Chuck Grassley

Mr. GRASSLEY

Mr. GRASSLEY. If the Democrats aren't going to take their time, I would like to take 5 or 6 minutes on another subject, and I ask unanimous consent to do so.

Mr. GRASSLEY. Mr. President, I come to the floor today to commend Secretary of Defense Leon Panetta for personally focusing top-level attention to what has been a festering problem, and I think it is fair for me to say a festering problem for decades. I am talking about the Defense Department's broken accounting system and lack of financial accountability. Secretary Panetta has grabbed the bull by the horns and told the military services to get on the stick and move out smartly. He wants them to fix the problem now, not later. Secretary Panetta's bold initiative is laid out in a Department-wide memorandum dated October 11 this year. In this document, he calls for an all-hands-on-deck priority effort to accelerate plans to create a modern, fully integrated finance and accounting system. Such a system, if it ever comes to be, would be designed to generate reliable, accurate, and complete financial information. Such a system should be capable of producing credible financial statements that can earn clean opinions from independent auditors. If that happens, the Department will achieve what is called full audit readiness. But now I want to warn Secretary Panetta about what has happened to so many well-intentioned Secretaries of Defense. That could be a big ``if.'' Under the Chief Financial Officers Act of 1990, all government agencies were supposed to reach full audit readiness 15 years ago. As I understand it, the Defense Department is now the only delinquent agency. After the passage of so much time, how is it, then, that the Pentagon cannot provide an accurate accounting of all the money it spends? Doing it is a constitutional responsibility. Not doing it is unacceptable. Why are the military services dragging their feet as they are? What is the problem? Are all of the petty fiefdoms entrenched in Pentagon bureaucracy causing the problem? Is it because they do not want to surrender control of the money to a centralized financial authority? This is a festering problem Secretary Panetta has tackled. As a former chairman of the House Budget Committee and Director of the Office of Management and Budget, he has the necessary knowledge and the necessary experience to get this job done. The magic date for achieving full audit readiness at Defense was set in concrete 2 years ago. Unfortunately, this goal has a long and elusive history, and that long and elusive history is best characterized by relentless slippage. It is a rolling target date, and most experts believe the 2017 deadline is unattainable. I am sure our tax-paying public doesn't understand why the Federal Government wouldn't have the best accounting system in the world, but they don't, particularly in the Defense Department. Under Secretary Panetta's leadership, I hope all the slippage comes to a screeching halt and all the bureaucratic roadblocks are torn down. He has definitely turned up the heat and turned up the pressure. He has drawn a line in the sand. He wants to see results and see results now. He is calling for a revised plan for achieving audit readiness. It is due on his desk December 13. So Army, Navy, Air Force, Marines, Coast Guard, and everybody else--well, the Coast Guard is not involved but everybody else--get on the stick because that is next week. He has set a near-term goal. He wants the Department to produce partial financial statements by 2014. As a first step, Secretary Panetta has called for the production of statements of budgetary resources by 2014. A statement of budgetary resources is just one component of a financial statement, but it represents a big important chunk of the whole. If credible statements of budgetary resources can be produced 3 years ahead of schedule, then maybe the full audit readiness by 2017 is, indeed, possible. I also understand that Secretary Panetta's near-term goal is being incorporated in legislation working its way through Congress right now. That should help to move the ball further down the field. Secretary Panetta's decision to set a preliminary goal of 2014 will be a good gauge--a good test--of what is and is not possible. Can the Defense Department achieve full audit readiness by 2017? We won't have to wait 6 years to find that out under the process Secretary Panetta is instituting. If problems surface early on, we in Congress can help the Department take corrective action to keep this effort on track and moving in the right direction. A willingness and a commitment on the part of the Secretary of Defense to take on this problem goes way beyond the production of credible financial statements required by the Chief Financial Officers Act of the late 1970s. It goes right to the heart of a much larger constitutional issue; that is, whether the Department of Defense is going to be held accountable. The Department must be able to provide a full and accurate accounting of all the money it spends. Under article I, section 9 of the Constitution, such an accounting must be published from time to time. The taxpayers expect and deserve nothing less than that. Today, DOD can't do that. The status quo is unacceptable. While I began conducting oversight of the Defense Department financial management issues more than 20 years ago, I did not come to fully appreciate the true understanding of the root cause issue until 3 years ago. After receiving a series of anonymous letters alleging misconduct and mismanagement within the inspector general's audit office, I initiated an in-depth oversight review of audit reporting. Early on in the review, there was a startling revelation: One all-important, central element was adversely affecting every facet of the inspector general's audit effort, and that was the Department's broken accounting system. This dysfunctional system is driving the audit freight train. The success or failure of an audit turns on the quality of the financial data available for audit by competent examiners. The record clearly shows the quality of financial data presented for audit by the Department should be rated poor--or maybe I ought to say even worse than poor. This is what I call the ``no audit trail'' scenario. It is frequently encountered by auditors trying to examine Department of Defense books of account. That is the exact problem Secretary Panetta is attempting to address. All my audit oversight work tells me that fixing the accounting machinery is the first step to audit readiness. Once a modern, fully integrated system is up and running, it should be a simple matter of punching the right computer buttons and credible financial statements will roll off of the printer. Doing routine oversight audits should be a piece of cake. Today's labor-intensive and time-consuming audit trail reconstruction work which auditors now endure in the absence of reliable accounting records will be a thing of the past. Most importantly, effective internal controls will be in place to protect the taxpayers' money against fraud, theft, and waste. What I am saying to my colleagues is this: Secretary Panetta is on the right track. He is trying to take us to a place where we need to go and go soon. I want to help him lead us there, so I am here today to encourage and support this courageous effort to clean up the books. I admire and respect his personal commitment to such a noble cause. I am also here to reinforce the words of encouragement contained in a letter that my friend from Oklahoma, Dr. Coburn, and I penned to Secretary Panetta on November 17. We, being Senator Coburn and I, want to work with him to achieve this most worthy goal. And in the process of these remarks to the Senate, I hope other Members of the Senate, particularly those who are on the Armed Services Committee, will also give Secretary Panetta encouraging words of support and thanks. I yield the floor.

Mr. GRASSLEY. Mr. President, in a few minutes, the Supreme Court will be addressing four issues in connection with the constitutionality of the Obama health care law. Previously, I spoke about the unconstitutionality of the individual mandate. Today, I wish to discuss the second issue of four: how much of the law must be struck down if the Court finds the individual mandate to be unconstitutional. This legal question is called severability. When a court rules a law is unconstitutional, it can strike down only those parts it considers unconstitutional. It can strike down the parts that are intertwined with the unconstitutional provision or it can strike down the whole law. Its action will depend upon whether the remainder of the law can function as Congress intended when it passed it. There are rules governing severability. Normally, when only parts of a law are held to be unconstitutional, only those parts of the law are struck down by the Court. But when a statute's unconstitutional provisions are severed, the whole law falls when Congress would not have passed the constitutional provisions without the unconstitutional ones being in it as well. It is not enough that some of the remaining provisions are constitutional. The Supreme Court has asked whether the remaining provisions ``would function in a manner consistent with . . . the original legislative bargain.'' The lower courts have reached four different conclusions concerning the health care reform law; first, that the individual mandate can be severed from the rest of the bill; second, that the individual mandate can be severed but only if the law's related provisions that require mandatory issue and community ratings are also severed; third, the opposite position, that the mandate and the related provisions are not severable; and, finally, that the mandate is not severable and that the whole law must fall. One of my Judiciary Committee colleagues has stated, for the Democrats, ``worst-case scenario, the mandate falls.'' But even the Obama administration does not take that view. The administration argues that if the mandate falls, the guaranteed issue and community rating provisions must also be struck down. The President's administration says health insurance markets will not function if all Americans are not forced to buy health insurance and insurance companies must, nonetheless, insure everyone who seeks coverage at prices that do not reflect their health risk. If the mandate falls, keeping any of this law would violate the original legislative bargain. I would like to remind my colleagues of that original legislative bargain. The health care law passed because the majority party--in its own partisan way--was going to pass this bill by any means necessary. The individual mandate was very critical to the ability to pass this law and to particularly pass it only by partisan considerations. We considered an amendment in the Finance Committee that would have granted exemptions from the individual mandate to everybody who asked for that exemption. My good friend, the chairman--and that is Senator Baucus, as we all know--correctly stated: ``The system won't work if this amendment passes.'' He further called it ``an amendment which guts and kills health reform.'' He commented that ``if we are serious about making sure that the Americans have health insurance, we all have to participate. . . .'' So the bill's sponsors knew the whole operation of the law depended upon this very important provision that the Court is now considering on the individual mandate and whether that issue was constitutional. Let me repeat that. The people promoting this legislation that passed on a partisan vote knew the whole operation of the law depended upon the compulsion of the individual mandate. The legislative bargain also showed this law would not have passed if a single comma had been changed. Congress could not have enacted any part of this law without the individual mandate or any other provision. That situation comes about from the fact that the bill passed the Senate by one vote and individual Senators were able to extract specific provisions that benefited their State in return for agreeing to provide their deciding vote for the bill. I think we all know the outrage that came from the grassroots of America over some of those very special provisions. We also know the American people were disgusted by these deals. But without those arrangements and deals, none of the law would have passed. Those deals were one of the reasons why the Democrats lost their 60- vote majority in the last election. So when the other body could pass a bill only by accepting the Senate bill, they blocked any amendments that would have changed so much as a comma. Had anything changed, the new 59-vote Senate majority would have prevented passage. The bill was offered on a take-it-or-leave-it basis, all or nothing. If the individual mandate is struck down, then the whole law must fall. Although it is not conclusive, it is certainly relevant that the law does not contain a severability clause. This is one more indication Congress thought the law was a unified whole. It is simply not reasonable to argue that the law should survive without the mandate. The most important political accomplishment of the law is the additional coverage, not the lower costs we were promised. Without the mandate, coverage under the law evaporates. Does anyone believe that without the coverage in the law, Congress could have passed the massive Medicaid expansion? Does anyone believe that without the coverage in the law, Congress could have passed the Draconian cuts in Medicare? Does anyone believe that without the coverage in the law, Congress could have passed hundreds of billions of dollars in new taxes? Of course not. It is simply not a legitimate argument that the rest of the bill could have ever stood on its own without the individual mandate enabling additional coverage. I am pleased the Supreme Court has granted oral arguments devoted to the severability question all by itself. In the past, the Supreme Court has issued very activist severability rulings in which it rewrote a statute in a way Congress never would have passed it. For instance, it completely rewrote the campaign finance laws in the 1976 Buckley v. Valeo decision in a way that produced an unworkable system that no Member of Congress would have ever voted for. In the Booker case, the Supreme Court rewrote the sentencing laws in a way that produced a very unworkable system that no Member of Congress would have voted for. This time, the Supreme Court should not use the severability doctrine to rewrite the health care law into something Congress never would have passed in the first place. It should strike down the entirety of the law in keeping with the law on this subject. Such a ruling would give us the chance to do what we did not do before: work in a truly bipartisan way to address these issues. I yield the floor.

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

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I ask unanimous consent that Ty Grogan, an intern of Senator DeMint's office, be granted floor privileges for today's session of the Senate.

Mr. GRASSLEY

Mr. GRASSLEY. The Alcohol, Tobacco, Firearms is a division of the Justice Department. I have been investigating Alcohol, Tobacco, Firearms' Operation Fast and Furious for almost 11 months now. It is past time for accountability at the senior levels of the Justice Department. That accountability needs to start with the head of the criminal division, Lanny Breuer. I believe it is time for him to go, and I wish to explain why I have come to that conclusion. The Justice Department denied, in a letter to me on February 4, 2011, that ATF had ever walked guns. Mr. Breuer had been consulted in the drafting of that erroneous letter of February 4, this year. On May 2, 2011, rather than acknowledging the increasingly obvious facts and apologizing for its February letter, the Justice Department reiterated its denial on May 2, this year, the same denial of February 4th. Thus, when the Justice Department revealed on October 31 of this year that Breuer had known as far back as April 2010 about gunwalking at ATF, I was astounded. That was a shocking revelation. The controversy about gunwalking in Fast and Furious has been escalating steadily for 10 months now. The Justice Department had publicly denied to Congress that ATF would ever walk guns. Yet, the head of the criminal division, Mr. Breuer, knew otherwise and said nothing. He knew the same field division was responsible for walking guns in a 2006-2007 case, and that case was called Wide Receiver. But the real shock was how Mr. Breuer had responded within his own department when that earlier gunwalking was first brought to his attention in April 2010. He didn't tell the Attorney General. He didn't tell the Attorney General's Chief of Staff. He didn't tell the Deputy Attorney General. He didn't tell the inspector general. Instead, he simply told his deputies to meet with ATF leadership and inform them of the gunwalking: . . . so they know the bad stuff that could come out. Later, his deputy outlined a strategy to: . . . announce the case without highlighting the negative part of the story and risking embarrassing ATF. Think about that. In that case, saving face was more important than the bad policy. For 18 months, the embarrassing truth about ATF gunwalking in Wide Receiver and Breuer's knowledge of it was successfully hidden. It only came out because of the congressional investigation into gunwalking in Fast and Furious. The public outrage over Fast and Furious comes from the average American who cannot understand why their very own government would intentionally allow criminals to illegally buy weapons for trafficking into Mexico. Next week, it will be 1 year since Border Patrol Agent Brian Terry was murdered by bandits armed with guns as a direct result of this policy of letting guns walk. The Terry family, and all Americans who sympathize with their loss, are rightfully outraged and astonished at their very own government doing such a thing. Yet, when Mr. Breuer learned of a case where ATF walked guns in a very similar way, all he did was give ATF a heads up. There seems to be a vast gulf between what outrages the American people and what outrages Lanny Breuer. Mr. Breuer showed a complete lack of judgment by failing to object to the gunwalking that he knew about in April 2010, 9 months before I was ever aware of Fast and Furious. If Mr. Breuer had reacted to gunwalking in Wide Receiver the way most Americans reacted to gunwalking in Fast and Furious, he would have taken steps to stop it and hold accountable everyone involved. Consequently, Fast and Furious might have been stopped in its tracks and Brian Terry might be alive. When Mr. Breuer came before the Senate Judiciary Subcommittee on Crime and Terrorism the day after those revelations, I gave him a chance to explain himself. I listened to what he had to say. He told us that he: . . . thought that . . . dealing with the leadership of ATF was sufficient and reasonable. Clearly, it was not sufficient. Mr. Breuer even admitted as much, saying: I regret that I did not alert others within the leadership of the Department of Justice to the tactics used in Operation Wide Receiver when they first came to my attention. He regrets not bringing gunwalking in Wide Receiver to the attention of the Attorney General. But what about bringing it to the attention of Congress? He didn't even step forward to express his regret until e- mails that detailed his knowledge were about to be produced under congressional subpoena. It is astounding then that it took the public controversy over Fast and Furious to help the chief of the criminal division realize that walking guns is unacceptable. Yet he had had 9 months after the February 4 letter to step forward, correct the record, and come clean with the American public. He had 18 months, after learning of gunwalking in Wide Receiver, to put a stop to it and hold people accountable. He failed to do so. During his testimony, I asked him pointblank if he reviewed that letter of February 4 before it was sent to me. His misleading answers to these questions formed the basis for my second reason for calling on Mr. Breuer to resign. He responded that he could not say for sure but suggested that he did not review the letter. He said, ``[A]t that time, I was in Mexico dealing with the very real issues that we are all so committed to.'' Last Friday, the Justice Department withdrew their February 4 letter to me because of its inaccuracies--and the word ``inaccuracy'' is their word. The Department also turned over documents under subpoena about who participated in the drafting and the reviewing of the letter. One can imagine my surprise when I discovered from documents provided Friday night that Mr. Breuer was far more informed during the drafting of that letter than he admitted before the Judiciary Committee. In fact, Mr. Breuer got frequent updates on the status of the letter while he was in Mexico. He was sent versions of the letter four times. Two versions were e- mailed to Mr. Breuer on February 4, after he returned from Mexico, including the version of the letter that was ultimately sent to me that day. At that time, he forwarded the letter to his personal e-mail account. Mr. Breuer's Deputy also sent him two drafts of the letter while he was in Mexico, and he also forwarded one of those to his personal e-mail account. We do not know whether he did that in order to access it on a larger screen than the Government-issued BlackBerry or whether he engaged in any further discussion about the letter in his nongovernment e-mail account. However, we do know, in response to the draft received in Mexico, he wrote to one of the main drafters of the letter: ``As usual, great work.'' The Justice Department excluded Breuer's compliment about the context of the draft from the set of e-mails it released to the press on Friday, before they released those documents to this Senator. That evening, Mr. Breuer submitted answers to written questions. He wrote: I have no recollection of having [seen the letter] and, given that I was on official travel that week and given the scope of my duties as Assistant Attorney General, I think it is exceedingly unlikely that I did so. So as late as last Friday night, Mr. Breuer was still trying to minimize his role in reviewing the letter, despite all the evidence to the contrary. Why would Mr. Breuer say ``great work'' to a staffer about a letter he claimed he had not read? It is not credible that someone such as Mr. Breuer would forget about his involvement in a matter such as this. Mr. Breuer's failure to be candid and forthcoming before this body irreparably harms his credibility. His complete lack of judgment and failure to deal with gunwalking when he first learned of it in April 2010 was bad enough, but this is the final straw. Mr. Breuer has lost my confidence in his ability to effectively serve the Justice Department. If he cannot be straight with the Congress, he doesn't need to be running the Criminal Division. It is time to stop spinning and start taking responsibility. I have long said the highest ranking individual who knew about gunwalking and Operation Fast and Furious needs to be held accountable. That standard applies no less to officials who knew about gunwalking in Operation Wide Receiver. Gunwalking is unacceptable no matter when it occurred. Documents made clear that Assistant Attorney General Breuer was the highest ranking official in the Justice Department who knew about gunwalking in Operation Wide Receiver. He did nothing to correct the problem, alert others to the issue, take responsibility or even admit what he knew until he was forced to do so by the evidence. Therefore, I believe the Attorney General needs to ask for Mr. Breuer's resignation or remove him from office if he refuses. If Mr. Breuer wants to do the honorable thing, he would resign. I am not somebody who flippantly calls for resignations. I have done oversight for many years, and in all that time I don't ever remember coming across a government official who so blatantly placed sparing the agency embarrassment over protecting the lives of citizens. He has failed to do his job of ensuring that the government operates properly, including holding people accountable. Because of that, Mr. Breuer needs to go immediately. Anything less will show the American people the Justice Department is not serious about being honest with Congress in our attempt to get to the bottom of this. In regard to my attempt to get to the bottom, just last night the Justice Department sent a letter refusing to provide several Justice Department staff for transcribed interviews. The letter explicitly goes back on the assurances I received when I consented to proceed with the confirmation of three senior Justice Department officials, which I had held up to get an agreement to get the information Congress is entitled to. One of my conditions for agreeing to proceed with those nominations was that officials who agreed to voluntary interviews in this investigation would have either a personal lawyer present or a Department lawyer present but not both. I personally met with the Attorney General, and he had the conditions listed on a piece of paper in front of him. It looked as if he had read it and was familiar with it. Yet he never objected to that condition. Dozens of witness interviews have been conducted under that understanding with no problem. The only difference is that instead of ATF witnesses, we are now seeking to interview Justice Department witnesses. What is good for the goose is good for the gander. There is no reason to change the rules in the middle of the game. I was relying on the Attorney General and other officials at the Department to honor their agreement. Apparently, that is not going to happen. Fortunately, Chairman Issa has the ability to require the witnesses to appear via subpoena if they refuse to appear voluntarily under conditions that the Department previously agreed to with me. I am confident he will do that if it becomes necessary, and I will take whatever steps I have to take in the Senate to encourage the Department to reconsider and stick to its original agreement. 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. Madam President, soon we will be taking up the nomination of Caitlin Halligan to the DC District Court. I oppose the nomination. This is why the nomination should not be confirmed. Nominations to the DC Circuit deserve special scrutiny. The Court of Appeals, DC Circuit, hears cases affecting all Americans. This court frequently is the last stop for cases involving Federal statutes and regulations. Many view this court as second in importance only to our Supreme Court. As we all know, judges who sit on the DC Circuit are frequently considered for the Supreme Court. So there is a lot at stake with any nominee appointed to the DC Circuit. Ms. Halligan has an activist record. There are additional concerns regarding her judicial philosophy and her approach to interpreting the Constitution. The second amendment, for instance, in 2003, Ms. Halligan gave a speech where she discussed her role in suing gun manufacturers for criminal acts committed with handguns. At the time, Congress was debating the Protection of Lawful Commerce in Arms Act or, as most of us called it at the time, the gun liability bill. Those lawsuits, of course, were based on meritless legal theories and were specifically designed to drive gun manufacturers out of business. As it turns out, while many of us were fighting in Congress to stop these nuisance lawsuits, Ms. Halligan was pursuing this precise type of litigation, based on the same bogus legal theories on behalf of the State of New York. In New York v. Sturm, Ms. Halligan argued that gun manufacturers contributed to a public nuisance of illegal handguns in the State. Therefore, she argued that gun manufacturers should be liable for criminal conduct of third parties. The New York appellate court, however, explicitly rejected her theory. The court explained that it had ``never recognized [the] common law public nuisance cause of action'' that Ms. Halligan had advanced. Moreover, the court correctly concluded that ``the Legislative and Executive branches are better suited to address the societal problems concerning the already heavily regulated commercial activity at issue.'' While we were debating the gun liability bill, Ms. Halligan delivered a speech where she expressed her strong opposition to that legislation. She opposed it because it would stop the type of lawsuit she was pursuing. She said: If enacted, this would nullify lawsuits brought by nearly 30 cities and counties--including one filed by my office--as well as scores of lawsuits brought by individual victims or groups harmed by gun violence. . . . Such an action would likely cut off at the pass any attempt by States to find solutions--through the legal system or their own legislatures--that might reduce gun crime or promote greater responsibility among gun dealers. Later in that same speech, she expressed her view of the law and legal system. She said: Courts are the special friend of liberty. Time and again, we have seen how the dynamics of our rule of law enables enviable social progress and mobility. This statement is very troubling, especially as it relates to the nuisance lawsuit against gun manufacturers. Those lawsuits are a prime example of how activists on the far left try to use the courts to effect social policy changes they are somehow unable or unwilling to fight to achieve through the ballot box. That is why I believe those lawsuits represent not only bad policy but, more broadly, an activist approach to the law. I am also concerned about Ms. Halligan's views on the war on terror and the detention of enemy combatants. This is especially troubling because Ms. Halligan is the nominee for the DC Circuit Court, where we know a lot of these issues are often heard. In 2004, Ms. Halligan was a member of the New York City Bar Association that published a report entitled ``The Indefinite Detention of Enemy Combatants and National Security in the Context of the War on Terror.'' That report argued there were constitutional concerns with the detention of terrorists in military custody. It also argued vigorously against trying enemy combatants in military tribunals. Instead, it argued in favor of trying terrorists in civilian article III courts. As I said, Ms. Halligan is listed as one of the authors of that report. But when it came to testifying at her hearing, Ms. Halligan tried to distance herself from that report. She testified she did not become aware of the report until 2010. In a followup letter after her hearing, Ms. Halligan did concede ``it is quite possible that [a draft of the report] was sent to me,'' but she could not recall reading the report. I recognize memories fade over time. But as I assess her testimony, I think it is noteworthy that at least four other members of the committee abstained from the final report. Ms. Halligan did not. I also point out that she coauthored an amicus brief before the Supreme Court in a 2009 case of Al-Marri v. Spagone. Ms. Halligan's brief in that case took a position similar to the 2004 report with respect to military detention of terrorists. In that case, she argued that the authorization for use of military force law did not authorize the seizure and indefinite military detention of a lawful permanent resident alien who conspired with al-Qaida to execute terror attacks on our country. The fact that Ms. Halligan coauthored this brief, pro bono, suggests to me she supported the conclusions reached by the 2004 report. Again, this issue is particularly troublesome for a nominee to the DC Circuit, where, as I have already said, many of these questions are heard. There are a number of other aspects of her record that concern me. For instance, she authored an informal opinion on behalf of Attorney General Spitzer regarding New York's domestic relations law. That opinion invoked a theory of an evolving Constitution. As New York's solicitor general, Ms. Halligan was responsible for recommending to the attorney general that the State intervene in several high-profile Supreme Court cases. She filed amicus briefs that consistently took activist positions on controversial issues, such as abortion, affirmative action, immigration, and federalism. I will give you some instances. In Scheidler v. National Organization for Women, she supported NOW's claim that pro-life groups had engaged in extortion. In the twin affirmative action cases of Grutter v. Bollinger and Gratz v. Bollinger, she argued that the use of race in college and law school admissions was not only appropriate but constitutional. In Hoffman Plastics Compounds v. NLRB, she argued that the NLRB should have the authority to grant backpay to illegal aliens, even though Federal law prohibits illegal aliens from working in the United States. Ms. Halligan represented New York in Massachusetts v. EPA, where a number of States argued that the Clean Air Act authorized and required the EPA to regulate automobile emissions and other greenhouse gases associated with climate change. These are just some of my many concerns regarding the nominee's judicial philosophy and her approach to constitutional interpretation. Based on her record, I do not believe she will be able to put aside her long record of liberal advocacy and be a fair and impartial jurist. Yesterday, before the votes on the judicial nominations we confirmed, I made a few remarks regarding the history of this seat. So I will briefly review again the approach I have been arguing for more than a decade--and I had the support of other Senators--that there are too many seats and it is an underworked circuit. It may come as a surprise to some, but this seat has been vacant for over 6 years. It became vacant in September 2005, when John Roberts was elevated to Chief Justice of our Supreme Court. But it has not been without a nominee for all that time. In June of 2006, President Bush nominated an eminently qualified individual for this seat, Peter Keisler. Mr. Keisler was widely lauded as a consensus bipartisan nominee. His distinguished record of public service included service as Acting Attorney General. Despite his broad bipartisan support and qualifications, Mr. Keisler waited 918 days for a committee vote that never came. But Mr. Keisler was not the only one of President Bush's nominees to the DC Circuit to receive a heightened level of scrutiny. In fact, when President Bush was President, his nominees to the DC Circuit did not simply receive heightened scrutiny but were subjected to every conceivable form of obstruction. Those of us who were here remember these debates very well: Estrada, Roberts, Griffith, Kavanaugh, Keisler, and Brown. All these nominees had difficult and lengthy processes. This included delays, multiple filibusters, multiple hearings, boycotting markups so we would not have a quorum to vote on their confirmation, including even invoking the 2- hour rule during committee markup and other forms of obstruction. I have not suggested we repeat all the tactics used by the other side employed during the last Republican administration. I do believe, however, it is important to remind my colleagues of the precedents the other side established for nominees to this circuit. There is one other relevant fact I would like to briefly discuss in connection with this vote; that is, the workload of the DC Circuit. That gets back to what I have already referred to--that it has been underworked compared to other circuits. When Peter Keisler was nominated to the same seat, my friends on the other side objected to even holding a hearing for the nominee, based upon concerns about the workload of the DC Circuit. So here is something we tend to agree on, which has gone by the wayside now that we have a nominee from the President of the other party for this same seat. During Mr. Keisler's hearing, one of my Democratic colleagues summarized the threshold concerns. He said: Here are the questions that just loom out there: 1) Why are we proceeding so fast here? 2) Is there a genuine need to fill this seat? 3) Has the workload of the DC circuit not gone down? 4) Should taxpayers be burdened with the cost of filling that seat? 5) Does it not make sense, given the passion with which arguments were made only a few years ago, to examine these issues before we proceed? So we have five very important questions that are applicable today from a Member on the other side of the aisle. I have not heard these same concerns expressed by my friends on the other side with respect to Ms. Halligan's nomination. But that does not mean these issues have gone away. Statistics from the Administrative Office of the U.S. Courts show that caseloads on the DC Circuit have decreased markedly over the last several years. This decrease is evident in both the total number of appeals filed and the total number of appeals pending. Specifically, the total number of appeals filed decreased by over 14 percent between 2005, when there were 1,379 appeals filed, and the year 2010, when only 1,178 appeals were filed. The workload decline is also demonstrated in the per-panel and per- judge statistics. Filings per panel and filings per judge show a decline of nearly 7 percent during this period. Pending appeals per panel dropped over 9 percent. When you examine the caseload statistics in relationship to other circuit courts, the DC Circuit ranks last in nearly every category. For instance, the DC Circuit has the fewest total appeals filed per panel and only half as many appeals filed per panel as the 10th circuit, which has the second fewest in the country. They have the fewest number of appeals terminated per judge. And again, they have roughly half as many terminations per judge as the second least busy circuit--again, the 10th circuit. They have the fewest signed written decisions per active judge, with 57. By way of comparison, the second circuit has 5 times as many, with 270 per active judge. The 10th circuit has roughly 4 times as many, with 240 per judge. They have fewest total appeals terminated per panel, with 347. By way of comparison, the 11th circuit had over 4 times as many total appeals terminated in 2010, with 1,574. The ninth circuit had nearly 4 times as many, with 1,394. And the second and fifth circuits each had 1,329. Given these statistics, we should be having a discussion on reducing the staffing for this court, not filling a vacancy. This seat is not a judicial emergency. And with our massive debt and deficit, I don't understand why we would be spending our time and resources, particularly on a highly controversial nomination. Given the concerns I have about Ms. Halligan's record on the second amendment, the war on terror, and other issues, my concerns regarding her activist judicial philosophy and the Court's low workload, I oppose this nomination, and I urge my colleagues to do the same. I would note in closing the number of organizations expressing their opposition to this nomination: the American Conservative Union, the National Rifle Association, Gun Owners of America, Citizens Committee for the Right to Keep and Bear Arms, Committee for Justice, Concerned Women of America, the American Center for Law and Justice, Heritage Action, Liberty Counsel, Family Research Council, Eagle Forum, and there are others. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, today the Senate is expected to confirm four additional judicial nominees. With these votes, we will have confirmed 61 article III nominees this Congress. I want to note that in the first session of the 112th Congress we have now confirmed more nominees than during the entire 111th Congress. So I think we can declare real progress. Over 72 percent of President Obama's judicial nominees have been confirmed. Despite this record of confirmations, we continue to hear complaints about the way this President's nominees are being treated. So I point out that in only six sessions of Congress in the last 30 years have more nominees been confirmed in a single session. Furthermore, given the cooperation we have shown, I am disappointed that the Senate majority wants to turn to a controversial nomination next rather than continue on the path of cooperative confirmations. The Senate majority leader has scheduled a cloture vote for tomorrow on the nomination of Caitlin Halligan to be U.S. Circuit Judge for the District of Columbia Circuit. I will speak more about the merits of that nomination Tuesday. But I wanted to put that vote in some context. It seems to me that the scheduling of such a controversial vote in the closing days of a session of Congress is designed to simply heat up the partisanship of judicial nominations. Perhaps that is the objective. The result may well be that such a divisive vote might have a chilling effect on reaching agreement on additional judicial nomination votes. I hope that is not the case. But everyone knows the final weeks of a session are often filled with unpredictable actions and outcomes. With regard to the vote tomorrow, there will be some who say this nomination has been vacant for too long and that this nominee is being treated unfairly, needlessly waiting on the calendar for too many weeks. Well, such arguments fail to consider the history of this particular seat of the DC Circuit and of the record established by my colleagues on the other side regarding the consideration of nominations for this very same DC Circuit. This seat has been vacant for over 6 years. It became vacant upon the elevation of John Roberts as Chief Justice. That was back in September 2005. Following Justice Robert's appointment, Peter Keisler was nominated to fill the vacancy in June 2006, with a hearing held August 1, 2006. With a Republican majority in the 109th Congress, one would wonder why he never made it out of committee. Well, it is not that he did not have the votes in committee. The fact is, the Democratic minority would not allow a vote. This was accomplished by holding him over at his first markup, which the rules permit and is a legitimate exercise of the right of a minority and a right that this minority on our side exercised quite frequently this very year. However, for the remaining executive sessions in September of that year, prior to final adjournment they either made sure the committee did not have a quorum so we could not vote or they took the extraordinary step of invoking the 2-hour rule so the committee could not meet. I note that a quorum was present early in one meeting but evaporated when Mr. Keisler's nomination was the pending business. So basically the opponents ran out the clock on this nomination. He did not get a committee vote. He did not get the courtesy of floor consideration, not even a cloture vote like the nominee tomorrow will have. Mr. Keisler was renominated in June 2007 when the Democrats assumed control of the Senate. But his nomination sat in committee with no action until it was returned to the President in January 2009. He was the recipient of a pocket filibuster. This was despite being rated ``unanimously well qualified'' by the ABA Standing Committee of the Federal judiciary and possessing outstanding qualifications to fill this position. So complaints about this seat being vacant for too long just ring hollow with this Senator. Likewise, when one considers the treatment of previous nominees to the DC Circuit, it is evident that the nomination of Ms. Halligan is not being treated in an unfair manner. In fact, her nomination is proceeding far better than many nominated to this court. I would remind my colleagues that previous nominees were subjected to delay or multiple hearings, to extensive delays in committee, and to multiple filibusters on the Senate floor. These include the nomination of Estrada, a Hispanic immigrant with a compelling personal story and outstanding judicial qualifications, who was subject to seven cloture votes; Janice Brown, an African-American female who had two cloture votes; Brett Kavanaugh; and Thomas Griffin. While all of these individuals were eventually confirmed, the procedural tactics used in their nominations made the confirmations very difficult. I am not suggesting this is a pattern to follow, but it is relevant to the arguments that Ms. Halligan is being treated quite differently or in an unfair manner than other nominees. With regard to the nomination before us today, I will say a few words about, first, Mr. Ramos, who is nominated to be U.S. District Judge for the Eastern District of New York. Mr. Ramos earned a BA from Yale in 1982; JD Harvard, 1987. Upon graduation from law school, Mr. Ramos worked as an associate at the law firm of Simpson, Thatcher & Bartlett in New York City. In 1992, Mr. Ramos joined the Office of the U.S. Attorney for the Eastern District of New York, where he prosecuted a variety of Federal crimes, including white-collar crime, defense contractor fraud, money laundering, narcotics trafficking, labor racketeering, and violation of the Arms Export Control Act. In June 2000, he was promoted to Deputy Chief of the Narcotics Section, where he supervised assistant U.S. attorneys prosecuting international narcotics trafficking and racketeering cases. In 2002, the nominee joined the law firm of Day, Berry & Howard LLP, predecessor to the firm Day Pitney LLP, as a partner in the government investigations practice group. Currently, he represents corporations and individuals in connection with criminal and regulatory investigations involving antitrust, bank fraud, public corruption, securities fraud, and government program fraud. The American Bar Association's Standing Committee on the Federal Judiciary has rated Mr. Ramos with a unanimous ``well qualified'' rating. We are also considering the nomination of Judge Andrew L. Carter to be U.S. District judge, Southern District of New York. Judge Carter earned his B.A. from the University of Texas in 1991 and his J.D. from Harvard Law School in 1994. Judge Carter's legal career began in 1996 as a staff attorney for the criminal defense division, Legal Aid Society, in New York, NY. In 2000, he became staff attorney for the Federal defenders division. The nominee became affiliated with the Federal Defenders of New York in 2005, first as staff attorney and, 1 year later, as a supervising attorney. His Federal practice included drug cases, gun cases, and immigration fraud. In 2009, Judge Carter was appointed to his current position of U.S. magistrate judge for the Eastern District of New York, where he is primarily responsible for handling civil matters. The American Bar Association's Standing Committee on the Federal Judiciary has rated Judge Carter with a unanimous ``qualified'' rating. The third nominee we are considering is James Rodney Gilstrap to be a district judge for the Eastern District of Texas, a seat deemed to be a judicial emergency. Mr. Gilstrap received his B.A. from Baylor in 1978 and his J.D. from Baylor University School of Law 1981. Mr. Gilstrap served as an associate attorney for Abney, Baldwin & Searcy from 1981 to 1984. In 1984, he left to begin his own legal practice, Smith & Gilstrap, where he currently practices representing individuals, corporations, and local governments on civil matters. From 1989 to 2002, Mr. Gilstrap served as a county judge for Harrison County, where he had both administrative and judicial responsibilities. The ABA Standing Committee on the Federal Judiciary has rated Mr. Gilstrap with a unanimous ``qualified'' rating. Then we have the distinguished nominee from Montana, whom Senator Baucus just spoke about, Dana L. Christensen, to be U.S. District Judge for the District of Montana. Mr. Christensen earned his B.A. from Stanford University in 1973 and his J.D. from the University of Montana School of Law in 1976. Earlier in his legal career, Mr. Christensen practiced natural resources law, representing coal mining and oil and gas companies in litigation in administrative matters. He went on to practice general insurance defense litigation and medical malpractice cases. In 1996, he founded his own firm and continues to represent these entities and practices in this area. He has also represented defendants in large class-action lawsuits filed in the U.S. District Court for the District of Montana. In addition to his litigation practices, Mr. Christensen has also represented at least 15 physicians in confidential disciplinary matters before the Montana Board of Medical Examiners. He has also represented health care providers in more than 200 matters before the Montana Medical Legal Panel. The American Bar Association's Standing Committee on the Federal Judiciary has rated Mr. Christensen with a unanimous ``well qualified'' rating. I intend to vote for all these candidates. I urge my colleagues to do the same. I yield the floor and suggest the absence of a quorum.

Mr. GRASSLEY

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

Mr. GRASSLEY. For anybody interested in how long I might be, I would say roughly 10 minutes. Mr. President, for nearly a year, I have been investigating the Bureau of Alcohol, Tobacco, Firearms, and Explosives' operation known as Operation Fast and Furious. I have followed up on questions from that investigation as the Senate Judiciary Committee held oversight hearings over the past few weeks with both Secretary Janet Napolitano and Attorney General Eric Holder. Each of them testified about the aftermath of the shooting of Border Patrol agent Brian Terry. I have sought to clarify with facts some of the half-truths that were said during these meetings. Each claimed they were ignorant of the connection between Agent Terry's death and Operation Fast and Furious until my letters with whistleblower allegations brought the connection to light. However, documents that have come to light in my investigation draw those claims into question. I would like to address a couple of those discrepancies. Secretary Napolitano went to Arizona a few days after Agent Terry's death. She said she met at that time with the FBI agents and the assistant U.S. attorneys looking for the shooters. She also said at that point in time that nobody knew about Fast and Furious. Yet documents show that many people knew about Fast and Furious on December 15, the day Agent Terry died. Secretary Napolitano referenced the FBI agents looking for the shooters. The head of the FBI field division was present at the December 15 press conference about Agent Terry's murder. At that very press conference the FBI head told a chief assistant U.S. attorney about the connection to an ongoing ATF investigation. That same night, U.S. attorney Dennis Burke confirmed that the guns tied back to Operation Fast and Furious. These connections were made days before Secretary Napolitano's visit at that time. The very purpose of her visit was to find out more about the investigation. So a very important question comes up: The Department of Homeland Security oversees the Border Patrol. Why wouldn't the Phoenix FBI head have told Secretary Napolitano that the only guns found at the scene of Agent Terry's murder were tied to an ongoing ATF investigation? Let's not forget the U.S. Attorney's Office. Secretary Napolitano said she met with the assistant U.S. attorneys looking for the shooters. The chief assistant U.S. attorney for the Tucson office, which coordinated the Terry investigation, found out about the ATF connection directly from our Federal Bureau of Investigation. So a very important question comes up that needs to be answered: Why would they conceal the Fast and Furious connection from Secretary Napolitano days later? The Tucson office is overseen by the U.S. attorney for the District of Arizona, Dennis Burke, who confirmed to Tucson that guns came from Operation Fast and Furious. When Ms. Napolitano served as Governor of Arizona, Mr. Burke served as her chief of staff for 5 years. Secretary Napolitano acknowledges that she had conversations with him about the murder of Agent Terry. So a very important question comes up: Why would Mr. Burke conceal the Fast and Furious connection from Secretary Napolitano? Even before Secretary Napolitano came to Arizona, e-mails indicate Mr. Burke spoke on December 15 with Attorney General Holder's deputy chief of Staff, Monte Wilkinson. So a very important question is unanswered: Before finding out about Agent Terry, Mr. Burke e-mailed Mr. Wilkinson that he wanted to ``explain in detail'' about Fast and Furious when they talked. In that phone call--and this is a very important question--did U.S. attorney Burke tell Mr. Wilkinson about the case's connection to a Border Patrol agent's death that very day? The next day, the Deputy Director of the ATF made sure briefing papers were prepared about the Operation Fast and Furious connection to Agent Terry's death. He sent them to individuals in Washington, DC, in the Deputy Attorney General's Office at the Justice Department. Within 24 hours, they were forwarded to the Deputy Attorney General. They were accompanied by personal e-mails from one of the Deputy Attorney General assistants explaining the situation. Two weeks later, that Deputy Attorney General, Gary Grindler, was named Attorney General Holder's chief of staff. Yet a month and a half after Agent Terry's death, Attorney General Holder was allegedly ignorant of the Operation Fast and Furious connection to the murder of Agent Terry. So a very important question is unanswered: Why wouldn't Mr. Grindler bring up these serious problems with Attorney General Holder, either as his Deputy Attorney General or as his chief of staff? It is clear that multiple highly placed officials in multiple agencies knew almost immediately of the connection between Operation Fast and Furious and Agent Terry's death. The Department of Justice and the Department of Homeland Security have failed to adequately explain why Attorney General Holder and Secretary Napolitano allegedly remained ignorant of that connection. Whether it is the Attorney General or the Secretary or members of their staff, somebody wasn't doing their job. Somebody wasn't serving their higher-ups as they should have been, as proper staff people. In the case of Secretary Napolitano, either she was not entirely candid with me and others or this was a gross breach on the part of those who kept her in the dark. The Border Patrol and the Department of Homeland Security lost a man--Agent Terry being murdered. It was their right to know the full circumstances surrounding that from people who served under them. No one likes the unpleasant business of having to fess up, but the FBI, ATF, and U.S. Attorney's Office owed it to Agent Brian Terry and his family to fully inform the leadership of the Department of Homeland Security. This was the death of a Federal agent involving weapons allowed to walk free by another agency in his own government. Let me explain ``walking guns.'' The Federal Government operates under the rule of law, just like all of us have to live under that rule of law. There are licensed Federal gun dealers, and Federal gun dealers were encouraged to sell guns illegally to straw buyers and, supposedly, follow those guns across the border to somehow arrest people who were involved with drug trafficking and other illegal things. Two of these guns showed up at the murder scene of Agent Terry. So it is a very serious situation that we need to get to the bottom of. If what I have just described, with all these unanswered questions, is not enough to brief up to the top of the Department, then I don't know what is. In other words, staff people ought to be doing their job or, if staff people were doing their job, then the Congress, in our constitutional job of oversight, is being misled. I yield the floor.

Mr. GRASSLEY. Mr. President, there currently is no cap at all on the amount taxpayers will reimburse contractor employees for compensation except for just a handful of executives, and that limit is already too high at $693,951. That is far above what the chief executive of the U.S. Government gets paid at $400,000 a year. So that is why we would cap it at no more than what the President can get. I presume the Senator from Michigan is aware of that and willing to help us on that process by adopting this amendment.

Mr. GRASSLEY. I thank the Senator.

Mr. GRASSLEY. I say thank you to the managers of the bill for helping us with this very important amendment.

Mr. GRASSLEY. Madam President, at a time when the national security budget is under immense pressure, it is vitally important that we spend our defense dollars more wisely. The Boxer-Grassley amendment will contain runaway spending in contractor salary reimbursements. Notice that I said ``salary reimbursements,'' not salaries. Someone not familiar with government contracting might ask why it's any of our business what government contractors get paid, and I would agree if we're talking about what their company pays them out of its own pocket. When most people hire a contractor to renovate their bathroom or re- shingle their roof, they find the one that does the best work for the least cost. Having done that, you are not likely to ask or care what their cut is or what they pay their crew. To the extent that government contracts work the same way, the same principle applies. Unfortunately, not all government contracts do work that way. A large proportion of government contracts actually reimburse the contractor directly for the costs they incur, including for the salaries of their employees. These types of contracts are risky because contractors lose the incentive to control costs. They are only supposed to be used when a fixed price contract is not possible for instance, if the scope or duration of the work is not possible to determine at the outset. Nevertheless, cost-reimbursement type contracts are used extensively by Federal departments and agencies. The Defense Department alone accounted for over $100 billion in cost reimbursement type contracts in fiscal year 2010. President Obama has criticized the widespread use of these types of contracts and has set a goal of slowing the growth and ultimately reducing their use. He has made a little progress. However, we are talking about a small dent in a large bucket. It's clear that cost type contracts are going to account for a major proportion of the dollars spent on federal contracting for the foreseeable future. As a result, we must take steps to limit unreasonable expenditures under these types of contracts. Senator Boxer and I worked together to try to head off this problem back in 1997. At that time, we proposed capping salary reimbursements at the salary level of the President of the United States. However, a compromise was ultimately enacted that capped how much the top 5 highest earning contractor executives could charge the federal government for their salaries. The cap was set at the median salary of the top five executives at companies with annual sales over $50 million, which must be recalculated annually. Since that time, the cap has more than doubled from $340,650 to $693,951. That's 53 percent faster than the rate of inflation. The House-passed version of the National Defense Authorization bill expands the current cap to all contractor employees, not merely the top five executives, closing a loophole that was being exploited. The version of the DoD Bill before the Senate extends the cap only to the top 10 to 15 executives. However, Senator Boxer and I think it's time to reconsider a fixed cap at the level of the President's salary, which I should add was doubled by Congress to $400,000 since our previous proposal. That is more than generous. Surely the taxpayers should not be asked to pay the salary of a contractor more than the President makes, which is twice what any cabinet secretary makes. Keep in mind that this cap just limits how much Uncle Sam can be billed for, which is on top of whatever the company chooses to pay its employees out of its own pocket. Not only would our straightforward cap save man-hours in the Office of Federal Procurement Policy, which has to gather the data every year to determine the current convoluted cap, but it would save millions of dollars that need not be spent. Again, we cannot afford to go on wasting our increasingly limited defense dollars. We have to be more aggressive in weeding out waste in defense spending and this is one unnecessary expenditure that we can easily eliminate in favor of higher priorities. I urge my colleagues to join us in this commonsense cost cutting measure. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise to inform my colleagues that I am placing a hold on H.R. 3012, the Fairness for High-Skilled Immigrants Act. This bill would eliminate the per-country numerical limitations for employment-based visas and increase the numerical cap for family- based immigrants. I have concerns about the impact of this bill on future immigration flows, and am concerned that it does nothing to better protect Americans at home who seek high-skilled jobs during this time of record high unemployment.

Mr. GRASSLEY

Mr. GRASSLEY. I ask permission to speak for 20 minutes in morning business, but it will probably be less than that.

Mr. GRASSLEY. Yes, go ahead. Amendment No. 1174

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, when the Congress passed the health care law, it imposed a mandate on individuals who lacked health insurance to purchase it. Since then, a number of courts have held that the individual mandate exceeds the power of Congress to regulate interstate commerce. The Supreme Court will soon hear a case on this question. The Supreme Court, which usually gives a case 1 hour of oral argument, is giving the various issues in this case 5\1/2\ hours. This is a modern record. The Supreme Court should exercise its powers of judicial review carefully. One of its major principles of judicial restraint is that an act of Congress is presumed to be constitutional. But this is a presumption that can be rebutted. It derives from the respect that one branch of government gives when reviewing the actions of another. If Congress has made a determination that a statute is constitutional, the Supreme Court should give that finding some level of deference. But the presumption rests on a premise that Congress has made a considered judgment on the constitutionality of the laws it passes. In the case of the health care bill, this did not happen. Republicans raised a constitutional challenge to the individual mandate that was brushed aside by Democrats who favored the bill as a policy matter, and were not going to let a serious constitutional issue get in the way of passing the law. In fact, we know that there was no Congressional consideration of the constitutionality of this unprecedented restriction of the freedom of American citizens. I mean unprecedented literally. Congress has never before discovered or exercised this power in more than 200 years of this country's history. And since Congress has never before imposed a requirement to purchase a product, no Supreme Court precedent has ever found that Congress may do so. Instead, apart from the regulation of items such as navigable waterways or communication lines, the Supreme Court has always discussed the subjects that Congress may regulate under the Commerce Clause as ``activities.'' The Court has never held that Congress can use its Commerce Clause power to regulate inactivity--or require people to engage in commerce. The Court has found that Congress cannot regulate intrastate economic activities that in combination do not affect commerce. And Congress cannot regulate non-economic activities, such as carrying a gun in a school zone. So it should be clear that Congress cannot regulate inactivity--such as a thought or a decision not to purchase health insurance. Congress has great power under the Commerce Clause to reduce individual freedom. In 1942, the Court ruled in Wickard v. Filburn that a farmer could be penalized for exceeding a quota on the amount of wheat he could produce, even when the excess went for providing food for his own farm and its livestock. And that Commerce Clause decision has allowed Congress to pass many significant regulatory laws, such as environmental laws, drug laws, and the public accommodation provisions of the civil rights laws. But in every such case, the regulated person retained the freedom to avoid being regulated. A person who did not want to comply with environmental laws could stop engaging in the activity that fell under the environmental laws. A person who did not want to be subject to the drug laws could avoid transporting drugs. And a person who did not want to adhere to the public accommodation laws could leave the public accommodation business. The individual mandate is different. The mandate requires action. And there is no escape. A person cannot opt out of the activity that triggers the regulation because the mandate applies even to inactivity. If the person is alive, then he or she has to buy health insurance. That is a serious and novel threat to individual freedom. Congress has offered incentives to change people's behavior. But it is hard to see why Congress would do that if it had the power it now claims to force people to buy particular goods and services. Under this logic, Congress could require people to buy new GM cars, so it would not have enacted Cash for Clunkers. Similarly, this supposed power would allow Congress to order people to pay money to third parties rather than raising taxes. And a decision upholding the mandate would permit Congress to keep beef prices high by requiring vegetarians to buy beef. Members of Congress could use this supposed Commerce Clause power to entrench themselves in office. They could require people to buy houses or cars or other products in areas where their political party has its base of support. Despite the arguments of the Obama Administration, the power it claims that Congress can use to compel people to buy goods and services is not unique to health care. The judges who are honest recognize that if Congress can force people to buy insurance, Congress can force the purchase of any product or service. It can regulate inactivity because that can affect interstate commerce. This conclusion is consistent with the opinion of the Congressional Budget Office. In a 1994 memo, CBO wrote that ``a mandate-issuing government'' could lead ``in the extreme'' ``to a command econom[y] in which the President and the Congress dictated how much each individual and family spent on all goods and services.'' In June of this year, the Supreme Court unanimously decided in the Bond case that an individual--not only a State--could challenge the constitutionality of a Federal statute as exceeding the power of Congress to enact under the 10th Amendment. The Court wrote, ``By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.'' The case now before the Supreme Court raises first principles about our republic. The people are the sovereign in our country. The government serves the people, not the other way around. That is enforced through a Constitution that gives the Congress limited powers. In the Federalist Papers, James Madison wrote that the powers of the Federal Government are few and defined, and the powers of the States are many and undefined. Although there is much more interstate commerce in today's economy than there was in 1787, the power is still limited. If Congress can require Americans to purchase goods and services that Congress chooses, without a limiting principle, then there is no limited Federal Government. There would be no issue that Congress could not address at the Federal level. There would be no range of State powers that the Federal Government cannot usurp. The 10th Amendment would be a dead letter, as there would be no powers reserved to the States. Congress exceeded its enumerated powers in passing the individual mandate. It attempted to create an all-powerful Federal Government that posed a threat to liberty that the Supreme Court unanimously warned against in the Bond case. All the Supreme Court need do to strike down the mandate is to adhere to its position in Bond. If it departs from that view and upholds the mandate, then our hopes for liberty may depend on a new President charting the course contained in Judge Kavanaugh's dissenting opinion in the D.C. Circuit case. Judge Kavanaugh wrote that a President is not required to enforce a statute that regulates private individuals that the President believes is unconstitutional. This is true even when a court has held the statute to be constitutional. Mr. President, the upcoming Supreme Court decision on the constitutionality of the individual mandate is important not only for the fate of that provision, but for its effect on the powers of the Federal Government and the very survival of individual economic liberty. I yield the floor. I suggest the absence of a quorum.

Mr. GRASSLEY

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

Mr. GRASSLEY

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

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, since the Senate last convened, I have learned of the loss of a brave Iowan who was defending freedom overseas. Marine Corporal Zachary Reiff was wounded during combat operations in Helmand Province, Afghanistan and later succumbed to his wounds. This news has hit the close knit community of Preston, IA very hard. My prayers go out to all who knew Zach, particularly his parents Marcia and Matt, as well as his brother Kolby and his sister Emily. By all accounts, he was active in school, having played football, wrestled, and ran track as well as participating in school plays. As such, there was certainly no shortage of people in the community with memories to share. It is also evident that Zach is well thought of judging by the outpouring of good will following the news that he had been wounded. Zach is described as a caring person. Certainly, the beaming smile in many pictures posted on a Facebook prayer page in his honor makes even those who didn't know him wish that they had. Friends say that Zach was proud to serve his country and liked his work. Zach Reiff is one of those special Americans who throughout our history have not hesitated to put their life on the line for the Stars and Stripes and everything it stands for. Our country is truly blessed to have patriots such as Zach Reiff. We owe him more than we can express and we have an obligation to remember him and his sacrifices in the name of liberty.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I am pleased the Supreme Court has agreed to hear the arguments in three cases challenging the constitutionality of the health care reform law Congress passed 2 years ago. I appreciate that the Obama administration asked the Supreme Court to hear this question. In light of the importance of these cases, I have written to Chief Justice Roberts asking him to provide live audio and video coverage of the oral arguments. The constitutionality of the health care law was the subject of a hearing in the Judiciary Committee last February. Regrettably, the Judiciary Committee would not hold such a hearing until after the bill became law. Those who voted for that law should have given these constitutional questions more attention before they voted for the bill. Today I wish to discuss the issues that are presented in the cases, focusing primarily on the constitutionality of the individual mandate and another recent appellate court ruling on that topic. When Congress passed this law last year, we were told it would be very popular and truly and clearly constitutional. Neither is true. Polls show that the law remains unpopular. The law's individual mandate provision requires nearly all Americans who do not otherwise have health insurance to purchase such insurance or to pay a monetary penalty. That provision also raises serious constitutional questions about the scope of congressional power to regulate interstate commerce. Normally, the Supreme Court grants only 1 hour for oral argument. Here, the constitutional questions associated with the bill are so difficult that the Supreme Court has decided to devote 5\1/2\ hours to oral argument. The answers to the questions are not clear. Besides considering the commerce clause question, the Court will also hear oral arguments on three other questions. The first is severability: Will the remainder of the law stand if the individual mandate is struck down? Normally, the Court does not even consider severability until it has decided that a part of a statute is, in fact, unconstitutional. The fact that at least four Justices have voted to hear arguments on this question should cause uneasiness among those who are confident that the law is constitutional. The second issue is the constitutionality of the law's expansion of the Medicaid Program upon the States. The third is whether procedurally the law can be challenged in the courts before it actually takes effect. There is always the possibility that after all the briefs, all the arguments, and all the public expectations, the Supreme Court will finally resolve whether the health care law is, in fact, constitutional. Conversely, the Court could determine that it is too soon for it to rule on the issue because the law hasn't fully gone into effect. Before the Supreme Court agreed to hear these cases, the U.S. Court of Appeals for the DC Circuit ruled that the individual mandate was within the constitutional power to regulate interstate commerce. That court concluded that this result followed from existing Supreme Court decisions. It also ruled that Congress could, therefore, require private individuals to purchase any product that Congress chose. The majority opinion was written by Judge Laurence Silberman. I respect Judge Silberman, but I strongly dispute his ruling and I wish to take this opportunity to outline my disagreements with Judge Silberman. I think Judge Silberman has selectively read Supreme Court decisions. For instance, he noted that no Supreme Court has ever held the commerce clause authority is limited to people who are currently engaging in an activity that involves interstate commerce, but it is equally true that no Supreme Court case has ever held that the commerce clause covers people who are not engaging in an activity and may never do so in the future. It is not clear why Judge Silberman focused only on the first formulation and did not consider the second. This omission is even more peculiar when compounded by his omission of the Supreme Court's repeated skepticism of congressional claims that it can exercise a power that it never before discovered in more than 200 years of our constitutional history. The Court has always been wary when a new power is claimed. Judge Silberman recognized that the power claimed here to require that the purchase of a product or service is novel, but he did not continue with the next step that the Supreme Court would have taken. Instead, the judge concluded that the argument against the power was equally novel. I think it is common sense no one would have made such an argument if Congress had not claimed this power. For instance, when the Supreme Court in the Plaut case ruled that Congress could not reinstate a statute of limitations once it had expired, it pointed out that Congress had never done that. It did not belittle the argument against the practice by characterizing it, as Judge Silberman did, as novel. In fact, the argument against the novel claimed power won. Judge Silberman stated that Congress cannot regulate noneconomic behavior based on a weak link to interstate commerce. He ruled that Congress cannot regulate intrastate economic activity that in the aggregate does not substantially affect interstate commerce. Agreeing with Judge Silberman, so far so good. But then he found that decisions whether to purchase health insurance do affect interstate commerce. However, the Supreme Court has never ruled that Congress can regulate decisions--in other words, thoughts--on whether to purchase a good or service. The Court for decades has referred to the power of Congress to regulate activities that affect interstate commerce. Since Congress cannot regulate noneconomic activities or intrastate economic activities that have no combined effect on commerce, then it follows naturally that Congress cannot regulate at all inactivity--such as refraining from buying a product. Judge Silberman considered the ``activity'' argument and, in my mind, he repeated an earlier error. He concluded that no Supreme Court case had ever said that existing activity was necessary for Congress to exercise its power to regulate interstate commerce. But it is just as true that many Supreme Court cases have described the kinds of activities Congress may regulate under the commerce clause. Judge Silberman could have as accurately found that no Supreme Court case has ever held that Congress has the power to regulate commerce in the absence of an activity. Another way Judge Silberman selectively read the Supreme Court precedents is that he could have struck down the individual mandate consistent with all Supreme Court precedents. This point was confirmed in the Judiciary Committee hearing we held in February. I asked the witnesses whether the Supreme Court could strike down the individual mandate without overruling any of these precedents. The Republicans' witnesses both responded that the Court could do so. The Democrats' witnesses identified no cases that would have to be overturned. So not only is the individual mandate unconstitutional, but the Supreme Court could strike it down without overturning any of its precedents. Judge Silberman disagreed. He said the mandate here is close to the facts of Wickard v. Filburn, a famous 1942 Supreme Court decision that broadly read the powers of Congress to regulate interstate commerce. The Court then upheld the second Agricultural Adjustment Act. Under that law, a farmer could be penalized for growing wheat on his own farm even for the use of his own family and livestock. He could not grow that wheat if he exceeded his wheat quota. The homegrown wheat substituted for the wheat the farmer otherwise would have had to purchase on the open market, so the Court concluded that would depress the price of wheat when combined with the actions of similar farmers all across the country. So, obviously, in Filburn, that farmer affected interstate commerce. That may not make sense to us today, but it made sense in 1942, and it is still a precedent. Judge Silberman, however, ruled that the regulation at issue in that case is very similar to the individual mandate, which is an inactivity if you decide not to purchase it, and that any activity involved in the Wickard case was incidental to simply owning a farm. I take issue with that. The Wickard case differs conceptually from the individual mandate. Farmer Filburn, in 1942, could avoid the regulation by ceasing to farm, by no longer engaging in the regulated activity. In fact, that is true in all of the cases Judge Silberman cited. A person can avoid laws penalizing cultivation of marijuana by not cultivating marijuana. A person can avoid laws criminalizing child pornography by not downloading child pornography. A person can avoid public accommodation regulations by not operating a public accommodation. Those are activities Congress can constitutionally regulate under the commerce clause. But that is not the case with the individual mandate. You cannot avoid being subject to that mandate. If you exist, if you are alive, an individual in this country, you are regulated. And, of course, that is not the situation with respect to any other decisions Judge Silberman cited. It is why he is, respectfully, wrong to find that the infringements on liberty are the same in those cases as they are in the individual mandate. The liberty of avoiding the regulation was preserved in the laws at issue in those cases. Liberty would prevail because you did not have to abide by the law if you were not in that business, but not so with the individual mandate under the health care reform bill. Moreover, I disagree with Judge Silberman's assertion that it is for political reasons and not constitutional ones that it took until 2010 for Congress to conclude that the Constitution allows it to force people to buy goods or services. If this power truly existed, Congress would have exercised it frequently and long ago. Why would Congress pass tax incentives to encourage people to buy hybrids if Congress could simply order you or anybody else to buy hybrids? Why would Congress give strong incentives for farmers not to grow wheat so as to keep the price up when it could force people--the consumer--simply to buy wheat? Why could it not raise the price of beef by requiring vegetarians to purchase it, so long as it did not require them to eat that beef? Why would Congress take the political heat for raising taxes when it could order some people to pay third parties for goods and services? Even more sinister, Members of Congress could use this supposed power under the commerce clause to entrench ourselves in office. Congress could require that the goods and services Americans must purchase be limited to those providers who contribute to the political party of the Members. Or it could prohibit purchases from those providers who contribute to the other political party. It could require people to buy houses or cars or other products in areas where that political party has its base of support. Sounds a little bit like Mussolini's Italy, doesn't it? Before the Supreme Court's Lopez decision, there were people who believed Wickard v. Filburn, since 1942, gave Congress the ability to regulate anything Congress chose to regulate. Then, in the Lopez case, the Supreme Court ruled that the commerce clause did not permit Congress to regulate the possession of handguns near schools. At the time, there was widespread fear among liberals that the power of Congress to regulate interstate commerce would be jeopardized. Those fears did not materialize. Similarly, today, people such as Judge Silberman again believe that Wickard v. Filburn gives Congress the ability to regulate nearly anything it chooses and, therefore, the individual mandate must be upheld. I do not agree. Where I give Judge Silberman credit--and if you knew the man, you would know this is his character--is in his intellectual honesty. Unlike the Obama administration, Judge Silberman recognizes the truth. If Congress can force people to buy health insurance, he admits, it can force people to buy any goods or services. It can regulate inactivity because it can affect interstate commerce. This is consistent with the opinion of the Congressional Budget Office, which wrote in a 1994 memorandum that ``a mandate-issuing government'' could lead ``[i]n the extreme'' to ``a command economy, in which the President and the Congress dictated how much each individual and family spent on all goods and services. . . . '' That is not the America our Constitution writers envisioned. At the oral arguments in the DC Circuit, the judges asked the Obama administration lawyer if Congress could require Americans to buy broccoli, or to buy cars to keep General Motors in business, or to set up mandatory retirement accounts in place of Social Security. The lawyer weaseled an answer, saying that ``It would depend.'' That is not a principled position on the nature of the supposed powers of Congress, which has no limit. Judge Silberman is a former Ambassador to what used to be Yugoslavia. He understands the difference between a command economy and a free market economy. What his decision implicitly states is that Wickard v. Filburn permits Congress to enact a command economy with no individual economic freedom whatsoever. But our Constitution provides protections for private property and for contracts. It establishes some form of a free market system. Judge Silberman's interpretation may imply that Wickard v. Filburn was wrongly decided and should be overturned, but I do not believe it is necessary to overrule that decision, any more than it was necessary to reverse the Filburn case when they decided the Lopez case. Apart from cases, we need to go back to the basics. We should consider first principles in evaluating the constitutionality of the individual mandate in the health care reform bill. The people are sovereign in our country. The government serves the people, not the other way around. That is enforced through our Constitution. And that Constitution gives Congress just limited powers. In the Federalist Papers, James Madison wrote that the powers of the Federal Government are few and are defined, and the powers of the States are many and are undefined. Although there is much more interstate commerce in today's economy than there was in 1787, the power is still limited. If Congress can require Americans to purchase goods and services that Congress chooses, without a limiting principle, then there is no limited Federal Government. There would be no issue that Congress could not address at the Federal level. There would be no range of State powers that the Federal Government cannot usurp. And there would be no individual economic autonomy that the Federal Government must respect. Surely, the Constitution would not have been ratified if Americans had understood it to permit such a result. The upcoming Supreme Court decisions on the constitutionality of the individual mandate are important, not only for the fate of that provision but for their effect on the powers of the Federal Government and for the very survival of individual economic activity. I yield the floor.

Mr. GRASSLEY. I ask unanimous consent to address the Senate as in morning business.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I would like to alert my colleagues that I intend to object to any unanimous consent agreement for the consideration of S. 1793 or its companion, H.R. 2076, the Investigative Assistance for Violent Crimes Act of 2011. Unless changes are made to address my concerns with the legislation, I will continue to object. I oppose S. 1793/H.R. 2076 in its current form because it would expand the jurisdiction of the Federal Bureau of Investigation by giving it authority to conduct investigations of State crimes, and I believe that that is a bad precedent to set. The FBI should not be turned into a roving national police force. I do believe in allowing Federal law enforcement agencies to assist State and local agencies, when requested. Agents providing assistance should be afforded civil liability protection. Unfortunately, the bill excludes all other Federal law enforcement agencies that routinely provide law assistance to local law enforcement when requested. For example, local police believed the Secret Service possessed the expertise they needed to assist in their investigation of the Boston ``Craigslist Killer.'' As a result of this expert assistance, the killer was captured. There is no reason to limit States and localities to the assistance of the FBI alone, when other agencies may have the particular expertise that is needed. Too many people think that only the FBI helps local law enforcement. That's simply not true. State and local officers develop positive relationships with their Federal law enforcement counterparts. When a violent crisis occurs, they often request assistance from the Federal agents they already work with. I support the idea behind the legislation: to allow State and local agencies to request the assistance of Federal law enforcement to address serious State and local crimes. But that should apply to all agencies, and should be done without expanding the authority of any Federal law enforcement agency to conduct investigations of State and local crimes on its own, at the expense of other State, local, and Federal law enforcement agencies. The bill as reported also contains an ill-advised requirement that the Bureau cannot provide assistance to State or local law enforcement agencies unless three persons have died. Given that the bill purports to permit assistance in the case of attempted mass murder, a requirement that three people have died before assistance can be provided, is flawed. Moreover, there have been serious crimes involving mass shootings in which, fortunately, no one has died. No assistance could be provided to investigate such crimes under the bill in its current form. Until these concerns are addressed and further changes are included in the bill, I support holding this legislation on the Senate floor.