John Ensign

Mr. ENSIGN

Mr. ENSIGN. Madam President, first of all, I appreciate all of the great work that the chairman has done on this piece of legislation. This is a bipartisan piece of legislation that we are talking about today. We are talking about the DC Opportunity Scholarship Program. Why is it on the bill that deals with the FAA, people would ask? Well, it is on there because we have been trying to get this reauthorized for a long time. In the Senate, we have to take whatever vehicle we can get. I appreciate the leadership of Senator Lieberman and the work he has done, as well as many of my other colleagues. Unfortunately, there are forces on the other side who apparently think giving opportunity scholarships for 1,300 poor children in the District of Columbia is somehow a threat to our public education system in America. I heard the chairman talk about Michelle Rhee. Michelle is one of the true reformers of education. She is a believer in the public education system in America, as I am. I know that Chairman Lieberman is a big believer in the public education system. That is one of the reasons we want to explore and test various reform proposals to actually see if they will work, or see if they do not work. Well, so far, there have been 1,300 students participating in the DC Opportunity Scholarship Program. Based on the satisfaction of their parents, it is serving the students well. Remember, when they get a scholarship, they do not have to go. Let me repeat that. If they are in a public school system, they are zoned for that public school system. They cannot afford to go anyplace else; they do not have any choice. But if they get one of these DC scholarships, nobody forces them to use it. Nobody forces them to go to one of those other private schools. Why do the parents and the kids like it? They like it because they are escaping from a bad school. As Senator Lieberman discussed, 85 percent of the kids who participate in this program are from failing schools; failing based on objective criteria. The average household income is about $25,000 a year for the families of these kids who are participating in the DC Opportunity Scholarship Program. These are kids are from low-income families. They cannot afford to take their kids out of these failing schools by themselves. That is why we wanted to experiment to see whether the DC Opportunity Scholarship Program worked. Did it help the kids' educational system? Education in America has been called the new civil right. Well, I think that is exactly right. I think we need to look at education as a way to lift people out of poverty. But just because kids are getting an education at school, it does not give them the opportunities that other kids are getting. It is not a question of money. The DC Public School System spends $15,000 per year per student. It is one of the highest, if not the highest, in the country. It is about $4,600 a year more than the national average. It is almost three times more than what Nevada spends per student. But I can guarantee you, I do not know of anybody in Nevada who would rather have their kids going here in Washington, DC, Public Schools than going to public school in Nevada. It is because of the poor performance of Washington, DC Public Schools. Now, Michelle Rhee, to her credit, is doing a good job improving the public schools. But they have so far to go. The Mayor of Washington, DC, supports the DC Opportunity Scholarship Program. The parents of these children--there were over 7,000 people who just signed a petition in Washington, DC, to continue this program. I have met many of these students. When you talk to them, and you look in their faces and you say: Do you want this program to continue? Is this something that has helped you in your life? The students who have participated in the DC Opportunity Scholarship Program say it is one of the best things that ever happened to them in their life. DC Opportunity Scholarship Program allowed the students to get out of a school that had high crime rates, that had low performance, and where sometimes the teachers did not have great attitudes. The students went to a caring, loving atmosphere where they had a chance to succeed. That is really what this whole thing is about. Recent data shows that about 26 percent of eighth graders in the DC Public Schools score below basic in math. Students of DC Public Schools rank near the bottom in the Nation in both SAT and ACT scores. About half of the DC students do not even graduate from high school. On the other side of the coin, when you look at what has happened with the DC Opportunity Scholarship kids, a rigorous study by the Institute of Education Services found that students in the program experienced statistically significant improvements in reading that were equal to more than 3 months of additional schooling. The study also found that students in five out of ten subgroups improved in reading, and parents experienced increased satisfaction with the quality and the safety of their children's schools. Dr. Wolf, who was the principal investigator for the Department of Education study, has stated: . . . the D.C. scholarship program has proven to be the most effective education policy evaluated by the federal government's official education research arm so far. You know, Rome was not built in a day. I believe we owe it to DC's children to continue this program and to continue the research on these promising gains. Do we know that the DC Opportunity Scholarship Program will work in the future? No. But it is promising research so far. So we should not discontinue the DC Opportunity Scholarship Program. We should fund it, make sure that it continues and continue to study it. Unfortunately, what has happened is that in the public school system, there are forces who believe that giving parents choice is somehow a threat to our public school system. To me, it is just about the kids and their education. That is who should come first in our education system, the children. Let's put their education and future first. Let's not have special interests decide who is going to control education. That is what the DC Opportunity Scholarship Program is all about. I see Senator Collins is on the Senate floor. I appreciate her work, Senator Lieberman, Senator Voinovich, and many others in the Senate who have worked in a bipartisan fashion. Let's not let this bill go down. Secretary Duncan is a reformer. There is no question he has brought some reform proposals that I think deserve looking at. He has talked a lot about putting our kids first in our education system. This is one way we can do it. We need to support Michelle Rhee in her efforts to improve the public school system, but we also need to keep this valuable program, the DC Opportunity Scholarship Program, intact for those 1,300 kids and their families who are enjoying its benefits. I yield the floor and thank the chairman for allowing me to speak.

Mr. ENSIGN

Mr. ENSIGN. Madam President, first, let me start by complimenting the Senator from Wisconsin for addressing the spending going on in Washington, DC. I applaud his efforts. He understands this is a modest effort, but we have to start someplace. For my whole 10 years in the Senate, I have been talking about spending and getting our debt under control, not passing debt on to our children across America. This is a huge debt burden we are passing on to them. I applaud the efforts, even though they are small. Anything we can do around here to address the deficits and the debt I think is very important. I want to talk about unemployment and foreclosures, especially how they are affecting Nevada and the overall economy. I think everybody admits the our economy is hurting. There are people all over the country in need of employment. Many are hurting because of foreclosures or potential foreclosures on their houses. In new unemployment numbers just released, Nevada has a 13-percent unemployment rate, with Clark County, where Las Vegas is located, now at almost a record high of 13.8 percent; Washoe County, which is where Reno is, a 13.5-percent unemployment rate. The Review Journal, the largest paper in Nevada, pointed out this week that the salary and job outlook for Nevadans is going from bad to worse. Wages are declining across industries in our State, and experts recently told the paper if we were to count discouraged workers who have given up looking for employment and part-time employees who wish to work full time, the real unemployment rate in Nevada would actually hover somewhere around 25 percent. In fact, if we were to count those who are self-employed--for instance, if you are a realtor and you are not selling homes, you may still be classified as employed but you are effectively unemployed. If we counted all the self-employed people who are not counted in the normal unemployment rates, these numbers would even be higher. Housing in Nevada is still hurting severely. We are leading the Nation in home foreclosures and there does not seem to be a solution to this problem coming out of Congress. Instead, Congress has gone off on a wayward path in trying to muscle through health care reform when the immediate focus of this institution should be on the millions of Americans who have lost their jobs, are at risk of losing their homes, or even worse--both. In fact, nearly 5 million Americans have lost their jobs during the time Congress has shifted its focus away from the economy onto health care. I will point out, however, if you live in the Washington, DC, area you are actually OK. There have been 100,000 new jobs created in this city in the last year. These are government jobs; not private sector jobs, government jobs. This is a direct result of a massive expansion of the Federal Government. I do not believe that growing the Federal Government and creating jobs in Washington does anything to help the unemployment in Nevada or around the rest of the country. Health care reform proposals that the majority is trying to push through both Houses are not designed to incentivize job creation at a time when we need a lifeline. Instead, their bills will be job killers. The National Federation of Independent Business, which is the largest organization that represents small businesses in America, believes their health care reform proposals will actually cost millions of jobs in small businesses over the next 4 years. It also will greatly add to the Nation's debt when we are already borrowing from future generations, as the Senator from Wisconsin just talked about. It is time for Congress to shift our focus back to creating jobs, and do it in a responsible way by reducing wasteful government spending and thinking about the future of our country. One spending bill after another that comes before this Senate is not going to solve the economic problems our country is facing. It is actually just going to make the situation worse over the next several years because as we borrow more money, inflation and interest rates will increase. There are concerns about the strength of the dollar in the world. Adding to our debt intensifies those worries. We all, as Republicans and as Democrats--really, as Americans--ought to be concerned about what this debt is going to do to the future of our country. We need real solutions to our economic problems. We need to get the country back on track. To do that, we need to get control of out-of- control spending, especially wasteful spending. Job creation needs to be our number one focus, and we cannot incentivize job creation when our Nation is buried in debt. This means we are all going to have to start taking some difficult votes to reverse the wild spending spree we are on. Here in Washington it is much easier to get reelected if you are giving money away to people. It is much more difficult politically to take votes that actually cut spending because for every government program that is out, there is a constituency that lobbies to keep that gravy train coming from the Federal Government. Last week we had two options in the Senate. We had the option to pay for the extension of unemployment insurance benefits with unspent stimulus funds, money we have already taken out of the pockets of taxpayers, or we had the option of adding more debt to the credit card of this Nation. I voted to extend unemployment insurance without having American families foot yet another government bill. Unfortunately, the majority party did not pass this bill. Instead, they voted to continue adding to our Nation's debt. Over $100 billion was added to our Nation's debt just yesterday by this Senate. By the way, $100 billion used to be a lot of money around this place. It is tossed around like it is almost nothing now. $100 billion is a huge amount of money. It passed and hardly got any notice around the country. That is what we added to our deficit and our debt yesterday. I stress again that job creation needs to be our number one focus, but we cannot begin to incentivize job creation just by adding more debt. I have been focused on introducing legislation that will help create jobs in Nevada while not increasing the debt--for example, the recent passage of my legislation with Senator Dorgan, called the Travel Promotion Act. This will incentivize tourists from across the world to come to the United States and visit our world-class destinations. This will spur job growth across Nevada and our entire Nation. These will not be government jobs; these will be private sector jobs. These jobs will not be paid for by the American taxpayer; these will be jobs that will be a lifeline for our economy. Legislation like the Travel Promotion Act illustrates that we need to get past the idea that government spending creates jobs and showcases that we need to institute policies that incentivize the private sector to create jobs. We can do this by lowering taxes on small businesses. They are the engine of our economy. We can start creating employment opportunities throughout the United States. These private sector jobs will help get our country back on the road to recovery and will not add to the financial burden of the United States. The majority party seems to believe the only way to spur job creation is to pass spending bill after spending bill. As we have witnessed over the past year, this does not seem to be working. But this has not lessened the resolve of those across the aisle. This week, House Education and Labor Committee Chairman George Miller announced that he will unveil a jobs bill--that is what he called it, a jobs bill--aimed to save or create a lot of jobs in local governments. It is a $100 billion bill-- another $100 billion. The problem with this is these jobs are going to be paid for by the Community Development Block Grant Program, which, in simple English, means we are adding to the debt. This is money the taxpayers are going to have to pay for in the future--borrowing once again from our children and adding to our Nation's credit card debt. This is not a solution to create jobs in the long run. The Federal Government spending money on legislation whose only connection to job creation is putting the phrase in the title of the bill is not working. In the short term, will it save some local government jobs? No question, in Nevada it probably would. But Nevada is making tough choices right now. They are actually looking where there is waste. They are looking how they can make government more efficient. We are not doing that at the Federal level. We are actually discouraging it by sending more and more money to the States. But at the Federal Government level we are certainly not looking for any efficiencies because all we continue to do is spend more and more money, add more and more government agencies, more and more government programs. We should be tightening our belts like every family, every business, local government, and State government are doing across the country. That is one of the reasons many of us have cosponsored legislation for a balanced budget amendment. If we were required to balance the budget we would be required to take those tough votes. That is why we get elected, to do something, to make a positive difference for our country. Adding to our debt is not that positive difference. We need to think about the future of our country instead of just getting reelected by being able to give money away to some of our constituents. I will conclude with this: Job number one needs to be about creating jobs in a responsible way--not government jobs, private sector jobs. We need to stop adding to the deficit, get government spending under control, and cut taxes for small businesses so that entrepreneurs across this country can create jobs. These are what the priorities of this body should be. I yield the floor.

Mr. ENSIGN

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

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I rise to discuss the tax extenders legislation and the consequences of our fiscal recklessness. I cannot stress enough that our spending is completely out of control. It seems every week this body passes more legislation and spends more money and adds more debt onto the backs of our children. Unfortunately, the Democratic majority continues to sing from the same old sheet of music--more debt, more spending, and more fiscal recklessness. Last week the nonpartisan CBO provided their analysis of President Obama's budget, and it is nothing short of a fiscal train wreck and a roadmap to banana republic status. It pains me to stand on the floor of the Senate and tell the American people that President Obama is leading us down a path of bankruptcy. I believe this budget is simply reckless, with enormous budget deficits as far as the eye can see. This year, the government has overspent by more than trillion dollars; the same amount last year. We are passing trillions of dollars in debt onto our children and grandchildren. Nevadans and people across the country are facing very hard economic times. For the Federal Government to be spending this much money is an insult to American families everywhere. In 2020, the last year of the President's budget, our Nation's credit card bill will account for 90 percent of the economy. What does this mean in terms real people can understand? Because these numbers are so large and enormous, it is difficult to put them in perspective. Let me talk in terms of the consequences of this fiscal recklessness. At a certain point, foreign countries will not buy our IOUs, our bonds, or they will demand higher interest rates because they are riskier. Our standard of living will decrease. Actually for the first time in American history, future generations will be worse off than prior generations. As to the American dream of owning a home as a young adult, one will have to wait until their 40s or 50s to buy a home. Families, in order to maintain a similar standard of living, will have to become smaller. With a less dynamic economy, we will enjoy less of the fruits of innovation and technological progress. I know this is hard to hear, but one day, if we continue down the current path, this scenario will become a reality. We cannot keep spending and spending and spending without consequences. Democrats claim we need to spend money because our economy is sluggish. We need stimulus after stimulus to put us back on the right track. We are not on the right track. Unemployment in my State is still 13 percent. There isn't much light on the horizon. We have lost our way and have wandered down a path of fiscal crisis. More spending doesn't fix the economic crisis. I wish to talk about the depression of 1920 to 1921. Shortly after the end of World War I, we went into economic crisis. The Department of Commerce estimates the economy declined by nearly 7 percent during that period. Unemployment rose sharply during the recession. Estimates are the rate of unemployment went from around 5 to almost 12 percent. From May of 1920 to July of 1921, automobile production declined by 60 percent, and total industrial production across the country decreased by 30 percent. Stocks also fell dramatically. The Dow Jones Industrials was cut by almost half. Business failures tripled between 1919 and 1922. But instead of ``fiscal stimulus,'' here is what President Harding did. He cut the government's budget nearly in half between 1920 and 1922. Marginal tax rates were slashed across all income groups. So he cut taxes and cut government spending at the same time. This encouraged businesses to grow and to add jobs in the private sector. The national debt was reduced by one-third. In the 1920 acceptance speech for the Republican nomination, Harding said: We will attempt intelligent and courageous deflation, and strike a government borrowing which enlarges the evil, and we will attack the high cost of government with every energy and facility which attend Republican capacity. We promise that relief which will attend the halting of waste and extravagance, and the renewal of the practice of public economy, not alone because it will relieve tax burdens but because it will be an example to stimulate thrift and economy in private life. You see, Harding's laissez-faire economic policies, rapid government downsizing, and low tax rates spurred a private market recovery and led to a readjustment in investment and consumption for a peacetime economy. The unemployment rate went from almost 12 percent in a little over a year to less than 2 percent. Let me repeat that. The unemployment rate went from almost 12 percent to under 2 percent. I do not think that is what is happening today. This episode in history provides a counterexample to the argument that we need massive government spending to stimulate our Nation's economy. You see, we do not hear about the Great Depression of 1920. Instead, we hear about the Roaring Twenties because sound fiscal policy, cutting tax rates, cutting spending led to economic resurgence. This is an example that shows when the burden of government is lessened through less spending, less taxes, and less debt, the private sector will respond with investment and job creation, which lead to economic growth. So why is the legislation on the floor today not the answer? If creating jobs is priority No. 1--and it should be for this body--why is the majority party letting tax incentives for job-creating businesses expire? These noncontroversial provisions expired 3 months ago. Why is helping businesses an afterthought for the majority? The tax extender portion of this bill could have passed by unanimous consent months ago. But the majority did not want to bother with that. It will have to be extended again later this year because the provisions will again expire on December 31. This is not the right policy for creating a stable and certain environment for employers who are wanting to hire more employees. The tax extender provisions of the bill amount to only $25 billion of this massive $144 billion bill. The tax extenders are good. They include energy production credits, research credits, accelerated depreciation for certain businesses, State and local sales tax deductions, and low-income housing tax credits. I have said these are good provisions. But we should have done much more. Foremost, we should be cutting individual and corporate income tax rates so people and businesses could use their money to get the economy moving again and could invest in job creation and wealth- creating enterprises. But, at the same time, we need to cut government spending so we are not massively increasing the debt. You see, I hate to break it to you, but America is falling behind other countries in that regard. Tax relief is wrongly criticized by those across the aisle. They have been arguing for job creation, but their policies are making it tougher on private businesses. In order to help these businesses find a stable footing once again, we need to make tax relief permanent and not wait for these extensions to expire again and again. Let me conclude. To get this economy moving, we do not need to pass a bill that is going to add over $100 billion to our deficit and our debt. That is what the bill before us today does. It adds over $100 billion to our deficit and our debt. A few years ago, $100 billion was a lot of money around this place. We throw that amount around here like it is nothing anymore. That is debt that is adding to the coming fiscal crisis this country is going to be facing. I believe the prescription to get this economy going is to cut taxes, cut government spending. I believe in the spirit of the American people and the American entrepreneurs instead of creating jobs here in Washington, DC. I do not know if the American people know that over 100,000 jobs were created in this city last year--over 100,000 jobs in Washington, DC. That is about as many jobs as my State lost. That is not the prescription for economic prosperity. Government jobs have to be sustained with tax dollars year after year. When the private sector creates those jobs, the whole economy grows and feeds off itself, and you do not need taxpayer dollars to continue to subsidize those jobs. As a matter of fact, they feed in money to the Federal Treasury. The bill before us today, I think, is fiscally irresponsible. It is the exact opposite direction we should be going. What we should be doing is acting in accord as Americans--not as Republicans, not as Democrats--but let's look at history and learn from it and get this economy going by focusing on actually what has worked in the past and what will work in the future. Mr. President, I yield the floor.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I rise today to commemorate the beginning of an exciting chapter for the Las Vegas Asian Chamber of Commerce. For more than 20 years, this group of entrepreneurial southern Nevadans has worked together to provide resources and promote economic growth in the Asian community. Today, they will install the first woman to be president of their esteemed organization. Vida Chan Lin steps into this role--respected by her peers and energized by her passion for furthering the goals of the Las Vegas Asian Chamber of Commerce. While this leadership role is a new opportunity for Ms. Lin, her lifetime of experience has prepared her to take on this role. As a child, she was exposed to running a business as she saw firsthand the daily challenges and joys in the restaurants her family owned. She then found great satisfaction in the insurance industry where she continued to exceed expectations and eventually start her own company. Ms. Lin has always balanced her business drive and success with her commitment to community service. She has been an instrumental force behind the Las Vegas Asian Chamber of Commerce for many years. Her ability to bring people together, develop innovative programming, and mentor young leaders has helped ensure the long-term success of the Asian Chamber well beyond just her tenure. She has been recognized by countless organizations for her business acumen and her heartfelt commitment to public service. I am proud to congratulate Vida Lin on this special day, and I wish her great success in the coming term of her presidency.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I rise today because our economy is struggling. Unemployment remains high, and the recession's hold on cities across America is as strong as ever. My home State of Nevada has been one of the hardest hit, and our tourism-dependent economy is barely hanging on. Unfortunately, this is true for tourism-dependent cities across our country. During these difficult economic times, it simply isn't enough to try to stimulate domestic spending by passing one massive spending bill after another. We need to incentivize tourists from across the world to visit the truly unique destinations across America. From one coast of this country to the other, there are endless opportunities to tour historic sights, take advantage of recreational opportunities, observe great architecture, visit theme parks, dine in some of the finest restaurants in the world, view natural and manmade miracles, and soak up everything that is so uniquely found in America. We all know we live in the best country in the world. Now is the time for people across the world to enjoy all we have to offer while repairing our economy at the same time. My colleague from North Dakota, Senator Dorgan, understands the importance of reasserting our tourism industry on the world stage. Together, he and I have sponsored the Travel Promotion Act, which is before us today. This bipartisan piece of legislation would help to make our travel and tourism industry more successful and more competitive internationally. So I thank my colleague, Senator Dorgan, for his great leadership on this important issue. Tourism is our country's truest form of economic stimulus. The average overseas visitor to the United States spends roughly $4,500 per trip to pay for hotels, transportation, dining, shopping, and other things. Unfortunately, tourism took a massive hit on 9/11, and it has not yet recovered. This lost decade has only been made worse by last year's recession. If the United States had managed to keep pace with global travel trends, 68 million more travelers would have visited the United States between 2000 and 2009. These travelers would have generated an estimated 250,000 new U.S. jobs in 2008 alone. At a time when unemployment is at record-high numbers in this country, we cannot afford to throw away anymore tourism-related job creation. We could take a cue from Canada on successful ways to spur this tourism that we need so badly. If you have been watching the Olympics, you have seen these ads about British Columbia. I don't know about the rest of you, but it has made me actually want to go up and visit. But it is not just watching the Olympics. It is the ads that have been the most successful part of making me want to go to that part of the world. They have beautiful things to advertise, to show you: Doesn't that look like an incredible place to go visit? Think about all we have in America that we can advertise to the rest of the world that may not have thought about it. I didn't think about going up to Vancouver and British Columbia, but those ads spurred my interest in it, and I am sure they have for many Americans and other people around the world. Tourism-related jobs can be created simply by spreading the word about the wonderful destinations that are literally scattered across the United States of America, and we can do it without raising taxes on hard-working American families or by digging ourselves even further into debt. Unfortunately, the United States has dropped the ball when it comes to tourism and the industry has been virtually left behind. Declines in visits to the United States since 2000 have cost our country an estimated $500 billion in lost spending and at least $30 billion in lost tax receipts. My speech today is not all gloom and doom, however. Instead, I stand here to offer a solution, a solution that can help get our hard-hit tourism industry back on its feet. What we need is a comprehensive strategy coordinated by public-private partnerships between the Government and the expert leaders from our travel and tourism industry. This effort needs to center on a major initiative that will make the wonderful destinations throughout our great country known to foreign audiences. Actually, we do not want them to just be aware of these magnificent places. We want them to feel compelled to visit them. September 11, 2001, forever changed our country and the security measures along with it. But we need to teach potential visitors about the new security policies of today so they can travel to and from our country with ease. The bottom line is, the United States stands to make great gains economically and diplomatically if we strengthen our travel and tourism industry. So how do we go about doing this? The Travel Promotion Act which is before us today would create a public-private corporation for travel promotion to promote the United States as a travel destination to overseas travelers. This corporation would develop and execute a plan to do the following: It would promote the United States to foreign travelers by using coordinated advertising campaigns and other promotional activities, similar to what we see in the Olympics with Canada; the corporation would identify and correct misperceptions about U.S. travel policies; it would also help provide travel information to foreign visitors to the United States such as information about entry requirements, fees, and documents; and last, the corporation would focus its efforts to ensure that all 50 States benefit from overseas tourism, including areas not traditionally visited by international travelers. Understand this, no taxpayer funds would be used to finance the corporation for travel promotion. Let me repeat that. No taxpayer funds would be used to finance the corporation for travel promotion. All the funding would come from private industry and from user fees paid by some international visitors. This would finally put the United States on equal footing with many other developed countries. This legislation would be a true lifeline to my home State of Nevada, which depends so heavily on travel and tourism. I mentioned earlier my State was one of the hardest hit. But I do not think that description does the situation in Nevada justice. The tourism industry in Nevada, especially Las Vegas, has truly been crippled by the economy. Nevadans who were already struggling through home foreclosures have been forced to carry the burden of the downturned economy. Taxicab drivers, valets, housekeepers, waiters and waitresses and construction workers are drowning in this recession because Americans are not traveling like they used to. These workers are barely keeping their heads above water and some are not even able to do that. They are losing their homes, which has truly annihilated the housing market in my State. Boosting overseas travel will provide for growth in an otherwise shrinking segment of our economy, and it will help heal local economies around our country. This will, in turn, greatly advance our overall economy at a time when we cannot afford to turn away the potential of hundreds of billions of dollars. With domestic travel and convention travel down, overseas travel could be the silver lining we all need. At a time when our country faces record deficit and spending levels, I know this money may seem like a lot. Believe me when I say to you that I take my pledge of fiscal responsibility very seriously. I vote against spending bills that come across this floor all the time because they simply are an irresponsible waste of hard-earned taxpayer dollars. However, this bill is a responsible use of dollars. It does not apply a government spending bandaid to tough economic situations. It creates a solution that will greatly benefit our economy, and it does it without taxpayer dollars. The Travel Promotion Act, which has the overwhelming support of Democrats and Republicans alike, is a relatively small investment that will significantly boost our economy, create jobs, and make us more competitive in the world. The bill will not increase the deficit. This bill does not increase the deficit. But it could spur billions in additional economic activity, benefiting Americans all around the country. The Congressional Budget Office--nonpartisan, the official scorekeeper around here--confirms it will not place any additional burden on the taxpayer. People across my State and across the country have had to make difficult decisions when it comes to their own families' budgets. In fact, the legislature in my home State of Nevada is coming to terms with steep spending cuts and slashing services across the board as we speak, in a special session, because it is too far in the hole to sustain the current spending spree. So Americans are looking to us to boost the economy and so far we have not been able to do that. Yes, we have spent money--and a lot of money at that, in fact--but our economic situation remains the same. I am asking that we look to the tourism industry as a lifeline for our economy, as I know it will be for my State and for so many others. The Travel Promotion Act will be that lifeline. It will create jobs, create opportunity, and show the world the beauty and the diversity of America. Each one of us, who together represent all 50 States, knows we have incredible places to show the rest of the world. My home State of Nevada is actually the gateway to the Grand Canyon, which is located in Arizona. We have Lake Tahoe. We have, obviously, Las Vegas. We have so many other places to visit around our great State. But every single Senator could tell those stories. What we need to do is tell them in a way that makes foreign travelers want to come to America. The Travel Promotion Act is going to help us do that. Let me remind folks, if you watch the Olympics, ask yourself these questions when those commercials about British Colombia come on: Does that make you more or less likely to go, especially if you can afford it? I think the answer is pretty obvious. They make an attractive case to visit their country. This is the United States of America, with some of the most beautiful, incredible places to see. Are you telling me we cannot advertise this in a way that makes people want to come here? Of course we can. We can have tourism boosted like never before in this country and all Americans will benefit by doing that because when foreign travelers come here, they spend money, boost the economy, and boost every single State in this country. I encourage this Senate to pass this bill as quickly as possible and get it over to the President for signature so we can get on with boosting the economy. I yield the floor.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. ENSIGN. Mr. President, in a moment, I will ask unanimous consent to be able to offer an amendment, but first I wish to talk about that amendment because I understand the other side is going to object. Currently, there are seven States that collect no income tax from their residents. Those States are my home the State of Nevada, Florida, South Dakota, Tennessee, Texas, Washington, and Wyoming. Under current Federal tax law, in all the States that have an income tax, individuals are allowed to deduct those income taxes from their Federal tax form. Your property taxes can also be deducted. Even when you register your car and pay your registration fee on your car, you are allowed to deduct that because that is a local tax. The tax that you are not allowed to deduct, if we don't extend current law, will be the sales tax. My State relies more on a sales tax for its revenue sources. That is what it decided to do. Other States have chosen to set their taxes up differently. But States have the flexibility to set up their taxes in the way they feel is best for their residents. My State actually has a constitutional amendment against collecting a State income tax from its residents. Nevadans don't want a State income tax, but they want to be treated fairly. So a few years ago, we passed a law so that Nevada and these six other States would be treated fairly; so that residents would have the option of deducting a sales tax or an income tax. It is just a matter of fairness, but it also allows people to keep more of their own income. At the end of last year, the deductibility for the sales tax expired, and I would like to be able to offer an amendment to extend it in this jobs bill. I believe if people have more of their own money--money they can count on--they will make good decisions, and they will actually go out and spend some of that money. I believe this would actually be a good measure to put in the jobs bill. It was in the original bipartisan bill that Chairman Baucus and Ranking Member Grassley came up with and introduced. So I am hoping the other side will not object, although I understand they are going to. Mr. President, I ask unanimous consent that it be in order to offer an amendment to allow for the deduction of State and local sales tax.

Mr. ENSIGN. Mr. President, I knew that was going to happen because the majority party has decided to allow no amendments on this bill, which is a shame. It is the reason I voted against cloture on the bill yesterday, because I think it is only fair that we get to offer amendments on such an important and expensive bill. This is one of the amendments that I think should be allowed. We will be making other efforts during the year to get the sales tax deductibility enacted into law because it is a question of fairness for these seven States. I know the Senators from those seven States join me in fighting for this. We fought together before, and we are going to continue to fight to try to make sure this deductibility, as a matter of fairness for our citizens, is maintained in Federal law. I yield the floor.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I am honored to rise today to pay tribute to the brave men who literally fought off evil on January 4, 2010, at the Lloyd D. George Federal Building in Las Vegas, NV. On that tragic day, an armed assailant entered the lobby of the courthouse with clear objectives, to kill as many innocent people as he possibly could. Court Security Officer Stanley Cooper went to work that day with the same vision and determination he had every day; that was to keep the employees and visitors to the Federal building safe as they went about their lives. Tragically, Stan was fatally wounded by the gunman as he faithfully stood his watch at the security check point that morning. Stanley Cooper was a quiet and gentle man who dedicated his life to the service and protection of others. He retired after 26 years as an officer with the Las Vegas Metropolitan Police Department and then chose a life of service again as a court security officer. Stan will always be remembered as a hero, not only because he gave his life in that one terrible moment on January 4 but also because he gave his life every day in the selfless act of serving others. The other court security officers on duty that day, along with members of the U.S. Marshals Service and a detention officer, acted swiftly and bravely to subdue the gunman and protect the countless innocent lives that were in harm's way. Deputy U.S. Marshal Richard J. ``Joe'' Gardner was wounded in the ensuing battle as he and the other officers valiantly fought off the deadly attack. It is with utmost gratitude that I take a moment to remember and commend the life of a true hero, Officer Stanley Cooper, and to thank Deputy U.S. Marshal Joe Gardner, the court security officers, the U.S. deputy marshals, the Las Vegas Metropolitan Police Department officers, and all law enforcement officers who responded to the heinous assault at the Lloyd D. George Federal Building on January 4, 2010, for their brave and courageous actions. Stan and the other officers answered the call of duty that day without concern for themselves or their own safety. Their sacrifice and courage will not be forgotten. May God grant Stan's beloved family and friends peace and comfort in this time of loss, and may He continue to protect all the men and women in law enforcement who selflessly serve and protect others.

Mr. ENSIGN

Mr. ENSIGN. I ask for the yeas and nays.

Mr. ENSIGN. Madam President, I came to the floor a little more than a month ago to discuss perhaps one of the most critical issues facing our great country: the skyrocketing national debt. I had hoped that once Democrats went home and heard the concerns of their constituents, they would return to Washington with a new perspective. Believe me, I heard from Nevadans in the townhall meetings I held this month that increased spending and more debt is simply not acceptable. Voters in Massachusetts echoed those same feelings last week when they voted to put a stop to a bloated health care bill and protest out- of-control spending. I don't see how the message can be any clearer. The debt we are accumulating is unsustainable; it will bankrupt this Nation and force future generations to suffer for our fiscal irresponsibility. Based on the votes today on the Senate floor, it appears that Democrats have decided to turn a deaf ear to the concerns of American voters. We have voted to raise the debt limit once again to make room for more spending. Ironically, the debt limit was put into place to provide Congress with constitutional control of the American purse strings. The debt limit was designed as a form of fiscal accountability to be used by the President and Congress to ensure that the Federal Government does not spend or borrow more than it collects in revenue. I, along with many Americans, have tried to impose this simple yet vital rule to our children. Don't spend more than you can afford. Don't go into debt. But Congress is teaching them the exact opposite lesson: spend what you want and someone else will take care of it. Although the debt limit has increased regularly over the years in order to accommodate annual Federal deficits, it has absolutely skyrocketed in the last several years. For example, from 1996 to 2002, the debt limit increased by 16 percent. But from 2003 to 2009 the debt limit increased 84 percent. And if we pass this legislation before us, the total increase from 2002 to January of 2010 will be over 120 percent. I would like to recap the last month and a half with regard to the debt limit. It was raised by $290 billion in December of last year. Today, the Senate Democrats voted to raise the debt limit by another $1.9 trillion. After just 1 year in office, the Obama administration's spending has left American families in quite the financial hole. Since his inauguration, the national debt has increased by $1.7 trillion. And when you look at the burden on hard-working American families, the news is just as bad. The Federal debt per household in 2009 was $68,000, and that is projected to increase to $137,000 in 2019 under the Obama administration's budget. Nevadans are hurting enough right now--they don't need this added burden. Under the Democrats' leadership, debt limit increases will become a regular occurrence. The debt subject to limit is projected to grow to $24.5 trillion by 2019. This vote accomplishes only one thing: passing the responsibility for paying for the massive spending to future generations. We need to do better than that--we need to think of our grandchildren's future when deciding how to vote. Democrats claim the massive spending this year was necessary because of the ``Republican recession,'' but the Democrats' wasteful spending this year does too little to create jobs. In fact, since President Obama's inauguration the private sector has lost 3.4 million jobs. And Nevada right now is going through an unprecedented economic downturn. Our unemployment rate just went up again to 13 percent, and that number doesn't account for those who have stopped looking for work. We have to stop this spending and start focusing on the real solution to the slow economy--jobs. Witin 5 years, Democratic policies will more than double the amount of debt held by the public at the end of fiscal year 2008 and will more than triple it by 2019, according to both OMB and CBO estimates. A single Obama term will add about as much new debt held by the public as all other Presidents in U.S. history combined. That statistic should be shocking to everyone, even to the current White House. And we should all remember that this debt is only one part of the crisis. The Federal Government has promised more than $70 trillion in entitlements that it cannot pay for. That is a staggering number. Between Medicare, Medicaid, Social Security, and other liabilities, each American household shoulders roughly $600,000 in IOUs. That is separate and apart from each household's share of the national debt. Keep in mind that this does not include health care reform. And where is all this borrowed money coming from? Well, almost half of it comes from foreign countries. China is our country's largest foreign creditor, holding roughly 10 percent of our Nation's debt. And like any loan that you or I would get at the local bank, the Chinese don't lend money for free. Federal interest payment on foreign-owned debt has nearly doubled since 2000. We are sending a whole lot of taxpayer money abroad. Today, I introduced a bill, the Commission for Fiscal Sustainability Act of 2010, to take an effective step toward a solution. This legislation would establish a commission with the goal of fiscal sustainability to guarantee the long-term fiscal strength and economic security of the United States. The legislation would require that the commission focus solely on recommendations to decrease Federal spending without the need for tax increases. Now we hear of a new proposal from the White House to freeze discretionary spending. I am hopeful that President Obama is sincere in his desire to freeze spending, but I find it very hard to believe that he will be able to contain the fiscally irresponsible Democratic majority which has yet to show restraint in this area. I don't like to sound pessimistic because this is the greatest country in the history of the world. And I truly believe that. And I believe that these challenges can be solved. But we must act. We must show leadership--fiscally conservative leadership and stop this out of control spending. American families have had to make tough choices to balance their budget. They understand that they cannot have it all. But we in Congress want to have it all--even when we can't pay for it. That is simply unsustainable.

Mr. ENSIGN

Mr. ENSIGN. I ask for the yeas and nays.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, it isn't very often that we encounter an angel walking among us. However, Ms. Ricki Chandrinos was most certainly that. She was a tireless advocate working on behalf of veterans in our community, and her commitment to them will not soon be forgotten. It wasn't until the love of her life, John Chandrinos, her husband of 35 years, began battling a terminal illness that she became passionately involved with the inner workings of the Veterans Affairs medical system. She muddled through the bureaucratic red tape to ensure that he received the care and benefits that he so richly deserved after defending the freedoms of our country for so many years. Tragically, her husband lost his battle, but her passion for America's heroes remained. After moving to Las Vegas, following the death of her husband, she found her calling late in life. Ricki became deeply involved with the veterans living within her neighborhood, Siena. It is estimated that she personally assisted about 500 of our Nation's most heroic citizens, but she undoubtedly touched more hearts than that during her lifetime. This extraordinary woman educated herself on VA policy in order to provide the best assistance to these men and women and went so far as to accompany many of them to the VA to ensure that they were served as thoroughly as possible. However, she knew that this wasn't enough for her and that she could serve these veterans even more. Ricki arranged for speakers from the VA, American Legion, Disabled American Veterans, State of Nevada, and others to address the members of the Siena Veterans Club. Ricki knew that she would not rest until she had served the needs of these veterans, and serve them she did. Ricki left this Earth for a place much better, but her time on Earth was heaven-sent for all those whose lives she touched. She began her advocacy by her husband's side, and she has finished this tireless crusade to be by his side once again.

Mr. ENSIGN

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

Mr. ENSIGN. Mr. President, I had the benefit last week of attending two different hearings on the attempted terrorist attack that took place on Christmas Day. The first was in the Homeland Security Committee and the second was in the Commerce Committee. One thing became clear: There is a definite disconnect in this administration about how to handle terrorists once they are captured. Over this last weekend, Osama bin Laden claimed responsibility for the foiled Christmas Day bomber terror attack. He has, once again, inserted himself into the national security dialog in the United States. I fear al-Qaida will have another opportunity to attack the United States because of the fumbling of intelligence information that could have been gathered on the Christmas Day bomber before his attempted attack and subsequently from this terrorist after he was captured. But this administration clearly dropped the ball. We know the Director of National Intelligence, Dennis Blair; FBI Director Mueller; National Counterterrorism Center Director Michael Leiter; and the Homeland Security Secretary, Janet Napolitano, were not consulted about the decision to read Abdulmutallab his Miranda rights and try him in civilian courts. We know that as soon as this terrorist was told of his right to remain silent, that is what he did. He stopped talking. It is unfathomable that these individuals were not even consulted before this hugely important decision was made. After the hearings conducted last week and interviews over the weekend, it appears it was ultimately the Attorney General who made the decision to read the Miranda rights and place Abdulmutallab in the civilian court system. However, there is a lot of ambiguity to show how this decision came to be made. Were there any deliberations or meetings that occurred prior to this decision? Was the President brought into this discussion? All these ambiguities need to be cleared up so we do not make the same mistakes again. As a member of one of the committees charged with oversight of homeland security, I will be asking for a written response from the administration on this issue. Additionally, because the heads of government agencies charged with making the decisions do not seem to be talking, I have joined with several of my Senate colleagues to cosponsor legislation authored by Senator Collins and Senator Lieberman, the distinguished ranking member and chairman of the Homeland Security Committee. This legislation would require the Attorney General to consult with the Director of National Intelligence, the Director of the National Counterterrorism Center, the Secretary of Homeland Security, and the Secretary of Defense prior to the initiation of giving any terrorist Miranda rights or the initiation of civilian criminal charges against a foreign person detained by the U.S. Government on suspicion of any terrorist activities. The legislation would also require, in the event of a disagreement amongst these folks on whether such action should be initiated in civilian criminal court, that the Attorney General not initiate such action unless specifically directed by the President. I ask my other Senate colleagues to join me in cosponsoring this vital legislation. A second thing we learned from last week's hearings was there is confusion about when the high-value interrogation group or the HIG should be convened to decide on whether to interrogate terrorists such as Abdulmutallab or to interview them with their lawyers present. Director of National Intelligence Dennis Blair told the Homeland Security Committee: This unit was created exactly for this purpose--to make a decision on whether a certain person who is detained should be treated as a case for Federal prosecution or for some other means. The intelligence chief said the interrogation group was created by the White House last year to handle overseas cases but will now be expanded for domestic cases. He said: We did not invoke the HIG in this case. We should have. Subsequently, we heard from the administration that this HIG unit isn't even up and running yet. My question is, How does the individual who is in charge of our intelligence infrastructure not know the policy and procedures for interrogating terrorists? Based on the testimony given last week, it would seem we do not have a fully integrated and comprehensive method for interrogating terrorists, whether they are captured abroad or here at home. The capture and subsequent handling of terrorist Abdulmutallab was bungled from the get-go. It is continuing to be bungled. A week ago, I signed a letter to President Obama with a number of my colleagues indicating that the decision to prosecute this terrorist in civilian court has resulted in a missed opportunity to collect timely intelligence. In order for the U.S. Government to fully understand where we failed on Christmas Day, it is imperative we examine the methods and means Abdulmutallab used to avoid detection. As many of my colleagues have pointed out, our ability to gather this information has been severely hampered by the decision to put this terrorist almost immediately into the civilian court system. He now has all the rights, protections, and privileges of American citizens. Make no mistake about it, this decision to try Abdulmutallab as a U.S. citizen, which he is not, as opposed to an enemy combatant will be a detrimental impact on our ability to learn more about this failed terrorist attack. Taking it a step further, this decision may very well weaken our national security. Last week, the Republican leader mentioned that a year ago the President, immediately after taking office, decided to revise the Nation's interrogation policies and to restrict the CIA's ability to question terrorists. This was done by Executive order. While questioning the Director of National Intelligence, I specifically asked if the Director believed the classified interrogation methods used previously by our own government were more effective than the current methods found in the Army Field Manual that is publicly available for the terrorist to train to. One statement the DNI, the Director of National Intelligence, made during the Q-and-A portion of the hearing particularly caught my attention. In response to a question from Senator Burris regarding al- Qaida's ability to exploit open source intelligence, Admiral Blair stated this--I am quoting, once again: [T]he public discussion of the specifics of the defensive measures we take are making it that much easier for people to evade our defenses and come in . . . I think they are just making the job of those who are working hard to try to defend us that much harder. It costs the taxpayer that much more money. And I wish people would just shut the hell up. That is what he said. So if keeping some of our airport security measures a secret makes it harder for terrorists to evade them, shouldn't that same logic also hold that keeping some of our interrogation measures classified also makes it harder for the terrorists to beat those interrogation techniques? But this administration does not seem to be on the same page. As I am sure you can imagine, those who wish to do us harm can simply train to the methods that are publicized in this public document. By limiting our intelligence community to only those techniques in the Army Field Manual, we have removed one important tool the intelligence community has to use against al-Qaida; that is, fear of the unknown. Terrorists now know exactly what our interrogation methods and limitations are, and based on that knowledge they can train and prepare themselves to successfully resist our interrogation efforts. I am also concerned that the administration may begin to bargain or propose a plea deal to this terrorist, Abdulmutallab, in order to obtain additional information. I believe this would set a very dangerous precedent for would-be terrorists in order to potentially have their jail time reduced. It is my understanding the policy of the United States is not to negotiate with terrorists. We should comprehensively and effectively interrogate terrorists to gain the information we need, not to negotiate with them for it. The only true way to gather this information is through an extensive interrogation of the terrorist by highly trained intelligence personnel. The definition of an ``extensive and comprehensive interrogation'' is not a 50-minute questioning while the terrorist is being prepped for surgery, as was the case with Abdulmutallab. Extensive interrogations are conducted over a sustained amount of time, with members of various government agencies included. They incorporate individuals from defense intelligence and have elements of uncertainty and surprise. This means those conducting the interrogations are not limited to a set of interrogations which the terrorist has trained against. In short, a proper and extensive interrogation should not solely consist of the interrogation methods listed in the Army Field Manual. We have in our custody an individual who has been trained by al- Qaida. He has met with some of its most senior leaders and has not been properly and comprehensively interrogated. How is this possible? He could give us information on the al-Qaida command-and-control structure. It is possible he could give us information on funding mechanisms, ongoing operations, safe houses, personnel and leadership profiles, al-Qaida's governmental connections in Yemen and maybe other Middle East nations, and what the enemy views as weaknesses in our airport security. What happens if, say, new information comes to light; say, Osama bin Laden releases a new tape like he just did, or if we intercept some communication coming out of Yemen? As it stands now, we have lost the ability to interrogate Abdulmutallab on those issues. Over the weekend, we heard a preposterous statement from the President's spokesman when he said the FBI got all the information they could get out of him. That is a preposterous statement. I do not believe that to be the case, and I do not believe most Nevadans or other Americans believe it either. It is for these reasons we must transfer Umar Farouk Abdulmutallab to the military and remove the Executive order restrictions that requires our intelligence community to follow only the Army Field Manual when interrogating a terrorist. It is in the best interests of the security of the United States to do so. Mr. President, I yield the floor.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I really hoped that this day would not come. I am not the only one. The American public is not behind the bill that we voted on. For good reason. I fear that when this effort is written about in history books, it will represent a time when our Nation took a turn for the worse--when we were presented with two paths, but the wrong path was chosen. There is a term that originated with television critics called ``jumping the shark.'' It refers to a plot or character twist that pretty much throws off the balance of the show. The show is never the same and usually heads downhill after that. I believe that this health care bill will be seen as the moment the Democrats jumped the shark for our country. There have been many pieces of bad legislation leading up to this-- obscene amounts of taxpayer money being used to grow the government like never before. But this bill, this health care reform bill, may be the pinnacle vote when the Democratic agenda did itself in. I don't deny that the motives of my colleagues on the other side of the aisle are genuine. We all want to improve access to health insurance for Americans, but this is not the way to do it. And the American public sees that. They see it, and they are frustrated that the majority in Congress is ignoring their pleas. Over the past several months, I have talked to tens of thousands of Nevadans about this bill. Nevadans have told me loud and clear that this is not the cure for our broken health care system. I have heard from small business owners, like Boyd Betteridge, in Winnemucca, NV. Boyd and his wife have worked hard to build a small business over the past 15 years. They employ about 25 employees and fear that if this bill passes, they will have no choice but to fire employees or even close shop. Boyd says that government regulation makes it harder for him to survive. He is frustrated and upset that politicians in Washington, DC, don't feel the pain of the small business owners working hard to make ends meet and to create jobs. Boyd serves his community--he sits on the school board, he is part of the engine of our economy, and he is in real pain. This health care bill doesn't help Boyd Betteridge. And it doesn't help Dan Grigsby. He is the controller at Renner Equipment Company in Yerington, NV. Dan works for a company that employs about 25 to 30 people. The owners have committed over the years to provide health insurance to their employees. Because costs have increased, they have taken advantage of health savings accounts as a way of providing for their employees in a more cost-effective way. Health savings accounts have been very well received at Renner Equipment in Yerington and at similar businesses around the country. They help patients become consumers in the health care marketplace. That is an important step in reducing health care costs. Unfortunately, it appears that the minimum benefit standards in the bill before us today could take away the ability of Americans like Dan Grisby to keep an HSA. Prohibiting the use of HSA funds to purchase over-the-counter medications will further limit the options that employers have to provide meaningful health care to their employees. And it sure doesn't help the more than 100,000 Nevada seniors who choose a Medicare Advantage plan. Their extra benefits will be reduced by more than half. While we are at it, this bill doesn't help the typical Nevada family who purchases health insurance in the individual market. Their premiums will go up 10 to 13 percent. This bill doesn't help middle-income union workers in Nevada either. Our hard-working hotel maids, casino restaurant workers, airline workers, teachers, and police officers will share the burden of the $200 billion tax on health insurance holders. This bill doesn't help the hospice community--they face about a $7.7 billion cut in payments. Many of the hospices in Nevada--including the one where my grandmother received care--may not be able to survive these reimbursement cuts. In another hit for an integral part of our health care system, the home health community will see cuts of approximately $40 billion in this bill. For Nevada home health providers, that means about $264 million in cuts over 10 years, according to some estimates. This bill surely doesn't help them. So, let's see. So far, this bill doesn't help small business owners, Americans with health savings accounts, families purchasing health insurance, union workers, seniors, hospices, or home health. If you aren't in one of these groups, don't breathe a sigh of relief just yet. Fifteen million American workers will pay for new taxes and ``penalties'' with reduced wages and lost jobs. And then there are taxes on prescription drugs, clinical lab work, and medical devices-- all passed on to consumers. An over 2,700-page bill full of new taxes on Americans, funding cuts for programs they rely on, and raised premiums. That is why the Nevadans are not behind this bill, and that is why the American public is not behind this bill. Beyond the financial impact of this bill, Democrats set a dangerous precedent by requiring every American citizen to purchase health insurance coverage. Americans who fail to buy health insurance that meets the minimum requirements would be subject to financial penalties. Is it really constitutional for this body to tell all Americans that they must buy health insurance coverage? And, if so what is next? What personal liberty or property will the Congress seek to take away from Americans next? Will we consider legislation in the future requiring every American to buy a car? Will we consider legislation in the future requiring every American to buy a house? Where do we draw the line or will we even draw one at all? I don't think Congress has ever required Americans to buy a product or service like health insurance under penalty of law. I doubt that Congress has that power in the first place. As the CBO explained in the 1990s, ``A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.'' There is no doubt that we need to change health care in this Nation. Americans don't want billions in new taxes, they don't want to lose their current insurance coverage or the choice to decide their coverage, and they don't want a bureaucrat coming between them and their doctor. This vote isn't about voting for this bill or doing nothing. We can go back to the drawing board, take the best ideas from each side, and put together health reform that will take us into the future. Republicans have come up with many ideas on ways to fix our Nation's broken health care system. The answer is not with unbearable taxes, unsustainable growth of the government, or paying for a brand new entitlement program. Those aren't the qualities of comprehensive health care reform. They are the qualities of terrible policy that will lead to devastating results for Americans and our health care system. There is a better way. It will take time, but if we can change the way that Americans think about health care, than we can create a better system. Imagine a system where Americans get to keep their choices in health care and where they are allowed to buy insurance across State lines. Imagine a system where there is transparency--where you know how much a doctor's visit will cost and how much your surgery will be--where you can shop around for the best value for your money. Imagine a system that rewards individuals for engaging in healthy behaviors. Imagine a system where you are not punished for having a preexisting condition. Imagine a system that allows small businesses to pool their purchasing power to provide health insurance to their employees through Small business health plans. Imagine a system where doctors can practice medicine to heal patients instead of practicing medicine with the goal of not being sued. And imagine a patient-centered health care system, not an insurance-centered or government-centered health care system. These are all standards that we should work toward. We shouldn't assume that this bill before us is our last, best option for health care reform. We can't afford to settle for this bill. The Democrats see how close they are with this bill, and they want a victory so badly. They are working every possible angle to get the 60 votes they need. They have literally given sweetheart deals to a few just to get their votes. They think this is the political victory that is going to help them win over the American people. Ant they are borrowing trillions of dollars from our children and grandchildren to get the job done--and that is just with this health care bill. We simply cannot survive the Democratic agenda of taxing and spending away our future. We can't survive it, and we can't afford it.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, in a little while, I will be making a constitutional point of order against the substitute amendment. I won't make that now because we are working on an agreement on when we can have that vote. I want to start talking about the reason I believe this substitute amendment is unconstitutional--the individual mandate contained in it. I will be speaking for about 10 minutes now, and then I will resume my remarks at 9:30, after one of the Democrats comes down and uses their 15 minutes. If this constitutional point of order is rejected and the health care reform bill is passed, I believe the Court should reject it on constitutional grounds. Some of my colleagues may not be aware of the Finance Committee's debate on the constitutionality of this health care reform bill. During the committee markup of its version of the bill, Senator Hatch raised some thought-provoking constitutional questions. He offered an amendment, which I supported, to provide a process for the courts to promptly consider any constitutional challenge to the Finance Committee bill. He chose the same language that was put into the bipartisan Campaign Reform Act. Unfortunately, the amendment was deemed nongermane. I am seriously concerned that the Democrats' health care reform bill violates the Constitution of these United States. As part of comprehensive health care reform, the Democrats would require every single American citizen to purchase health insurance. Americans who fail to buy health insurance that meets the minimum requirements would be subject to a financial penalty. This provision can be found in section 1501 of the Democrats' health care reform bill. It is called the ``requirement to maintain minimal essential coverage.'' While this is a constitutional point of order, I feel it is important to note that in the Declaration of Independence, America's Founding Fathers provided that: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. What happened to life, liberty, and the pursuit of happiness? I guess Americans can only have them if they comply with this new bill and buy a bronze, silver, gold, or platinum health insurance program. America's Founders and subsequent generations fought dearly for the freedoms we have today. I question the appropriateness of this bill and specifically the constitutionality of this individual mandate. Is it really constitutional for this body to tell all Americans they must buy health insurance coverage? If so, what is next? What personal liberty or property will Congress seek to take away from Americans next? Will we consider legislation in the future requiring every American to buy a car, to buy a house, or to do something else the Federal Government wants? My friend and colleague, Senator Hatch, raised similar questions during the debate in the Finance Committee. In fact, he raised the following question: If we have the power simply to order Americans to buy certain products, why did we need a cash for clunkers program, or the upcoming program providing rebates for purchasing energy efficient appliances? We can simply require Americans to buy certain cars, dishwashers, or refrigerators. Where do we draw the line? Will we even draw one at all? The Constitution draws that line. It is called the enumerated powers. I don't think Congress has ever required Americans to buy a product or service, such as health insurance, under penalty of law. I doubt Congress has the power to do that in the first place. As the CBO explained during the 1990s: A mandate requiring all individuals to purchase health insurance would be an unprecedented form of Federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. Yet that is exactly what this health care bill would do. This bill would require Americans to buy a product many of them do not want or simply cannot afford. Some individuals have raised the example of car insurance in the context of this debate. But requiring someone to have car insurance for the privilege of being able to drive is much different from requiring someone to have health insurance. As Senator Hatch pointed out, people who do not drive do not have to buy car insurance. Senator Hatch is right. If you live in New York City, you probably rely on subways or some other form of mass transit. You probably do not own a car, so you have no reason to buy car insurance and you are not forced to do so. Yet this health care reform bill requires Americans to buy health insurance whether or not they ever visit a doctor, get a prescription, or have an operation. Under this bill, if you do not buy health insurance coverage, you will be subject to a penalty. Let's call this penalty what it really is--a tax. Even worse, this penalty operates more like a taking than an ordinary tax. If an American chooses not to buy minimal essential health coverage, he or she will face rapidly increasing taxes--up to $750 or 2 percent of taxable income, whichever is greater, by the year 2016. There is no penalty for Americans who qualify for hardship or religious exemptions. There is also no penalty for illegal immigrants or prisoners. Americans typically pay taxes on a product or service they buy or on income they earn. For example, if you fill up your car at the pump, you pay a gas tax. If you earn income, you pay an income tax. Yet this bill creates a new tax on Americans who choose not to buy a service. It is very counterintuitive. This bill taxes Americans for not doing anything at all, other than just existing. This penalty is assessed through the Internal Revenue Code. Senator Hatch made the following statement: If this is a tax at all, it is certainly not an excise tax. Instead, it is a direct tax. While the Constitution requires that excise taxes must be uniform throughout the United States, it requires that direct taxes must be apportioned among the States by population. Just as the excise tax on high premiums is not uniform, this direct tax on individuals who do not purchase health insurance is not apportioned. I recognize that the authors of this health reform bill included an individual mandate in this bill based on the idea that health care costs would be spread among all Americans and would ultimately reduce their health insurance costs. The claim is, insurance costs will be lowered because cost shifting will be reduced. This cost shift arguably takes place because health care providers--doctors and hospitals--who provide free or uncompensated care to the uninsured, shift the cost to the insured or paying patients. The hospital or doctor then shifts the cost of that unpaid care to the insured patient in the form of higher charges in order to cover the cost of uninsured patients. I understand this concept, but I am incredibly concerned that the individual mandate provision takes away too much freedom and choice from Nevadans and from Americans across the country. I have read and studied multiple articles by scholars on the constitutionality of the individual mandate. I believe the individual mandate provision in this health care reform bill calls into question several provisions of the Constitution. I think the Congress does not have the authority, under the enumerated powers, to enact such a mandate. I know the supporters of the individual mandate have claimed the commerce clause and the taxes and general welfare clause in article I, section 8 of the Constitution provide authority for Congress to enact such a mandate. I wholeheartedly disagree with that assessment. According to the Constitution, the Federal Government only has limited powers. Although the Supreme Court has upheld some far-reaching regulations of economic activity--most notably in Wickard v. Filburn and Gonzales v. Raich--neither case supports enacting the independent health insurance mandate based on the commerce clause. In these cases, the court held that Congress was allowed to regulate intrastate economic activity as a means to regulate interstate commerce in fungible goods. The mandate to purchase health insurance, however, is not proposed as a means to regulate interstate commerce, nor does it regulate or prohibit activity in either the health insurance or the health care industry. The mandate to purchase health insurance does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. Instead, the individual mandate provision regulates no action. It purports to regulate inactivity by converting the inactivity of not buying insurance into commercial activity. In effect, advocates of the individual mandate contend that under congressional power to ``regulate commerce . . . among the several states'' Congress may reach the doing of nothing at all. In recent years, the Supreme Court has invalidated two congressional statutes that attempted to regulate noneconomic activities. To uphold the individual mandate based on the commerce clause, the Supreme Court would have to concede that the commerce clause provides unlimited authority to regulate. This is a position that the Supreme Court has never affirmed and that it rejected in recent cases. Congress lacks the authority to regulate the individual's decision not to purchase a service or enter into a contract. Similarly, Congress cannot rely on its power to tax to justify imposing the individual mandate. In addition to being beyond the scope of Congress' enumerated powers, this individual mandate also amounts to a taking under the fifth amendment takings clause. I would like to take a moment to read the relevant parts of the fifth amendment. It says in part: No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Let me repeat the part of the fifth amendment that applies to the issue at hand. It says: . . . nor shall private property be taken for public use, without just compensation. The bill before us today would require an American citizen to devote a portion of income--his or her private property--to health insurance coverage. There is an exception, of course, for religious reasons and for financial hardships. If one of my constituents in Nevada does not want to spend his or her hard-earned income on health insurance coverage and would prefer to spend it on something else, such as rent or a car payment, this requirement could be a taking of private property under the fifth amendment. As noted in a recent article coauthored by Dennis Smith and the former Deputy General Counsel of the Department of Health and Human Services, Peter Urbanowicz, requiring a citizen to purchase health insurance ``could be considered an arbitrary and capricious `taking' no matter how many hardship exemptions the federal government might dispense.'' Some of my colleagues may also be familiar with David B. Rivkin and Lee A. Casey. They are attorneys, based in Washington, DC, who served in the Department of Justice during the Reagan and Bush administrations. In September, Rivkin and Casey published an op-ed in the Wall Street Journal entitled: ``Mandatory Insurance is Unconstitutional.'' I urge my colleagues to read this article and many others I will be submitting for the Record. Mr. President, I ask unanimous consent to have printed in the Record at the conclusion of my remarks this Wall Street Journal by David B. Rivkin, Jr., and Lee A. Casey.

Mr. ENSIGN. In the op-ed, Rivkin and Casey argue that the health insurance mandate: . . . would expand the federal government's authority over individual Americans to an unprecedented degree. It is also profoundly unconstitutional. Continuing the quote: Making healthy young adults pay billions of dollars in premiums into the national health-care market is the only way to fund universal coverage without raising substantial new taxes. In effect, this mandate would be one more giant, cross- generational subsidy--imposed on generations who are already stuck with the bill for the federal government's prior spending sprees. A ``tax'' that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority. If the rule were otherwise, Congress could evade all constitutional limits by ``taxing'' anyone who doesn't follow an order of any kind. As the fourth Chief Justice of the Supreme Court, John Marshall, stated: The power to tax involves the power to destroy. Unfortunately, this could certainly be true in the context of this health bill. We in Congress must zealously defend our citizens' rights and prevent this from happening. I believe the legislation before us violates the greatest political document in the history of the world, the Constitution of the United States. I urge my colleagues to think very carefully about the constitutional issues I have raised. I know most people around here do not like to talk about whether something is constitutional. We just want to do what feels good because we think we are helping people. But our Founders set forth in the enumerated powers limits on what this body and this Federal Government could do. As Members of Congress, one of our most important responsibilities is to protect, to defend, and preserve the Constitution of the United States. In that light, it is not only appropriate but essential for this body to question whether it is constitutional for the Federal Government to require Americans to buy health insurance coverage. We should also question whether it is constitutional for the Federal Government to tell Americans what kind of health insurance coverage they have to purchase. So not only does this bill tell them they have to buy health insurance, it tells Americans what kind of health insurance must be purchased. Americans also deserve to know how the bill will impact their ability to choose the health insurance coverage that best fits their needs. That is exactly why I will raise this constitutional point of order. Freedom and choice are very precious rights. Let's not bury our heads in the sand and take away freedom and choice from American citizens. We need to think about this individual mandate very carefully. I have several articles, and I would like to read a couple of quotes from these articles. The first one is from the Washington Post. The article is entitled, ``Illegal Health Reform.'' It is written by David Rivkin and Lee A. Casey. It says: The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the ``production, distribution or consumption of commodities,'' but for no other reason than people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states. Mr. President, to read further from the article in the Washington Post: Like the commerce power, the power to tax is the Federal Government's vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a ``tax'' to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court's interpretation of the commerce power's breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power. Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous--and therefore unlikely--scenario, advocates of universal health coverage must accept Congress' power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people. I want to read from another article that was written by Randy Barnett, Nathaniel Stewart, and Todd Gaziano. This article is entitled, ``Why the Personal Mandate to Buy Health Insurance is Unprecedented and Unconstitutional.'' Members of Congress have the responsibility, pursuant to their oath, to determine the constitutionality of legislation independently of how the Supreme Court has ruled or may rule in the future. But Senators and Representatives also should know that, despite what they have been told, the health insurance mandate is highly vulnerable to challenge because it is, in truth, unconstitutional. And all other considerations aside, the highest obligation of each Member of Congress is fidelity to the Constitution. I ask unanimous consent to have printed in the Record, following my remarks, the articles I have before me.

Mr. ENSIGN. Continuing to quote, Mr. President, from the Barnett, Stewart, and Gaziano article: A long line of Supreme Court cases establishes that Congress may regulate three categories of activity pursuant to the commerce power. These categories were first summarized in Perez v. United States, and most recently reaffirmed in Gonzalez v. Raich. First, Congress may regulate the channels of interstate or foreign commerce such as the regulation of steamship, railroad, highway or aircraft transportation or prevent them from being misused, as, for example, the shipment of stolen goods or of persons who have been kidnapped. Second, the commerce power extends to protecting ``the instrumentalities of interstate commerce,'' as, for example, the destruction of an aircraft, or persons or things in commerce, as, for example, thefts from interstate shipments. Third, Congress may regulate economic activities that ``substantially affect interstate commerce.'' Under the first prong of its Commerce Clause analysis, the Court asks whether the class of activities regulated by the statute falls within one or more of these categories. Since an individual health insurance mandate is not even arguably a regulation of a channel or instrumentality of interstate commerce, it must either fit in the third category or none at all. . . . The Senate bill asserts (erroneously) that: ``[t]he individual responsibility requirement . . . is commercial and economic in nature, and substantially affects interstate commerce. . . . The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.'' That is within the bill. Continuing to quote: The second prong of the Court's Commerce Clause analysis requires a determination that a petitioner has in fact engaged in the regulated activity, making him or her a member of the regulated class. In its modern Commerce Clause cases, the Supreme Court rejects the argument that a petitioner's own conduct or participation in the activity is, by itself, either too local or too trivial to have a substantial effect on interstate commerce. Rather, the Court has made clear that, ``where the class of activities is regulated and that class is within the reach of federal power, the courts have no powers `to excise, as trivial, individual instances' of the class.'' Thus, for example, a potential challenger of the proposed mandate could not argue that because her own decision not to purchase the required insurance would have little or no effect on the broader market, the regulation could not be constitutionally applied to her. The Court will consider the effect of the relevant ``class of activity,'' not that of any individual member of the class. To assess the constitutionality of a claim of power under the Commerce Clause, the primary question becomes, ``what class of activity is Congress seeking to regulate?'' Only when this question is answered can the Court assess whether that class of activity substantially affects interstate commerce. Significantly, the mandate imposed by the pending bills does not regulate or prohibit the economic activity of providing or administering health insurance. Nor does it regulate or prohibit the economic activity of providing health care, whether by doctors, hospitals, pharmaceutical companies, or other entities engaged in the business of providing a medical good or service. Indeed, the health care mandate does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. To the contrary, it purports to ``regulate'' inactivity. In other words, not buying health insurance. Continuing once again: Proponents of the individual mandate are contending that, under its power to ``regulate commerce . . . among the several states,'' Congress may regulate the doing of nothing at all! In other words, the statute purports to convert inactivity into a class of activity. By its own plain terms, the individual mandate provision regulates the absence of action. To uphold this power under its existing doctrine, the Court must conclude that an individual's failure to enter into a contract for health insurance is an activity that is ``economic'' in nature--that is, it is part of a ``class of activity'' that ``substantially affects interstate commerce.'' Never in this Nation's history has the commerce power been used to require a person who does nothing to engage in economic activity. Let me repeat that. ``Never in this Nation's history has the commerce power been used to require a person who does nothing to engage in economic activity.'' Let me close with this because I see the senior Senator from Utah is on the Senate floor, and he has argued eloquently on the unconstitutionality of this particular provision. Again, I am quoting: Today, even voting is not constitutionally mandated. But if this precedent is established-- That is the precedent in this bill is established-- Congress would have the unlimited power to regulate, prohibit, or mandate any or all activities in the United States. Such a doctrine would abolish any limit on federal power and alter the fundamental relationship of the national government to the states and the people. For this reason it is highly doubtful that the Supreme Court will uphold this assertion of power. Mr. President, I reserve the remainder of my time, and I yield to the senior Senator from Utah. Exhibit 1 [From the Wall Street Journal, Sept. 18, 2009] Mandatory Insurance Is Unconstitutional (By David B. Rivkin, Jr. and Lee A. Casey) Federal legislation requiring that every American have health insurance is part of all the major health-care reform plans now being considered in Washington. Such a mandate, however, would expand the federal government's authority over individual Americans to an unprecedented degree. It is also profoundly unconstitutional. An individual mandate has been a hardy perennial of health- care reform proposals since HillaryCare in the early 1990s. President Barack Obama defended its merits before Congress last week, claiming that uninsured people still use medical services and impose the costs on everyone else. But the reality is far different. Certainly some uninsured use emergency rooms in lieu of primary care physicians, but the majority are young people who forgo insurance precisely because they do not expect to need much medical care. When they do, these uninsured pay full freight, often at premium rates, thereby actually subsidizing insured Americans. The mandate's real justifications are far more cynical and political. Making healthy young adults pay billions of dollars in premiums into the national health-care market is the only way to fund universal coverage without raising substantial new taxes. In effect, this mandate would be one more giant, cross-generational subsidy--imposed on generations who are already stuck with the bill for the federal government's prior spending sprees. Politically, of course, the mandate is essential to winning insurance industry support for the legislation and acceptance of heavy federal regulations. Millions of new customers will be driven into insurance-company arms. Moreover, without the mandate, the entire thrust of the new regulatory scheme-- requiring insurance companies to cover pre-existing conditions and to accept standardized premiums--would produce dysfunctional consequences. It would make little sense for anyone, young or old, to buy insurance before he actually got sick. Such a socialization of costs also happens to be an essential step toward the single payer, national health system, still stridently supported by large parts of the president's base. The elephant in the room is the Constitution. As every civics class once taught, the federal government is a government of limited, enumerated powers, with the states retaining broad regulatory authority. As James Madison explained in the Federalist Papers: ``[I]n the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects.'' Congress, in other words, cannot regulate simply because it sees a problem to be fixed. Federal law must be grounded in one of the specific grants of authority found in the Constitution. These are mostly found in Article I, Section 8, which among other things gives Congress the power to tax, borrow and spend money, raise and support armies, declare war, establish post offices and regulate commerce. It is the authority to regulate foreign and interstate commerce that--in one way or another--supports most of the elaborate federal regulatory system. If the federal government has any right to reform, revise or remake the American health-care system, it must be found in this all-important provision. This is especially true of any mandate that every American obtain health-care insurance or face a penalty. The Supreme Court construes the commerce power broadly. In the most recent Commerce Clause case, Gonzales v. Raich (2005), the court ruled that Congress can even regulate the cultivation of marijuana for personal use so long as there is a rational basis to believe that such ``activities, taken in the aggregate, substantially affect interstate commerce.'' But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not ``regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity.'' Of course, a health-care mandate would not regulate any ``activity,'' such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it. Health-care backers understand this and--like Lewis Carroll's Red Queen insisting that some hills are valleys-- have framed the mandate as a ``tax'' rather than a regulation. Under Sen. Max Baucus's (D., Mont.) most recent plan, people who do not maintain health insurance for themselves and their families would be forced to pay an ``excise tax'' of up to $1,500 per year--roughly comparable to the cost of insurance coverage under the new plan. But Congress cannot so simply avoid the constitutional limits on its power. Taxation can favor one industry or course of action over another, but a ``tax'' that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority. If the rule were otherwise, Congress could evade all constitutional limits by ``taxing'' anyone who doesn't follow an order of any kind--whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables. This type of congressional trickery is bad for our democracy and has implications far beyond the health-care debate. The Constitution's Framers divided power between the federal government and states--just as they did among the three federal branches of government--for a reason. They viewed these structural limitations on governmental power as the most reliable means of protecting individual liberty-- more important even than the Bill of Rights. Yet if that imperative is insufficient to prompt reconsideration of the mandate (and the approach to reform it supports), then the inevitable judicial challenges should. Since the 1930s, the Supreme Court has been reluctant to invalidate ``regulatory'' taxes. However, a tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress's constitutional power will present the question whether there are any limits on Congress's power to regulate individual Americans. The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care. Exhibit 2 [From the Washington Post, Aug. 22, 2009] Illegal Health Reform (By David B. Rivkin, Jr. and Lee A. Casey) President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president's proposals. Consider one element known as the ``individual mandate,'' which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance? In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it. Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach. The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that--as in the wheat case-- ``the activities regulated by the [Controlled Substances Act] are quintessentially economic.'' That simply would not be true with regard to an individual health insurance mandate. The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the ``production, distribution or consumption of commodities,'' but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states. This leaves mandate supporters with few palatable options. Congress could attempt to condition some federal benefit on the acquisition of insurance. States, for example, usually condition issuance of a car registration on proof of automobile insurance, or on a sizable payment into an uninsured motorist fund. Even this, however, cannot achieve universal health coverage. No federal program or entitlement applies to the entire population, and it is difficult to conceive of a ``benefit'' that some part of the population would not choose to eschew. The other obvious alternative is to use Congress's power to tax and spend. In an effort, perhaps, to anchor this mandate in that power, the Senate version of the individual mandate envisions that failure to comply would be met with a penalty, to be collected by the IRS. This arrangement, however, is not constitutional either. Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a ``tax'' to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court's interpretation of the commerce power's breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power. Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous--and therefore unlikely--scenario, advocates of universal health coverage must accept that Congress's power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.

Mr. ENSIGN. Mr. President, I know we are waiting for the chairman of the Finance Committee to come. I ask unanimous consent to speak in the meantime, in these few seconds. I thank the senior Senator from Utah. He is one of the best constitutional scholars we have here in the Senate. I appreciate his words and analysis on why this bill is unconstitutional. I think his words this morning were eloquent. I appreciate his support as I raise this constitutional point of order. I yield to the Senator from Montana, the chairman of the Finance Committee.

Mr. ENSIGN. Mr. President, I rise to make a constitutional point of order against this bill on the grounds that it violates Congress' enumerated powers in article I, section 8 and that it violates the fifth amendment of the Constitution. I ask for the yeas and nays.

Mr. ENSIGN. Mr. President, I suggest the absence of a quorum.

Mr. ENSIGN

Mr. ENSIGN. Madam President, let me just summarize a few problems I see in the bill, and maybe even offer a few suggestions about what I think we can do in a bipartisan fashion--kind of this step-by-step approach many of us have been talking about--instead of this massive government takeover of our health care system. This is a--I have lost track--I think somewhere around a 2,700-page bill with incredibly complex legal language. In the 400-page amendment offered the other day, when I was sitting there listening to the reading of it, I can't tell my colleagues how many times I was listening to this and I thought: When the regulations are written to that particular small part of the amendment, it could be incredibly complex with all kinds of unintended consequences. I thought about the burdens on small business and the record keeping that small businesses are going to have in this bill. I think what is going to also happen with small business, there is going to be a great incentive--if you are a small business owner, the complexities are so much and you can get yourself in so much trouble, you know what, I am just going to pay the fine. I will write a check to each one of my employees, but I am getting out of the health care business. I am going to let them go out and find their own health care, whether through the government exchanges or whatever it is, but I am getting out. That is one of those unintended consequences that a lot of people haven't focused on. We talked a lot about this $500 billion-plus cut in Medicare. My colleague from North Carolina mentioned that. Some of the biggest places--I had two grandmothers who were in hospice. Hospice care is the most compassionate care we have today, and we are going to cut hospice care. That actually puts dignity back into dying. That is just unconscionable. The Congressional Budget Office says these cuts actually will be cuts in service because you can't just take money out of the system unless you make them more efficient. These cuts don't make the system more efficient, they just take money out of the system, whether it is out of hospice or nursing homes or the home care, but also out of Medicare cuts. We know there is $120 billion in cuts to Medicare Advantage. The Congressional Budget Office said by 2016, 64 percent of the extra benefits, whether those are prescription drugs or dental coverage or vision coverage, the seniors covered under Medicare Advantage are going to be cut 64 percent because of this legislation. We also know there is around $500 billion in new taxes, and this is a complete violation of the President's promise during the campaign when he said not one dime in new taxes will be raised on those individuals making less than $200,000 or families making less than $250,000. Yet in this bill, of the $500 billion, 84 percent is paid by those people the President said wouldn't have their taxes raised by one dime. We also know, because the Senator from North Carolina talked about it, this massive Medicaid expansion--I think it was the Democratic Governor from Tennessee who said it was the mother of all unfunded mandates. Well, we have to look at this one way. If the sweetheart deal that was made by the Senator from Nebraska--and, by the way, I agree with you. Senator Johanns, who came to the floor, it takes a lot of courage to say it isn't about just helping my State; it is about thinking about the whole country as well. He isn't asking for something--which most Senators do around here, ask for something just special for the State that the rest of the States have to pay for--but he stood up with courage, and I think he deserves a lot of credit for that. But if all the other States now come back and say: We want the Federal Government to pay for our States and Medicaid, this bill is going to do one thing. It is either going to be a massive unfunded mandate on our States or this bill is going to massively balloon the Federal debt.

Mr. ENSIGN. I think the Senator from Oklahoma has made a wonderful point. Right now, my State is suffering terribly, not because of anything individually, such as we didn't get our fair share of something; my State is suffering because the whole economy is in the doldrums and because we are such a tourist economy, construction oriented, the housing industry, all of those things, and because the general economy went down, my State is suffering. So the Senator is exactly right. We should be looking at what is best for the entire country. As John F. Kennedy said: A rising tide raises all boats. Well, if the whole country is doing better, whether it is on health care or whatever it is, instead of looking for something individual for our States, you are exactly right. I think our individual States will do better if the whole country does well.