system. After witnessing ObamaCare's disastrous rollout and its long trail of broken promises, I think most Americans would agree it is time for something different. I have read that the definition of insanity is doing the same thing over and over and expecting different results. ObamaCare is not going to get any better by continuing to do the same thing over and over. I hope we will learn from our mistakes, and we will work together to improve access and the price of health care to the American people. I yield the floor.

Mr. CORNYN. Mr. President, I ask unanimous consent to speak as in morning business for up to 15 minutes.

Mr. CORNYN

Mr. CORNYN. The following Senators are necessarily absent: the Senator from Missouri (Mr. Blunt), the Senator from North Carolina (Mr. Burr), the Senator from Georgia (Mr. Chambliss), the Senator from Oklahoma (Mr. Coburn), the Senator from Arizona (Mr. McCain), the Senator from Kansas (Mr. Moran), the Senator from Alaska (Ms. Murkowski), and the Senator from Louisiana (Mr. Vitter).

Mr. CORNYN

Mr. CORNYN. The following Senators are necessarily absent: the Senator from Missouri (Mr. Blunt), the Senator from North Carolina (Mr. Burr), the Senator from Georgia (Mr. Chambliss), the Senator from Oklahoma (Mr. Coburn), the Senator from Arizona (Mr. McCain), the Senator from Kansas (Mr. Moran), the Senator from Louisiana (Mr. Vitter), and the Senator from Alaska (Ms. Murkowski).

Mr. CORNYN

Mr. CORNYN. I wish to quote our friend Senator Reid, the majority leader of the Senate. His candor is, again, remarkable and very clear. He said: We are focusing very intently on the DC Circuit. We need at least one more. By that he means one more judge. Continuing: There are three vacancies. We need at least one more and that will switch the majority. When the court sits en banc, when all judges decide to sit on the most important cases, then President Obama will have a majority of nominees on that court. They will be able to outvote the Republican nominees on the court. Senator Schumer is complaining about some of the cases I mentioned a moment ago, and he concludes: ``We will fill up the DC Circuit one way or another.'' I believe that the evidence is overwhelming that the motivation at play here is one to make sure that this court becomes a rubberstamp for the big government policies of this administration. That is why they are ignoring appellate courts that actually need the help, and they are trying to stack the court in the second highest court in the land. That is why they are also threatening--we heard a little bit of that today, rattling that saber once again--the nuclear option to try to confirm judges with a simple majority rather than the 60-vote cloture requirement under the Senate rules. We have a good-faith solution. This is Senator Grassley's bill, which would allocate these three unneeded judges to places where they are actually needed. This is the kind of idea that our colleagues across the aisle embraced repeatedly when one of the judges from the DC Circuit was reallocated to the Ninth Circuit in 2007. If our friends across the aisle continue to move ahead with their court-packing gambit, it will make this Chamber even more polarized than it already is. I only hope they choose a different course. This is why we are committed on this side of the aisle to stopping these nominations to these unneeded judges in this court and making sure that judges are placed where they are needed so they can engage in a fair and efficient administration of justice. I yield the floor.

Mr. CORNYN. I ask unanimous consent for an additional 2 minutes.

Mr. CORNYN. Madam President, I wish to return to the issue of the DC Circuit Court of Appeals, because even though we had an earlier cloture vote where the Senate decided to continue debate and not close off debate on this issue, I anticipate the majority leader will bring to the Senate floor the other two nominees which have now cleared the Senate Judiciary Committee for the three seats President Obama has said he wants to fill and is asking for the advice and consent of the Senate. I wanted to make sure we all understand exactly what this debate is about. At this very moment, there are plenty of U.S. appellate courts that urgently need judges to handle their existing caseload. As my friend, the distinguished Presiding Officer, knows as a former attorney general, there are a lot of district courts around the country, Federal district courts, that could use additional personnel because they are what are called judicial emergencies because they have such heavy caseloads. They need more help. So why in the world would we want to add more judges to a court that does not have enough work for them to do? That is exactly what this debate is all about. It is not about the specific nominees. It is not an ideological battle that we are all familiar with so much as it is one of practical economics. Between 2005 and 2013, the total number of written decisions per active judge on the DC Circuit declined by 27 percent. From 2005 to 2013, the number of written decisions per active judge went down by almost one-third, 27 percent. The number of appeals filed with the court went down by 18 percent. As of September 2012, both the total number of appeals filed with the DC Circuit and the total number of appeals decided by the DC Circuit per active judge were 61 percent below the national average. You can see from this chart that has been prepared by the office of the ranking member, Senator Grassley, how the 13 circuit courts of appeals compare when it comes to the number of cases or appeals filed per active judge. In red is the DC Circuit Court of Appeals, the lowest caseload, the fewest number of cases of any circuit court in the Nation. Conversely, the 11th Circuit out of Atlanta has 778 cases or appeals filed per active judge. So I do not know why you would want to take three new judges and assign them to the court with the lowest caseload per active judge. It makes absolutely no sense. By the way, the average for the circuit courts, all 13 circuit courts, is 383 cases or appeals filed per active judge; again, the average for the entire Nation being 383 appeals per active judge. The DC Circuit, to which President Obama wants to add 3 additional new judges, is 149, almost one-third. One other sort of unique thing about the DC Circuit Court of Appeals is while many of these courts are very busy and, indeed, are overworked relative to the other circuit courts, the DC Circuit Court is perhaps the only court in the Nation that literally took a 4-month break between May and September of this year because they could. They did not have enough work to do, so they took a break. They took 4 months off between May and September. The bottom line is that this court is not one that needs more judges. In fact, one of the current members of the DC Circuit told Senator Grassley, our colleague from Iowa, ``If anymore judges are added now, there won't be enough work to go around.'' So what is this all about? Why are my friends across the aisle ignoring the needs of other appellate courts and other jurisdictions around the country that have, as the judicial administration office terms it, judicial emergencies because they have so much work to do that they need help? Why are my colleagues on the other side of the aisle ignoring those courts where there are needs in favor of a court where there is no demonstrated need? Here is perhaps one reason why: The DC Circuit Court of Appeals, being located in Washington, DC, does have a unique caseload. I would say the types of cases they consider are not particularly more complicated. I do not buy that argument. Many of them are administrative appeals, which, as the Presiding Officer knows, are highly deferential to the administration. It is usually an abuse-of- discretion standard, which is, as I say, very deferential. But the reason why the DC Circuit Court of Appeals is the subject of so much focus, whether it is a Republican President or a Democratic President, is because it is often called the second most important court in the Nation by virtue of its docket, the kinds of cases it decides. Indeed, this was a court that, before the Supreme Court held portions of the Affordable Care Act unconstitutional, actually affirmed the constitutionality of the Affordable Care Act, primarily because they did not feel it was their prerogative to hold it unconstitutional, rather than--and defer to the Supreme Court which ultimately had the ability to overrule old cases and reach that result. But this court wields tremendous influence over regulatory and constitutional matters. The truth is, I will show you a few quotes here in a moment that Senator Reid and the President hope that by adding three more judges to the court, they can transform it into a rubberstamp for the Obama administration agenda. Right now there is a balance on the court. There are four judges who were nominated by a Republican President, there are four judges on the court nominated by a Democratic President. Yet my friends across the aisle have been condemning the DC Circuit Court without justification, in my view. They have been condemning it as a bastion of partisanship, extreme ideology. The facts do not bear that out. As I said, remember, this is the same court that actually upheld the President's health care law as constitutional. It is the same court that twice upheld the President's executive order on embryonic stem cell research. It is the same court that has ruled in favor of the Obama administration in the majority of environmental cases that have come before it, including ones related to the regulation of greenhouse gasses, ethanol-blended gasoline, and mountaintop removal coal mining. That does not sound like a radical, ideological court to me. It sounds like it is a court doing its job without fear or favor, in an impartial way, administering justice, not engaging in crass partisanship or tilting at ideological windmills. Of course, the critics of the court do not mention those decisions I mentioned when they are criticizing the court. Instead, they point to three separate rulings where the Obama administration did not fare so well. The first one of those was a ruling that struck down the Securities and Exchange Commission proxy access rule which has to do with corporate governance. I know that sounds like a lot of mumbo jumbo, but basically the court found that the agency had failed to conduct a proper cost-benefit analysis. We all understand what that means. The statute actually requires the agency to conduct a cost-benefit analysis, but the agency did not do it. It ignored the letter of the law, and the DC Circuit ordered the administrative agency to follow the law and engage in that kind of cost-benefit analysis. The second ruling that the critics of the recent court point out came in August of 2012 when the court invalidated the EPA's cross-State air pollution rule, saying it would impose massive emissions reduction requirements on certain States without regard to the limits imposed by the statutory text. In other words, when an administrative agency such as the EPA issues rules and regulations, they do not do so in a vacuum or in a void. They are necessarily guided by the authority given to them and the limitations imposed upon them by the laws that Congress writes. They are free, within that statutory mandate, to write rules and regulations, but they are not free to ignore them or to engage in rulemaking that basically goes counter to the direction of Congress. So in this case, one that is cited by some of the critics, the court held the Clean Air Act does got give the EPA boundless authority or unlimited authority to regulate emissions. A court requiring an administrative agency to work within its legal authority I think is common sense. Otherwise, you would have administrative agencies free to chart their own path without regard to any kind of guidance or legitimacy conferred by Congress in terms of regulation. Remember, these administrative agencies are very powerful entities. Some say they are the fourth branch of government. There is a lot of concern that I have, that many people have, about overregulation and its damage to our economy. The very least the courts ought to do is make sure that they are operating within their mandate and the limitations imposed upon them by Congress. That is what the court did in this cross-State air pollution rule. By the way, Texas was caught up in this rulemaking process without even having an opportunity to be heard and to challenge the modeling of the EPA. Due process is a pretty fundamental notion in our laws, in our jurisprudence. Texas, in that instance, was denied any opportunity for basic due process of law, another reason why the court made the right ruling. The third case that has drawn the ire of some critics across the aisle on the DC Circuit Court of Appeals has to do with two Presidential recess appointments. Every President basically has made recess appointments, but no President has done what this President has done. It violated the Constitution when doing so. In other words, basically President Obama said: Notwithstanding the fact that the Constitution gives advice and consent responsibility to the Senate-- that is in the Constitution--the President basically in this instance decided when Congress was going to be in recess, for the purposes of invoking this extraordinary power, basically said the President was going to decide when we were in recess. Essentially, as some pundits said, basically the President was claiming an authority to be able to appoint judges using the recess appointment power when we are ``taking a lunch break.'' That cannot be the law. It is not the law. That is what the DC Circuit Court said. So the DC Circuit Court said President Obama's legal rationale for appointments and the role of the Senate in advice and consent and the confirmation proceedings would ``eviscerate the Constitution's separation of powers.'' That is what the DC Circuit said about President Obama's claim to have the extraordinary power to make recess appointments and bypass the confirmation of the Senate in the Constitution. You might wonder if the court has actually been pretty evenhanded in terms of its decisionmaking process, you might wonder if it has the lightest caseload per judge in the Nation and there are other courts that need help a lot more, you might wonder what is going on here. Why does President Obama feel so strongly, why does Senator Reid feel so strongly, why does the distinguished chairman of the Senate Judiciary Committee that I serve on feel so strongly that they want to move these three judges through, even though there is no need for these judges on the DC Circuit Court? Well, I am sorry to reach the conclusion, but I think the evidence is overwhelming that what the President is trying to do by nominating these unneeded judges to this critical court, the second most powerful court in the Nation, is he is trying to pack the court in order to affect the outcomes. I know my friends across the aisle do not like that term, court packing. Students of history remember when Franklin Delano Roosevelt claimed the power to appoint additional Supreme Court Justices. That was held to be an unconstitutional court packing. But I do not know what else you would call this, if you are going to try to jam three additional judges on this court that are not needed, the second most important court in the Nation, in order to change the outcome of those decisions and to rubberstamp the administration's expansive policies. I do not know what else you would call it other than court packing. I think a fair interpretation or fair definition of court packing is when you add judges to a court for the explicit purpose of securing favorable rulings. That is exactly what Democrats are trying to do with these nominations.

Mr. CORNYN

Mr. CORNYN. Madam President, I offer my congratulations to the Senator from Massachusetts for the World Series victory by the Boston Red Sox, and I know it is a happy day in his State.

Mr. CORNYN

Mr. CORNYN. The following Senators are necessarily absent: the Senator from Oklahoma (Mr. Inhofe), the Senator from Texas (Mr. Cruz), and the Senator from Wyoming (Mr. Enzi).

Mr. CORNYN

Mr. CORNYN. The following Senators are necessarily absent: the Senator from Oklahoma (Mr. Inhofe) and the Senator from Texas (Mr. Cruz).

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CORNYN

Mr. CORNYN. The following Senators are necessarily absent: the Senator from Oklahoma (Mr. Inhofe) and the Senator from Georgia (Mr. Isakson).

Mr. CORNYN

Mr. CORNYN. The following Senator is necessarily absent: the Senator from Oklahoma (Mr. Inhofe).

Mr. CORNYN. I yield the floor.

Mr. CORNYN. Madam President, I know we are in the postcloture time on the Estevez nomination. I wanted to explain why it was necessary for me to put a hold on this nomination this last March. This is a very important position, the second ranking acquisition official at the Department of Defense. Actually my objection does not have anything to do with Mr. Estevez personally, who I trust will do an admirable job in this very important position. But the reason I put a hold on the nomination was so I could try to get the attention of the Department of Defense to protest the Department's business relations with a notorious Russian arms dealer. For the last few years, the Pentagon has been buying helicopters, Mi-17 helicopters, from Rosoboronexport, a Russian arms dealer, to supply the Afghan military. But this is the arms dealer, of course, who is supplying Bashar al-Assad with the weapons he is using in Syria in that civil war to kill his own innocent civilian population. The Pentagon itself has confirmed that Bashar al-Assad security forces have used these very same Russian-made weapons to massacre an untold number of civilians. Yet the Department of Defense has stubbornly refused--I do not think arrogant is too strong a word-- stubbornly and arrogantly refused to end its relationship with Assad's personal arms supplier. In fact, since 2011, the Pentagon has given more than $1 billion--$1 billion--to Rosoboronexport in no-bid contracts. It is planning to spend another $345 million on the company's Mi-17 helicopters in 2014. Let me be clear. By purchasing Mi-17s from Rosoboronexport, our own Department of Defense is effectively subsidizing the mass murder of Syrian civilians, which is, by all accounts, simply outrageous. To make matters worse, the Mi-17 program is apparently plagued by internal corruption. According to published news reports, there are at least two separate ongoing criminal investigations into the U.S. Army office that manages the procurement and sustainment contracts for the Mi-17s. Last month, I joined 31 of my congressional colleagues in a bipartisan letter to the Attorney General of the United States, urging him to utilize all available resources to support these criminal investigations. For that matter, I have also joined with 12 of my Senate colleagues in a bipartisan letter to General Dempsey, the Chairman of the Joint Chiefs of Staff at the Pentagon, asking him for assurances that its contracts with Rosoboronexport are not being abused by corrupt Russian officials. Americans have good reason to be concerned. It is their tax dollars that are being used to buy these helicopters from Russia for the Afghan military. Russia has a particularly bad track record. They received an abysmal grade of D-minus in Transparency International's latest Government Defence Anti-Corruption Index. In 2011, Russia's chief military prosecutor publicly stated that 20 percent of his country's annual military equipment budget is being stolen by corrupt officials and contractors. One independent watchdog believes that figure could be as high as 40 percent. In short, there are plenty of legitimate reasons and questions about why American tax dollars are going to Rosoboronexport. On a per- aircraft basis, the U.S. Army is paying Rosoboronexport more than double what the Russian military itself is paying to buy nearly identical helicopters. About 1 year ago, I convinced the Pentagon to conduct a formal audit of the Army's 2011 no-bid contract. Unfortunately, that audit went nowhere due to persistent stonewalling by--you guessed it--Rosoboronexport. In other words, we still have a lot of questions and the Pentagon and Rosoboronexport still owe us a lot of answers which we don't yet have. One question is what prompted the Department of Defense to buy Russian helicopters in the first place? To my knowledge, there are plenty of American manufacturers of helicopters that would be anxious to compete for this no-bid contract. By relying upon Moscow to supply the Afghan military with essential equipment, we have given the Kremlin significant leverage over U.S. foreign policy. Moreover, equipping the Afghans with Russian helicopters will make it virtually impossible to achieve any real level of interoperability between the U.S. and Afghan helicopter fleets. The Department of Defense has repeatedly and disingenuously claimed that a 2010 study of Afghanistan's helicopter requirements shows the necessity of buying Mi-17 helicopters from Russia. In fact, the unclassified portion of that study found that the ideal aircraft for the Afghan military was a particular American-made helicopter. Why are we buying Russian helicopters when there are American manufacturers that can meet that very same requirement? It makes no sense whatsoever, and the Department of Defense has steadfastly refused to cooperate with reasonable inquiries into why in the world they continue to persist along this pathway. The reality is the Department of Defense has plenty of alternatives to buying Mi-17s from Russia, but for some reason or reasons known only to them, they steadfastly refuse to consider any of these alternatives. The most sensible and cost-effective alternative would involve keeping many of the Mi- 17s the Afghans already have on hand and life-extending them, instead of retiring them early, which is what is happening now. In other words, Mi-17s that the Afghans already have are being retired early rather than being life-extended because of the Pentagon's stubborn insistence on buying new ones to replace these existing helicopters. In fact, a majority of the Mi-17s the Afghan military already has have more than half of their useful lifetime left in terms of flight hours, and they are being retired early so the Pentagon can buy these new helicopters to replace them. It makes no sense whatsoever, particularly at a time when I know we are all concerned about our defense expenditures and making sure the Defense Department has the resources they need in order to keep America safe and maintain our commitments around the world. Why would the Defense Department be acting so irresponsibly as they are in the purchase of these Mi-17 helicopters? While I don't have any personal objection to the nomination of Mr. Alan Estevez, I could not support cloture on the nomination. Along with my friends and colleagues on both sides of the aisle, I am going to do everything I can to shine a bright light on the Pentagon's troubling relationship with a Russian arms dealer, which is also Bashar al-Assad's arms dealer from which he purchases weapons to kill innocent civilians in Syria. What reasonable person wouldn't be troubled by this tangled relationship? Ideally, the Mi-17 program would simply be terminated. At the very least, it should be placed on constant and vigorous congressional oversight, and that would serve the interests of U.S. taxpayers and U.S. national security alike. For all of these reasons, I could not support a cloture vote on the nomination of Mr. Estevez. I am going to continue to come back to the floor and use other vehicles. I see the distinguished chairman of the Armed Services Committee on the floor. I know we are going to be taking up the Defense authorization bill later on this year, and I will be reaching out to him and other colleagues on both sides of the aisle to try to bring an end to this troubling relationship with Rosoboronexport and to seek alternative means--hopefully, from American manufacturers--for this requirement for the Afghan military. I ask unanimous consent to have printed in the Record two letters, one dated August 5, 2013, to GEN Martin E. Dempsey, and a letter dated September 16, 2013, addressed to the Attorney General of the United States, Eric Holder.

Mr. CORNYN. The following Senator is necessarily absent: the Senator from Oklahoma (Mr. Inhofe).

Mr. CORNYN

Mr. CORNYN. The following Senator is necessarily absent: the Senator from Oklahoma (Mr. Inhofe).

Mr. CORNYN

Mr. CORNYN. Mr. President, in the aftermath of the battle over the continuing resolution and the debt ceiling, I am sure I am not alone in hearing from my constituents they are hoping that Democrats and Republicans can now work together on some of the most important and chronic problems that challenge our country. But instead of doing that, my friends across the aisle have taken this opportunity to engage in what can only be described as a power grab that will result in even more polarization and partisan acrimony here in Washington. What I am talking about specifically is the effort of the President and Democratic leadership to pack the District of Columbia Court of Appeals. For those who may not follow the Federal court system, America has 13 different Federal appellate courts, but the DC court stands out as the most powerful in the country. Some have called it the second most important court in the Nation because it has jurisdiction over a variety of regulatory and constitutional matters. Whether it relates to Dodd-Frank in financial services, to ObamaCare and its implementation, or to national security matters, all of those types of cases get heard in the DC Circuit Court. No other appellate court in the Nation wields such vast influence over hot-button issues, ranging, as I said, from health care to the Environmental Protection Agency and its activities, which I know are as important to the Presiding Officer as they are to me, as well as gun rights and the war on terrorism. President Obama argues the DC Circuit Court needs three more judges in order to get its work done, but the facts simply don't bear that out. That is not true. For example, between 2005 and 2013, the DC Circuit's total number of written decisions per active judge actually went down by 27 percent. The number of appeals filed with the court fell by 18 percent. So instead of having more work to do, it has less work to do than it did in 2005. As one commentator has observed: The DC Circuit already has the lowest caseload in the Nation and, if anything, trends show their workload is decreasing--decreasing, going down--not up. Indeed, one DC Circuit Court judge recently told the senior Senator from Iowa that if any more judges were added now, there wouldn't be enough work to go around. So one might wonder why then the President and Senator Reid would want to pack the DC Circuit Court with three additional judges if there is not enough work to go around today. Let me also note the DC Circuit Court has a unique record in that it actually took 4 months off between May and September of this year. That is hardly the record of a court that has too much work to do and simply can't get it done. Meanwhile, there are courts across our country, both appellate courts and district courts, that are overburdened. Some of these courts are labeled as judicial emergencies because they simply have such a heavy caseload they can't get the work done. Why wouldn't we want to allocate more judicial resources, more help, to those courts that need the help rather than to pack the DC Circuit Court with judges it simply doesn't need? Don't just take my word for it. Prominent Democratic leaders have actually made no secret of what is happening here. One might wonder what the rationale is, if there is not enough work to do. Why would Senator Reid and other Democratic leaders want to add new judges to a court that doesn't have enough work to do? Well, back in March, the senior Senator from New York, Senator Schumer, said the following of the DC circuit judges: Here's what they have done in the last year: They have overturned the EPA's ability to regulate existing coal plants . . . They have rendered the SEC impotent by saying that the SEC can't pass rulings unless they do what is called a cost- benefit analysis . . . They have ruled that recess appointments couldn't be taken into account. Senator Schumer also said: We will fill up the DC circuit one way or another. Well, I disagree with Senator Schumer's characterization on some of these cases, but it is true the DC Circuit Court has a unique role in American jurisprudence in deciding some very important cases for the entire country. There are administrative agencies that are part of the executive branch, and when they make decisions--whether it relates to financial services, the Environmental Protection Agency, Health and Human Services, or any administrative agency--those decisions typically get decided and reviewed by the DC Circuit Court of Appeals. More recently, the majority leader put it this way when he said: We're focusing very intently on the DC Circuit. We need at least one more. There's three vacancies. We need at least one more and that will switch the majority. So this isn't about the efficient administration of impartial justice. This is about stacking the court by changing the majority. That was a quote from the majority leader of the Senate. So there is no mystery about what is going on here. The majority leader and his allies are attempting to pack the court with judges who will rubberstamp their big-government agenda. The majority leader is also threatening to use the nuclear option again unless Senate Republicans simply snap to attention and salute smartly. Well, that is not going to happen. In simple terms, Democrats are prepared to violate the Senate's own rules to help flip the DC circuit in favor of the Obama administration's aggressive administrative overreach. If these tactics succeed, the Senate will be weakened as an institution and the Nation's second highest court will be transformed into a far-left ideological body. But I will remind my colleagues that what goes around comes around in the Senate. When Republicans control the Senate and we have a Republican in the White House, I warn my colleagues the same rules they put into effect with the nuclear option will be used to their disadvantage then. We shouldn't do it. We shouldn't go there. But it is clear what the motivation is. Again, this is not about the efficient administration of impartial justice. This is about getting your way and getting a rubberstamp on the actions of regulatory overreach that are far too common here in Washington, DC. It is true the DC Circuit Court has ruled against the Obama administration and its regulatory agencies, but it is also true they have affirmed many of the most important and far-reaching decisions of the Obama administration's regulatory agencies. One example where it ruled against the administration is in 2011, when it struck down the ``proxy access'' rule of the Securities and Exchange Commission by declaring the agency failed to conduct a cost-benefit analysis required by law before adopting the regulation. I don't know about anyone else, but I wish the government would do more cost-benefit analyses, not less, and so I am glad the DC Circuit Court struck down that rule because of the failure of the Securities and Exchange Commission to conduct a cost-benefit analysis. In another example last year, the court vacated the cross-State air pollution rule of the Environmental Protection Agency, noting it would ``impose massive emissions reduction requirements'' on certain States ``without regard to the limits set by the statutory text.'' In other words, they acted beyond their congressional authorization. This was also an example, in Texas--Texas got swept into this cross- State air pollution rule without even an opportunity to be heard and to offer competing analyses of the models the Environmental Protection Agency used. No matter how committed we all are to clean air, we should not sanction an administrative agency run amok, doing what is not authorized by the statutory text. The DC Circuit has also rejected as unconstitutional a pair of appointments the President made to the National Labor Relations Board. Talk about overreach. This is where the President tried to trump the confirmation powers of the U.S. Senate in the Constitution--the power of advice and consent, it is called--by making unconstitutional so- called recess appointments. The DC Circuit called him on it and held that it was unconstitutional. More recently, the court held that the President's Nuclear Regulatory Commission was simply flouting the law. Do we not want a court to call the President when administrative agencies are simply flouting the law if we are a nation of laws? In this case, they flouted the law by delaying a decision on whether to use Yucca Mountain as a nuclear waste repository. These were all commonsense decisions, and you can probably tell from my comments that I think they were well grounded in the law and the facts and I agree with the decision. In that case, they all went against the Obama administration's preferred position, but it is true that the DC Circuit has also ruled in favor of the administration's position in a number of cases. Again, here is an EPA decision. Since 2012, Jeremy Jacobs reports, the Agency has won 60 percent of the cases that have been reviewed by the DC Circuit Court of Appeals. In 60 percent of the lawsuits where the Environmental Protection Agency has been taken to court for exceeding its authority, 60 percent of the time the EPA position has prevailed. That is a better performance than the EPA had at the circuit during George W. Bush's administration. In particular, the EPA has scored landmark victories related to greenhouse gas regulations, ethanol-blended gasoline, and mountaintop-removal coal mining. But beyond energy and environmental issues, the DC Circuit Court has upheld President Obama's Executive order regarding embryonic stem cell research on two separate occasions, in 2011 and 2012. Again, these are not my preferred outcomes, but I think they demonstrate that the DC Circuit Court has learned to strike a balance and certainly is not pro-administration or anti-administration. It epitomizes what a court should be, which is an impartial administrator of justice. Again, this same court upheld the Affordable Care Act in 2011, ruling that the individual health insurance mandate was constitutional under the commerce clause. We know what happened when it got to the U.S. Supreme Court. They had a different view. It demonstrates the kind of judicial restraint that the current DC court, balanced as it is with four nominees by a Republican President and four nominees by a Democratic President--how it has administered evenhanded justice, which would be destroyed if the President is successful and if Senator Reid is successful in packing this court with three more of their liberal allies. As I said, this court is currently split right down the middle. Four of the active judges were appointed by a Republican President and four were appointed by a Democratic President. Yet it is clear that the DC Circuit Court is in the crosshairs of the majority leader and his Democratic allies, including the President, because they want to tilt the court in their direction-- a more liberal, bigger government direction, one that is more deferential to administrative agencies, such as the Environmental Protection Agency and other agencies that refuse to take into account a cost-benefit analysis, which we ought to have more of, not less. The truth is that there is an answer to this standoff in terms of the court-packing President Obama and Senator Reid are attempting. There actually is a way to reallocate these unneeded seats from the DC Circuit Court of Appeals to other courts that actually need the judges, unlike this court that has the lightest caseload of any circuit court in the Nation. Senator Grassley, the senior Senator from Iowa, has offered a reasonable compromise which would allow several of President Obama's appellate nominees to be approved for district courts or courts of appeals where they are actually needed. In other words, President Obama would still get to pick them; he would just have to pick them for courts where they would actually have enough work to do and where they are needed. Again, based on current caseloads, the DC Circuit Court does not need new judges, but other appellate courts really do. I would think that during a time when judgeships are constrained after the Budget Control Act, when discretionary spending is down, and when the courts need more resources allocated, we would want to allocate the resources to courts and to jurisdictions where they are actually needed, not to places where they are not needed. For all these reasons and more, I hope Members of both parties will agree that the reasonable way to do it would be to pass the Grassley bill, the Grassley compromise to reallocate these judges to the places where they are really needed and to prevent the stacking of this court and this reckless power grab. I yield the floor.

Mr. CORNYN. The following Senator is necessarily absent: the Senator from Oklahoma (Mr. Inhofe).

Mr. CORNYN

Mr. CORNYN. The following Senator is necessarily absent: the Senator from Oklahoma (Mr. Inhofe).