Chuck Grassley

Mr. GRASSLEY

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 President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I addressed the Senate recently on President Obama's recess appointments, and he did this when the Senate was not in fact in recess. I described at length why this was an outrageous and unconstitutional power grab. However, President Obama's decision to bypass the constitutional advice and consent of the Senate is not an isolated incident by the President. It is merely the latest escalation in a pattern of contempt for elected representatives of the American people and the constitutional separation of powers. This pattern has become more apparent since the last election when public opinion turned against the direction that President Obama was trying to take the country. When the President's party in 2009 and 2010 had an overwhelming control of both Houses of Congress, he was able to pursue his agenda with only the slightest of lip service to the objections from congressional Republicans because we were very much in the minority, and, of course, we believe we were representing millions of Americans whose views were in opposition to President Obama's views. In 2009 and 2010, President Obama could in fact govern more like a Prime Minister in a European parliament, where the leader of the party in power dictates the policy to be rubberstamped by that parliament. Since the 2010 election, that is no longer the case. There was a tremendous voter backlash against both the style and substance of the President's agenda. A groundswell of Americans became convinced their government was out of touch, and they demanded to be heard. The President's party in the Senate is now well below the supermajority necessary to pass legislation without consulting the minority party, and that is the way it was intended for the Senate to work. Moreover, there is now a new majority in the House of Representatives trying to chart a new course based on the concerns that so many voters expressed in the last election. Rather than accept the message of the 2010 election and the fact he is faced with a Congress that is no longer a rubberstamp, the President has decided that he does not need Congress at all. Imagine that. In fact, he has even said so. In October, upset that Congress would not pass his latest stimulus bill exactly as he had proposed, the President launched a media campaign around the tag line, ``We can't wait for Congress.'' Under this banner he has announced executive actions for everything from mortgage and student loans, summer jobs for youth, and new fuel economy standards. A President being frustrated with Congress is nothing new. We all know that from history. What is more remarkable is the notion that the President, however, can act independently of Congress. ``Where they won't act, I will,'' the President has said. Article I, section 1 of the Constitution of the United States says: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Having had their rights violated by King George, our Founding Fathers intentionally put the power to make laws in the branch of government that is most directly related and accountable to the citizenry of this country. Under our Constitution, the President's role is not to make policy unilaterally but, to quote the Constitution, ``take care that the laws are faithfully executed.'' Some might say the whole ``we can't wait'' campaign is just harmless political rhetoric. It would be bad enough if the President were just kidding when he implies that he is usurping legislative power, the legislative power vested in the duly elected representatives of the citizens of the 50 States. However, after his latest power grab, there can be no doubt that President Obama is dead serious. It is not just political rhetoric. This disregard for the constitutional role of Congress did not start with President Obama's ``we can't wait for Congress'' campaign. An earlier indicator of actions to come was his controversial appointment of several new so-called czars. The President is well within his rights to choose advisers. We all agree to that. That is in the past just what these positions now termed ``czars'' are supposed to be, just advisers. However, it became clear that many of President Obama's new high-level czars--such as the climate czar, for instance--were involved in crafting regulations and other roles normally reserved for Senate- confirmed officials. Why? Because then they could be called to the Senate committees to respond and have us operate a proper oversight function. Another example of President Obama's disregard for Congress is his administration's unilateral pursuit of climate change regulations. The House and Senate have considered various proposals to regulate greenhouse gas emissions, but these have proved very controversial and very harmful to the economy. When the climate legislation backed by President Obama could not achieve sufficient support to pass Congress, the administration announced that it would go ahead anyway. While a Supreme Court ruling opened the door to that possibility, the fact that Congress specifically did not authorize such regulations should have given the President pause. In a similar move, when the DREAM Act as currently written was unable to secure sufficient support in Congress to pass, an Immigration and Customs memorandum appeared calling for immigration laws to be enforced so as to bring about the same ends as the legislation that could not pass Congress. Congress also rejected the card check bill supported by President Obama to eliminate secret ballot elections for union members. Sure enough, the National Labor Relations Board proposed a rule providing for snap elections, which would achieve the same goals, thus giving union leaders an upper hand in union elections. The President's ``Race to the Top'' education program is another significant overreach. Congress bears responsibility for writing a $5 billion check to the Secretary of Education in the first stimulus bill with minimal guidelines attached. However, the administration blew past even those broad guidelines to implement an unprecedented Federal intervention into State education policy. The resulting program offered the possibility of big grants to cash-strapped States provided they first changed State laws to implement specific policies favored by the Secretary of Education. Most States, such as Iowa, implemented the Secretary's preferred policies and applied for the funds yet never saw a dime in return for changing out State laws. In a similar move, the President announced he would grant waivers to States for relief from the requirements of the No Child Left Behind Act. The catch is that States will have to adopt key components of his education reform agenda in order to get such a waiver. This is despite the fact that Congress is currently considering legislation to update the Federal education policy and may not adopt all aspects of the President's proposal. Moreover, current law allows for waiving existing requirements on a case-by-case basis but does not authorize the administration to add new requirements in return. So far during my remarks I have mostly focused on areas where the President has acted without authority from Congress. On the other hand, when Congress has passed legislation the President has not entirely agreed with, he has announced while signing them into law that he will not implement the parts he does not like. During the 2008 campaign, candidate Obama said that he was ``not going to use signing statements as a way of doing an end run around Congress.'' However, he has done just that on numerous occasions. Moreover, he has made clear his intention to not enforce certain laws that are already on the books, such as federal anti-drug laws. The President's Attorney General also decided not to defend a legal challenge to the Defense of Marriage Act. Again, the Constitution makes clear that it is the President's responsibility to ``take Care that the Laws be faithfully executed'' whether the current occupant of the White House agrees with those laws or not. I can think of plenty more examples of executive overreach. It would be much harder to think of examples where Congress has successfully fought off an executive power grab. In fact, the more President Obama has gotten away with these little power grabs, the bolder he has become. Congress has not been effective in fighting this executive encroachment because Congress is not of one mind. Members of the President's party are understandably reluctant to oppose him publicly. However, with this latest escalation, the time has come for Congress, on a bipartisan basis, to say ``Enough is enough.'' I would ask my colleagues on the other side of the aisle to think hard about the precedent being set for the next Republican President. Once the genie is out of the bottle, you are not likely to be able to get it back in. For those who are tempted to sympathize with the President when he justifies bypassing Congress because of ``obstructionism'', I would return to the fact that our system of checks and balances between the different branches of government did not come about by accident. The philosophy underpinning the American Revolution, as expressed in the Declaration of Independence, is based on ``unalienable Rights'' and the principle ``That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.'' As a result, our government was intentionally structured to provide maximum protection to individual rights. In our Constitution, that principle takes precedent over getting things done. In my previous remarks, I quoted the Father of the Constitution, James Madison, in Federalist 51, ``separate and distinct exercise of the different powers of government'' is ``essential to the preservation of liberty.'' Madison was concerned about a temporary majority faction assuming full control of the government and acting tyrannically toward those Americans in the minority. By contrast, the French Revolution was inspired by the philosophy of Jean-Jacques Rousseau, who wrote that claims of natural rights must be abandoned in favor of submission to the authority of the ``general will'' of the people as a whole. The application of this philosophy tends to result in power centralized in a ruling elite that claims a unique ability to interpret the ``general will''. This centralization of power allows for a more active government. That may be attractive to those whose main concern is making the trains run on time. But Amtrak doesn't run on time. On the other hand, the single-minded pursuit of a common purpose at the expense of individual rights has led to some of history's worst tyrannies. Our system of separation of powers, federalism, and checks and balances, designed to protect individual rights, results in a more deliberative form of government. This can be frustrating. It means that the President cannot expect Congress to just pass his proposals without reading them. But Speaker Pelosi said about Health Care Reform we have to first pass it to find out what is in it. Still, these features of our Constitution perform an important role in preventing one faction of Americans from dominating another. President Obama is not the first to become frustrated with the checks and balances built into our constitutional system. In fact, at the dawn of the 20th century, an entire philosophical movement developed around the idea that our Constitution had become outmoded, that its focus on individual rights was no longer applicable to the modern age. I mentioned in my previous remarks about the President's unconstitutional appointments that it was Theodore Roosevelt who started to change the way Presidents viewed power. It is worth noting that President Obama recently gave a speech in Osawatomie, KS, the site of Teddy Roosevelt's famous ``New Nationalism'' speech. That speech marked the beginning of Roosevelt's break with the incumbent Republican president, William Howard Taft. Roosevelt then went on to challenge Taft in the 1912 election on the Progressive Party ticket. In that speech, which President Obama commemorated, Roosevelt described his New Nationalism as ``. . . impatient of the impotence which springs from overdivision of governmental powers.'' Throw the Constitution out the window. He went on to say that, ``This New Nationalism regards the executive power as the steward of the public welfare.'' An even more explicit description of the progressive view of the Constitution was written by the ultimate winner of the 1912 presidential election, Woodrow Wilson. In his Constitutional Government, Wilson wrote, The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part of organ of it a dominating force; but no government, can be successfully conducted upon so mechanical a theory. Leadership and control must be lodged somewhere . . . It seems strange we have made it for 225 years under our Constitution. He then goes on to describe at length why he feels the President is where this ``leadership and control'' should ultimately be lodged. This philosophy advocates a concentration of power in order to more effectively act on behalf of ``the people,'' at the expense of representing the diverse views of Americans. It is contrary to the founding principles of our Nation and foreign to the realities of American civic life. We are a large nation with tremendous variety in both geography and people. No one man can claim to speak on behalf of all Americans, which is why we have a Congress in the first place. The voices of all Americans deserve to be heard through their elected representatives and the rights of each American must be respected. As the State motto of Iowa goes, ``Our liberties we prize, and our rights we will maintain.'' We must not let short term partisan interests trump those enduring constitutional principles. The Senate, and the whole Congress, has a solemn duty to defend its constitutional role.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise to pay tribute to a fallen son of Iowa, MSgt. Travis Riddick. Master Sergeant Riddick joined the Marine Corps after graduating from high school in Centerville, IA. In doing so, he was following in a laudable family tradition of patriotic service. His father and grandfather were marines, as well as his uncle and cousins. His twin brother recently retired after 21 years in the Navy. Travis Riddick certainly did his family, his State, and his country proud. He was awarded six Air Medals, the Navy and Marine Corps Commendation Medal, four Navy and Marine Corps Achievement Medals, seven Marine Corps Good Conduct Medals, two National Defense Service Medals, the Southwest Asia Service Medal, the Afghanistan Campaign Medal, the Iraq Campaign Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, the Armed Forces Service Medal, the Humanitarian Service Medal, the NATO Medal, the NATO ISAF Medal, and the Kuwait Liberation Medal. My prayers are with his mother, Barbara, his father, John, and his wife, Jennifer, as well as his children and all his family and friends. His father reports that Travis loved his job and his mother said that he was the best marine ever. Our Nation is tremendously fortunate to have individuals like Travis Riddick who have the drive to step forward and serve their country with enthusiasm and honor. To selfless heroes like Travis Riddick, we owe nothing short of our liberty. Unlike at the birth of our country, when every person who aligned with the cause of freedom was putting themselves at great risk, those who enjoy our way of life today rely on a select group of patriotic Americans to preserve everything we hold so dear. We can never repay the debt we owe, but we are obliged to honor and remember them for their sacrifice in the name of liberty.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, just over a month ago, on December 17, the Senate entered into a unanimous consent agreement to consider the nomination of John M. Gerrard, of Nebraska, to be United States District Judge for the District of Nebraska. We are proceeding with this nomination, which I will support, despite the President's actions on recess appointments. During the last session we acted responsibly in considering the President's nominees. Even the Majority Leader acknowledged this. He stated, ``We have done a good job on nominations the last couple of months. Actually, in the last 3 months, we have accomplished quite a bit.'' I will have more to say about the recess appointments. But with regard to this nomination I hope my colleagues understand that even though we are proceeding under regular order today, it is only because this unanimous consent agreement was locked in before the President demonstrated his monarchy mentality by making those appointments. I am not going to hold this nominee accountable for the outrageous actions of the President. However, as this is a matter of concern to my Republican colleagues, as it should be for all Senators, we must consider how we will respond to the President and restore a Constitutional balance. Since the adoption of the unanimous consent agreement governing the nomination before us, President Obama has upset the nominations process. Article II, Section 2 of the Constitution provides for only two ways in which Presidents may appoint certain officers. First, it provides that the President nominates, and by and with the advice and consent of the Senate, appoints various officers. Second, it permits the President to make temporary appointments when a vacancy in one of those offices happens when the Senate is in recess. On January 4, the President made four appointments. They were purportedly based on the Recess Appointments Clause. He took this action even though the Senate was not in recess. This action is of the utmost seriousness to all Americans. These appointments were blatantly unconstitutional. They were not made with the advice and consent of the Senate. And they were not made ``during the recess of the Senate.'' Between the end of December and today, the Senate has been holding sessions every 3 days. It did so precisely to prevent the President from making recess appointments. It followed the same procedure as it had during the term of President Bush. Honoring the Constitution and the desire of the Senate President Bush declined to make recess appointments during these periods. But President Obama chose to make recess appointments despite the existence of these Senate sessions. In addition to being unconstitutional, these so-called recess appointments break a longstanding tradition. They represent an attempted presidential power grab against this body. A President has not attempted to make a recess appointment when Congress has not been in recess for more than 3 days in many decades. In fact, for decades, the Senate has been in recess at least 10 days before the President has invoked this power. Other parts of the Constitution beyond Article II, Section 2 show that these purported appointments are invalid. Article I, Section 5 provides, ``Each House may determine the Rules of its Proceedings. . . .'' In December and January, we provided that we would be in session every 3 days. The Senate was open and provided the opportunity to conduct business. That business included passing legislation and confirming nominations. In fact, the Senate did pass legislation, which the President signed. According to the Constitution--each House--not the President determines whether that House is in session. The Senate said we were in session. The President recognized that fact by signing legislation passed during the session. Article I, Section 5 also states, ``Neither House, shall, during the session of Congress, without the consent of the other, adjourn for more than 3 days. . . .'' The other body did not consent to our recess for more than 3 days. No concurrent resolution authorizing an adjournment was passed by both chambers. Under the Constitution, we could not recess for more than 3 days. We did not do so. The President's erroneous belief that he can determine whether the Senate was in session would place us in the position of acting unconstitutionally. If he is right, we recessed for more than 3 days without the consent of the other body. By claiming we were in recess, the President effectively dares us to say that we failed to comply with our oath to adhere to the Constitution. Yet, it is the President who made appointments without the advice and consent of the Senate while the Senate was in session. It is the President who has violated the Constitution. Of course, the President does not admit that he violated the Constitution. He has obtained a legal opinion from the Office of Legal Counsel at his own Department of Justice. That opinion reached the incredible conclusion that the President could make these appointments, notwithstanding our December and January sessions. That opinion is entirely unconvincing. For instance, to reach its conclusion that the Senate was not available as a practical matter to give advice and consent, it relies on such unpersuasive material as statements from individual Senators. The text of the Constitution is clear. It allows no room for the Department to interpret it in any so-called ``practical'' way that departs from its terms. The Justice Department also misapplied a Judiciary Committee report from 1905 on the subject of recess appointments. That report said that a Senate ``recess'' occurs when ``the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions; when its Members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments.'' Obviously, that report does not support the Department of Justice. During these days, the Senate was sitting in session. It could discharge executive functions. The Chamber was not empty. It could receive communications. It could participate as a body in making appointments. In fact, it sat in regular session and passed legislation. There is nothing in the 1905 report that justifies the President substituting his judgment for the Senate's regarding whether the Senate is in session. In any event, a Senate Judiciary Committee report from 1905 does not govern the United States Senate; in 2012. The Senate; as constituted today; decides its rules and proceedings. The Department is on shaky legal ground when it claims that ``whether the House has consented to the Senate's adjournment of more than 3 days does not determine the Senate's practical availability during a period of pro forma sessions and thus does not determine the existence of a `Recess' under the Recess Appointments Clause.'' There is no basis--none--for treating the same pro forma sessions differently for the purposes of the 2 clauses. The Department simply cannot have it both ways. The Justice Department's opinion contains other equally preposterous arguments. For instance, the opinion claims that the Administration's prior statements to the Supreme Court--through former Solicitor General Elena Kagan--that recess appointments can be made only if the Senate is in recess for more than 3 days are somehow distinguishable from its current opinion, or that the pocket veto cases do not apply. Or even if they did, the ``fundamental rights'' of individuals that the courts described in those cases include the right of the President to make recess appointments. There was a time when Presidents believed that they could take action only when the law gave them the power to do so. They obtained advice from the Justice Department on the question whether there was legal authority to justify the action they wished to take. But Theodore Roosevelt started to change the way Presidents viewed power. He believed that the President could do anything so long as the Constitution did not explicitly preclude him from acting. When he used that theory to create wildlife refuges against a rapidly expanding industrial base, there was no objection. But a dangerous precedent was set. When he claimed that he could make recess appointments during a ``constructive recess'' of the Senate, the Senate rejected this view in that 1905 report. When a President thinks he can do anything the Constitution does not expressly prohibit, the danger arises that his advisers will feel pressure to say that the Constitution does not stand in the way. At that point, a President is no longer a constitutional figure with limited powers as the founders intended. Quite the contrary, the President looks more and more like a king that the Constitution was designed to replace. This OLC opinion reflects the changes that have occurred in the relationship between the Justice Department and the President on the question of presidential power. Formerly, the Justice Department gave legal advice to the President based on an objective reading of texts and judicial opinions. It was not an offshoot of the White House Counsel's office. This more objective view of the limits of Presidential power also provided a level of protection for individual liberty, the principle at the core of our constitutional separation of powers. The President might refuse to accept the advice. He might choose to fire the officer who gave him advice with which he disagreed. He could seek to appoint a new officer who would provide the advice he preferred. But he risked paying a political price for doing so. An official who thought that loyalty to the Constitution exceeded his loyalty to the President could refuse to comply, at great personal risk. That is what Elliot Richardson did during the Saturday Night Massacre of the Watergate era. During the Reagan Administration, OLC issued opinions that concluded that the President lacked the power to undertake certain acts to implement some of his preferred policies. The President did not undertake those unilateral actions. President Obama originally submitted a nominee for OLC that was wholly objectionable. The Senate had good reason to believe that she would not interpret the law without regard to ideology. We refused to confirm her. The President ultimately withdrew her nomination and nominated instead Virginia Seitz. We asked important questions at her confirmation hearing and thorough questions for the record. Ms. Seitz responded that OLC should adhere to its prior decisions in accordance with the doctrine of stare decisis. And she stated that if the administration contemplated taking action that she believed was unconstitutional, she would not stand idly by. Relying on those assurances, the Senate confirmed Ms. Seitz. Ms. Seitz is the author of this wholly erroneous opinion that takes an unprecedented view of the Recess Appointments Clause. And I suppose it is literally true that Ms. Seitz did not stand idly by when the administration took unconstitutional action: rather, she actively became a lackey for the administration. She wrote a poorly reasoned opinion that placed loyalty to the President over loyalty to the rule of law. That opinion, and her total deviation from the statements she made during her confirmation process, show extreme disrespect for the institution of the Senate and the constitutional separation of powers. I gave the President and Ms. Seitz the benefit of the doubt in voting to confirm her nomination. However, after reading this misguided and dangerous legal opinion, I am sorry the Senate confirmed her. It's likely to be the last confirmation she ever experiences. The Constitution outlines various powers that are divided among the different branches of our Federal government. Some of these powers are vested in only one branch, such as granting pardons or conducting impeachment proceedings. Other powers are shared, such as passing and signing or vetoing bills. The appointment power is a shared power between the President and the Congress. When one party turns a shared power into a unilateral power, the fabric of the Constitution is itself violated, and a response is called for. In Federalist 51, Madison wrote that the separation of powers is more than a philosophical construct. He wrote that the ``separate and distinct exercise of the different powers of government'' is ``essential to the preservation of liberty.'' The Framers of the Constitution wrote a document that originally contained no Bill of Rights. They believed that liberty would best be protected by preventing government from harming liberty in the first place. That was the reason for the separation of powers. They designed a working separation of powers through checks and balances to ensure a limited government that protected individual rights. Madison wrote, ``Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.'' That is what the Framers intended in a case such as this. When the President unconstitutionally usurped the power of the Senate, the Senate's ambition would check the President's. In this way, the Constitution is preserved. The power of the government is limited. And the liberties of the people are protected. But the Framers did not anticipate the modern Presidency. It took Justice Jackson's famous concurrence in the Youngstown case to address presidential powers in today's world. When the Judiciary Committee held its confirmation hearings on President Bush's Supreme Court nominations, my friends on the other side of the aisle posed many questions about the Jackson concurrence. That opinion sheds light on these so-called recess appointments. For instance, President Obama argued in a nationally televised rally that his actions were justified because ``[e]very day that Richard [Cordray] waited to be confirmed . . . was another day when millions of Americans were left unprotected. . . . And I refuse to take `no' for an answer.'' Justice Jackson anticipated these hyperbolic statements. He wrote: ``The tendency is strong to emphasize the transient results upon policies. . . . and lose sight of enduring consequences upon the balanced power structure of our Republic.'' President Obama has definitely let transient policy goals overtake the Constitution. His argument is that the end justifies the means. His argument is that he can say no to the Constitution. Or, in essence, that the Constitution does not apply to him. But the Constitution demands that the means justify the ends, and that adherence to established procedure is the best protection for liberty. A monarch or a king could say no to the Constitution. But under our Constitution, the President may not. It is the Constitution, and not the President, that refuses to take no for an answer. Justice Jackson was also aware that the modern President's actions ``overshadow any others [and] that, almost alone, he fills the public eye and ear.'' By virtue of his influence on public opinion, he wrote, the President ``exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.'' Some people believe that President Obama challenged the Senate for partisan purposes. But Justice Jackson understood the true partisan dynamic that is now playing out. He recognized that the President's powers are political as well as legal. Many presidential powers derive from his position as head of a political party. Jackson wrote: ``Party loyalties and interests sometimes more binding than law, extend his effective control into branches of government other than his own, and he often may win, as a political leader, what he cannot command under the Constitution.'' Finally, he concluded, ``[O]nly Congress itself can prevent power from slipping through its fingers.'' Outside these walls, in the reception room, are portraits of great Senators of the past. The original portraits were selected by a committee that was headed by then Senator John F. Kennedy. They included such figures as Webster, Clay, Calhoun, LaFollette, and Taft. Yes, these Senators were partisans. But they were selected because of the role they played in maintaining the unique institution that is the Senate in our constitutional system. In particular, they protected the Senate and the country from the excessive claims of presidential power that were made by the chief executives of their time. Where are such Members today? Where is a member of the President's party today who is like a more recent Senate institutionalist--Robert C. Byrd? He defended the powers of the Senate when Presidents overreached--even Presidents of his own party. Where are the Members who recognized that our sessions every 3 days rightly prevented President Bush from making recess appointments but who stand idly by as President Obama makes recess appointments without a recess? I remind my colleagues of my experiences as chairman or ranking member of the Finance Committee. I refused to process nominees to positions that passed through that committee to whom President Bush gave recess appointments. That is how I used the authority that I had to protect the rights of the Senate. I do not believe we should let the powers vested in the elected representatives of the American people slip through our fingers because we place partisan interests above the Constitution. I have shown how the Framers understood that supposedly expedient departures from the Constitution risked individual liberty. The constitutional text in this situation is clear. It must be upheld. We must take appropriate action to see that it is done. Nor should we wait for the courts. Although the NLRB appointments are already the subject of litigation, we should take action ourselves rather than rely on others. The stakes are too high. On the other hand, even the OLC opinion recognizes, as it must, the litigation risk to the President. For more than 200 years, Presidents have made very expansive claims of power under the Recess Appointments Clause. The President and the Senate have worked out differences to form a working government. Now, the Obama administration seeks to upend these precedents and that working relationship. It may well find, as did the Bush administration, that when overbroad claims of presidential power find their way to court, that not only does the President lose, but that expansive arguments of presidential power that had long been a part of the public discourse can no longer be made. Although I believe that this ironic result will ultimately occur here as well, the Senate must defend its constitutional role on its own, as intended by the framers of the Constitution that we all swore an oath to uphold.

Mr. GRASSLEY. Mr. President, John M. Gerrard is nominated to be United States District Judge for the District of Nebraska. Judge Gerrard received his B.S. degree from Nebraska Wesleyan University in 1975 and his J.D. from Pacific McGeorge School of Law in 1981. He began his legal career in private practice as an associate for the Nebraska law firm of Jewell, Otte, Gatz, Collins & Domina. A year later, Judge Gerrard joined in a new law firm where he conducted primarily a general litigation practice. In 1990, Judge Gerrard and two partners formed a new law office. For the next 5 years, before being appointed to the bench, he engaged in an active trial practice and administrative law/school law practice. In 1995, then-Governor Nelson appointed Judge Gerrard to the Nebraska Supreme Court. He has been retained (by election) in 1998, 2004, and 2010. He has written roughly 480 opinions, 450 of which are published. The opinions cover a variety of legal issues, including homicide appeals, tort issues, and evidentiary disputes. While serving on the State's highest court, Judge Gerrard has served on a number of committees, including those focusing on issues pertaining to gender, race and the judicial system. The American Bar Association Standing Committee on the Federal Judiciary has rated Judge Gerrard with a unanimous ``Well Qualified'' rating. Mr. President, I suggest the absence of a quorum.

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

Mr. GRASSLEY. Mr. President, I ask for the yeas and nays.

Mr. GRASSLEY

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

Mr. GRASSLEY. I will yield and ask unanimous consent that I reclaim the floor when the leader is done.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I wish to take a few minutes to discuss a case that was argued a few weeks ago before the Supreme Court, Hall v. the United States. This case involves a specific provision that I authored which is contained in the 2005 bankruptcy reform law. Throughout the litigation in this case, my statements supporting the provision--in other words, the statements that were said here on the floor of the Senate and in committee report were discussed in these cases at length. I want to take a few minutes and walk through the history and intent of this provision so people hear it straight from this author's mouth, meaning from this Senator. At its core, the case Hall v. the United States is about statutory interpretation. The statute at issue is 11 U.S.C. (a)(2)(A), which was a farm bankruptcy provision added to the Bankruptcy Code in 2005. Before I get into the discussion about the case, I wish to explain what this particular provision does and why it needed to be added to the Bankruptcy Code. Congress enacted Chapter 12 of the Bankruptcy Code in 1986, which was subsequently made permanent in 2005. Chapter 12 allows family farmers to use a bankruptcy process to reorganize their finances and operations. It is a proven success as a leverage tool for farmers and their lenders. It helps a farmer and the banker sit down and work out alternatives for debt repayment. Not long after it became law in 1986, we began to hear about what worked and what did not work for farmers who were reorganizing in bankruptcy. One problem we learned arose when a debtor farmer needed to sell assets in order to generate cash for reorganization. A farmer may need to sell portions of the farm to raise cash to fund a plan and pay off his creditors. However, in this situation, we are usually dealing with land that has been in the family's hands for a long time. This means the cost basis is probably very low. So once a farmer filed bankruptcy and then tried to sell a portion or all of the land, he would be hit with a substantial capital gains tax. This creates problems, because as originally drafted, Chapter 12 required full payment of all priority claims under Section 507 of the Bankruptcy Code. The only way to avoid this requirement was if the holder of the claim agreed that its claim could be treated differently. Thus, when a farmer sold his land which resulted in large capital gains, the IRS would have a priority claim against the bankruptcy estate. I wish to take a moment to explain the concept of bankrupt estates, which may be a bit confusing. When an individual or corporation files for bankruptcy, an estate is created. The estate consists of property that is liquidated for the purpose of paying creditors. So in the case of farmers filing a bankruptcy petition under Chapter 12, the farm assets are the property of the estate. According to section 541(a)(6) of the Bankruptcy Code, the proceeds of the sales of those assets are also property of the estate. So the situation farmers faced was that the IRS held a large priority claim against the bankruptcy estate. Let me take a minute to talk about claims against the estate to understand how we got to where we are today. In this situation, we are dealing with a claim that is based on taxes owed. The Bankruptcy Code says that taxes incurred by the estate are administrative expenses. An administrative expense essentially receives top priority when determining who gets paid what. Thus, the effect this had was that the IRS with its priority claim could object to any reorganization plan that did not provide for full payment of its tax claim. The IRS essentially held veto authority over a family farmer's plan confirmation. In some instances then, a farmer who sought to sell a portion of his farm to reorganize, pay creditors, and become profitable again was prohibited completely from doing so. After learning of this problem, I started working on a way to fix it. Simply put, I wanted to make sure that family farmers in a Chapter 12 case could, in fact, sell portions of their farm to effectively reorganize without the capital gains taxes jeopardizing the reorganization. The very purpose of Chapter 12 and bankruptcy in general is to allow for a fresh start. Unfortunately, this was not happening because of the IRS priority. In 1999, I introduced the Safeguarding America's Farms Entering the Year 2000 Act. This bill, among other things, sought to fix the capital gains tax issue. When I introduced the bill, I said it would ``help farmers to reorganize by keeping tax collectors at bay.'' I also explained: Under current law, farmers often face a crushing tax liability if they need to sell livestock or land in order to reorganize their business affairs . . . High taxes have caused farmers to lose their farms. Under the Bankruptcy Code, the IRS must be paid in full for any tax liabilities generated during a bankruptcy reorganization. If the farmer can't pay the IRS in full, then he can't keep his farm. This is not sound policy. Why should the IRS be allowed to veto a farmer's reorganization plan? But let me go back to a portion of what I quoted, these words, ``then he can't keep his farm.'' Simply put, if you are a farmer in a farming operation, and you can continue to farm, and reorganization is keeping you from farming, well, obviously you do not have a business of farming and you cannot farm. Family farms are very important to the economic viability of rural America. The language I proposed ultimately was enacted in the 2005 bankruptcy reform law. Since the Bankruptcy Code, the courts, and the IRS treated the tax liability as an administrative expense, the new provision created a very narrow exception to that administrative expense. Basically, only in Chapter 12 cases, if a farmer sold farmland that resulted in a capital gains liability, then the IRS's claim would not receive priority status. That is the benefit of the legislation I got passed to reorganization of a family farm. But it is what is in dispute in these particular cases I am referring to. Instead the government would have an unsecured claim, which means they may get paid something but not necessarily the entire amount. Also, the IRS would no longer be able to veto a plan's confirmation, thus the farmer debtor would be allowed to reorganize. From a bankruptcy point of view, this approach makes complete sense. As I have discussed already, filing a petition creates a bankruptcy estate. The bankruptcy estate then sells the lands post petition, and that results in capital gains that are owed to the IRS. Those taxes incurred by the estate post petition are administrative expenses which receive priority status. My language, enacted into law in 2005, stripped the priority claims owed to the government in this very specific instance and made them generally unsecured claims. However, since the passage of this legislation, the IRS has made an about-face. The government now argues, despite the way it treated this situation for all of these years, that the tax liability created is the responsibility of the individual and not the bankruptcy estate. Yet the entire reason we created this new provision was because of the way the IRS treated the tax liability. The IRS's new position has been argued in Federal courts and has received mixed results, so now there is a dispute whether my provision accomplishes what it was designed to do. In 2009 the Eighth Circuit case Knudsen v. IRS held the provision applies to post-petition sales of farm assets, which is what we are discussing here. Specifically, the Eighth Circuit rejected the IRS's position that the Internal Revenue Code does not recognize a separate taxable entity being created when a debtor files a Chapter 12 petition. Put another way, the IRS is claiming the individual debtor is responsible for tax liability that arises out of a bankruptcy estate action. The Eighth Circuit disagreed and said there is now an exception preventing the IRS from having a priority claim for capital gains. But in the Ninth Circuit, the court there held that there was no exception for post-petition capital gains. In Hall v. the United States, now before the Supreme Court, the Ninth Circuit said the Halls were responsible for the capital gains tax from selling part of their farm during bankruptcy. This holding means that my provision did not create a narrow exception even though that is what I intended. Unfortunately, the IRS, under the Obama administration, is taking a position today that is antifarmer and the exact opposite of what it said 6 years ago. This about-face on the part of the IRS came only after we made the change in the law, and it became clear that in very narrow circumstances the IRS would lose its priority position. I respect the IRS's interest in pursuing tax dollars, but it exhibited a heck of a lot of chutzpah in taking this position. Our policy reasons for this new exception were very simple. The farmers didn't have enough money to pay everyone. We decided it would be better to let them sell some assets, which would generate cash and help them to reorganize, keep farming, and pay their creditors. In making this decision, we realized someone would have to make a sacrifice. We decided to give farmers a break from government taxes in a very narrow set of circumstances. Now, though, the government is trying to figure out a way to jump back ahead of other creditors and get more money. These creditors the IRS is trying to break in front of are small businesses, suppliers, and small local banks that extend credit and supplies to farmers. This is not what we expected would happen when we passed the 2005 bankruptcy law. This is an important issue and an important case that the Supreme Court will decide in the coming months. The Supreme Court will decide whether this provision accomplishes my goal, which I have stated. I look forward to seeing how the case is resolved. Rest assured, I will work to ensure that this policy of protecting family farmers is followed as that was our clear intent in having this law enacted. Chapter 12 has proven successful as a leverage tool for farmers and their lenders. It helps the farmer and banker to sit down and work out alternatives for debt repayment. Should the Court rule that the Internal Revenue Code is inconsistent with the Bankruptcy Code and rule against my intent as the author, I will obviously have to work to remedy that inconsistency because what we did in 2005 is the right thing. I hope the Supreme Court realizes the history and intent behind the legislation and follows the congressional intent. I yield the floor and suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, today the Senate is expected to confirm an additional judicial nominee. With this vote, we will have confirmed 62 article III nominees during this Congress. More than half of these have been for vacancies designated as judicial emergencies. That is real progress. Over 72 percent of President Obama's judicial nominees have been confirmed. Morgan Christen is nominated to be U.S. circuit judge for the Ninth Circuit. Justice Christen received her B.A. from the University of Washington in 1983, and her J.D. from Golden Gate University Law School in 1986. After graduating from law school, she clerked for the Hon. Brian Shortell on the Alaska Superior Court in Anchorage. In 1987 she was hired at Preston Gates & Ellis LLP, working as an associate until 1992. She was a partner in the firm from 1993 to 2002. At that firm she was a general civil litigator, primarily representing plaintiffs. She began by assisting with large litigation projects. One of her most notable early matters involved serving on the liability team representing the State of Alaska in its claims for compensation arising from the Exxon Valdez oilspill. After the State settled its liability claim in 1991, she defended claims brought by individuals who argued the State's response to the spill was inadequate. By the time Justice Christen became a partner in 1993, she had developed a practice in Jones Act personal injury claims and was lead counsel in a case in the U.S. Court of Claims representing the parents of an infant who died after receiving a childhood vaccination. She also served as lead counsel on four aviation fatality cases between 1993 and 1999, representing the estate of an FAA employee who was killed in a mid-air collision, the estate of a pilot killed during a catastrophic engine failure and in-flight failure, among others. She has also served as the lead counsel in the Equal Pay Act and represented a fuel barge line in several commercial disputes. Finally, from 1999 to 2001 over half of her practice was devoted to defending two physician practice groups in a Federal Medicaid fraud investigation and related False Claims Act case, and assisting with the defense of a class action antitrust case brought against purchasers of salmon harvested in Alaska. In 2001 she was appointed to the Alaska Superior Court, where she served from January 9, 2002, until her elevation to the supreme court in 2009. The superior court is the court of general jurisdiction in Alaska. As a superior court judge, her docket was comprised entirely of civil cases. From 2005 to 2009 she served as presiding judge of the Third Judicial District of the Superior Court. In this position she supervised approximately 40 judicial officers in 13 court locations. Justice Christen was appointed to the Alaska Supreme Court on March 4, 2009, and has been a member of that court from April 6, 2009, to the present. She was nominated for that seat by the Alaska Judicial Council, composed by three members of the bar, three members of the public appointed by Governors, and the chief justice. She was then selected from a slate of two nominees by Governor Sarah Palin. The American Bar Association Standing Committee on the Federal Judiciary has rated Justice Christen with a unanimous ``well qualified'' rating.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, it seems the President of the United States has finally acknowledged that the economy is in a terrible state and there is nothing he can do about it. So, rather than offer new ideas to grow the economy, the President has now shifted into blame mode. I recognize that the slow economic growth and high levels of unemployment are having a significant impact on the middle class. But rather than listen to political rhetoric and witness finger pointing by President Obama, the unemployed would likely prefer ideas, ideas on how to turn this economy around. I presume President Obama aspired to lead the country because he believed he had the vision and the ability to lead to a more prosperous nation. But beyond the vision, a President also needs a plan and the leadership to put that vision into place. Where is that leadership? During the past 3 years, we witnessed President Obama's theory on economic stimulus. We saw a massive expansion of government and deficit spending. More than $800 billion was spent on a failed economic stimulus bill that was supposed to keep unemployment below 8 percent. But it did not. Government spending in the process has reached an unprecedented level. Today, the size of government, if you combine local, State, and Federal, is 40 percent of our gross national product. One hundred years ago when Teddy Roosevelt delivered his speech in Kansas, it was 8 percent. I refer to Teddy Roosevelt and the speech in Kansas because the President of the United States now tried to duplicate that speech 100 years later. Today, government consumes 40 percent of the entire economy. According to economic policies of President Obama, government needs to grow even bigger to help our economy, and in the process there is a goal to use government to redistribute wealth. If government gets a little bit bigger, the argument goes, and if it gets a little more involved, and particularly if it gets involved in every facet of our economy and our lives, that will surely increase economic prosperity of all Americans. Right? Of course not. All of this has led to taxes and deficit spending that crowd out private investment that could grow the economy and, in the process, create jobs. Government doesn't create self-sustaining jobs; government only creates government jobs. The private sector creates jobs. It is the responsibility of the government to create an environment that leads to job growth. It does this by instituting the rule of law, property rights, the patent system, among others--and there are a lot of others I ought to add to it. Government sets the tone. Remember, government consumes well, it does not create well. Through economic freedom, entrepreneurs are free to innovate and prosper. This economic success leads to higher standards of living and a better quality of life. Importantly, these gains do not come then at the expense of others. Contrary to what some would have you believe, business growth does not have to come at the cost of others. In other words, it is not a zero sum game. In fact, business success and economic growth lifts all boats through employment gains, higher wages, and value to consumers, among a lot of other things that could be mentioned. There are some who believe that individual success cannot be achieved without government involvement or intervention. What is more, they believe an individual's success must mean that someone else has been deprived or they believe if someone else is successful, the success was achieved collectively only with the help of government or others in society. This line of thinking concludes that government and society is, therefore, entitled to some of those achievements. President Obama's recent speech in Kansas provides great insight into his economic theory. He clearly believes government should be involved at every level of individual and business activity. The President says that hard-working Americans should be rewarded for their achievements. However, his economic vision demonstrates his belief that individual success is due to society, not because of hard work or individual effort. This line of thinking is in stark contradiction to our country's founding principles that government exists to allow for the individual to achieve success and the pursuit of happiness. The idea of government intervention runs contrary to our founding principles of individual and economic freedom. Government exists to serve the needs of people rather than people serving the needs of their government. There are some who believe government is the only creator of economic prosperity, but if others have achieved success, they must be, by default, the cause of other people's hardships. This type of class warfare demagoguery is harmful to our country and our country's future and our people's future, and it has the end result of dividing America. It creates envy, hatred, and resentment toward those who have worked hard, played by the rules, and achieved success. This divisive rhetoric seeks to put blame on the successful for the hardships of those who have been hurt during this recession. Most Americans don't support President Obama's divisive vision and rhetoric. The American people still believe if you work hard and play by the rules, you can be successful and you can flourish. I doubt the majority of Americans believe it is the goal of government to intervene in this process. In fact, most Americans would be happy to have the government get out of the way. Most Americans believe in individual responsibility and liberty, including freedom to succeed and freedom to fail. It appears President Obama's commitment to these fundamental freedoms is less sure. Based on his recent speech in Kansas, it seems the Federal Government is the answer to all of America's problems. According to the President, if we tax the wealthy, ensure they pay their fair share, we can get our economy back on the right track. President Obama wants the American people to believe higher taxes on job creators will lead to economic prosperity and create jobs. This is contrary to what Republicans know to be true. It is also contrary to the vision President John F. Kennedy knew to be true when in the 1963 tax bill he reduced the marginal tax rates very dramatically. President John F. Kennedy recognized the economic benefits of lowering taxes, so in his State of the Union Address on January 14, 1963, President Kennedy spoke of the need to increase economic growth and job creation. He stated: To achieve these greater gains, one step, above all, is essential--the enactment this year of a substantial reduction and revision in the Federal income taxes . . . A net reduction in tax liabilities . . . will increase the purchasing power of American families and business enterprise in every tax bracket. He further stated: It will, in addition, encourage the addition and risk- taking on which our free enterprise system depends--induce more investment, production, and capacity use . . . and reinforce the American principle of additional reward for additional effort. It is worth repeating. President Kennedy pushed for lowering Federal income taxes to encourage initiative and risk-taking to induce investment, production, and economic growth. President Kennedy recognized and believed in the American principle of additional reward for additional effort. It seems to me, from the speeches that have been made recently, that our President--meaning President Obama--disagrees. It seems to me that he argues innovators and job creators should be subjected to punitive tax increases for being successful. He seems to believe economic growth will come by confiscating the wealth of job creators and sending that money to Washington, and I could not disagree more. For Americans to prosper, we must first reduce the size of government. This year the Federal Government will spend about 24 percent of our gross domestic product. This type of spending has led to annual deficits above $1 trillion for the past 3 years. The total debt stands at over $15 trillion. This is 100 percent of our gross domestic product. The size of government, the size of deficits, the size of debt, and the size of interest payments are unsustainable over the long haul. We must reverse course. Second, we must work to reform the Tax Code to provide certainty and predictability. Nearly every day our President is on the campaign trail talking about tax increases. It is no wonder our job creators, particularly small businesses, are reluctant to make business decisions or investments in this climate, which decisions we would hope if they would make them would obviously lead to a great deal of job creation in the private sector. This country doesn't need more taxes, we need more taxpayers, and the way to get more taxpayers is to have more people working. The President's threat of higher taxes is directly inhibiting job growth and economic expansion. It is time for President Obama to recognize that with 13 million Americans unemployed and anemic economic growth, tax increases will harm, not help, economic recovery. Finally, we had a recent Gallup poll finding that compliance with government regulations is the single biggest issue facing small business owners today. You might think we would emphasize the Fortune 500 big corporations when it comes to creating jobs, but we know that 70 percent of the new jobs in America are created by small business, so we ought to be concentrating on what small business people are telling us about the economy not turning around. Small business owners, when it comes from the standpoint of regulations, need to spend less time and money making sure they comply with burdensome and needless Washington regulations. Those valuable resources should be spent growing their business, hiring more workers, and as a result growing our economy. We must halt the Federal Government regulations binge. For many of these new regulations, the cost of compliance outweighs the public benefit. They are acting like a wet blanket on our economy. There should be a moratorium on new regulations. I want to give you a perfect example that is now an issue before the Congress, the Keystone XL Pipeline. At a time of high unemployment and energy costs, the Federal Government should not be standing in the way of private investment that will create jobs and increase our energy supply. It is unconscionable that the largest private shovel-ready construction project is being delayed by President Obama's decision to override two different studies by the State Department and that there was no negative environmental impact. It seems the only jobs President Obama is interested in creating are government jobs or government- subsidized jobs. The unfounded delay should be ended and the pipeline project should move ahead. This situation typifies the Obama philosophy that the free market and intelligent Americans are incapable of making informed decisions. The argument we hear is that Americans are not smart enough to know we need solar energy rather than fossil fuels. So our big government caretaker uses \1/2\ billion in taxpayer dollars to support a solar company while simultaneously blocking an entirely private enterprise from developing an oil pipeline that will make us much more energy independent. We have seen how the decision by the government elite to support Solyndra has worked out. It was a complete failure. It is time we got out of the way of the Keystone Pipeline. I hope the American people will dismiss the economic theories and visions of our President as he seeks to divide our country. I believe we can achieve a prosperous future by empowering individuals rather than our Federal Government. Americans are smart enough to put their trust in themselves and their neighbors, not in bigger government. It is time to end the political blame game and divisive rhetoric and, instead, work on genuine and real policies that will create economic jobs and, more importantly, economic growth that is going to help all Americans; in other words, expanding the economy because this does not have to be a zero sum gain. We can have more for more people, and if we don't have more for more people, we are going to have less for more people and everybody is going to lose out.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, in the past 3 weeks I think I have come to the floor three times to discuss the case on the President's health care reform bill: one time to discuss the constitutionality of the individual mandate and another time to deal with the severability clause. I come now to speak about the unconstitutionality of the massive expansion of Medicaid. Those are three of four issues that the Court is going to deal with. My colleagues probably remember the Court has extended the period of time they normally deal with arguments before them from 1 hour to 5\1/2\ hours because this is such a very important case. Today I wish to talk about the far-reaching implications of this mandate, but also about the constitutionality of the Medicaid expansion. If the Supreme Court rules the individual mandate unconstitutional, it will have the effect of striking down this new law that has not been fully implemented. If the Supreme Court rules that the Medicaid expansion and the Affordable Care Act is unconstitutional, it has the potential to cause significant changes in a program that has been in operation for the last 46 years. Just to remind everybody about Medicaid, it was created in 1965 at exactly the same time Medicare was created. Where Medicare was created to provide health care coverage for our senior citizens, Medicaid was created as a safety net for low-income individuals. Medicare is run exclusively by the Federal Government. Medicaid is a Federal-State partnership. The Federal Government sets the parameters of the Medicaid Program. It pays at least half of the program in every State but then turns the functional operation of the Medicaid Program over to the States. In the 46 years since both programs were created, eligibility for the Medicare Program has been essentially unchanged. On the other hand, eligibility for the Medicaid Program has expanded significantly through the years and, with that, the program has grown dramatically as well. Medicaid, when it was created, covered fewer than 5 million. Today, the Medicaid Program currently covers nearly 57 million. The program spends more than $300 billion each year. Medicaid has expanded so dramatically for two reasons. First, at various points in the last 46 years Congress has mandated that the States increase eligibility and services for the program. Second, Congress has also given the States the option to expand their eligibility. When Congress gives States the option of expanding their eligibility, States can expand and the Federal Government will still provide its proportionate share of Federal dollars. For instance, one of the programs I helped get passed with Senator Kennedy from Massachusetts when he was a Member of the Senate was a program that allowed some help for families who had particularly high health care costs for kids--something that was just catastrophically high. That is just one example. The decision to expand is up to the States. When Congress mandates the States expand eligibility, States can either expand their programs or forfeit all Federal funds for the program. Now, this is what we call an all-or-nothing requirement. It has been used in every expansion of the program. The all-or-nothing requirement on States has not only been used to expand eligibility within the Medicaid Program, but it has been used to expand services and require changes in the administration of the program. If the Federal Government wants States to cover podiatrists in Medicaid, the Federal Government can mandate States to do so. If a State doesn't do it? Withhold all Federal dollars to that State. If the Federal Government wants States to implement a secondary payer program to ensure that services are being properly paid by private dollars, the Federal Government can mandate States to do so and withhold every Federal dollar if that State refuses to go along. It has been a staple of the program for 46 years that the Federal Government can require States to do certain things in Medicaid. Now comes along the Affordable Care Act. That act requires States to expand their Medicaid Program to cover all individuals up to 133 percent of the poverty level. It is the first expansion of Medicaid's mandatory eligibility groups since the all-or-nothing expansion in the bills of 1989 and 1990. Those were both reconciliation acts. It is this all-or-nothing requirement that States are challenging and that the Supreme Court will consider next year and has given a certain portion of the 5\1/2\ hours just to debate this issue. So I think that means the Supreme Court thinks this is a very significant issue they are being asked to consider. So I would like to describe the arguments being made by the States that this is an unconstitutional use of congressional power. The States argue that the 10th amendment limits the power of Congress to coerce States to accept Federal funds as opposed to providing inducements. The States argue that a restriction on Federal funds compels rather than induces if its burdens and losses as they affect vital ordinary State functions are too burdensome and costly. So I quote from their position: By conditioning all of the States Federal Medicaid funding--for most States, more than a billion dollars each year--upon agreement to substantially expand their Medicaid programs, the Affordable Care Act passes the point at which pressure turns into compulsion and achieves forbidden direct regulation of the States. The part of the quote which says it is at the point where pressure turns into compulsion makes the act unconstitutional because it has always been a principle that the Federal Government can put certain conditions on States, but if it reaches a point where the State has to do it, in this case the States say: You have really gone too far. The Affordable Care Act withholds all Federal dollars, then, from States that refuse to submit to the policy dictates of the Congress. Medicaid accounts for more than 40 percent of all Federal funds that States receive. States spend on average 20 percent of their State budget on Medicaid. Federal funds cover, on average, 57 cents of each dollar spent on the program because previously I said the Federal Government gives every State at least 50 percent, but the average of all 50 States is 57 percent of the Medicaid dollars coming from Federal dollars. In my State of Iowa, for instance, I think it is 63 percent from the Federal Government and 37 percent of State funds. So the loss of all Federal Medicaid funding would obviously be devastating to the States. The States maintain that the law's expansion of Medicaid was deliberately designed to force the States to agree to expand the program because of the threat that a State's entire Federal funding stream would be cut off if they decided not to go along with decisions made in Congress. In the harshest terms, they were made an offer they could not refuse. Further quoting from the States' argument: The Affordable Care Act essentially holds the States hostage based on their earlier decision to establish a Medicaid infrastructure and accept federal funds subject to different conditions. The Affordable Care Act uses the States' decision to accept earlier federal inducements against them, and, in doing so, presents states with no real choice: they must abandon completely the existing Medicaid system and funding or accept the radical new conditions. This amounts to a massive bait- and-switch. The States are arguing to the Supreme Court that there is no way the States can turn down a Federal inducement as massive as all Medicaid funding. This is especially true because the effect of declining is that the State's own taxpayers have to pay the full cost of providing health care for the neediest citizens of the State and, at the same time, provide the Federal Government taxes for Medicaid funds that would be distributed to pay for the program, including expansion in the other 49 States. Since no State could make taxpayers fund the State and Federal portions of Medicaid, while also taxing their citizens to pay for Medicaid in the other 49 States, it is a phony choice, not a real choice, for the States to turn down the money to expand their Medicaid Programs. In other words, the States are being compelled to do so. The States argue that giving notice of the coercion they face does not make the choice any less coercive, and they argue that when States originally accepted Medicaid, they were not warned that their participation would put them at the mercy of any future unpredictable congressional demands. The States are arguing Congress can change Medicaid, and Congress can condition the funding for those changes on State agreement to them. But it cannot force changes on the States by threatening them with the loss of the entirety of Federal funds. Although the Federal Government will pay the vast majority of the cost of expansion, the States also point out that coercion turns on the financial inducement that Congress offers, not the amount a State is coerced to spend. The critical issue is what is referred to as the ``coercion doctrine.'' The coercion doctrine protects the States' decision whether the inducement is worth the cost. Among the controlling cases is South Dakota v. Dole in 1987. The Supreme Court there upheld a Federal law that threatened States with the loss of 5 percent of Federal highway funds if they did not raise their drinking age to 21. Remember, that was only 5 percent of their road funds, not 100 percent of their road funds, as in the case of the all-or-nothing in the case of Medicaid, where if you do not go along, you are going to lose everything. So in that Dole case, writing for the majority, Chief Justice Rehnquist noted: Our decisions have recognized that, in some circumstances, the financial inducement offered by Congress might be so coercive as to pass the point at which ``pressure turns into compulsion.'' In the years since the Dole decision, Federal courts have yet to establish a clear test for coercion. I assume that is what could happen if they would overturn Congress's decision; that there would be a clearer test of coercion in this Affordable Care Act. The Supreme Court will be challenged in this affordable care act case to determine where the limits of Federal coercion, if any, lie. It is difficult to overstate the potential implications of this particular aspect of the affordable care act in the case that is being appealed. There are three specific ways this decision could have a profound impact on Federal policy if the Supreme Court rules in favor of the States. A ruling for the States could affect future Medicaid policy, current Medicaid policy, and broader Federal-State partnerships. The expansion of Medicaid in the Affordable Care Act was written to minimize the cost to the States. The Federal Government pays for 100 percent of the cost of the Medicaid expansion in the first few years, before transitioning to an approximately 92-percent share of the cost of the expansion. If the Federal Government cannot require expansion of the Medicaid Program and pick up 92 percent of the tab, what can the Federal Government require? Would a mandatory expansion be constitutional if the Federal Government permanently paid for 100 percent of the cost? Could the Federal Government mandate future expansions if they were much smaller in scope, such as in the 1989 and 1990 mandatory expansions under those reconciliation bills? If the Federal Government wanted to require States to cover podiatrists or implement a secondary payer program, could it do so using Federal funds as leverage to require it? A ruling in favor of the States would raise those questions. Further, if the current mandatory expansion of Medicaid is unconstitutional, what does that imply for previous expansions and policies? In the 1989 and 1990 acts, when Congress required States to expand eligibility for women and children, Congress did so without providing any additional funding to the States beyond their normal share, which in the case of Iowa today would be 63 percent Federal, 37 percent State. If the Supreme Court rules in favor of the States, will previous mandatory expansions to Medicaid be subject to challenge? Will a State be able to challenge the existing enforcement mechanism of withholding Federal dollars if a State wants to ignore a service requirement or an antifraud provision? These questions will then have to be answered. Finally, a Supreme Court ruling on a coercion test necessarily has broader implications for all Federal-State partnerships. The original Dole case was about transportation funding. A Supreme Court ruling in favor of the States will necessarily bring into question every agreement between the Federal Government and the States where the Federal Government conditions 100 percent of the Federal funds on States meeting requirements that are determined in Washington, DC. It is certainly possible that such a Supreme Court ruling could require future Congresses to carefully consider a coercion test in designing legislation. A Supreme Court ruling in favor of the States in this case could not only jeopardize the mandated Medicaid expansion in the Affordable Care Act but could challenge the fundamental structure of Medicaid and have broader implications outside health care. One may ask: Does the Supreme Court have this case before it--and why does it have it before it?--a case with such broad and far-reaching implications? It is because of a massive restructuring of our health care system in a partisan fashion, using nearly every procedural tool at the majority party's disposal in accomplishing the goal of passage. The constitutionality of this law has been challenged in numerous courts throughout the country. These challenges will soon be heard before the Supreme Court. While most people want to focus on the individual mandate, it is important we do not forget the potential consequence of the Medicaid question before the Court. It could, obviously, strike the expansion in the Affordable Care Act. It could hamstring future Congresses as they consider potential policies for the Medicaid Program in the future. It could threaten the fundamental structure of the Medicaid Program by bringing into question all the requirements on the States in the program today. It could require future Congresses to consider the structure of every Federal- State partnership. We are here discussing this because the White House and the Democratic majority put their partisan goals ahead of collaboration with Republicans and States to build legitimate public policy--contrary to how most social policy in this country has been devised: Social Security, bipartisan; Medicare, Medicaid, bipartisan; civil rights laws, bipartisan--but not this Affordable Care Act, a partisan document. Now we see that far more than this one specific policy is threatened. If the Supreme Court accepts the States' argument, a host of constitutional questions will surround the operation of many Federal funding streams to the States. It would be difficult to overstate the significance of such a ruling. I have outlined it was not necessary for the Congress to have taken action that might produce that result. I yield the floor and suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, the need for a balanced budget amendment is very great. You know how the national debt now is reaching a point where, if we don't intervene with a constitutional requirement for a balanced budget, it is going to become unsustainable. Statutes have not controlled deficit spending. I was an author of one of those statutes--former Senator Harry F. Byrd of Virginia and I as a Member of the House--back in 1979. For 15 years that law was on the books, and never in those 15 years was there a balanced budget amendment. It makes it very clear that laws will not control deficit spending. I concluded a long time ago, as I voted on previous constitutional amendments requiring a balanced budget that didn't pass, that a constitutional amendment is a must to provide Congress with the necessary discipline. The example right now in Europe of their fiscal and deficit situation is sobering. Nations that allow debt to grow out of control risk default. One of those countries is practically in default. If we don't take effective corrective action, the European future could be ours and sooner than we think. Each generation of Americans has enjoyed a brighter future than the previous generation. The failure of Congress to tame the deficit and the debt threatens the American dream for our children and grandchildren. The Constitution was designed to secure the blessings of liberty not only for ourselves but also for our children. This makes balancing the budget not just an economic issue but a moral issue as well, and creates a moral obligation to take action. A constitutional amendment is not only a first step in that direction but it will make sure the discipline is binding in future years. The balanced budget amendment will enforce a lower debt. Members taking an oath to adhere to its provisions guarantees greater fiscal discipline than what we have without that constitutional provision. They will take that oath seriously, just as is the case for the 46 State constitutions that contain requirements their State legislatures balance their budgets. We always say the State legislatures and States are the political laboratories for our system of government. We ought to take the results of those laboratories and put them to use at the Federal level. I am urging my colleagues to vote for the resolution before us, which is S.J. Res. 10. There have been complaints this resolution would transfer to the courts the power of the purse, but that is a misreading of S.J. Res. 10. The amendment prohibits the courts from raising taxes. The doctrine of standing, the doctrine of ripeness, and the doctrine of political question will prevent courts from deciding cases under the amendment. This is a lesson we should have learned. I think it was 1997--nearly 15 years ago--when this body failed by one vote--and I am ashamed to tell you it was one Republican not voting for it--to enact such a constitutional requirement. But it didn't pass. If it had passed, we wouldn't be in the fiscal situation we are in right now. I urge my colleagues to vote for S.J. Res. 10. I yield the floor.

Mr. GRASSLEY

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

Mr. GRASSLEY

Mr. GRASSLEY. Reserving the right to object, and I must object, but I wish to make clear that the Senator from California understands I didn't come to the floor to object to her request, but on behalf of the Republican leader I do object.

Mr. GRASSLEY. Mr. President, I ask unanimous consent to speak for what time I might consume, but I wouldn't expect it would be more than 30 minutes.

Mr. GRASSLEY. Mr. President, I have come to the floor to speak about the Fast and Furious investigation. But I would also like to follow up and have this portion of my remarks follow the Senator from California because I think my side has a legitimate position to take on some job creation things that are in the House bill that has come over here; that if people just hear one side of the story, they might misunderstand we are not interested in creating jobs and we are only interested in putting stumbling blocks in the way of regulations or Presidential decisions that are made. But it is directly related to, in the case of rules by EPA that the Senator spoke about, it is a fact that under this administration there is an explosion of regulations. A lot of those regulations, because of their cost, have led to the elimination of a lot of jobs or a lot of jobs not being created as a result thereof. So if we hear the President of the United States saying we ought to pass legislation that he is for to create jobs or we hear the President of the United States, one or two times a week, flying all over the country at taxpayers' expense to give political speeches and asking to put the pressure on Congress to pass his jobs bill at the very same time his departments are issuing regulations costing jobs or not creating jobs or the President making a decision that we shouldn't build a pipeline from Canada down to Texas so we can import more oil in a cost-effective way from our friend Canada--a reliable friend--instead of spending $830 million every day--every day--to import oil and paying that to countries that either hate us or want to kill us, we think there is an inconsistency between the President who is going around the country giving speeches on why Congress isn't passing his legislation to create jobs, when his administration is making decisions--in the case of the pipeline, 20,000 jobs could be created right now, union- paying jobs, good jobs, and 110,000 jobs on the side related thereto, plus what it does good for the energy policy of the United States to have that built. The President is standing in the way. He says it needs another year of study. The State Department has already given two studies over a period of years saying it is OK to go ahead. It is not an environmental problem. The Nebraska legislature held it up for a little while because of the aquifer, but they have reached an agreement that it can go through their State in a little different direction. We think we ought to create those 20,000 jobs and we ought to do it right now and this legislation that has come over from the House does that. This legislation coming over from the House puts some block of some regulations going into effect that is going to eliminate jobs or stop the creation of jobs. So we are a little bit irritated about the inconsistency between an administration that wants us to pass legislation to create jobs when, at the very same time, one person is making a decision that we are not going to move ahead with job creation projects. This legislation allows to move ahead for that.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, the reason I came to the Senate floor is to give my colleagues an update on the Fast and Furious investigation that I have been conducting since last January 31. For almost 11 months now, I have been investigating Fast and Furious, an operation of the Bureau of Alcohol, Tobacco, and Firearms, ATF. On December 2, the Justice Department finally came clean about who helped draft its February 4 letter to Congress. That was a letter I wrote that they responded to since I opened the investigation on January 31. It only took them a few days to get a letter to me that had a tremendous number of falsehoods in it. That letter falsely denied ATF whistleblower allegations that ATF walked guns. The revelation in the December 2 documents of this year were the last straw for me. They admitted the February 4 letter had falsehoods in it. I called for Assistant Attorney General Breuer to step down, and I don't do that lightly. Earlier documents had already shown Mr. Breuer displayed a stunning lack of judgment in failing to respond adequately when told guns had walked in Operation Wide Receiver in the years 2006-07. The December 2 document showed that Mr. Breuer was far more informed during the drafting of the February 4 letter than he admitted before the Judiciary Committee just 1 month earlier. These two issues led me to call for the resignation of Mr. Breuer, the highest ranking official in the Justice Department who knew about gunwalking in Operation Wide Receiver. The December 2 documents also established a number of other key points. The first is that the Justice Department has a flawed process for responding to letters from Congress that involve whistleblowers. So any of my colleagues, any of the 99 other Senators who are writing letters to the Justice Department, understand they have a flawed process if it involved whistleblowers responding to us. I will show that to you. In the cover letter that accompanied the documents, the Justice Department wrote that, in drafting their February 4 response, which had these falsehoods in it: Department personnel . . . relied on information provided by supervisors from the components in the best position to know the relevant facts. They were listening to supervisors because they only listen to supervisors. That is the problem with not answering the letters in a truthful way, to me, 5 days later after I handed them to the Attorney General. I will show that in just a minute. Clearly, the Justice Department did not rely on those in the best position to know the facts, since the letter was withdrawn on December 2 due to its inaccuracies. I don't know how they can withdraw a letter that is in the public domain, but they just somehow withdraw the letter. The whistleblowers were in the best position to know the facts. Frontline personnel--not supervisors--were in the best position to know the facts, not these senior bureaucrats or political appointees. Yet the Department failed to provide a credible process for whistleblowers, people who know what is happening on a day-to-day basis, and other frontline personnel to provide information without fear of retaliation. Employees simply do not believe they are free to report misconduct because they see what happens to those who speak out. They know it is a career killer because the ATF and the Justice Department culture protects those who retaliate against whistleblowers. Yet whistleblowers in this case spoke out anyway. In other words, these whistleblowers were speaking out, taking a chance on their professional future in Federal Government because they knew something wasn't right about the walking of guns. So they risked their career to make sure the truth was known. The only crime committed by whistleblowers, generally, is the crime of committing truth. But when the Office of Legislative Affairs sought information to respond to my inquiries, it didn't ask these brave whistleblowers what happened. Instead, it simply relied on self-serving denials of senior officials at ATF headquarters or the criminal division here in DC or the U.S. attorneys in Arizona. In other words, the Department took the word of the very officials the whistleblowers alleged had mismanaged the situation in the very first place, without getting both sides of the story. The U.S. attorney has since admitted in testimony to congressional investigators he was too strident when he first heard these accusations. He claimed he didn't know all the facts. We can't rely on the chain of command when we have a whistleblower. By definition, whistleblowers emerge because the chain of command is broken. Whistleblowers come to Congress because they are unsuccessful in getting their supervisors to address fraud, waste, and abuse. Sometimes those supervisors attempt to cover tracks and paper over the problem. That is why we have to get the story straight from the horse's mouth. We can't let the facts be filtered through multiple layers of bureaucracy. After all, the bureaucracy is filled with the same supervisors who should have done something about the problem in the very first place before whistleblowers even come forward. These problems are particularly prevalent in the Federal Government that is so very large it is virtually impossible for anyone to ever be held accountable for anything. So it is crucial those investigating whistleblower allegations go straight to those on the ground level with firsthand knowledge of the facts. Their goal should be to understand the underlying facts of the whistleblower allegations, not to intimidate whistleblowers into silence. Instead, inquiries all too often focus on the whistleblowers themselves and what skeletons they have in their closet. That approach is exactly what is wrong with the Federal Government and why it doesn't function as efficiently as it can. Because if more whistleblowers were listened to and wrongs were brought to the surface and transparency ruled, there would be more accountability. The focus should be on whether the accusations are true so the problems can be corrected. Too often, however, the focus is on finding out what information the whistleblower disclosed so the agency can circle the wagons and build a defense. That needs to change. If the department is going to regain its credibility, it needs to provide straight answers, not talking points and spin. The only way to provide straight answers is to make sure we get straight answers in the first place. That is one reason we have pushed in our investigation to be able to interview frontline personnel. The Justice Department objected in a letter Tuesday night. In that letter, the Justice Department also objected to us talking to first- or second-level supervisors. This is exactly the sort of approach that prevents key information from getting to senior officials and to Congress and impedes Congress's constitutional responsibilities to see that the laws are faithfully executed. In other words, we don't just pass laws and say that is the end of it. We have to pass laws to make sure we are a check on the executive branch of government and that means to do the constitutional job of oversight. That means ask questions. That means we are entitled to answers--unless somebody is trying to cover up something. When they are trying to cover up something in the bureaucracy, I always tell them: If you get stonewalled, eventually the truth is going to come out. The more truth that comes out, the more egg you are going to have on your face. Mr. Breuer is one of those who has tremendous egg on his face. Justice cites the so-called line personnel policy for refusing to provide officials for voluntary interviews. The policy is based purely on nothing but the Department's own preferences. This isn't any law or statute or even case law. The Department has frequently set aside the policy and made exceptions. For example, line attorneys gave transcribed interviews under oath to Congress in the 1992 Rocky Flats Nuclear Weapons Facility investigation. As recently as October, assistant U.S. attorney Rachel Lieber, the line attorney responsible for the anthrax investigations, participated in an interview with PBS's ``Frontline.'' How can the Justice Department tell me or argue to Congress that Congress should not be allowed access to line attorneys when they give that same kind of access to the press? Those are the kinds of line personnel and individuals who have the actual answers. I kind of surmise that the reason the Justice Department will let a U.S. attorney or some FBI agents be interviewed on television is that some public affairs officer has looked at it and said: This is a good story. This is going to make us look good. But when Congress wants to interview line people, no, and we have a constitutional responsibility to do that. I would like to suggest that the Justice Department let the public affairs people make a decision of who can talk to Congress because it might make them look a little better if they will let them talk to Congress or are they afraid we might find out something? It is irritating as heck. In this case, had the Justice Department gone to the horse's mouth before sending an inaccurate letter to me on February 4, they would have been able to get the story straight. The memo I have here I am not going to read, but I want to hold it up. The memo is from an ATF line agent who substantiated the claims of the first ATF whistleblowers. I ask unanimous consent a copy be printed in the Record immediately after my remarks.

Mr. GRASSLEY. It is dated February 3, 2011, the day before the Justice Department sent their letter to me. The memo was passed up his chain in response to investigators on my staff talking to him about Operation Fast and Furious. He accurately described the problems with Fast and Furious. What he said was consistent with the claims I had already heard from other whistleblowers. Information such as this is why I was skeptical days later when the Department sent its February 4 letter to me, denying the allegations. In other words, I had proof they were lying to us. The agent wrote in the memo about being ordered by a Fast and Furious case agent to hold back in their surveillance, so that they did not ``burn the operation.'' While watching straw purchasers hand off weapons to traffickers-- violating the laws of this country but encouraged to do it by their own Justice Department--the case agent ``told all the agents to leave the immediate area.'' While a crime was being committed the agent said to the agents to leave the area immediately. The memo explicitly says: The transaction between the suspects took place and the vehicle that took possession of the firearms eventually left the area without agents following it. A crime is committed, U.S. agents there let them move on. After the phone call to my staff, the ATF agent's supervisor requested that he write this memo documenting what he had told my investigators. This passed up the chain all the way to the ATF leadership. We know that because there are e-mails attaching the memo sent to senior headquarter officials. However, the Justice Department has refused to provide copies of those e-mails and will only allow them to be reviewed at Justice Department headquarters. The Department has also refused to provide a copy of this memo. My staff had to obtain it from confidential sources. One of the questions yet to be answered is who in the Justice Department saw the memo and when. Either way, once the Justice Department got hold of it they tried to keep it under wraps by refusing to give me a copy. They made my staff go to the Justice Department to view it, even though the entire memo simply recounts information that was already provided to my staff. It is embarrassing to the Department because it shows that the truth was easily knowable before the false denial was sent to Congress on February 4. If they had asked for firsthand documentation such as this memo when they first got my letter in January, we would not be where we are today. The second point these documents establish is that main Justice had problems of its own. It was not all the fault of the ATF or the U.S. attorney. Mr. Breuer's deputy, Deputy Attorney General Jason Weinstein, participated in drafting a false statement. The Justice Department's February 4 letter read: ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico. Documents show that line originated in a phone conversation, February 1, 2011, between Justice Department legislative affairs assistant director Billy Hoover from ATF and Jason Weinstein from main Justice's criminal division. Like Assistant Attorney General Breuer, Mr. Weinstein knew that ATF had let hundreds of weapons walk in Operation Wide Receiver, which was an earlier, smaller scale case than Fast and Furious. In fact, in April 2010, he brought that fact to the attention of Mr. Breuer, his boss. April 2010 is 8 months before I got involved in this investigation. His e-mail to Mr. Breuer about Wide Receiver said: As you'll recall from Jim's briefing, ATF let a bunch of guns walk in efforts to get upstream conspirators but only got straws, and didn't recover many guns. Some were recovered in [Mexico] after being used in crimes. It is ironic that is how Mr. Weinstein described Wide Receiver. He was one of the officials who authorized wiretaps in Fast and Furious. Therefore, he was in a position to know that exact same description applied to Fast and Furious. Yet he allowed the myth to be perpetrated that ATF would never do such a thing. Mr. Weinstein saw the Justice Department's very first draft of the letter to Congress. In fact, as one of his Justice Department colleagues in the Deputy Attorney General's office said, ``CRM,'' which happens to be the criminal division, and OLA, which is the Office of Legislative Affairs--``CRM and OLA basically drafted it.'' Mr. Weinstein knew the letter contained a blatantly false line. Yet he did nothing to correct it and that line thus remained in every successive draft of the letter. On December 2 this year, the Justice Department's latest spin was that its statement that ``ATF makes every effort to interdict weapons'' was ``aspirational.'' Nevertheless, that did not stop them from withdrawing the letter for inaccuracies. Perhaps the ``aspirational'' language should be saved for mission statements. Responses to specific and serious allegations ought to, in a commonsense way, stick to the facts, right? This was an oversight letter. I was not asking for some ``feel good'' fuzzy message about what ATF aspired to. I was asking for simple facts. A U.S. Border Patrol agent had died, and at the scene of his death were two guns from Fast and Furious. So his death was connected to the ATF operation. Whistleblowers were reaching outside of the chain of command because supervisors would not listen. Instead of treating these allegations with the kind of seriousness they deserved, the Justice Department resorted to damage control. I do not know what else my investigation is going to uncover, but we are going to pursue it until we get to the end of it because my goal is to find out who at the highest level of government, in Justice or the White House, approved this, and get them fired; make sure that the Terry family gets all of the information about the death of their son-- to this point they have had hardly anything--and, No. 3, to make sure a stupid program like walking guns, Fast and Furious, et cetera, never happens again. This week the investigation revealed that shortly after the February 4 letter, Lanny Breuer asked Mr. Weinstein to write up an analytical memo of Fast and Furious. This suggests that Mr. Breuer and his deputy Mr. Weinstein were down in the weeds on Operation Fast and Furious a lot earlier than previously admitted. Mr. Weinstein was in an excellent position to write such a memo, since Mr. Breuer has acknowledged that Mr. Weinstein was one of the individuals who approved wiretaps in the summer of 2010 as part of Operation Fast and Furious. However, we had to learn of this memo from sources not from the Justice Department but from outside of the Justice Department. The Justice Department has not provided it to us, even though it is clearly responsive to a House Oversight Government Reform Committee October 25 subpoena. This type of maneuvering is what got the Justice Department in trouble to begin with. The Justice Department should produce this document immediately, along with all the other responsive documents. This investigation will continue. People must be held accountable. The Justice Department must stop stonewalling today. Exhibit 1 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Washington, DC, February 3, 2011. Memorandum To: Special Agent in Charge, Dallas Field Division Thru: Resident Agent in Charge, Lubbock Field Office From: Gary M. Styers, Special Agent, Lubbock Field Office Subject: Contact with Congressional Investigators On February 2, 2011, at approximately 1500 hours, ATF Special Agent Gary Styers was contacted telephonically by Robert Donovan and Brian Downey, representing United States Senator Chuck Grassley and the Senate Judiciary Committee. Downey and Donovan after identifying themselves asked Special Agent Styers if he would be willing to answer some questions regarding the time Special Agent Styers spent on a detail to the Phoenix Field Division, Phoenix Group VII Office. Special Agent Styers said he would be willing to answer questions to the best of his knowledge. Special Agent Styers was asked if he was familiar with the large firearms trafficking case in Phoenix Group VII and Special Agent Styers said he was. Downey and Donovan asked if Special Agent Styers knew the name of the case and he responded that it was ``Fast and Furious.'' Downey and Donovan then asked if Special Agent Styers knew who the case agent was and Special Agent Styers said it was Special Agent Hope McAllister. Special Agent Styers was also asked who the supervisor of the group was and Special Agent Styers said it was Group Supervisor David Voth. Downey and Donovan also asked who helped Special Agent McAllister, Special Agent Styers said that Special Agent McAllister had a Co-Case Agent from Immigration and Customs Enforcement (ICE) as well as an agent from Group VII. Downey and Donovan asked who was the Agent from ICE and Special Agent Styers told them it was Lane France. Downey and Donovan asked Special Agent Styers if he knew what the agents were assigned to do on the investigation. Special Agent Styers explained that a group of agents were assigned to the case and that since the case was in the stage of an active wiretap, some agents were working within the group and Special Agent Styers was then asked about his general impression of the Fast and Furious case. Special Agent Styers stated that the case had systematically divided and isolated agents from the group. The case agent had solicited the advice of numerous experienced agents, including Special Agent Styers, regarding how to conduct and end the wiretap operations and case overall. Special Agent Styers gave the case agent his honest opinion and advice since Special Agent Styers had worked two wiretap investigations in his career. Special Agent Styers felt that his advice and opinions, as well as other agents' advice and opinions were widely disregarded. Along with other agents within the group, Special Agent Styers explained that he was no longer asked to assist with Fast and Furious and concentrated on his assigned cases and provided necessary assistance to fellow agents within the detail and group. Downey and Donovan asked Special Agent Styers what he felt was incorrect about the way the Fast and Furious case was conducted. Special Agent Styers explained that first and foremost, it is unheard of to have an active wiretap investigation without full time dedicated surveillance units on the ground. Special Agent Styers relayed that no agents in the group were assigned to surveillance on the Fast and Furious case. Special Agent Styers said that other agencies or task force officers may have been used to conduct surveillance and respond to calls of FFLs, but it seemed that either the case agent or Group Supervisor would poll the office for agents who were available to respond at short notice. Secondly, Special Agent Styers said that it appeared odd to have a majority of ATF Agents working on a wiretap investigation, who had never worked such a case. Especially, when numerous, permanent Group VII agents and detailers had previous wiretap experience. Special Agent Styers was provided with contact information for Downey and Donovan and the conversation was ended. Special Agent Styers contacted the Lubbock Resident Agent in Charge, Jim Luera at 1545 hours after the conversation with Downey and Donovan ended, to inform him of the contact. Special Agent Styers was later asked to document the conversation herein and attempted to do so to the fullest extent possible. Respectfully, Gary M. Styers.

Mr. GRASSLEY. Mr. President, I do not see another Member on the floor. Unless some staff person among the Republicans or Democrats tells me somebody is coming, I wish to take another 5 minutes, if I could.

Mr. GRASSLEY. Mr. President, more like 7 or 8 minutes.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, the cornerstone of Congress's ability to effectively oversee the Federal Government is the free and open access to information--in other words, congressional oversight, what I was talking about in regard to Fast and Furious. On another investigation 231 days ago, on April 27, I made a very simple request. I requested that the Federal Communications Commission turn over communications regarding its controversial approval of the LightSquared project. LightSquared is a company owned by a hedge fund called Harbinger Capital Partners that is seeking FCC approval to use its satellite spectrum to build a terrestrial wireless network. To accomplish its goals, LightSquared has already spent millions of dollars on lobbyists and made large political donations. The problem is that LightSquared's signals would, according to Federal Government tests, cause massive interference with the global positioning system, more commonly referred to as GPS. GPS, as you know, is a critical tool for anything from military drones and missiles to car and ship navigation. LightSquared's initial plan, which the FCC conditionally approved, would have interfered with just about every single GPS user. The surprising fact is that there is no evidence the FCC even tested LightSquared's plan before approving it. In fact, the FCC granted this waiver--which is estimated to be worth at least $10 billion to LightSquared--in a shortened comment period starting right around Thanksgiving, 2010. Giving a company a possible $10 billion windfall in a holiday-shortened comment period without doing any testing is very suspicious. Risking our Nation's GPS assets, including the role they play in defending our Nation to accomplish this goal, is downright dangerous. The question I am asking is, Why would the FCC do this? Of course, to get to the bottom of this question I asked the Federal Communications Commission for some documents--again, a simple question, a request for some information. The FCC, an agency with employees who are supposed to work for the American people, said no to my request. My staff was told the FCC intentionally ignored my document request. The FCC officials said they have determined that they will only be responsive to two Members of Congress: the Chairs of the House and Senate Commerce Committees, not even to ranking members of those same committees, and, of course, not to members of those committees whether you are majority or minority. Presumably, they would not even answer to the majority leader of the Senate or to the Speaker of the House, but for sure they surely are not answering to this senior Senator from Iowa. If you happen to be one of the 99.6 of the Congress who doesn't chair one of those two committees, from the FCC's point of view, sorry, you are out of luck. No documents for you. This attitude is unacceptable. I conveyed my concerns to the FCC on July 5 and asked again for documents. Again, I was stonewalled. This time the FCC claimed that since I cannot subpoena the FCC, it would not respond. President Obama committed to run the most transparent administration in history. Yet the FCC is saying if you cannot force us to be open, we won't do it. I wrote another letter asking the FCC for documents on September 8, and again I was stonewalled. This brings us to where we are today, 230-some days later. The FCC's decision to impede Congress's constitutional duty of oversight has forced me to make a difficult decision. I do not take that decision to hold up nominees lightly, but I never do it in secret. I always put a statement in the Record, and this is in addition to that statement. But when an agency flagrantly disregards congressional oversight, something must be done. Before I publicly announced my intention to hold the nominees, I, through staff, contacted the FCC officials. I informed them that if the documents were not forthcoming, I would hold up the Federal Communication Commission's nominees whom the President sent up here. I was surprised and disappointed by their response. Despite knowing my intentions, they chose not to provide any documents. As a result, I am honoring my promise to hold those nominees. It is unfortunate the FCC has chosen this path. Due to the FCC's decision to hide its actions from the public and Congress, these nominations are now stalled in the Senate. The question I would ask today of my colleagues and the President of the Senate is: Why? The FCC has already told me it would likely provide these documents if certain members--chairmen of committees--asked for them, but somehow 99.6 percent of the Congress has no right to this information. In other words, 99.6 percent of the Members of Congress cannot do their constitutional job of oversight of the Federal Communications Commission. To paraphrase a very popular slogan these days, I guess that makes me part of the 99.6 percent. My concern is not just specific to this document request. It is broader than that. In the future, any Member of Congress may request documents from the FCC. As the courts have put it, every Member has a voice and a vote in the process under the Constitution. Each one of us has the authority to request and receive information from the executive branch in order to inform those votes. That is what our court has said. That authority is inherent in each Member's responsibility to participate in the legislative process. The creation of the committee system and the delegation of certain responsibilities to committee chairmen doesn't change that at all. Individual Members still have a right, as well as a responsibility, to inform themselves by requesting information directly from agencies. For Congress to have a complete view of how an agency works, we need to have access to documents. Turning off that flow of information shortcircuits transparency and hurts accountability. In this case, the Federal Communication Commission's actions have real- world effects. The FCC's decision to grant a waiver to LightSquared created uncertainty for GPS users, and that includes our own National Defense Agency, the Department of Defense, and other Federal agencies. Another one is the Federal Aviation Administration which claims that 800 people would die as a result of LightSquared's initially proposed network. To the FAA, the FCC's decision could have killed people. The Department of Defense wrote a letter to the FCC saying that it was not consulted by the FCC. Press reports say that General Shelton-- who heads up GPS for the Armed Forces--said that LightSquared's interference would harm the military's use of GPS. To the Department of Defense, the Federal Communication Commission's actions would have harmed national security. These are only two agencies, but the Department of Transportation, NASA, and NOAA, among others, have already raised concerns about LightSquared's plan. The effects of the FCC's decision are not just limited to the Federal Government; they also affect ordinary Americans. Here are two examples: For Americans who hope that NextGen air traffic control will reduce air traffic delays, the FCC's action would have continued to increase air traffic wasting time, fuel, and ultimately money for the flying public. For Americans who use precision agriculture to save time and money, the FCC's actions would harm the accuracy and reliability of their equipment. This again leads to wasted energy, lower crop yields, and higher prices for products such as wheat and corn. At the end of the day, the FCC's actions would cost the American consumers money. Does the FCC even care? I don't know. But the agency certainly has not provided any evidence that it took any of this information into consideration. What we see today is an agency that is completely unaccountable and unanswerable to 99.6 percent of the Congress and, by extension, the American public. This is simply wrong, and I will continue to hold the FCC's nominees until this attitude changes. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I have the good fortune of serving with Senator Leahy on the Senate Judiciary Committee. He is the chairman; I am the ranking Republican. In that capacity, we have jurisdiction over constitutional amendments. So I rise to support S.J. Res. 10, which is cosponsored by all 47 Republicans. I am very pleased we are taking up a balanced budget amendment. The Senate has passed a balanced budget amendment in the past. More recently, it has come close to passing a balanced budget amendment. I regret that this amendment has not become law. I believe that had the Constitution been amended to require a balanced budget, we would not be faced with the dire budgetary situation that is before us--a $1.5 trillion deficit for each of the last 2 or 3 years, and maybe as far as we can see into the future if we don't get things under control. The balanced budget amendment before us is very straightforward. It provides that total outlays shall not exceed total receipts unless each House of Congress, by a two-thirds vote, agrees to do otherwise. It provides spending discipline. Total outlays cannot exceed 18 percent of gross domestic product unless two-thirds of both Houses of Congress vote to waive the cap. The President will be required to submit a balanced budget to the Congress. To avoid balancing the budget by imposing tax burdens, new taxes or increases in total revenue can be imposed only by a two-thirds vote of both Houses, and the debt limit will be able to be raised only with concurrence of three-fifths of both Houses. To provide a level of flexibility in wartime--and that would call for considerable flexibility because wars are never predictable--the provisions on outlays and receipts, total outlays, and the debt limit can be overcome by less than the normal two-thirds vote by a three-fifths vote. To minimize disruption, the amendment will not take place for 5 years. Finally, the courts cannot enforce the balanced budget amendment by ordering a tax increase. Reverence for the Constitution is a sentiment we all share. But the Constitution provides for an amendment process. When it is necessary, each generation has amended the Constitution when a guarantee of free speech or the abolition of slavery or giving women the right to vote required a constitutional amendment. No one has said reverence for the Constitution was the end of the matter. We have reached that point of necessity with the balanced budget amendment. The Congressional Research Service reports--and I wish to quote a fairly long quote: The budget deficit each year from 2009 to 2011 has been the highest ever in dollar terms, and significantly higher as a share of GDP than at any time since World War II. Under current policies, the Federal debt is projected to grow more quickly than the GDP, leading observers to term it unsustainable. That is the end of the quote from the CRS. The very purpose of the Constitution, according to its preamble--and I know the preamble is not governing on anything we do or what the Supreme Court does, but it shows intention--the preamble was meant to extend the blessings of liberty to ourselves and our posterity--and I want to emphasize that word ``posterity.'' It is because the growth in the national debt is unsustainable, as I read from the Congressional Research Service, that our posterity may not receive the blessings that several generations of Americans so far have received. It is hard to imagine an amendment more in keeping with the goals of the Constitution than this one. Otherwise, runaway debt will expand exponentially. A permanent spiral can be created in which the debt feeds on itself. We are kind of in that spiral right now. Is it permanent? I sure hope not. Take a look at Europe today, where we ought to learn lessons about the lack of fiscal soundness. Nations there risk default when they overspend, and they are in that position of almost default now. If we are not careful, our country, the United States, at some point will face the same crisis. It is frightening to contemplate, and particularly frightening as a threat to the blessings we ought to give to generations after us. We hear from opponents that Congress can balance the budget now without a balanced budget amendment, but the fact is it cannot. For more than 40 years, Congress has been unable to summon the ability to balance the budget. Statutes that sought to provide a path to a balanced budget failed. Let me speak here about a personal involvement I had when I was a Member of the other body, working with Senator Harry Flood Byrd of Virginia. The Byrd-Grassley amendment was adopted in either 1979 or 1980. It was a statute that was just a few words. It said Congress can't spend any more money than it takes in. Do you know what happened? For several years after that until it was finally repealed in the early 1990s, Congress delayed it for a year at a time as part of the appropriations process. So statutes are not a good way of making this happen. Gramm-Rudman was probably a little more successful, at least once or twice, but it soon was repealed. By putting something in the Constitution requiring a balanced budget, it is going to discipline Congress in a way that statutes cannot provide discipline; in other words, a constitutional amendment will succeed where statutes have been proven to have failed based upon the examples I gave and other examples that can be given. The only exception was when we had 3 years going into this century when a financial bubble provided windfall revenues. We all know about that. I believe it is $568 billion we paid down on the national debt for 4 fiscal years after a Republican Congress was elected in 1994. Anyway, except for that, we have not been able to have very sound fiscal policy. Then because Congress has been unable to control spending, the budgets have been in deficit and the national debt has increased. The only way Congress will exercise the discipline to balance the budget is if the Constitution forces it to do so. We can say this from some experience, particularly if you believe the States are the laboratories of our political process and of government policy, because 46 State constitutions require their budgets to be in balance. They meet that requirement. As Members of Congress, we do take an oath to adhere to and defend the Constitution. We take that oath seriously. If the balanced budget amendment became part of the Constitution, we would adhere to it or face the consequences from the voters. This amendment wisely contains effective tax limitations as an integral part. I have favored a balanced budget with tax limitations for more than 20 years. For decades, Federal spending has far outpaced even the steady and sizable growth in taxes and revenues. Raising taxes does not produce surpluses. The historical fact is they spur more spending. For every additional dollar in taxes Congress has raised since World War II, it seems as though it has given us a license to spend about $1.13 for every $1 that has come in for additional taxes. Don't take my word for that. A person who studied that for a long period of time, Professor Vedder, of Ohio University, has written about that. You will find his figures just about the same. I think he said on average since World War II, $1 coming into the Treasury was a license to spend $1.17 instead of the $1.13 I give here. Raising taxes, then, would make balancing the budget harder, not easier. Bring a dollar in here, spend $1.13. You hardly get ahead. It seems we cannot ever reach an agreement of how high taxes have to be in this body to satisfy the appetite of Congress to spend money. That is not just a Democratic problem, that is a problem on both sides of the aisle here in Congress. That brings us to this issue about a supermajority requirement for tax increases. A balanced budget amendment may well encourage tax increases, fueling greater spending and the continuation of additional debt and costs in servicing that debt. The failure to balance the budget is a fiscal issue of greatest importance. But getting back to our obligations to posterity under our Constitution, it is also a moral issue. Maybe the moral aspects of it are more important than the economic aspects of it. Without a balanced budget amendment, our children and grandchildren will pay for this generation's chronic inability to live within its means. We live high on the hog and worry about our children and grandchildren paying for it. In the absence of an amendment, the standard of living of future generations will likely decline. The fears of many Americans that the next generation will not live as well as this one are in many respects traceable to decades of fiscal irresponsibility on the part of Congress. This balanced budget amendment would mean a stronger economy. It would surely mean good government, as fiscal responsibility ought to be a part of good government. Obviously people are concerned now about the problem of jobs. Employers are particularly concerned that Congress does not have a sound fiscal policy. That leads them not to hire anybody. A balanced budget is going to mean more jobs. I believe the American people are willing to do their part to prevent future generations from being saddled with an unconscionable level of debt. They are willing to do so even if it means that some Federal spending they support would be affected. This is especially true if our budgeting is done fairly. I believe if one listens closely to the arguments of the opponents of this measure, one will hear more arguments against a balanced budget than against a balanced budget amendment. There will need to be difficult actions taken. It is those difficulties that have prevented Congress from balancing the budget. Those difficulties are, therefore, reasons for a constitutional amendment, not reasons against a constitutional amendment. But balancing the budget is necessary and it will take an amendment to the Constitution of the United States of America to make sure it is done consistently. We also hear arguments about the need to run deficits when the economy is in a recession. That kind of brings us to where we are right now. We have been in a recession for 3 years. The amendment before us permits Congress to vote to run a deficit in that situation, but be skeptical of that argument. If deficits and debt gave us a strong economy, right now we would be in the midst of the greatest economic boom in our history. Obviously we are not in that economic boom. Deficits of $1 trillion-plus and a national debt of $15 trillion are not stabilizing the economy in the way that people who argue that maybe in a time of recession you ought to have a lot of deficit spending have claimed. In fact, I believe the size of the deficit and debt is one reason the economy is not performing well. The size of looming deficits and debt is another. The markets are not viewing the debt as stabilizing a weak economy. Rather, they view it correctly as a drag on the economy. That is why jobs are not being created. That is why corporations have $1 trillion in their treasuries in the United States, $1 trillion in their treasuries overseas, $2 trillion that is not being spent, that is not making corporations any money. It is lying there. They want to invest it in jobs and machinery and get the economy going and make more money. On the issue of enforcement, the opponents attack straw men. They say either that the amendment cannot be enforced, so it is toothless, or they say the courts will enforce it, leading to chaos. Both of these arguments cannot be true. This amendment will be enforced by the President submitting a balanced budget and Congress complying with the amendment, as do State legislators all over the country. Members take an oath and voters will punish those who do not obey the constitutional command. With respect to the courts, the text of the amendment prohibits courts from raising taxes. Of course, judicial standing requirements, ripeness, and the doctrine of political questions will mean that the courts will continue to lack the power of the purse, as has been the case throughout 225 years of history of our country. In the past dozen years, Congress has been unable to balance the budget even when times are good. Had we passed a balanced budget amendment when it was before us in the past, we would not have racked up the huge deficits that now confront us. We have heard in the past that a balanced budget amendment was not necessary because Congress could balance the budget on its own. We know how successful Congress has been doing that. Those arguments were wrong. Today we face one of the worst debt pictures in our history. If nothing is done, the future will be even worse. We owe a responsibility to the American people and to future generations to maintain the fiscal discipline that has allowed us to be the world's biggest economy. Our pleas for a balanced budget amendment have been denied by its opponents in the past. We warned at that time what road lay ahead if we failed to pass a balanced budget amendment. Time has unfortunately proved us right. It is not too late if we act now, but time is growing shorter each year. I urge my colleagues to do the right thing and enact a constitutional requirement that the budget be balanced. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. I am willing to do that, but I thought I maintained the right to the floor by--