Chuck Grassley

Mr. GRASSLEY

Mr. GRASSLEY. For the third time in a couple weeks, I want to speak about one of the nominees we are going to be voting on today. That nominee is Peter Kadzik. He has been nominated to the Department of Justice's Office of Legislative Affairs. He would have the position of Assistant Attorney General. Today I would like to make a few concluding comments about this nominee's record as well as this administration's record, more broadly speaking, with respect to congressional oversight. It is hard for me to imagine a nominee who is less suited to head the Office of Legislative Affairs than Mr. Kadzik. It is not a mystery how the nominee will run that office if he is confirmed, and we know that because he has been Acting Assistant Attorney General for well over a year, and he has a long and well-established history of contempt for congressional oversight authority. It is clear to me that when it comes to this nominee, past practice will be an accurate predictor of future performance. Unfortunately, there is a lot of evidence that justifies my conclusion. I will start with the nominee's record of contempt for congressional oversight even before he joined the Justice Department. When he was a private attorney back in 2001, the House ordered the nominee to testify as part of the Congress's investigation into the eleventh-hour pardon of billionaire tax fugitive Marc Rich. The nominee represented Rich. Not only did the nominee refuse to appear voluntarily, but he got on a plane to California the day before he was scheduled to testify before the House committee. In order to get him to testify before the House, the House had to send the U.S. Marshals to personally serve him with a subpoena in California. Isn't that a cute way to act when Congress is trying to speak to him? When he returned to Washington, he actually claimed that his lawyers had never bothered to mention the subpoena to him before he left on that plane trip to California. We know that claim isn't true because of handwritten notes that are now part of the record of this nominee's confirmation hearing. Unfortunately, things haven't improved much since then. The nominee's record as Acting Assistant Attorney General has been completely unacceptable. Senators' letters and questions go unanswered for many months before the nominee provides--most often--a largely nonresponsive reply. So, as I said last week, this administration is sending a message by nominating Mr. Kadzik to the Office of Legislative Affairs. That message is this: You can expect more of the same. I want to ask my colleagues this: How much more abuse of this body's prerogative by this White House are we willing to accept? How much more stonewalling of our legitimate, reasonable requests for information are we prepared to tolerate as we try to carry out our constitutional responsibility of oversight? How many more times do you intend to look the other way as this administration flaunts the law through illegal and unilateral executive action? In recent weeks the administration has raised the stakes. Two weeks ago the President approved the release of the Taliban five from Guantanamo without so much as a phone call to the chair or vice chair of the Senate Select Committee on Intelligence. Disposition of the detainees at Guantanamo is one of the most important issues related to the war on terror, and Congress has a well-defined role under the law when it comes to releasing dangerous terrorists. But the administration doesn't care about the role Congress has assumed for itself under the Constitution and under the laws we write. This administration has shown total contempt for its obligations under the law--a law they took an oath to uphold. I guess the President's view is that it is better to ask forgiveness after the fact than it is to abide by his constitutional obligation to follow the law and take care that law is faithfully executed. That is one reason why this nomination is so important. It is a perfect example of this administration's contempt for oversight and contempt for the law. This Senator believes Congress is entitled to learn why the administration thinks it is free to ignore the law. That is why I asked the Attorney General to provide the legal rationale for the President's unilateral executive actions that the Office of Legal Counsel gave to the administration that they could ignore the law that said they had to notify Congress 30 days ahead of time when they were going to release Guantanamo prisoners. But back in May the nominee refused to disclose the Office of Legal Counsel materials. Given the administration's flagrant disregard for the law governing the release of the Taliban fighters, I think my request to the Attorney General is all the more important right now. So I renew my request that the administration provide us with whatever advice it received from the Office of Legal Counsel before it decided to violate the National Defense Authorization Act and go forward with the stealth release of the Taliban prisoners. On June 5 I asked the Attorney General to provide the Justice Department's legal rationale by June 19, which happens to be just 2 days from now. At the very least Senators should wait for a vote on this nomination until then so we can determine whether the Justice Department intends to comply with our request for the legal justification as to why the President could ignore the law when these prisoners were released. That would be a modest first step the administration could take to demonstrate it is serious about respecting oversight authority and the constitutional responsibility of the Congress to do that oversight and whether or not they respect the separation of powers under the Constitution. I will conclude. My colleagues know this nominee embodies the administration's disregard for oversight authority and its dismissive approach to its legal obligations. That much is clear. But my colleagues also need to remember this: If they vote for this nominee, they are voting to diminish congressional authority. If they vote for this nominee, they are voting to give the President more of a free pass than he already assumes--and specifically in this case on the unlawful release of Taliban fighters. They are voting also to empower unlawful execution of executive actions by this and future administrations. They are voting to chip away at the network of checks and balances that undergirds the relationship between the executive and the legislative branches--the very signal the Constitution writers sent to the Colonies that they didn't want one person making decisions in our government; they wanted that to be divided authority. Also remember that one day the shoe may be on the other foot. One day there may be a Republican administration that is just as cavalier about its legal obligations. If that administration ignores our oversight request, any Senator who voted for these people will have no right to complain. I urge Senators to stand up for the Senate's constitutional responsibilities of oversight and stand up to this administration and vote no. I yield the floor.

Mr. GRASSLEY

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

Mr. GRASSLEY

Mr. GRASSLEY. Just last week the majority leader gave his view that tax extenders as an issue is dead in the Senate until the lameduck session. I presume that means we will have a lameduck session. The majority leader blames this on Republicans, the minority in the Senate, but as you all know, the majority leader is uniquely situated under our Senate rules to determine what legislation will be considered on the Senate floor. The majority leader's excuse that was given for not proceeding to extenders before a lameduck session is that we Republicans are seeking to offer amendments unrelated to tax extenders. Of course, this excuse simply does not fly. Even an introductory report on Senate procedure from the Congressional Research Service will tell all Senators that there is no ``standing rule or general requirement that the amendments offered by Senators on the floor must be germane or relevant to the bill being considered.'' The CRS report states: The right to offer non-germane amendments is extraordinarily important because it permits Senators to present issues to the Senate for debate and decision without regard to the judgments of the Senate's committees or the scheduling decisions and preferences of its majority leader. The majority leader has sought to circumvent the open amendment process by blocking amendments by filling the amendment tree. This allows the majority leader to effectively decide what, if any, amendments ought to receive consideration here on the Senate floor. Essentially, this allows the majority leader to impose his own will at the expense of the will of the Senate as a whole. Another way to say it: The majority leader decides what 99 other Senators can offer as amendments. The real reason the majority leader does not want to bring extenders back is that he is concerned that Members of his party might have to take tough votes in an election year. Of course, in a parliamentary system, this is a poor excuse for putting off considering legislation that has broad bipartisan support, and this extenders bill does have broad bipartisan support. This approach puts politics before constituents. Delaying tax extenders legislation until the lameduck session has real consequences for our constituents. We know from previous years what has happened when tax legislation is not passed in a satisfactory amount of time. Late action on tax extenders poses significant tax administration burdens that cause headaches and hardships for millions of taxpayers. When we fail to act in a timely manner, tax forms are not ready and refunds are delayed. We owe it to our constituents to see to it that these added complications are not a factor this year. Tax season is already unpleasant enough without our adding to it by failing to do our job in a timely fashion. While many view tax extenders as benefiting businesses, the truth is the delay of widely used individual tax provisions will impact millions of taxpayers. I will give a few examples. Three of the most widely used tax provisions are the State and local sales tax deduction, claimed by over 11 million returns in the latest year for which we have statistics--2011; the above-the-line deduction for teachers' expenses, claimed on over 3.8 million tax returns in that year, 2011; and the college tuition deduction, which was claimed on about 2 million tax returns. These 3 provisions alone give us over 16 million reasons--because of 16 million taxpayers being affected--to act now to ensure that we don't subject these taxpayers to needless delays and complications this coming filing season. These 16 million tax filers should provide more than enough reason for not putting off tax extender legislation until the lameduck, but if you are in need of another reason, think of the small businesses that are anxiously looking on and wondering what we are going to do about the expiration of the enhanced expensing rules under section 179. I am sure I am not the only one hearing from small business owners and from farmers who are putting off purchasing that new truck or tractor because they do not know the fate of this provision. This is bad for economic growth, bad for jobs. Then there is the lapse in the renewable energy incentives that support millions of jobs not only in my State of Iowa but in many other States across our country. The expiration of these provisions has already hampered the strides made toward a viable, self-sustainable renewable energy and fuel sector. Delaying extension of these important provisions is hurting the economy and costing jobs. A biofuels organization found that nearly 80 percent of the U.S. biodiesel producers have scaled back production this year. Sixty-six percent of the biodiesel producers have reduced their workforce and anticipate cutting jobs. This is a direct result of the policy uncertainties here in Washington, DC, including the expiration of the biodiesel tax incentive. The only thing standing in the way of passing the extenders package here in the Senate is decisions made by the majority leader and getting an agreement on a handful of reasonable amendments. The delay in passing the extenders package is harming a whole range of renewable energy efforts. A letter delivered to every Senator from about 200 clean energy businesses urged quick passage of the bill. The letter stated: The lack of timely action to extend these provisions injects instability and uncertainty into the economy and weakens confidence in the employment marketplace. Moreover, the extension of the expired provisions should not be delayed until the end of the year since companies are making decisions right now related to taxes that will have an immediate impact on the economy. I would encourage all of those who support this bill to urge the majority leader to bring it back and allow for a fair amendment process. Could the Senate majority leader possibly argue that it is more important to protect Senators from tough votes than to move forward on clean energy and job creation? For such an important piece of legislation, there is no legitimate reason for the majority leader to refuse to bring extenders to the floor for an open and honest debate. It has been quite a while since we have had a relatively open amendment process on major tax legislation. Because of this, many Senators view this bill as their one shot at getting tax priorities they have considered on the floor. There is no reason that an agreement cannot be reached that will provide opportunities to Members on both sides of the aisle to offer those amendments. As a former chairman and ranking member of the Finance Committee, this Senator knows this can be difficult, but it is more than doable. I remember when Senator Baucus and I regularly worked out an amendment process on tax bills. Usually this would consist of alternating votes on a block of 10 or so Democratic and Republican amendments so each side was treated fairly. A tax bill that comes to my mind as an illustration of this process is a bill entitled Jumpstart Our Business Strength Act or, as we use the acronym, JOBS. Like the extenders package, the JOBS Act had broad bipartisan support and ultimately passed the Senate 92 to 5. Though it had bipartisan support, there was no shortage of Members from the other side seeking to offer their amendments. Many of these amendments were in no way related to tax, although the JOBS Act was a tax bill. As the bill's chief sponsor and floor manager, I had hoped to keep amendments somewhat relevant--at least related to tax. However, the then Democratic minority pushed for votes on everything from overtime laws to trade adjustment assistance to unemployment insurance. All of these amendments were political in nature. They were intended to make Republicans take tough votes. At the time, then minority leader--now Majority Leader--Reid vigorously defended the right of the minority to get votes on these and other amendments that were entirely nonrelevant and nongermane. We Republicans took those votes because we wanted to get things done. We wanted to get a very important tax bill passed. That is what the American people need right now--new leaders who want to get things done. Yet today we were told Republicans are unreasonable for even seeking tax amendments to tax legislation. But it is not just Members of the minority who would like to offer amendments. Members on the other side filed nearly as many amendments as Members of the minority, but under the procedure set by the majority leader, even Members of his own party were not able to offer amendments. We could have been debating amendments to an extender bill this week. Instead, we wasted time on other pieces of legislation that were designed to fail, so the other side could score political points. We were all sent here by our constituents to represent them in the legislative process. So let's legislate, which means debating and offering amendments. A bipartisan bill, such as the tax extenders bill, would be a perfect opportunity to show our constituents our ability to work together and get things done. I call upon the leadership of the Senate to bring the tax extenders bill back to the floor and to allow for reasonable amendments that permit individual Senators of both parties to have a say in crafting this legislation. Kadzik Nomination Madam President, I wish to speak about an issue I spoke to earlier this week that I feel is so important I want to remind colleagues of its importance to me and what I think is an important issue for the oversight work of the Senate. On Monday I explained my opposition to the nomination of Peter Kadzik to be the Assistant Attorney General for Legislative Affairs at the Justice Department. In my view, the nominee's record demonstrates contempt for congressional oversight. He has made a habit of providing evasive, nonresponsive, and plainly insufficient answers to congressional inquiries over the years. That practice alone disqualifies him from heading up the Legislative Affairs Office. That office has had a chronic problem with credibility in recent years--going back and forth with Mr. Kadzik as well. Specifically, I am referring to the false denials regarding Operation Fast and Furious, which Mr. Kadzik's predecessor made and eventually had to retract. So it is pretty evident to me that this administration is sending a message to all of us in the Senate by nominating an individual with a track record as abysmal as Mr. Kadzik. That message is this: Expect more of the same. That is quite a message from the self-professed most transparent administration in history which, quite frankly, has not turned out to be so transparent. But there is a lot more at stake regarding Mr. Kadzik's nomination than restoring credibility to the Legislative Affairs Office--a lot more. As we all know, at the beginning of this year the President boasted that he had ``a pen and a phone'' and that he intended to use it. What he meant, of course, was that he would bypass the legislative process and proceed with aggressive and unilateral executive action. So in January I called on the Attorney General to disclose the opinions and memoranda from the Justice Department's Office of Legal Counsel, providing the legal justification for this President's unilateral executive action. Four months later, Mr. Kadzik replied to me in a 1-page response. He said, in short, he would not disclose those legal opinions. But he said if I had additional questions regarding the legality of the President's actions, I should let him know. That was May 20. Well, 11 days later, on Saturday, March 31, we learned that the President had flouted the congressional notification provisions of the National Defense Authorization Act. This latest example of the administration's flagrant disregard for its legal obligations to submit to congressional oversight has dominated the headlines. I am referring, of course, to the administration's failure to notify Congress of its plan to release the so-called ``Taliban Dream Team'' from Guantanamo last week. As every Senator knows, the National Defense Authorization Act--a law this President has signed--required the administration to notify key congressional committees at least 30 days before arranging the release of a prisoner from Guantanamo. The law enumerates exactly what that notification needs to address. Specifically, the administration was legally required to explain to Congress why the release is in the national security interest of our country. The administration was legally required to explain to Congress what action it had undertaken to mitigate the risk of reengagement of such terrorists by re-releasing the detainees. The law requires these explanations and other disclosures because the Members of this body have an independent responsibility to ensure the national security of the United States. And, of course, we take this responsibility seriously. Each one of us swore an oath to protect and defend the Constitution--the same oath that the President took. Unfortunately, this administration has locked us out of the process that the National Defense Authorization Act requires. I know I need to be more clear for most of you. The history of section 1035 and the negotiations surrounding it make it plain that Congress included those provisions because it wanted to avoid release of prisoners like this one. So congressional opposition should not exactly come as a surprise to this administration. This administration broke not only the law but also the promise it made in 2013 when White House Press Secretary Jay Carney promised that the administration ``would not make any decisions about the transfer of any detainees without consulting with Congress and without doing so in accordance with U.S. law.'' The administration knows it broke the law. Certain Senators on our Select Committee on Intelligence have even reportedly received apologies from the administration officials for not notifying them. I don't think apologies are enough, and I don't think this administration takes seriously its legal obligation to consult with us before acting. Take the recent statement made by the Deputy White House Press Secretary on June 9. He said that ``this administration continues to be committed to coordinating with our partners in Congress.'' But the law doesn't require mere ``coordination.'' Coordination under the law is not good enough. The President is required by law to meet certain obligations, and he recklessly ignores those obligations. The President is required by the Constitution--a document the President claims to know a lot about because he was a constitutional law professor--to ``take care that the laws be faithfully executed.'' Yet we all know by now that this President picks and chooses which laws to enforce. This is not how our constitutional system is designed. The President is not in power to ignore the law. So ``coordination,'' as the Deputy Press Secretary said, is not good enough. We need compliance with the law. This administration needs to commit--on the record--that going forward it intends to comply with the National Defense Authorization Act so that another one of these stealth detainee releases never happens again. With the exception of the majority leader, this administration has kept every Member of the Senate and the House in the dark about releasing five of the most dangerous terrorists we were holding at Guantanamo. Even the majority leader was not given the 30-day notice the law requires. So it is clear that not a single Senator was notified in compliance with the law prior to the release of the Taliban Five. It is likewise clear that not a single Senator received an explanation regarding national security and risk mitigation that the law requires in advance of releases. But the failure to notify us in Congress in accordance with the law does not relieve this administration of its responsibility to justify the releases. There is a lot about this ordeal that is extremely concerning. Part of what is so troublesome is that this administration can't even seem to get its story straight regarding why it ignored the law. The justifications the administration has offered publicly thus far have shifted dramatically from one day to the next day. I will show how the shift has taken place and the justifications that have been presented to the public. Shortly, after the release of the Taliban Five on June 1, the administration sent--of all people--National Security Advisor Susan Rice back to the Sunday talk shows--in Benghazi fashion--to explain the administration's rationale. Adviser Rice told CNN that the ``acute urgency'' of an unspecified ``health condition'' that Sergeant Bergdahl was suffering from had forced the President to act without notifying Congress. We haven't heard much publicly about the acute medical emergency since then. In fact, a number of my colleagues have expressed skepticism at what little information the Pentagon has provided publicly regarding Sergeant Bergdahl's physical condition. But since the administration has said it was an emergency because the terrorists had threatened Bergdahl's life, apparently that was the medical emergency. But now the story has changed. First, on Monday, following the releases, according to press reports, the White House called the chair of the Senate Select Committee on Intelligence to apologize for its so- called oversight in failing to consult with Congress. So they meant to inform Congress about the releases but didn't because it was an ``oversight.'' Is that the story now? No. It didn't take long for the story to change. The White House then offered a new explanation. On Tuesday, the Deputy White House Press Secretary said that the release was ``a secret military mission in which disclosures of the mission could put into jeopardy not just the life of Sergeant Bergdahl but also the lives of the American servicemen who were involved in the mission, so discretion on this matter was important.'' Let's think about the new justification--this one I just quoted-- let's think about it for a moment. The White House is saying essentially that disclosure of the operational details concerning the physical transfer of Sergeant Bergdahl could have jeopardized the mission. But the White House's justification is totally beside the point. To my knowledge, no Senator has claimed that the administration had a legal obligation under section 1035 to disclose the specific operational details of the transfer to our relevant committees. Section 1035 doesn't even require that. On the contrary, the law requires the administration to explain its rationale for the release in terms of national security and risk mitigation, not operational details. So this particular justification is, of course, a colossal red herring, and it wasn't the last of the shifting justifications this administration has offered. Listen to the next one. The administration claimed it simply ran out of time to notify us. On Tuesday the administration reportedly claimed that it knew only 1 day in advance that the transfer would take place and only an hour in advance about where it would happen. And then on Wednesday Defense Secretary Hagel told the House Armed Services Committee that the administration had only 96 hours from the time the deal was made to actually release Sergeant Bergdahl. Again, both of these justifications miss the point. It is clear that the negotiations preceding the deal were in motion for months. According to the chairman of the Armed Services Committee, the administration reported that it had been engaged in negotiations with the Taliban since January 2014. So the administration had weeks--maybe even months--to communicate to Congress that it was in active negotiations that might result in the exchange deal in the near future. That, of course, never happened. But even that wasn't the last of the shifting justifications. On Wednesday Defense Secretary Hagel told the House Armed Services Committee that the administration couldn't notify Congress because of the risk of a leak. Secretary Hagel said that the Qatari Government-- which apparently was acting as a middleman in these negotiations with the Taliban--threatened to end all negotiations if details of the deal leaked. It is pretty obvious that this justification doesn't wash either. Press reports indicate that the administration told Congress that anywhere between 80 to 90 members of the executive branch knew about the release of the Taliban five before it happened. That number includes officials in the State Department, the Department of Homeland Security, the White House, and the Department of Defense. If that many individuals--80 or 90 people in this town--are in the loop, the administration's stated concern about a leak just doesn't make any sense. The White House could keep all of those officials in the loop, but somehow it couldn't pick up the phone and call the chair and vice chair of the Senate Select Committee on Intelligence. Frankly, as we have seen over the last few years, when information is leaked to the press, the leak usually originates in the executive branch and more often than not from the White House itself. So it seems pretty clear that the administration is not being candid with us or with the American people about why it broke the law and locked the representatives of the people of the United States out of the process, contrary to what the law says. So the bottom line is this: The White House ignored a Federal law that the President signed and that the White House Press Secretary promised it would follow. Yet the White House can't even get its story straight regarding why the law was ignored. It is for these reasons--getting back to the point about the Office of Legal Counsel and Mr. Kadzik's nomination to be head of the Office of Legislative Affairs--it is for these reasons that I wrote to the Attorney General last week and called on the Office of Legal Counsel to release any and all materials concerning the legal justification for the detainees' release that the Department of Justice provided to the administration. It is the Office of Legal Counsel's job to look at every Presidential action and Executive order and decision to see if it complies with the law. And then it is my approach that if some lawyers are telling the President what he can legally do or not do, constitutionally do or not do, according to the Constitution, why shouldn't the American people know about it? So this all becomes more important with each passing day, as the White House keeps offering new explanations for why it broke the law. We know the Justice Department provides legal advice on this question to the Defense Department because that is one of the very first things the administration said publicly about the deal. On June 1 Susan Rice told CNN that the Defense Department consulted with the Justice Department before the decision to move forward was made. We need to know about the nature of that consultation. We need to know what legal justification the Department of Justice provided that would permit the administration to ignore its legal duties to notify Congress and to inform us of the reasons for the release. And, importantly, we need to know what specific facts on which the Justice Department based its legal analysis. In other words, with all of these shifting explanations we have been hearing about the factual basis for the decision, which one of those many was provided to the Justice Department? Did they tell the Justice Department: We don't have time to tell Congress. If so, did they tell them that these negotiations had been ongoing for months, as they appear to have been? Did these executive branch people tell the Justice Department that Sergeant Bergdahl was, as Susan Rice claims, suffering from an acute condition that required the administration to take immediate action? Did the Justice Department take the view that the administration did not have to comply with the law because of the President's powers under article II of the Constitution, notwithstanding the fact that the White House had already promised it would comply or was none of this even considered? Was all of this just an ``oversight,'' as the White House apparently told the chair of the Senate Select Committee on Intelligence or was it that they didn't have to comply because they didn't trust the members of the select committee to keep a secret or should we expect that yet another justification will be forthcoming? The bottom line is that Susan Rice went on CNN and said the Justice Department was consulted. But we don't know whether there was a written opinion provided by the Office of Legal Counsel and, if there was, what it concluded and what facts that conclusion was based on. The General Counsel of the Defense Department testified yesterday that the administration had received legal advice from the Office of Legal Counsel in the form of an email chain. The administration needs to provide us with whatever written advice it received before it decided to contravene Federal law. Given their failure to respond to my previous requests and considering Mr. Kadzik's track record in this regard, I am not optimistic. As I have stated previously, Mr. Kadzik's nomination embodies this administration's philosophy that it is OK to ignore its obligations with respect to congressional oversight--a constitutional responsibility of the legislative branch of government, by the way. Let me conclude by saying that this nominee's record is emblematic of the administration's sorry record in complying with congressional oversight. And, of course, both have been abysmal. If this administration is serious about honoring its legal obligations, the Attorney General would direct Mr. Kadzik to disclose the Office of Legal Counsel's legal reason for why the administration was entitled to ignore the law's requirement to notify Congress. No Senator should cast a vote on this nomination before Mr. Kadzik provides that legal reasoning to us. If not now, when are all Senators--Republican and Democrat alike-- going to take a stand against this President's unilateral decision to ignore the Congress and his obligations under law? If not now, when will Members of this body stand together in defense of our legislative prerogatives and assert our rights as part of a coequal branch of government under the Constitution? In this Senator's view, a vote for this nominee is a vote endorsing this administration's contempt for our oversight authority and will lend support to the deal that released the Taliban five without adhering to the law. As my colleagues know, I will vote against this nominee. I encourage my colleagues to vote against this nominee as well. I yield the floor and suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. May I ask the Senator a question.

Mr. GRASSLEY. How much time is the colloquy going to take?

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I come to the floor to address two issues, a shorter issue on immigration and a longer issue on the student loan program, particularly in reference to legislation offered earlier this morning. On immigration, this morning, Secretary Johnson appeared before the Judiciary Committee. We had a chance to ask a number of questions related to the administration's release of 36,000 criminal aliens, for what reasons the Department voluntarily did release them--especially convicted murderers--and what they are doing to track down and keep track of where these people are. I didn't get answers, but the Secretary committed to respond in writing about the matter, and I thank him ahead of time for doing that. I also asked about data on countries that refuse to cooperate in taking back their nationals. Today I am introducing a bill with Senator Inhofe to fix this situation and allow the government to detain foreign nationals who pose a threat to our homeland. I have a longer statement on that issue. Finally, I mention that the Secretary of Homeland Security answered a lot of questions related to unaccompanied children coming to the United States, mostly from Central America, and entering our southern border. I agree we do have a humanitarian problem. These are vulnerable children whose lives are on the line. They are escorted by strangers for the most part, away from their families in some cases, and each of these young people probably not understanding what lies ahead. When in custody, our government makes an attempt to reunite them with their families. However, sometimes the government is handing them over to nonrelatives, which concerns me because of the potential of placing them in the hands of pimps and traffickers. As I said this morning in the committee, these children are being lured into these dire circumstances by false promises. That is evident from the interviews being done with the children. Already, border agents and intelligence analysts have been interviewing the youth to understand why they are migrating at this particular time. Today I received a document that summarizes the findings of these interviewers. The document, while it does not have any author or official seal, was apparently done to summarize the interviews of individuals crossing the border along the McAllen, Rio Grande City, and Weslaco stations. Two hundred thirty subjects were interviewed from several countries. An overwhelming majority said they were coming to the United States to take advantage of the new U.S. law that grants a free pass to unaccompanied children and female adults traveling with minors. That so-called free pass refers to a Notice to Appear document issued and then saying they are released on their own recognizance pending a hearing. There is no new law. There is a new bill that passed the Senate 1 year ago but not through the House of Representatives, and it may never be. So there is no new law granting a free pass to unaccompanied children and female adults traveling with minors. Specifically, this report states: A high percentage of the subjects interviewed stated their family members in the U.S. urged them to travel immediately, because the United States Government was only issuing immigration [free passes] until the end of June 2014. The report states that: The issue of free passes was the main reason provided by 95 percent, plus or minus, of the interviewed subjects. So while I understand there are a lot of factors involved, we cannot ignore the fact that these children are coming or are being forced here because of a belief on their part that they will never be deported. We can say that is thanks to the Obama administration because this administration has refused to be serious about immigration enforcement. The President needs to send a signal right away, if he wants to stop this catastrophe from happening, that the laws will be enforced. Instead of reviewing deportation policies and suggesting ways to remove fewer people, the President should task Secretary Johnson with finding ways to actually enforce the laws we have on the books. We must send a very strong signal that there is no benefit and no avenue for them to remain in the United States. We must do this so the children are not lured into dire situations in the future. Even before they cross the border into the United States, they are probably already in circumstances we would consider a dire situation.

Mr. GRASSLEY

Mr. GRASSLEY. In fiscal year 2014, the U.S. Department of Education will make about $112 billion in Federal direct loans to students. The Federal Government already holds more than $1 trillion in student loan debt. So that makes the U.S. Department of Education one of the country's largest lenders. Total student loan debt in the United States is now second only to mortgage debt, and about 90 percent of all student loans happen to be issued by the Federal Government. When elected officials say we have a student loan crisis because too many students owe more than they can afford to repay, we have to keep in mind who it was and is that made those loans to students in the first place. It was, in fact, Uncle Sam. What is one of the first things a Federal regulator looks at when a private bank issues a loan? They look at whether the bank has confirmed the ability of the borrower to repay. Federal student loans are given out without a credit check or any analysis of the student's ability to repay the loans in the first place. The fastest growing category of student loans is Federal unsubsidized student loans, which are given out regardless of need. That means that students across this country get an award letter from their college saying they are eligible for thousands of dollars in Federal loans, even though in many cases they may not need all of those loans to cover their tuition and other costs. Colleges are required to offer the full amount of Federal student loans for which the student is eligible even if a financial aid counselor at that university knows that a student is borrowing more than the student needs and even if that counselor realizes they will have trouble repaying. If a private bank followed these same tactics and gave out loans on these terms, that bank would be accused of predatory lending. These easy-money policies may even be helping fuel tuition increases, which then obviously makes the problem even worse. A Federal government trying to help a student and at the same time maybe giving incentives to increase tuition actually is not helping that student in the long run. Between Federal student loan policies that effectively encourage over-borrowing and the lack of good jobs for college graduates in this current economy, it is no wonder that so many college graduates find themselves in over their heads with student loan debt. Unfortunately, for all the concerns we have heard expressed on the Senate floor about excessive student loan debt, my colleagues on the other side of the aisle decided to play election-year politics with this issue rather than tackle any of the root causes of the problem. In fact, when it comes to economic growth and job creation, the first rule ought to be do no harm. By including yet another massive tax increase, the bill the Senate declined to take up would have only added to the list of tax and regulatory burdens currently choking our economy. We should be intensely focused on removing burdens to economic growth and as a result have some job creation. Instead, the policies we see from the other side of the aisle seem to be based on the old European model of accepting anemic economic growth and trying to make up for it with debt-financed government handouts for as long as possible. I just referred to an old European model because many countries in Europe have already rejected this failed approach and instead have sought to reform entitlements, cut spending, and reduce taxes--measures we ought to be taking right here in the United States. Our goal should be to expand opportunities for young people and the middle class and not add them to the welfare state. Incidentally, the President's recent so-called Executive action on student loans shows that he shares the same outlook of assuming a stagnant economy for the foreseeable future. He is talking about making people who graduated years ago retroactively eligible for programs enacted in 2010 that allow students to lower their monthly payments if they have a lower income. First of all, that happens to be a very transparent admission that many students who graduated near the beginning of President Obama's first term in office still don't have good-paying jobs halfway through the second term. What he doesn't tell you is that when you lower your student loan payments, you will pay off your loan more slowly and obviously accumulate more interest. In other words, you will eventually end up paying a lot more to Uncle Sam than you otherwise would have. When banks were offering adjustable-rate or interest-only mortgages, they were criticized for taking advantage of borrowers who would be faced with bigger payments down the road. The pay-as-you-earn program may be useful tools short term for those in distress, but it will cost every one of them in the long term; that is, assuming you ever get a job that pays well. However, the second part of the program says that if you still haven't found a job that pays well enough to pay off your loan after 10 years, your loan will be forgiven if you work for the government or a nonprofit or after 20 years if you work in the private sector, which apparently is considered less worthwhile. And who foots the bill when these people get their loans forgiven? The American taxpayer will pay for those people's college loans. Creighton University Professor Ernie Goss has analyzed the President's plan and thinks it is a poor use of taxpayer funds. This is what he said: A lot of these men and women that are out there working don't have kids in college, won't have kids in college, and it's a big transfer of income to those of us who have university educations or particularly those of us who are in university education. So increasing Federal subsidies for colleges at the expense of the American taxpayers who work hard to pay for their own bills just encourages colleges to keep increasing tuition. Furthermore, expanding a program designed to help student loan borrowers who still cannot afford their student loan payments 10 or 20 years after graduation looks a lot like planning for further economic stagnation typical of the last 4 or 5 years rather than focusing on improving economic growth and resultant job creation. The political messaging bill the Senate declined to take up today would also do nothing to address the problems of students borrowing more than they will be able to afford to repay in the first place. I have a bill that will help with that problem. The Higher Education Act already contains a requirement for colleges to provide counseling to new borrowers of Federal student loans; however, the current disclosures in the law do not do enough to ensure that students understand what kind of debt they will face after graduation. My bill, which I have entitled ``Know Before You Owe Federal Student Loan Act,'' strengthens the current student loan counseling requirements by making the counseling an annual requirement before new loans are disbursed rather than just for first-time borrowers. My bill adds several key components to the information institutions of higher education are required to share with students as part of loan counseling. Perhaps most significantly, colleges would have to provide an estimate of a student's loan debt-to-income ratio upon graduation. This would be based on the starting wages for that student's program of study and the estimated student loan debt the student will likely take out to complete the program. That way, students will have a very real picture of the student loan payments they will face and whether they will be able to afford those payments with their likely future income. Students will also be provided with information about the higher risk of default if they have a projected loan debt-to-income ratio greater than 12 percent. They will be told that they should borrow only the minimum amount necessary to cover expenses and that they do not have to accept the full amount of the loans offered. Students will also be given options for reducing borrowing through scholarships, reduced expenses, work-study or other work opportunities. Because adding an extra year of study can significantly increase student loan debt, an explanation will be provided about the importance of graduating on time to avoid additional borrowing and the impact of adding an additional year of study to the total indebtedness. Finally, the bill requires that a student manually enter either in writing or through electronic means the exact dollar amount of the Federal direct loan funding the student desires to borrow. The current process almost makes borrowing the maximum amount the default option. If you want to borrow less than you need to borrow, you have to ask for less. Students may wrongly assume that the Federal Government has determined this is the appropriate amount for them to borrow when in fact the government doesn't know anything about that student's situation. Surely the Federal Government would not lend them more than they can afford to repay, right? No, that is wrong. This provision will ensure that students make a conscious decision about how much they borrow rather than simply accepting the total amount of Federal student loans for which they are eligible. I should add that good college financial aid counselors can and do advise students not to borrow more than they need, but the process itself needs to be reformed to give them the proper tools. In fact, the reforms I have outlined were inspired by efforts already underway in my home State of Iowa. Grand View University in Des Moines, IA, has a financial empowerment plan where students and families construct a comprehensive 4-year financing plan. Under this plan, borrowing is based on the student's future earning potential in the student's field of study. The 4-year plan also helps ensure students graduate on time, and tuition is capped at 2 percent a year over those 4 years. Iowa Student Loan--our State-based nonprofit lender--also has a program called Student Loan Game Plan, which is an online, interactive resource that calculates a student's likely debt-to-income ratio. It walks students through how their borrowing will affect their lifestyle in the future and what actions they can take now to reduce their borrowing. As a result, in the past year over 15 percent of the students who participated decreased the amount they had planned to borrow by an average of $2,536, saving Iowa students over $1 million in additional loan debt. Finally, my own alma mater, the University of Northern Iowa, has a program called the Live Like a Student Program. This involves a number of resources to help students learn to manage their finances better, including 3-week courses, one-on-one counseling, and workshops. We often tell prospective college students that they will earn on average $1 million more during a lifetime. It is true that college generally is a good investment; however, when a student's academic dreams become a nightmare--and usually upon graduation that happens because they borrowed more from the Federal Government than they can afford to repay on their starting salary--they understandably feel that they have been had. And by whom? Their own government. The Federal Government, as the lender making these loans, has a responsibility to at least ensure that students know what they are getting themselves into before they get in over their heads. This legislation I described that will be introduced will do that. I would urge my colleagues to take a look at that piece of legislation. I would ask them to support it and join as a cosponsor so collectively we can help prevent more students from drowning in Federal student loan debt. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, in the last few weeks, startling data from the Obama Administration has revealed that the Department of Homeland Security has released over 36,000 aliens with criminal convictions into the United States. According to responses to some Members of Congress, Secretary Johnson has acknowledged that 36,007 convicted criminal aliens were released from Immigration and Customs Enforcement custody in fiscal year 2013. Many of these aliens had multiple convictions. In fact, among the 36,007 aliens released, they had nearly 88,000 convictions. Data prepared by ICE, and reported by the Center for Immigration Studies, shows that among the criminally convicted aliens released into American communities were: 193 homicide convictions, including one willful killing of a public official with a gun, 426 sexual assault convictions, 303 kidnapping convictions, 1,075 aggravated assault convictions, 1,160 stolen vehicle convictions, 9,187 dangerous drug convictions, and 16,070 drunk or drugged driving convictions. I have repeatedly said that this administration has failed the American public by refusing to enforce the laws on the books. This administration has turned a blind eye to those who have broken the law and have irresponsibly exercised their executive authority to find a way to allow people here unlawfully to remain in the country. In failing to enforce the immigration laws, the administration has betrayed its responsibility to protect the public safety of the American people. President Obama's administration has continually stated that they are focused on enforcement against the worst of the worst convicted criminals. Yet they are releasing thousands of aliens every year with serious and, in many cases, violent criminal convictions. ICE has responded to criticism by declaring that many of the individuals released were under supervisory restrictions. These restrictions range from bond to ankle bracelets to a periodic telephone call to a designated ICE phone line. Some individuals, however, are issued an order of recognizance and therefore are under no supervision at all. Is the American public supposed to feel safer because the same administration that released violent criminals into our communities claims to be monitoring them? Is the American public supposed to trust these aliens convicted of crimes and are here unlawfully to follow the terms of their release? Despite requests, ICE has failed to specify the nature of the release conditions placed upon these violent criminal aliens. In the interest of public safety, we should all demand to know the release conditions of those aliens released who have been convicted of violent crimes. The administration is also claiming that many of the individuals they released in 2013 were due to the 2001 U.S. Supreme Court decision in Zadvydas v. Davis. This decision limited the Federal Government's ability to detain aliens who have been ordered removed. This case sets the pitiful precedent that aliens subject to final orders of removal, including ones convicted of a crime, cannot be held longer than 6 months and will be released in the United States if their home country refuses to take them back or their home country simply delays the U.S. government's request for a travel document. Other countries know that--because of the ruling in Zadvydas--they can simply run out the clock on issuing travel documents for the criminally convicted individual. Therefore, we have aliens, with no legal right to be in the United States, unwanted by their own country, being released into the country by our own administration. This Supreme Court decision has had a detrimental effect on our ability to obtain travel documents from foreign countries and effectuate removal orders. Many countries refuse to take back their criminal aliens, leaving us no choice but to release them into our own communities. This precedent needs to be corrected. The administration has relied upon the ruling in Zadvydas to release thousands of criminally convicted aliens. However, they have refused to help fix it. In fact, the Senate immigration reform bill that they supported does not include a fix to the 2001 Supreme Court decision. They have not asked Congress to extend the length of time they are allowed to detain foreign nationals with final orders of removal. That is why I am cosponsoring the ``Keeping Our Communities Safe Act'' being introduced today by the Senator from Oklahoma. His bill would close the legal loophole that requires ICE to release dangerous criminals onto the streets of America. It would allow ICE to detain non-removable immigrants beyond six months if the alien is a national security threat or is a threat to the safety of the community and has a past violent crime conviction. In addition to hiding behind the Supreme Court decision, the administration has refused to use the tools at its disposal to get countries to cooperate. Federal law allows the Secretary of State to discontinue granting visas to all residents of a country that refuses or unreasonably delays taking back its aliens facing deportation from the United States. Secretary Johnson, at a House Judiciary 2 weeks ago, acknowledged that in his capacity as Secretary, his department has never asked the Department of State to use this authority. This visa sanction authority has only been invoked one time, in 2011 against Guayana, within 2 months Guayana issued travel documents for 112 of 113 aliens ordered removed from the United States to Guayana. This tactic has been proven effective and Secretary Johnson should be employing this measure. Of the 36,000 persons released in 2013, ICE claims that 3,652 were due to the 2001 Supreme Court decision. So, only a small portion of those released were mandatorily released under Zadvydas. While thousands of criminally convicted aliens have been released into the United States, both at ICE's discretion and due to bad Supreme Court precedent, President Obama has called for a reduction of immigration detention capacity by 10 percent. The simplicity of this idea seriously calls into question this administration's management capabilities. The fact that thousands of people are being released from detention clearly suggests that ICE needs more beds, not less, in order to avoid releasing more criminally convicted aliens into America. This administration is knowingly putting the safety of the American people at risk. Releasing violent criminals into the American population should cause great doubt about this administration's ability to enforce current immigration laws. ICE needs to provide the American people with more information about the criminal aliens it releases. ICE needs to tell the American people what terms of release are given to what criminal offenses. ICE needs to tell the American people what types of criminal offenses it deems appropriate to release at their own discretion. ICE needs to tell the American people how many of these criminally convicted aliens comply with the terms of their release. ICE needs to tell the American people how many of these criminally convicted aliens commit further crimes after being released. ICE needs to tell the American people how many of these criminally convicted aliens who are released become fugitives. This administration tells us to trust them. They say they are removing more people than ever before. They claim the immigration bill passed by this body will solve our problems. Yet they have failed us and the American people. They continue to turn a blind eye to lawbreakers and refuse to take this matter seriously. There should be more outrage about the news coming from this administration. Releasing 36,000 criminal aliens is a serious matter and one that better be fixed soon for the sake of the American public.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I come to the floor to speak about the nomination of Peter Kadzik to be an Assistant Attorney General for Legislative Affairs in the Justice Department. I happen to know that the majority leader hasn't yet filed cloture on this nomination, but I expect that he will in the near future. So now I take the opportunity to speak about that nomination. It is no secret that I have concerns about Mr. Kadzik's nomination. I opposed his nomination in committee, and I will oppose it when it comes to a vote on the floor. The reasons are pretty simple. Mr. Kadzik has been acting in that position since April 2013--in other words, in the very same position for which he has been nominated. His job is to respond to questions from Members of Congress. We have a clear track record to judge his performance, and that record has been dismal. Letters go unanswered for months. Then, when answers come, they ignore or dodge the questions. Even before coming to the Justice Department, Mr. Kadzik had shown a lack of respect for congressional oversight. While he was in private practice, he represented the billionaire tax fugitive Marc Rich. Rich was infamously pardoned at the end of the Clinton administration following a large donation by Mrs. Rich to the Clinton Presidential Library. No fugitive has ever been pardoned before--let alone a billionaire fugitive who owed millions of unpaid taxes. In the course of the congressional investigation into that controversy, Mr. Kadzik was subpoenaed to testify at the House hearing in 2001. He refused the committee's invitation to testify voluntarily. Then, he decided to fly to California the day before the hearing. The House committee had to send the U.S. marshals to serve him with a subpoena in California ordering him to return for the hearing. He later denied that his attorneys knew a subpoena was on the way when he got on the plane. But his denial is contradicted by handwritten notes from 2001 telephone conversations with his attorneys about the subpoena. Those notes are in the record of his confirmation hearings, and I invite any Senator to review them. Some people might say: Well, that was a long time ago, and maybe it was just a misunderstanding. But one thing is not in dispute even by Mr. Kadzik: He refused the House committee's request to testify voluntarily. He was unwilling to cooperate unless forced to do so by compulsory legal process. Everything in his record since then has reinforced the impression that Mr. Kadzik is simply not interested in answering questions from Congress unless he has no other choice. He was not forthcoming during his nomination hearing on several issues, not just the Marc Rich controversy. Getting him to answer simple inquiries has required two or even three sets of questions. He wouldn't even promise to answer each individual question from members of our Judiciary Committee. Instead, he had a bad habit of grouping together a set of specific detailed questions, and then repeating one vague nonanswer over and over. In one set of responses he repeated word for word the same answer to previous questions nine times. That simply is not a good-faith effort to be responsive to each question. When his answer was one he thought I didn't want to hear, he glossed over it. Example: At his nomination hearing, I asked Mr. Kadzik whether he intended to provide certain documents Chairman Issa and I had requested relating to a briefing by the Bureau of Alcohol, Tobacco, Firearms and Explosives. After he failed to mention the documents in his response, I prompted him about the documents once again and he evaded the question. Only after two subsequent sets of questions for the record did Mr. Kadzik finally come clean and admit that the Department would refuse to provide those documents requested. Mr. Kadzik should have been that candid initially, instead of avoiding the issue. His seeming inability to give straightforward and accurate answers to simple questions causes real concern for me about his ability to perform his job, of which a very important part is answering inquiries from Members of Congress. I think an Assistant Attorney General for Legislative Affairs needs to ensure that Congress receives accurate information from the Department. That is what checks and balances of our constitutional setup is all about. This also became a problem for Mr. Kadzik's predecessor, whose false denials about Operation Fast and Furious eventually had to be retracted. This office needs leadership that will restore its credibility. Mr. Kadzik's track record in the acting position makes it clear he does not have what it takes to restore sorely needed credibility. At Mr. Kadzik's confirmation hearing last October, Senator Feinstein told Mr. Kadzik that the Senate's Select Committee on Intelligence had recently received answers to questions for the record from the FBI that were over 1 year late. As she pointed out to Mr. Kadzik, ``A year is really outside the pale of propriety.'' Mr. Kadzik said in response: ``One of my missions at the Department is to improve that record and to expedite the providing of information to this Committee and all Members of Congress.'' But from what I have seen so far, Mr. Kadzik's record has been even worse than his predecessor's. The Judiciary Committee still has not received answers to questions for the record from Attorney General Holder from an oversight hearing dating back to March 6, 2013, 14 months ago. Recently, the Judiciary Committee received answers to FBI questions for the record dated ``current as of August 26, 2013.'' According to the FBI Congressional Affairs staff, that is when the answers were forwarded to Mr. Kadzik's office. Although the FBI responses to Congress were then only 2 months old, apparently they sat in Mr. Kadzik's Office of Legislative Affairs for another 9 months. Mr. Kadzik is just as unresponsive to letters. His staff recently acknowledged they were aware of 13 pending letters from this Senator that have gone completely unanswered. I don't mean he replied with an answer I didn't think was good enough; I mean there was simply no reply whatsoever. Some of those questions from this Senator dated back to October 2012, well over a year and a half ago. His office is completely ignoring those letters. He did send me a couple of very weak responses in just the last few days. Each of those was essentially one paragraph long. One was a reply to a letter I sent almost 1 year ago. The other replied to a letter from January in which I asked four simple questions. They addressed Attorney General Holder's failure to issue a report on the need for reform of the FBI's whistleblower procedures. The Attorney General was required to report to President Obama within 180 days of the Presidential directive on whistleblowers, which was issued October 2012. A little history: The FBI was exempted from whistleblower provisions in the Civil Service Act of 1978 and the Whistleblower Protection Act of 1989. That has resulted in the FBI being one of the worst retaliators against whistleblowers over the years. Therefore, the FBI report President Obama requested was an important part of the Presidential directive. I had written to the Justice Department 3 weeks after the Presidential directive in 2012 to emphasize how important it was that the directive be followed and that the FBI people have proper whistleblower protection. Then there was a 180-day deadline. That deadline came and went. I wrote the Justice Department earlier this year asking about the report because at that time it was more than 10 months overdue. I asked the current status of the report, why they had failed to issue it so far, when it would be complete, and whether they would provide a copy to the Judiciary Committee. So those are the simple questions I asked Mr. Kadzik. Once again, the nominee failed to send a prompt, good-faith response to my letter. Mr. Kadzik could have written immediately to say the Justice Department knows this review is important and explain why it was taking longer than they thought. Mr. Kadzik could have told me the review was expected to take several more months. Instead he waited 4 long months until the report was complete, then simply sent me a one-paragraph response, stating the report was sent to the President of the United States. He didn't try to explain why it took so long. He completely ignored my question about providing a copy of the report to our Judiciary Committee. This is not the kind of good-faith, candid response the Justice Department owes Congress, especially in our oversight capacity to see that the laws are faithfully executed by the President of the United States. As a nominee who already works in that office, Mr. Kadzik had the opportunity to demonstrate a real commitment to the role of congressional oversight in our constitutional system of checks and balances. He could have answered the mail on time. He could have insisted on candid, good-faith, substantive replies to Congress. Rather than trying to raise the bar, he lowered it. The attitude this nominee brings to dealing with congressional oversight and the requests we make is a symptom of much larger problems. The Justice Department has a lot of work to do to rebuild trust and confidence after the false letter it sent me on Operation Fast and Furious. It still is fighting in court to avoid turning over documents that explain its decision to ultimately withdraw the letter and admit that letter was false. The Obama administration is arguing for a vastly expanded view of executive privilege. They want the ability to expand it far beyond direct advice a counselor would give to the President. They want it to include internal emails between lower level bureaucrats and agencies and departments. These, the administration claims, are so-called deliberative documents. They are created by people who may never even have been to the White House, let alone advise the President on anything where lawyer-client relationship can be established. That kind of broad privilege would be a massive blow to government transparency and to our system of checks and balances. The position the Obama administration is taking in the Operation Fast and Furious lawsuit is a direct breach of the promise the President made in his first day in office. He pledged at that time to have the most transparent administration in the history of this country, but now the President's Justice Department is arguing for a massive expansion of executive privilege to include all of that so-called deliberative material. This nominee, Mr. Kadzik, is aggressively implementing that new policy even today, refusing to answer questions and withholding documents. His actions today are consistent with his history. Voluntary cooperation takes a backseat to legalism and forcing a legal confrontation. I wish I could say Mr. Kadzik had demonstrated the kind of serious commitment to open, honest, and forthright cooperation with congressional oversight that the office needs. Unfortunately, he has not, but the failure to cooperate extends far beyond Mr. Kadzik's investigations. We don't need to look any further than today's headlines to see the latest instance of this administration's failure to abide by its obligations under the law to submit to congressional oversight. Of course I am referring to the recent release of five of the most dangerous detainees from Guantanamo. The President's decision to release what some have called the Taliban dream team without notifying Congress in advance exemplifies this administration's contempt for congressional oversight. It is troubling for a host of reasons, especially when the stakes are so high. In December 2013, Congress passed and the President signed the 2014 National Defense Authorization Act. Section 1035 of that law addresses the procedure the executive branch is required to follow if the President decides to release a detainee being held at Guantanamo Bay. This process isn't optional. It is not something that is a matter of Presidential discretion. It is actually required as a matter of federal law. It is required by a law this President signed. The White House's failure to follow the law in this instance is just the latest example of this administration's blatant disregard for congressional authority. The law requires the President to notify certain House and Senate committees, including the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence, at least 30 days before Guantanamo Bay detainees are transferred or released. Obviously that did not happen. Not only that but the law requires the President to explain ``why the transfer or release is in the national security interest of the United States.'' That didn't happen either. The President also had a legal obligation to describe any actions his administration took ``to mitigate the risks of reengagement by the individuals to be transferred or released.'' Such mitigating actions are required by the law, but that didn't happen either. The reasons for these legal requirements are fairly obvious. The Members of this body understand and respect the President's responsibility to protect national security. That is in fact his paramount responsibility as Commander in Chief, but we too have a responsibility in this Congress and all Congresses to ensure that the national security is protected. Congress is a coequal branch of government. Yet our ability to ensure that the actions this President takes are designed to promote the national security have been thwarted because this White House kept us in the dark about the release of the five Taliban kingpins every step of the way. The administration is fully aware it violated Federal law in failing to timely notify Congress of its intentions. We know this because the White House has contacted some of my colleagues on the Select Committee on Intelligence and apologized--actually apologized--for failing to notify them in advance; in other words, apologized for not following the law. According to press reports the White House said the failure to make notification required by law was ``an oversight.'' An oversight? What happened is not an oversight. An oversight is what happens when you forget to send a thank-you note for a birthday gift. This was not an oversight. In other words, it is extremely difficult to view this as anything but a deliberate attempt to leave Senators in the dark. You don't simply forget to meet your legal obligations to notify Congress, and it is not as if this was some obscure provision of the law nobody knew anything about. This has always been a very big deal. Not only did the White House have an obligation to notify Congress, but the White House had previously promised that it would in fact comply with the law. On June 21, 2013, at the White House press briefing, Press Secretary Jay Carney promised that the administration ``would not make any decision about the transfers of any detainees without consulting with Congress and without doing so in accordance with U.S. law.'' It is perfectly clear the administration was aware of its duties under the law and made a calculated and deliberate decision to ignore them. The President more or less admitted this when he recently explained at a press conference in Poland that he saw an opportunity he had to take immediately because ``we were concerned about Sgt. Bergdahl's health.'' I am sick and tired of the approach this administration takes toward its legal obligations under the law, and that is why I wrote to the Attorney General in January of this year concerning some statements the President made in the State of the Union Address, hinting that he intended to take unilateral action using executive orders. In the letter I wrote to the Attorney General, I asked him to direct the Justice Department's Office of Legal Counsel to publicly disclose its opinions and conclusions concerning the lawfulness of executive orders issued by the President. Here is where Mr. Kadzik comes in. In May he declined my request, citing again his overbroad and legally unsupportable claims of executive privilege. It is not without good reason that the former executive editor of the New York Times--by the way, an outlet that is not exactly an aggressive critic of the President--called this White House the most secretive she ever covered. So let me renew my request to the Attorney General regarding the publication of opinions from the Office of Legal Counsel. Frankly, I think my request is all the more important now that we have seen the administration's flagrant disregard for Federal law in the matter of the Taliban prisoner deal. I am, therefore, asking the Attorney General to direct the Office of Legal Counsel to make public any opinions or legal analysis concerning the lawfulness of the transfer of the Taliban commanders without compliance with section 1035 of the National Defense Authorization. But given this Department's track record, I am not going to hold my breath that that request will be honored. I will sum up by saying this: Mr. Kadzik's nomination is a perfect example of the contempt that this--the self-professed most transparent administration in history--has for congressional oversight authority. Let me be clear to my colleagues on the other side of the aisle. One day you folks might be in the minority or the administration might be controlled by the Republican Party. If a Republican administration ignores your oversight request, how can you complain, if you don't stand up today, when the shoe was on the other foot? If you support this kind of stonewalling now by supporting this nominee, it will come back to bite you, and, of course, you will deserve it. I plan to be around here to remind you of that. I will vote against this nominee and urge my colleagues to do the same. I suggest the absence of a quorum.

Mr. GRASSLEY

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

Mr. GRASSLEY. Mr. President, this afternoon we are going to vote on the nomination of Ms. Burwell to be the Secretary of HHS. I am going to support that nomination. I am here on the floor to alert people to some of the problems she will face and hopefully she can correct. For starters, I hope that everybody remembers the government has checks and balances. Congress passes laws, the executive branch enforces them, and it is our responsibility to make sure that those laws are enforced according to the intent of Congress. When they are not enforced, we have a responsibility to point that out, and that is what I will be doing. I hope she will be able to correct the issues that my colleagues and I will be pointing out this morning. We also have a situation where Congress passed the Affordable Care Act, and in that process the President has done a lot of things that some of us think are illegal and in some cases even unconstitutional. Hopefully, she, as the new director, will make sure that those practices don't continue. When Ms. Burwell was nominated, I said that anyone put in charge of ObamaCare would be set up to fail. The theme of this law has really been ``by any means necessary.'' In other words, it doesn't really matter what the law says, do whatever it takes to get this program underway: the President can fix it later. He has done that 38 times-- and surely sometimes contrary to what the law says and contrary to the oath he took to uphold the laws of this country: The legislative process was certainly, by no means, necessary; if you want to change it, change it. The implementation of this law has operated similarly. The department we are considering Ms. Burwell to lead has ignored the plain read of the statute whenever it was considered necessary. In other words, don't bother to come to Congress to correct something you think is not working; just correct it yourself. Deadlines were considered to be written in pencil. If the statute needed to be creatively reinterpreted to make the program work, the Department of HHS did so, and that still continues today. Consequently, that is why I am pleading with Ms. Burwell to change things. The Department is supposed to implement the employer mandate, which is a year overdue, and it has been significantly altered from the statute. The Department is supposed to implement risk corridors this year, although the legal authority to distribute funds is questionable and the standards used to make those distributions will likely be kept very quiet. Speaking of things that will be kept quiet, Congress is going to want to know what the premiums will be next year for health insurance. We consider the information very important and relevant. My State of Iowa is considered to be one of the States most at risk for premium spikes. The Department will want to use any means necessary to hide the premiums until after the November elections unless, of course, the premium numbers are good, and then I am sure the Department will shout them from the rooftops, much as they did with enrollment numbers. We have heard over and over about enrollment numbers, but the enrollment numbers don't tell the whole story--not even close. I was under the impression that the law was supposed to increase coverage and lower costs. So far that is not the case. The independent research firm McKinsey found that 74 percent of the people getting coverage through ObamaCare plans were previously insured. If those numbers are accurate, that means one in four people getting coverage was previously uninsured. Certainly that is what I hear from my constituents. They have had to change their coverage, and often that coverage has been much more expensive. Furthermore, the McKinsey research also found that the majority of people who shopped for an ObamaCare plan but did not purchase that plan cited affordability as the No. 1 reason for not buying that insurance. A poll released by the Kaiser Foundation found that roughly 4 in 10 uninsured Americans named affordability as their primary reason for going without health insurance. It is not working as it was intended. I hope Ms. Burwell will change the relationship the Department has with Congress. I hope she will be willing to break the ``by any means necessary'' mindset that we have seen for the last 5 years. I hope she doesn't disappear into the bunker over there in that office building and that we will never hear from her again. Her challenge is very severe. The law appears to be shifting around the previously insured more than it is covering the previously uninsured. The previously uninsured are citing costs as a primary reason for not purchasing insurance. I will support the nomination of Ms. Burwell today and hope that down the road--several months from now--I am not sorry I did that. I think she is a person who has the capability of turning things around, and that she will do that. But the law remains far from being worthy of support. I yield the floor and suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I will vote to confirm the President's nominee for Director of the Peace Corps. However, I want explain why I objected to any unanimous consent request relating to this nomination in March and why I have withdrawn my objection. I objected because I was informed by the Peace Corps inspector general that she was having difficulty accessing records from the agency. The nominee is the acting director of the agency. The records relate to sexual assaults reported by Peace Corps volunteers. The inspector general is entitled to access these records under the Inspector General Act and the Kate Puzey Act. Both acts reinforce the principle that agency operations should be monitored by an independent and objective inspector general. The Kate Puzey Act requires the agency to better respond to volunteers who report sexual assault and implement certain protections for victims of sexual assault. To ensure that these protections are actually implemented, it also requires the inspector general to conduct ``a case review of a statistically significant number of cases'' of sexual assaults reported by volunteers. However, the agency has gone out of its way to interpret the Kate Puzey Act as conflicting with the Inspector General Act. In fact, the agency repeatedly stated that certain provisions of the Kate Puzey Act override the Inspector General Act. That was never the intent of Congress. But the Peace Corps withheld most of the information that the inspector general requested from the agency. Fortunately, the Peace Corps and the inspector general recently agreed on a memorandum of understanding, MOU. This MOU was agreed to only after I placed a hold on the Acting Director's nomination, and only after I sent three letters to the agency about the dispute, along with several other Members. Under the MOU, the Peace Corps has agreed to provide the inspector general with more information than before. For the time being, the inspector general believes that the MOU will allow her to carry out her oversight duties. However, the inspector general has made it clear to me that the MOU has many shortcomings. Most importantly, the Peace Corps still refuses to acknowledge the inspector general's legal right to access the records in question. In addition, the MOU can be terminated by either party at any time. So the inspector general believes that she would be back at square one if the parties ever disagree in the future on the amount of information she needs to independently evaluate how the agency handled a specific case of sexual assault. Still, the MOU represents progress. So I am voting in favor of this nomination. The law says that the inspector general is entitled to full and timely access to the records in question. So I will monitor this situation closely. And I will count on the nominee to guide the agency into full compliance with the law.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I intend to object to any unanimous consent request at the present time relating to the nomination of Nani Coloretti to be Deputy Secretary of Housing and Urban Development. I have been conducting an inquiry regarding allegations of questionable hiring practices at the Financial Crimes Enforcement Network, FinCEN. As part of that inquiry, I have requested documents from the Treasury Department that could resolve my concerns and questions. I encourage the administration to provide those documents to me as soon as possible.

Mr. GRASSLEY

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

Mr. GRASSLEY. Madam President, before we vote on the Barron nomination, I want my colleagues to know the White House continues to keep the Senate in the dark. Yesterday I called upon the White House to state once and for all whether it has provided to the Senate any and all materials written by this nominee on the drone program. The White House refuses to answer that simple question. One hour after I spoke, the White House Press Secretary refused for a third time to confirm that the Senate has been provided all of this nominee's writings on the drone program. Why is that? Why will this White House not give us a simple, straightforward answer? We still don't know how much more is out there on this subject that this nominee has been involved with. After this vote, my colleagues still will not be able to tell their constituents that the White House has provided all of this nominee's materials on the drone program because we simply don't know that is true. Finally, I wish to emphasize one more point about that court order requiring the administration to make a redacted copy of one memo public. Senators should know the court also ordered the trial court to take a second look at the other additional secret documents to see whether any of those additional documents should be made public in redacted form. If some of those documents were written by this nominee, and if the court orders them to be made public, Senators' constituents are going to ask why they didn't stand today to get that information. Their constituents are going to ask why they didn't stand up to this White House and demand to see any and all memos this nominee wrote on this subject before this vote. I yield the floor.

Mr. GRASSLEY

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

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I wish to speak about Harvard law professor David Barron's nomination to the First Circuit. I will do so by addressing some aspects of Professor Barron's record I find particularly troubling. At the end of the day, I believe his record reveals a nominee who simply doesn't belong on the Federal bench. I will also update my colleagues on the efforts to withhold material relevant to this nominee from the American public, as well as, it appears, from the Senate. Unfortunately, the White House continues its refusal to confirm that it has provided the full Senate with all Barron-related drone materials. As I stated 2 weeks ago, every Senator should be provided access to any and all Barron memos related to the drone issue, but before I turn to Barron's drone materials, I will discuss with my colleagues some of the other problematic aspects of this nominee's record. I have reviewed the record. It is a record of legal reasoning and policy positions that are far outside the mainstream of legal thought. Professor Barron's record is even outside the mainstream of typically left-wing legal thought that we see in so many of our law schools. It is a record that reveals Professor Barron's judicial philosophy. While that judicial philosophy may be appropriate for the ivory towers of academia, it has no place on a Federal appellate court. It is also a record that reveals Professor Barron's embrace of an approach to judging that is flatly inconsistent with what Federal judges are called upon to do. Professor Barron has been very candid about his view on the role of the Federal courts. So from that standpoint, he is intellectually honest. It is fair to say he appears to view the Federal judiciary as a political branch of our government, not the judicial branch interpreting law instead of making law. I will recount some of the evidence which leads me to this conclusion. Professor Barron has written that the courts are a ``significant wielder of power'' for ``progressive potential.'' What he appears to mean is that the courts should be used as an instrument to impose progressive policies on the American people, a role generally reserved to the legislative branch of government. These are of course policies that liberals couldn't otherwise impose through legislation because they are so far outside the political mainstream. Professor Barron also appears to believe that progressives should mask their motives. He has written that candor and clarity have potential to ``obstruct progressive decisionmaking'' and that ``candor, clarity, and activism cannot co-exist.'' If that is what he believes, he is intellectually honest. His solution to this problem is, ``Candor and clarity seem a preferable choice for sacrifice'' to all-important progressive decisionmaking. I would like my colleagues to stop and think about whether that kind of thinking is compatible with the role of a Federal judge. It is surely compatible with being a legislator but not being a judge. I think the answer is, quite simply, it is not because judges are called upon to decide cases based upon laws applied to the facts. Consider this quote from the professor: ``Principled frankness has its place, but it need not always lie between the covers of the United States Reports.'' Let that sink in for a moment. The ``United States Reports'' he is referring to of course are the volumes containing the reported opinions of the U.S. Supreme Court. So when we consider this statement together with his view that candor and clarity have the potential to ``obstruct progressive decisionmaking,'' it then becomes very clear he believes that liberal judges should hide their true intent. That is an astounding proposition. It is unthinkable that someone who holds such a cynical view of the judiciary could obtain a lifetime appointment to one of the Nation's highest courts. What more assurance could my colleagues have that Professor Barron views the Federal judiciary merely as a tool for liberal policymaking? Consider another statement. The professor has suggested that ``principled judicial interpretation may obstruct democratic constitutional politics.'' Is that the sort of person who should be judging instead of legislating? Comments such as these make it clear to me that this nominee has a ``whatever it takes'' judicial philosophy. He will aggressively do whatever it takes to reach his desired progressive policy outcomes. Are any of my colleagues ready to vote for a judicial nominee who has hinted that ``principled judicial interpretation'' might occasionally need to take a backseat to political considerations? It is in a body such as we are in right now--the Senate--where political considerations and policy considerations rule according to what our constituents tell us, but that is not something a judge takes into consideration. The professor is an unabashed advocate of what he calls ``progressive federalism.'' According to Professor Barron, the purpose of progressive federalism is to ``promote national and local relations consistent with a broader liberal political vision.'' Legislators are supposed to have political vision. Judges are supposed to judge and not have political vision because they don't run for office. Is that the type of individual we want on the Federal bench? He has added: Federalism is what we progressives make of it. Rehnquist and his conservative colleagues have been making the most of it for more than a decade. It's time for progressives to do the same. That is a pretty explicit example of his judicial philosophy. That philosophy is that the courts are an instrument of leftist policymaking. He sees the courts as basically a third political branch. That view of the Federal judiciary is totally incompatible with the limited role the Constitution assigns to the courts. It should be clear to all Senators that if he is confirmed, the professor would bring an extreme progressive political agenda with him to the First Circuit. Political agendas belong in the Senate, not in the First Circuit. His academic work gives us some indication of the kind of judge he would be. I would note that we had a hearing last week where some of my colleagues on our Judiciary Committee expressed their frustration about the nomination process. They remarked that every nominee who comes before a committee dutifully promises that he or she will objectively and dispassionately apply the law to the facts and respect precedent. But my Democrat colleagues claim, after being confirmed, some nominees do not simply call the balls and the strikes. Let me assure my colleagues that we don't need to guess at what kind of judge the professor would be. It is not a mystery. He makes no secret of it. Let's take another look at his academic work. It is clear the professor wouldn't be bound by the law when deciding cases. He's admitted as much. Professor Barron is an outcome-oriented legal thinker. He will select his desired progressive results and then find a way to get there. As I said, it is a ``whatever it takes'' judicial philosophy. Here is what the professor said about precedent and the doctrine of stare decisis: ``Any good lawyer knows how to distinguish a precedent, if you need to.'' You see, in the professor's world view, precedent is just an inconvenient obstacle that can be easily dismissed on the road to his preferred outcome. Can any of us doubt that as a judge the professor would cleverly choose the precedents that he agrees with and ignore those he disagrees with? Let me give you some more evidence. He lost a case before the Supreme Court 9 to 0. In other words, a unanimous vote against legal arguments that the professor advocated. He told the press that the Supreme Court ``got it wrong'' and that his brief ``was right after all.'' Imagine that, being voted down 9 to 0 and saying the Supreme Court got it wrong because in the professor's judgment every member of the Supreme Court got it wrong--but not our professor nominee. What does this statement suggest that we can expect from him when it comes to his respect for legal precedent? I don't think we can expect much. We cannot expect him to follow legal precedent because he disagrees with the Supreme Court even after they disagree with him 9 to 0. There is more evidence the professor wouldn't be confined by the law in reaching the right outcome in a case. He has written that judicial decisionmaking, guided by statutes and legal precedent, is ``awfully cramped and technical, because it doesn't reflect a broader legal culture.'' Now, get back to basics. I thought the role of a judge was to apply the law, not to go fishing around for the ``broader legal culture'' until you find support for the result you want. So I think we can be very clear. I don't expect President Obama to nominate conservatives to the Federal bench. When this President was elected, I didn't expect that a crop of young Scalias, Thomases, and Alitos would be filling the vacancies in our courts. Judicial nominees are a Presidential prerogative, and I voted for many of this President's judicial nominees who don't share my views on constitutional interpretation or federalism or the First Amendment. I voted for them because they were accomplished judges and lawyers who I believed could put their personal preferences aside once they took to the bench. I would and did expect when I voted for them to objectively rule based upon the law; or, if I wasn't absolutely sure, I was willing to give them the benefit of the doubt. However, given the statements from this nominee's body of work that I have recounted today, as well as others, I can't understand how any of my colleagues could think the same about this nominee. In fact, I don't believe that I have seen a nominee who has been more candid about his or her desire to use the courts as an instrument of political ideology than Professor Barron. This nominee's views are fundamentally incompatible with the limited constitutional role of the Federal courts. Here I want to go back to the people who wrote the Constitution and tell you what they really had in mind about the courts. In Federalist No. 78, Alexander Hamilton famously referred to the judicial branch of government as ``the least dangerous branch,'' because in the constitutional vision of our Founders the courts would have ``neither force nor will, but merely judgment.'' The professor's judicial philosophy turns that vision on its head. His record reveals a judicial philosophy that says progressive policy ends justify the legal means to get there. It is a judicial philosophy in which will trumps judgment. I don't share those views, and I cannot vote for this nominee or a nominee who does. Now I will take a few minutes to update my colleagues on another aspect of this nominee that deals with the Barron drone materials and the White House's apparent refusal to provide this body with every one of the Barron-related drone materials. Two weeks ago I came to the floor calling on the Obama administration to release any and all Office of Legal Counsel materials on the drone program that were written by or related to the professor. I also called upon the administration to comply with the Second Circuit's opinion last April ordering the Department of Justice to release a copy of the 41-page Barron drone memo in redacted form. We know this particular memo provides the legal arguments for targeted killing of American citizens overseas. Yet the administration refuses to comply with the court order of the Second Circuit to make the arguments public, albeit in redacted form, and I haven't heard any indication that the administration intends to do that. Not only that, but the White House refuses to tell us whether they have made available to the full Senate all of the professor's drone-related materials. Since 2010, the press has reported that Professor Barron wrote at least 2 memos that justified the Obama administration's drone policies while he was at the Office of Legal Counsel, and the Second Circuit said that there are at least 3 and possibly as many as 11 memos on the administration's drone policy. That much is very clear. What isn't clear is the scope of the professor's writings on the legality of the administration's drone program. We don't know this because the administration continues to ignore the bipartisan demands of Members of the Senate to make available all of those drone memos, particularly the ones written by the professor. We don't know how many of the drone memos exist because this administration refuses to even confirm whether they have provided all the drone memos to the full Senate. These materials are of crucial importance to the full Senate's consideration of this nominee. I would recount for my colleagues what has happened thus far. On May 12, White House Press Secretary Jay Carney said that a single drone memo--what Carney referred to as the al-Awlaki memo--had been made available to the full Senate. But the Press Secretary was asked repeatedly how many drone memos exist, and he repeatedly dodged the question. Here is what Mr. Carney said. Question: ``How many of them are there?'' Mr. Carney answered: What I can tell you is a couple of things. First, on the Senator Paul op-ed in which he does call for the memos to be made available to senators, we have made the memo available-- the memo in question available before the vote. Again, the White House is dodging here and just addressing one memo. So Mr. Carney was asked a second time at the news conference. The questioner said: ``How many memos are there? How many memos in which he [meaning Barron] was a principal author outlining the legal case?'' Mr. Carney answers: ``There was one memo in question that I have referred to, and that has been made available to U.S. Senators.'' So the questioner came back: ``Are there others?'' Mr. Carney, the Press Secretary, answers: ``Are there other memos that he [meaning Barron] drafted? I don't know.'' Now get this: An answer of ``I don't know'' to how many memos exist. That is as good as the White House can do when there is this high level of discussion about how many memos exist? Surely there are people scrambling around the White House to have an answer, even if they don't want to give the answer, because it is already obvious that they want to know what is going on themselves. But you still get the answer: I don't know how many memos there are. That is the best answer we can get from the White House after weeks of bipartisan requests from Senators to provide the full Senate with any and all of the professor's drone materials. ``I don't know'' is simply not an acceptable response from the White House. Again, the White House seems to imply that it has provided all of the Barron-related memos on the drone program, but the fact of the matter is that they will not confirm that. Unfortunately, it appears many Democrats as well as members of the media have fallen for this ruse. The Second Circuit mentioned at least three memos that were responsive to the New York Times Freedom of Information Act request for materials on killing Americans abroad. So we know that there are multiple drone memos. That is a matter of public record. Has anyone in this administration bothered to read the Second Circuit's opinion? We know that there are multiple memos on the drone program--as many as 11. As the New York Times has reported since 2010, there are at least two drone memos that this nominee has written. But there may be more. The best answer we have gotten so far is ``I don't know.'' On May 14 the White House changed its tune just slightly. Another White House spokesperson told the press that the White House said it had provided all of the Barron drone materials related to ``U.S. citizens.'' But, again, the White House hasn't said whether there are additional materials that the professor wrote on the drone program. It is not at all clear to me why this administration thinks it has done its duty to provide the full Senate with materials that are crucial to our consideration of this nominee's fitness for a lifetime appointment, particularly considering the fact that the White House should make at least that one memo available to the public. It is similar to when President Jackson didn't like what John Marshall ruled in a particular case; the Chief Justice ruled, now let him enforce it. Are we going to have that respect for the circuit court opinion that says the White House ought to release to the public this decision? Is that the oath the President of the United States took to uphold the Constitution? Why does this administration think that any Senator would vote on a judicial nomination without having reviewed the nominee's work on such an important topic? Moreover, as I mentioned 2 weeks ago, the Freedom of Information Act litigation in the Second Circuit is still ongoing. Whatever responsive memos that the administration has not yet released may become public in the future. Again, are my colleagues ready to vote on this nomination without having reviewed all relevant writings of the nominee? Are my colleagues ready to shrug their shoulders and accept the White House Press Secretary's statement when he says, ``I don't know'' how many memos there are? Are my colleagues prepared to face their constituents and explain that they didn't bother to track down this controversial nominee's complete record on this topic before they voted? The Constitution requires every Senator to provide advice and consent on a nominee. We cannot satisfy that obligation if this administration continues to withhold the professor's writings. At the very least, the White House should say definitively that no additional Barron-related drone materials exist. What are they hiding? The Second Circuit says the professor is the author of the memo that sets forth the legal framework used to justify killing Americans overseas. What else has he written that the administration refuses to release to the full Senate? The Members of this body will never know until the administration ends the obstruction and provides access to each and every one of the memos on drones that Professor Barron has written. Again, the administration should comply with the Second Circuit's order requiring them to make the opinion of the Office of Legal Counsel public, even if it is with redactions. Why the rush to have this vote before the public gets to read the legal reasoning? Why is the other side so afraid of waiting to vote until their constituents read this nominee's legal rationale for the targeted killing of American citizens? It is time for the White House and the administration to stop playing games regarding how many of the professor's memos there are. It is time for the White House to stop hiding from the public the materials they have been ordered by the court to disclose. I will vote against this nominee and urge my colleagues to do the same. I suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I am glad the Senate is finally getting serious about passing tax extenders this year. Congress has put off the extension of the expired tax provisions until the last minute all too frequently. In 2012 provisions remained expired for an entire year before finally being extended in January of 2013. Similarly, the previous extension of the expired provisions did not occur until the middle of December. Such late action by Congress results in complications come filing season for taxpayers, particularly for people who hire tax preparers; tax forms are not ready and as a result refunds are delayed. So we owe it to our constituents to see to it that these added complications are not a factor this year. Tax season is unpleasant enough without our adding to it by failing to do our job in a timely fashion. Already, by allowing these tax provisions to expire for more than 5 months, we have created a lot of headaches and uncertainty for individuals and businesses. The current expiration causes headaches for teachers purchasing school supplies, college students paying for higher education, and seniors making charitable donations from their IRAs. Those are only 3 of some 53 provisions we are considering extending. These should have been extended 4 months ago. Furthermore, it creates uncertainty for businesses, which harms investment and business growth. The enhanced expensing rules under section 179 are of particular importance to small businesses and farmers. I regularly hear from my constituents who are putting off purchasing a new truck or tractor for their business operation because they do not know the fate of that provision. This is bad for economic growth, and it obviously has something to do with us having a high unemployment rate and jobs not being created. The lapse of renewable energy incentives has already created a lot of uncertainty and slow growth in the renewable industry. This serves only to hamper the strides made toward a viable self-sustainable renewable energy and fuel sector. I am aware that some of my colleagues have expressed extreme opposition to some of the provisions in the package. I would like to specifically respond to claims that some of my colleagues have made about wind energy and the wind production tax credit. I am sympathetic to the argument that the Tax Code has gotten too cluttered with too many special interest provisions. That is the reason many of us for a long period of time have been clamoring for tax reform. But just because we haven't cleaned up the Tax Code in a comprehensive way doesn't mean we should pull the rug out from under domestic renewable energy producers. Doing so would cost jobs, harm our economy, harm the environment, and even enhance problems for national security. I am glad to defend the wind production tax credit and wind energy. Wind energy provides more than 4 percent of U.S. electricity, supports 80,000 American jobs, spurred $105 billion in private investment in the United States just since 2005, and that source of energy displaces more expensive and more polluting sources of energy, lowering electricity prices for consumers. More than 70 percent of U.S. wind turbine value is now produced right here in the United States, compared to just 25 percent prior to 2005. More than 550 industrial facilities across 44 States manufacture for the wind energy industry. The wind industry today supports 80,000 American jobs. The tax incentive has spurred $105 billion in private investment in the United States since 2005. Opponents of the renewable energy provisions want to have this debate in a vacuum. They disregard the many incentives and subsidies that exist for other sources of energy and are permanent law, but they don't seem to talk about those much. For example, the 100-year-old oil and gas industry continues to benefit from tax preferences that benefit only their industry. These are not general business tax provisions, as we are led to believe, no different from what other industries have. These are specific to the oil and gas business, the same way a wind energy tax credit is specific to wind. I will give a few examples of these tax provisions: expensing for intangible drilling costs, deductions for tertiary injectants, percentage depletion for oil wells, and special amortization for geological costs. These four tax preferences for this single industry result in the loss of more than $4 billion annually in tax revenue. Nuclear energy would be another example--in fact, a very great example. The first nuclear powerplant came online in the United States in 1958--56 years ago. Nuclear receives special tax treatment for interest from decommissioning trust funds. Congress created a production tax credit for this mature industry in 2005, and that production tax credit is going to be available until 2020. Nuclear also benefits from the Price-Anderson Federal liability insurance provisions. Congress provided that as a temporary measure in 1958, but it is still here and it was renewed, as I said, through 2025. Nuclear energy has also received $74 billion in Federal research and development dollars since 1950. Are these crony capitalist handouts? I haven't heard it from the same colleagues who talk about wind energy. Is it time to end market distortion for nuclear power? I haven't heard my colleagues talk about that. A Cato study found that ``in truth, nuclear power has never made economic sense and exists purely as a creature of government.'' There is also no truth to the claim that wind energy is somehow undercutting baseload power. Baseload nuclear and coal energy are being harmed by cheap natural gas, transmission congestion, and stagnant electricity demand. The chairman and CEO of NextEra Energy James Robo addressed this issue in an op-ed recently. NextEra operates significant wind generation but also a large nuclear operation. He stated: We do not merely advocate for an ``all-of-the-above'' energy strategy--we live it. And from our perspective, nuclear plants in competitive markets are not challenged by wind energy but by low natural gas prices caused by the shale gas revolution. Blaming the wind industry for the challenges in the merchant nuclear business may be politically expedient, but it will not help any company or technology operate more successfully in a low natural gas price environment. Wind energy and its incentives are not to blame for the market conditions affecting the economics of nuclear energy. So I would ask my colleagues a very simple question: Why is repealing a subsidy for oil and gas or nuclear energy a tax increase on energy producers and consumers, while repealing an incentive for alternative or renewable energy is not? It is not intellectually honest. I authored the wind energy incentive in 1992. We know there is no justification for it to go on forever. It was never meant to, and it shouldn't. I am happy to discuss a responsible multiyear phaseout of the wind tax credit. In 2012 the wind industry was the only industry to put forward a phaseout plan. But any phaseout must be done in the context of comprehensive tax reform where all energy tax provisions are on the table at the same time. It should be done responsibly over a few years to provide certainty and ensure a viable industry. Thank God Chairman Wyden has expressed his determination that this will be the last tax extenders bill prior to comprehensive tax reform. I share Senator Wyden's sentiment in favor of putting an end to the annual kabuki dance that is what we call tax extenders, the bill before the Senate we are going to be voting on shortly. Good tax policy requires certainty that can only come from long-term predictable tax policy. Businesses need certainty in the Tax Code so that they can plan and invest accordingly. Moreover, taxpayers deserve to know that the Tax Code is not just being used for another way to dole out funds to politically favored groups. However, the only sound way to reach this goal is through comprehensive tax reform, and Senator Wyden, as chairman of the Finance Committee, can make that happen, and he said he is going to. I agree that there are provisions in extenders that ultimately should be left on the cutting-room floor, but it is in a tax reform environment where we should consider the relative merits of individual provisions. Targeting certain provisions for elimination now makes little sense for those of us who want to reduce tax rates as much as possible. Tax reform provides an opportunity to use a realistic baseline that will allow the revenue generated from cutting back provisions to be used to pay for reductions in individual and corporate tax rates. I look forward to working with my colleagues in the future to enact that tax reform and put an end to the headaches and uncertainty created by the regular expiration of the tax provisions we are considering right now on the Senate floor. Right now our focus must be on extending current expired or expiring provisions that will end up giving us room in the baseline--the baseline CBO always talks about--to work toward that goal of tax reform. It is my hope that we can move quickly to reach a bipartisan agreement in the Senate and come to a timely agreement with the House. Taxpayers should not have to wait until December or January for us to act. I yield the floor.

Mr. GRASSLEY

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

Mr. GRASSLEY. Mr. President, there are new reports that the majority leader is considering bringing to the floor the so-called Smarter Sentencing Act, and to bring it to finality. I rise again today to express my strong opposition to this bill and to argue against taking up the Senate's time to consider it. I will list several reasons. This country has experienced a tremendous drop in crime over the past 30 years. We have achieved hard-won gains in reducing victimization. More effective police tactics played a very significant role. Congress assisted with funds for law enforcement and mandatory sentencing guidelines to make dangerous offenders serve longer sentences. But after the Supreme Court applied novel constitutional theory, those mandatory guidelines were made advisory only. Federal judges then used their discretion to sentence defendants more leniently than the guidelines had called for. Today, the only tool Congress has to make sure Federal judges do not abuse their discretion in sentencing too leniently is mandatory minimum sentences. So bringing this bill would cut a wide range of mandatory minimum sentences by half or more. Those sentences include people convicted of manufacture, sale, possession with intent to distribute, and importation of a wide range of drugs, including heroin, cocaine, PCP, LSD, ecstasy, and methamphetamines. When supporters of this bill discuss how it increases discretion for judges and keeps current maximum sentences, what they really mean is that judges will gain discretion only to be more lenient. The bill does not increase discretion for judges to be more punitive. When supporters of this bill say that the bill only applies to nonviolent offenders, don't be misled into thinking it applies to people in Federal prison for simple possession of marijuana. It doesn't. The offenses covered in this bill are violent. Importing cocaine is violent. The whole operation turns on violence. Dealing heroin also involves violence or threats of violence, and the offense for which the offender is sentenced may have even been violent. The defendant's codefendant might have used a gun. While the bill does not apply to a drug crime for which the defendant used violence, it does apply to criminals where the defendant has a history of committing violent crimes. Supporters have failed to recognize that it would apply to drug dealers with a history of violent crimes. Supporters of the bill also raise the argument of prison overcrowding. But prison populations in this country are decreasing and have been in fact decreasing for several years. States have been able to reduce prison construction and sentencing as crime has thus fallen. Charles Lane wrote in the Washington Post that one reason States could do this is the reduction in the fear of crime that has accompanied falling crime rates. The rate of increase in Federal prison populations has fallen a great deal. In recent years, the number of new Federal prisoners receiving prison sentences has declined. New policies the Department has adopted with respect to clemency and its unwillingness to charge defendants for the crimes they have committed will only further reduce overcrowding and prison expenses. It is also important to recognize that drug offenders are an increasingly small proportion of the new offenders who are being sentenced to Federal prison as Federal law enforcement shifts more resources away from drugs and toward immigration and weapons offenses. The reduction in prison populations is not really so much about the cost saving as cost shifting from prison budgets to victim suffering. This is happening as the number of State and Federal prisoners has dropped. In 2012, the last year for which statistics are available, the FBI's Uniform Crime Report recorded an increase in the number of violent crimes for the first time in many years. Now, it is only 1 year and the increase was less than 1 percent, but it represents a dramatic change in the past downward trend of crime, and it bears a vigilant watch, not support for a reckless, wholesale, and arbitrary reduction in mandatory minimum sentences. The bill represents a particularly misguided effort in light of current conditions concerning drug use. We are in the midst of a heroin epidemic right now. Deaths from heroin overdoses in Pennsylvania are way up. The Governor of Vermont devoted the entirety of his State of the State address this year to the heroin problem. Marijuana decriminalization is leading to the greater availability of marijuana at a lower price. This is causing Mexican growers who formerly produced marijuana to grow opium for heroin importation into this country instead of marijuana. The Obama administration says it is concerned about the heroin epidemic, but it supports a bill that cuts penalties for heroin importation and dealing. The administration says it wants to fight sexual assaults on campuses--and I think that is the right thing to do and I applaud them for doing that. But they are also supporting this bill, which cuts in half the mandatory minimum sentence for dealing in ecstasy, the ``date rape'' drug. The administration's support for this bill, then, makes no sense, and at least some administration officials understand that. We had the privilege of having the Director of the Drug Enforcement Agency before our committee a little while ago. Michelle Leonhart said: Having been in law enforcement as an agent for 33 years, [and] a Baltimore City police officer before that, I can tell you that for me and for the agents that work for DEA, mandatory minimums have been very important to our investigations. . . . We depend on those as a way to ensure that the right sentences are going to the . . . level of violator we are going after. Current mandatory minimum sentences play a vital role in reducing crime. They do more than keep serious offenders in jail so that they cannot prey upon innocent citizens. They also induce lower-level drug offenders to avoid receiving mandatory minimum sentences by implicating higher-ups in the drug trade. As FBI Director Comey recently stated: I know from my experience . . . that the mandatory minimums are an important tool in developing cooperators. Recently, a bipartisan group of former Justice Department officials wrote to Leaders Reid and McConnell. Their letter expressed strong opposition to cutting mandatory minimums for drug trafficking by half or more. They warned: We are deeply concerned about the impact of sentencing reductions of this magnitude on public safety. We believe the American people will be ill-served by the significant reduction of sentences for federal drug trafficking crimes that involve the sale and distribution of dangerous drugs like heroin, methamphetamines, and PCP. We are aware of little public support for lowering the minimum required sentences for these extremely dangerous and sometimes lethal drugs. We are all going to be supporting National Police Week. Officers from all over the country have traveled to Washington to make their concerns known. We salute them for the work that they do and the dangers they face. If we really respect these law enforcement people and want to support them, then we ought to listen to what they have to say. The National Narcotics Officers' Association has written: As the men and women in law enforcement who confront considerable risks daily to stand between poisoned sellers and their victims, we cannot find a single good reason to weaken federal consequences for the worst offenders who are directly responsible for an egregious amount of political despair, community decay, family destruction, and the expenditure of vast amounts of taxpayer dollars to clean up the messes they create. The Federal Law Enforcement Officers' Association has also come out against the bill. They have stated: It is with great concern that FLEOA views any action or attempt . . . that would alter or eliminate the current federal sentencing policy regarding mandatory minimum sentence sentencing. The mandatory minimum sentencing standard currently in place is essential to public safety and that of our membership. Many of us will rightfully praise our law enforcement officers as they are in town for National Police Week. But what we really ought to do is listen to them. They are telling us that taking up this bill would be a slap in the face of all our brave police officers who protect us from harm every day. They deserve better than that. Citizens who are finally less likely to become crime victims deserve it. The respect that is due those on the front line against wrongdoers demands that the Senate neither take up nor pass the mislabeled so- called Smarter Sentencing Act. I suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I come to the Senate floor to discuss a pending nomination, that of Harvard Law School Professor David Barron to a seat on the First Circuit Court of Appeals. This nomination is exceptionally controversial and was voted out of our committee, the Judiciary Committee, on a 10-to-8 vote. Even a cursory look at Professor Barron's record reveals views on the Constitution and on federalism that are well outside the mainstream. But I want to put all those views aside and speak about this nomination from another point of view. So today I discuss Professor Barron's service as Acting Assistant Attorney General for the Office of Legal Counsel in 2009 and 2010. According to multiple media sources, while heading up the Office of Legal Counsel, Professor Barron was instrumental in formulating the legal arguments that this administration used to justify the targeted killing of American citizens by drone strikes. According to press reports, Professor Barron wrote at least two legal opinions laying out those arguments. We also know the Department of Justice relied on the legal arguments Professor Barron formulated to justify the targeted killing of an American citizen in a tribal region of Yemen in September 2011. In a May 2013 letter to the chairman of our Judiciary Committee, the Attorney General wrote that ``since 2009, the United States, in the conduct of U.S. counterterrorism operations against Al-Qaeda and its associated forces outside of areas of active hostilities, has specifically targeted and killed one U.S. citizen.'' According to press reports, that individual was the first American citizen placed on the CIA's disposition matrix, better known as the kill list. However, the Attorney General conceded that three additional Americans located outside the United States have been killed by drone strikes since 2011. According to the Attorney General's letter, these Americans were killed even though they ``were not specifically targeted by the United States'' as part of a counterterrorism operation. But today I am not debating Professor Barron's legal arguments related to the drone strikes. The fact is that Senators aren't in a position to make an informed judgment about the nominee because of the way this administration has handled the issue, so I wish to address our constitutional duty with respect to the nomination. Article II, Section 2, instructs us to give advice and consent on the President's judicial nominees. That is not a procedural technicality, it is a constitutional imperative. These happen to be lifetime appointments, and the men and women we confirm to the Federal bench play a vital role in the life of our Republic. It is my view this body cannot, as things stand today, fully and appropriately discharge its constitutional duty to advise and consent with respect to this nominee. I will briefly address some recent developments in the courts that lead me to that conclusion. On April 21 of this year, the Second Circuit issued an opinion in a Freedom of Information Act lawsuit brought by two New York Times reporters and the American Civil Liberties Union against the Department of Justice, the Department of Defense, and the CIA. That lawsuit began in December 2011 after the administration denied a Freedom of Information Act request from the New York Times for documents on the administration's targeted killing of American citizens outside this country. Specifically, the Times requested ``a copy of all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.'' The administration refused to provide anything in response to that request by the New York Times. In fact, initially the administration wouldn't even acknowledge that any responsive documents even existed, but as the litigation developed, the Department of Justice identified a single document but claimed it was exempt from disclosure under FOIA. That document is the so-called OLC-DOD memorandum. Essentially, according to the Second Circuit, that is Professor Barron's memo providing the legal justification for targeted killing of American citizens abroad with drones. Basically, the court reasoned that because the administration had leaked and then officially released the so-called Department of Justice White Paper on the drone program, the administration then waived any basis for withholding the Barron drone memo under the Freedom of Information Act. Therefore, the Second Circuit ordered the administration to produce a redacted copy of this Barron drone memo to the New York Times. The Second Circuit's opinion confirms that Professor Barron wrote this drone memo. However, according to press reports going as far back as September 2010, Professor Barron had written at least one other drone memo on the targeted killing of Americans while he was at the Office of Legal Counsel. That second memo wasn't addressed by the Second Circuit's opinion and hasn't been disclosed publicly. We also don't know whether Professor Barron wrote or was involved in producing other materials related to the drone program that have yet to be provided to the full Senate. For example, the Second Circuit has identified two additional memos from the Office of Legal Counsel that it ruled were not subject to disclosure under the Freedom of Information Act. Moreover, according to some media reports, there are quite a few additional memos on the drone program. In fact, the Second Circuit opinion repeats the ACLU's contention that there may be as many as 11 total memos related to this drone program. This fact didn't escape the Second Circuit. In sending the case back to the district court for further litigation, the circuit left open the possibility that there might be other documents subject to disclosure down the road. The court said, after giving the government another chance to submit additional reasons for withholding the documents: ``The district court may, as appropriate, order the release of any documents that are not properly withheld.'' Let me be very clear. My colleagues should be on notice that more of these documents very well may be made public down the road. In my view, that is all the more reason for the full Senate to receive all materials on the drone program, written by and related to Professor Barron, from the Office of Legal Counsel and do it now before Members decide and are held accountable for their vote on this nominee. It is impossible to overstate the importance of these materials to our consideration of Professor Barron's nomination. The memos and whatever other materials Professor Barron drafted as the acting head of the Office of Legal Counsel provides the legal framework for the administration's policies related to killing American citizens abroad. We know this because the administration itself has said so. In testimony before the Senate Select Committee on Intelligence, CIA Director Brennan testified that advice from the Office of Legal Counsel on the drone program ``establishes the legal boundaries in which we can operate.'' Once again, let me be clear. The Senate cannot properly discharge its duty to advise and consent on this nomination without having a full picture of this nominee's legal philosophy. A very legitimate question is, How can the Senate predict what kind of a judge he will be if we don't know what kind of a lawyer he has been? The Senate simply cannot evaluate whether this nominee is fit for a lifetime appointment to one of the Nation's most important courts without complete access to his writings. It is even more important now that we know some of those writings concern perhaps some of the most controversial issues the Office of Legal Counsel has addressed in recent years; that is, the use of drones to kill American citizens abroad. Time and again this President and even this Attorney General have promised transparency. They have made these promises to us. They have made promises to the American people. We all know in our oversight capacity of trying to get information out of this administration that they haven't delivered on these promises. In that letter from the Department of Justice to Chairman Leahy that I mentioned just a few minutes ago, the Attorney General claimed this administration ``has provided an unprecedented level of transparency as to how sensitive counterterrorism operations are conducted.'' The Attorney General also wrote that the administration was taking all steps to ensure that congressional committees ``are fully informed of the legal basis'' for targeted killings of American citizens. Again, those assertions aren't accurate when it comes to this nominee's track record at the Department of Justice. If press reports are accurate, this administration hasn't made all the relevant materials available to all Members of this body yet. I am not the first Member of this body to point this out. I give several of my Democrat colleagues credit for publicly drawing attention to this administration's shortcomings in respect to this administration sufficiently giving us information. I agree with them that this nomination cannot go forward until this body, every Member of this body, is given access to any and all secret legal opinions this nominee wrote on this critical issue of the constitutional basis for the President subjecting an American to killing by drone without trial. Every legal opinion this nominee wrote related to this issue ought to be made available. I wholeheartedly concur in the sentiment of my colleagues, some of them Democrats, on this issue. Again, I think all Senators should bear in mind that these documents may very well become public in the future. Are Senators who are up for reelection in a few short months ready to vote on this nominee without knowing the full extent of his writings on a topic as serious as the killing of an American citizen by a drone? Are those Senators ready to go home to face their constituents and explain that they cast a vote on that nominee without knowing all of the facts? On Tuesday the administration announced it will provide the full Senate access to the Barron drone memo that it was ordered to make public by the Second Circuit. Is this what the most transparent administration in American history looks like, disclosing a memo that a court has already ordered it to disclose? Keep in mind this administration agreed to the disclosure only after the Second Circuit order and a threat from the American Civil Liberties Union. Is that transparency? In fact, I am having a bit of a flashback to a statement I made before this body just last week about another judicial nominee. That nominee led the administration's effort to stonewall congressional oversight into the murder of four Americans at our diplomatic mission in Benghazi. That nominee refused to comply with congressional subpoenas and assisted the administration's unlawful withholding of documents from Congress. The Benghazi documents that should have been turned over years ago weren't released until a judge forced the administration to turn over those documents by issuing a court order in a Freedom of Information Act lawsuit. Just like the memos I have been talking about today, I am starting to see a pattern, and I am starting to understand what this administration means by the word ``transparency.'' It means ``show me a court order first.'' Incidentally, I have been for more transparency at the Office of Legal Counsel for years, and even more so since January, when President Obama threatened to aggressively use Executive orders to circumvent Congress. It is the job of the Office of Legal Counsel to ensure that Executive orders are constitutional. On January 31 I wrote the Attorney General to ask him to disclose the Office of Legal Counsel's work related to Executive orders issued by the President. I still haven't received a response. I will also note that Professor Barron himself has gone on record publicly and urged increased transparency at his former workplace, the Office of Legal Counsel, and for that we ought to give him due credit. In fact, the nominee said this about the OLC--the Office of Legal Counsel: OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority. It couldn't be said any better by me in regard to the letter I wrote on January 31. He went on to say: . . . transparency also promotes confidence in the lawfulness of government action. That is a very admirable standard. I would like to call it the Barron standard, and I hope the administration follows the Barron standard with respect to informing the full Senate about this nominee's work in the Office of Legal Counsel. The administration's offer to disclose the memo it was already ordered to make public by a court isn't good enough, and it shouldn't be good enough for the other 99 Senators, because this is already their legal obligation. The administration must turn over not only the memo addressed by the Second Circuit, but every legal opinion from the Office of Legal Counsel written by and related to Professor Barron on this issue. Given the lack of clarity thus far, I call on the White House to provide every Senator with access to all Barron materials related to the administration's drone program. I am also calling on the White House to comply with the Second Circuit's order and release to the public--not just to Senators--a redacted copy of the Barron drone memo that it addressed in its opinion. This is the administration's legal obligation. Our obligation, as Senators, is to ensure our constituents have full access to information a Federal Court has ordered to be made public before we vote on the nomination. Without full disclosure to the full Senate of all materials on this nominee's involvement in the legal case for the administration's drone program, this nomination should not proceed. I suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, today, the Departments of Homeland Security and Commerce announced a proposed rule change that would extend employment authorizations to spouses of certain H-1B workers. The rule says that spouses who have already begun the process of seeking legal permanent resident status through employment, or those who have been granted an extension beyond their 6-year limit of stay in the country, are eligible for employment authorizations. On a call with media today, Homeland Security Deputy Secretary Mayorkas said that the intent of this regulation is to make it more attractive for foreign workers to come to and stay in the United States. Under current law, Congress authorized 85,000 H-1B visas to be available each year for high-skilled workers. Yet, with this sweeping rule, more workers will be allowed to come, work, and compete with U.S. workers in high-skilled fields despite the well-documented fraud in the H-1B program. The Department believes that the rule change will allow more than 97,000 people to obtain employment authorization in the first year alone. While we're all interested in attracting the best and the brightest foreign workers to the United States, the Obama administration clearly doesn't seem concerned with the millions of unemployed Americans, and those who have been forced out of their jobs because companies prefer to hire lower-paid workers from abroad. In addition to their lack of compassion and understanding for American workers, it is disturbing that the administration is once again circumventing Congress and implementing their own rules. As with other unilateral actions this administration has taken, I question their legal authority to issue this rule. In 2001, Congress explicitly laid out in statute that the Secretary could provide work authorizations to certain spouses of foreign workers. Congress said that work authorizations could be given to spouses of L1, intercompany transfers, and E, treaty traders/investors, visa holders. Congress did not, at that time, give spouses of H-1B visa holders the permission to work. It could have, but it did not. The administration may claim that it has broad authority to issue work authorizations to anyone in the United States. If the executive branch has such broad authority, then why would Congress explicitly lay out the category of visa holders and foreign nationals who could work in the U.S.? And, what will come next? Where will this administration stop? What other categories of individuals will be granted work authorizations? The rule allows spouses of ``certain'' H-1B visa holders to work. What about the others? Why didn't the administration do a more comprehensive rule for all H-1B spouses? Maybe the Department realized they were already pushing the envelope with its authority. Will the administration push back against advocates of other nonimmigrant categories, or refuse to expand the rule to all spouses of H-1B visa holders? What is frustrating about this rule is that it flies in the face of the immigration bill that the Senate passed last summer. The bill, if passed, would allow spouses of H-1B holders to work. Section 4102 of S. 744 would give the Secretary of Homeland Security the authority to issue work authorization to those who are accompanying or following to join a principal H-1B worker. Inclusion of this provision signals that the Secretary does not currently have authority. Originally, the bill written by the Gang of Eight, only gave that authority to the Secretary if the home country of the foreign national did the same for U.S. workers. The Gang of Eight's bill said, ``The Secretary of Homeland Security shall authorize the alien spouse to engage in employment in the United States only if such spouse is a national of a foreign country that permits reciprocal employment.'' The intent of the authors of the Senate bill was to ensure that American spouses were treated equally. The rule does not take this into consideration. The Obama administration claims it wants immigration reform, but they can not wait for Congress. They act on their own. And, they do it to the detriment of American workers. We need to get immigration reform right, and doing ad-hoc rules that fly in the face of the statute are not helpful to the process. What is next? Will the President unilaterally legalize the undocumented population because he can not have his way with Congress? President Obama has to prove that he can be trusted. Otherwise, American workers and the American people will continue to lose out because of his policies.

Mr. GRASSLEY

Mr. GRASSLEY. I thank the Chair.

Mr. GRASSLEY

Mr. GRASSLEY. I yield back time on this side.

Mr. GRASSLEY

Mr. GRASSLEY. Tonight we will be voting on the nomination of Justice Moritz, a nominee for the Tenth Circuit. During her legal career, Justice Moritz handled a wide variety of cases both in the private sector and while serving as an assistant U.S. attorney for the District of Kansas for over 9 years. She also served on the Kansas City Court of Appeals and is currently a Justice of the Kansas Supreme Court. Justice Moritz has significant appellate experience, and I expect she will be confirmed tonight. Before we vote on that nominee, I wanted to update my colleagues on where the Senate stands in regard to judicial nominations. After tonight's vote we will have confirmed 243 of President Obama's district court and circuit court nominees. To put that in perspective, at this point in President Bush's Presidency, the Senate had confirmed 235 district and circuit court nominees, 8 less than we have approved for President Obama. During President Obama's second term and including tonight's nominees, we will have confirmed 72 of President Obama's district and circuit court nominees. By comparison at this point in President Bush's second term, the Senate had confirmed only 32 district and circuit court nominees. So you can see a difference between 72 approvals for President Obama versus 32 approvals for President Bush in the second term. Despite this record, it seems to me that no matter how many judges we confirm, the other side, along with some confused commentators outside of the Senate, cannot help but complain about our progress. Last week one member from the Judiciary Committee accused Republicans of obstructing and slowing the nomination process through the President's entire term, but as I just pointed out, the Senate has confirmed more of President Obama's judges than we had at this point during President Bush's term. Another way to put it is all but two of President Obama's nominees have been approved, so that is a 99-plus percent approval. These complaints just do not ring true. Even the Washington Post, which was never a friend of George W. Bush, now recognizes how well President Obama is doing on judges. A recent article entitled, ``Obama overtakes George W. Bush on judges confirmed,'' noted that ``the Senate has confirmed more Obama nominees to the federal branch than were confirmed at this point in Bush's second term.'' The Washington Post has also conceded that President Obama's confirmation rate essentially matches that of President Bush and President Clinton. I also heard one of my colleagues complain about the President's vacancy rate, but the reason the vacancy rate is marginally higher than during President Bush's term is because President Obama has simply had more vacancies and more work to do in filling these vacancies during his Presidency. There have been more judges retiring now than during the last administration, which obviously creates more vacancies. As you have heard me say many times on the floor of the Senate, we cannot deal with nominees until they come to the Senate. In other words, the President has to do his work before we can do our work. The bottom line is that we are confirming judges at the same rate. It takes time to process and review each nominee who comes before us. This is simply the way the Senate works in its role to advise and consent on judicial nominees. It isn't just lately that the Senate has worked its will in making sure these nominees are good ones to approve. That is the way it has been done for a long period of time. In other words, we simply don't have the President submit somebody and bring it before the Senate. It takes a lot of homework to make sure that not just their qualifications but all the other evidence that comes from the White House is reviewed adequately. So there is simply no basis to say Republicans are not giving this President fair treatment. In fact, just last week the Senate confirmed nine judges. That is the most judges confirmed in 1 week this entire Congress. In fact, we haven't confirmed nine judges in 1 week since December 2010, when we needed to vote on a Sunday to get nine judges confirmed during 1 week. So I take this time just to remind my colleagues of the excellent work the Senate is doing on confirmations, and of course I do it to set the record straight. I congratulate tonight's nominee on her anticipated confirmation, a confirmation for which I will vote. I yield the floor. I suggest the absence of a quorum.