Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I rise today in defense of the most fundamental principle on which our Republic was founded--what is rightly recognized as our first freedom--religious liberty. Our fellow citizens today do not think much of Congress. The Gallup organization, whose results are actually less grim than some other polls, gives Congress a job approval rating of just 15 percent. That figure has not risen above the teens in more than 3 years. Now and then, however, Congress does rise to the occasion, putting aside partisan or ideological differences to achieve something important for our Nation and its citizens. One example occurred in 1993--I had a lot to do with it--when liberals and conservatives, Democrats and Republicans, stood to defend a fundamental human right. On October 27, 1993, this body passed the Religious Freedom Restoration Act by a vote of 97 to 3. It went through the House by a unanimous vote. By mid-November the House had passed it unanimously and President Bill Clinton had signed it into law. I was there at the signing ceremony on the south lawn. Despite the overwhelming bipartisan support for final passage of RFRA, it took Congress 3 years to achieve that defense of religious freedom. The House Judiciary Subcommittee on Civil and Constitutional Rights held hearings in 1990 and 1992, and the full Senate Judiciary Committee held a hearing in 1992. Concerned citizens and groups came together to form the Coalition for the Free Exercise of Religion--a grassroots effort more diverse than any I have ever seen in all of my 38 years here. Americans of every political stripe joined hands to defend the first freedom mentioned in the Bill of Rights. The resulting legislation, the Religious Freedom Restoration Act, allows the Federal Government to interfere with the exercise of religion only for the most compelling reason and only in the least restrictive way. This law was necessary because in 1990 the Supreme Court had changed the legal standard, making it easy, rather than difficult, for the government to burden religious exercise. A bill recently introduced here in the Senate, S. 2578, would turn the clock back, requiring that Federal laws and regulations ignore rather than respect religious freedom. This is the first time in American history that the Congress will consider a bill intended to diminish the protections for the religious liberty of all Americans. It is part of a broader campaign to demonize religious freedom as the enemy, as an obstacle to certain political goals. It is important for the American people to know the truth about how we got here. The Affordable Care Act requires that most employers provide insurance coverage at no cost to employees for what it calls preventive services. Regulations from the Department of Health and Human Services define that category as covering all forms of birth control approved by the Food and Drug Administration, including both contraceptives and methods that can act after conception. The difference between a contraceptive and an abortifacient is the difference between preventing and taking human life. That discrepancy may be meaningless to some, but it is very important to many and can be a matter of the most profound moral and religious significance. As a result of the birth control mandate, many religious employers faced massive fines if they followed their religious beliefs, so some of them filed suit to prevent its enforcement. This is exactly the kind of situation that the Religious Freedom Restoration Act was enacted to address, the kind of situation that should require the government to justify why it wants to interfere with the exercise of religion. Cases brought by two companies owned by religious families made it to the Supreme Court. These companies do provide insurance coverage for the FDA's 16 methods of contraception, but they believe that doing so for its 4 methods of birth control that can cause abortion violates their deeply held religious beliefs. Two weeks ago, in a case titled ``Burwell v. Hobby Lobby Stores,'' the Supreme Court ruled that the HHS birth control mandate does not sufficiently accommodate these employers' exercise of religion as required by the Religious Freedom Restoration Act. It took a lot of work to establish RFRA's defense of religious freedom, but it would not take much work to destroy it. The bill we will soon consider, S. 2578, would in one fell swoop reduce the free exercise of religion from a fundamental human right to a cheap election-year prop. RFRA was developed after months of discussion and debate. It was the product of bipartisan deliberation and considered judgment. I know. I was there. I was the one who talked Senator Kennedy into coming on this bill. When it was signed on the south lawn--when President Clinton signed it, Senator Kennedy was one of the most proud people there. This bill represents vindication of the fundamental and natural rights that we originally established government to protect. By contrast, S. 2578 was thrown together in a matter of days. It has not received a single committee hearing in either Chamber. In fact, here in the Senate it is not even being sent to a legislative committee. The majority has put their finger to the political wind and decided that all they want is a show vote they can spin to their advantage in the election this fall. That is ridiculous. They ought to be ashamed. One sign of what is really going on is the fact that the bill's ``findings'' are about four times as long as its actual provisions, and it reads more like a series of press releases than serious legislative language. The bill's supporters wish to ram it through Congress without meaningful deliberation, without hearings, without the kind of scrutiny that would expose this effort for what it is. The bill's findings, for example, say not one word about the exercise of religion that gave rise to the Hobby Lobby litigation in the first place. Instead, one of the bill's findings claims that those lawsuits were filed by employers who simply wanted to deny their employees health insurance coverage for birth control. I guess you can call it contraception. In reality, the employers do not want to take anything away from anyone. They simply ask, as the Religious Freedom Restoration Act requires, that laws and regulations about health insurance coverage also consider and balance their basic right to religious exercise. I have heard proponents of this legislation make wild claims that corporations are denying access to health care, intruding into people's bedrooms, and even taking away their freedoms. Nonsense. Such claims do not even pass the laugh test. They are so clearly false that those who peddle such fiction must ignore both RFRA and the Supreme Court's decision in the Hobby Lobby case or deliberately distort them beyond recognition. Just yesterday the Washington Post Fact Checker listed example after example of what it charitably described as the rhetoric getting way ahead of the facts as Democrats have made one outlandish claim after another. Finding 19 in this bill is perhaps its most outrageous, claiming that legislation ``is intended to be consistent with the Congressional intent in enacting the Religious Freedom Restoration Act.'' But of course that claim is absurd on its face. Congress expressed its purpose in enacting RFRA in the text of that statute, including RFRA's finding that its legal standard applies ``in all cases where the free exercise of religion is substantially burdened.'' RFRA's most prominent backers in Congress also expressed its intent. Over in the House, for example, then-Representative Charles Schumer said that RFRA would restore the American tradition of ``allowing maximum religious freedom''--spoke about this bill, spoke glowingly about what it means on both sides of the floor. The bill before us today does the opposite, requiring employers to provide insurance coverage ``notwithstanding any other provision of Federal law,'' including specifically the Religious Freedom Restoration Act. If a bill prohibiting consideration of religious exercise is consistent with the law requiring consideration of religious exercise, such as RFRA, then words have no meaning whatsoever. We are also told that S. 2578 simply responds to the Supreme Court's recent decision in Hobby Lobby, but in reality it goes much further. The Supreme Court's decision involved only the Affordable Care Act and the HHS birth control mandate, but this bill prohibits consideration of the Religious Freedom Restoration Act regarding insurance coverage of any health care item or service required by any Federal law or regulation. The Affordable Care Act and the HHS birth control mandate apply to employers with at least 50 employees, but this bill's much broader mandate applies to any employer regardless of size. The Hobby Lobby case involved a for-profit corporation, but this bill applies to any employer. This bill appears to be not so much a response to the Supreme Court's decision in Hobby Lobby as the attempt to broaden and extend the Affordable Care Act and the HHS birth control mandate. The bill's mandate that health insurance coverage for any health care item or service under any Federal law or regulation be provided notwithstanding any other provision of Federal law seems to reach beyond the Religious Freedom Restoration Act. Does it include, for example, the Hyde-Weldon amendment or other laws that have for more than 40 years protected health care providers and facilities from being forced to participate in abortion? Before you answer no, remember that no one thought RFRA's protections for religious freedom would ever be attacked as they are today. Under S. 2578, the lone protections for the fundamental right of religious exercise would be the narrow statutory exemption for churches and houses of worship and the weak administrative accommodation for religious nonprofits that could be revoked at any time. Even worse, the bill would allow for a future reduction or elimination of this so- called accommodation but not for its expansion. Not only would religious freedom be diminished immediately but what is left would be subject to a one-way ratchet toward elimination. Earlier this summer I spoke here on the Senate floor about how religious freedom in America has three key dimensions: It includes religious behavior as well as belief. It applies collectively as well as individually. It is public as well as private in scope. The Religious Freedom Restoration Act represents the full understanding of religious freedom. It requires that when Congress considers legislation or executive branch agencies consider regulations, they must take this fundamental freedom into account and give it the respect it deserves. S. 2578 would be the first bill to create an exemption from RFRA and the first bill explicitly to prohibit consideration of the fundamental right of religious exercise. Five years after enacting the Religious Freedom Restoration Act, Congress enacted the International Religious Freedom Act, which established the U.S. Commission on International Religious Freedom. That legislation declared that the ``right to freedom of religion undergirds the very origin and existence of the United States.'' The Senate passed that legislation by a vote of 98 to 0, including 10 Democrats who have today cosponsored the bill before us that would disregard freedom of religion. Those Democrats include the majority leader and the sponsor of S. 2578. They cannot have it both ways. Like his predecessors, President Obama designated January 16 as Religious Freedom Day. In his proclamation, the President declared that ``my administration will remain committed to promoting religious freedom both at home and across the globe. We urge every country to recognize religious freedom as both a religious right and a key to a stable, prosperous and peaceful future.'' Actions speak louder than words. Either religious freedom undergirds the origin and existence of America or it does not. Religious freedom is either a universal right or it is not. Religious freedom is either a key to a stable and prosperous future or it is not. If America is about allowing maximum religious freedoms, as my colleague the senior Senator from New York once said, then it should continue to do so. It is time for this body to choose whether it will protect religious liberty or whether it will seek to destroy it. In 1993, Congress stood up to defend the free exercise of religion after a Supreme Court decision undermined it. The bill before us today would undermine the free exercise of religion after a Supreme Court decision defended it. In 1993, the free exercise of religion was offered as a solution. The bill before us today targets religious freedom as the problem. It treats certain religious beliefs as simply unworthy of recognition and religious exercise in general as a second- or even a third-rate value. I believe we can both uphold fundamental rights and find solutions to public policy issues. I hope my colleagues on both sides of the aisle, even though we have differences about policy, will once again join together for the common good by recommitting ourselves and our Nation to the fundamental right of religious freedom. We have to do this. It is the first freedom mentioned in the Bill of Rights. One would think everybody here would be absolutely on the side of upholding it. This bill is anything but that, and I hope my colleagues on both sides of the aisle start to realize how important this is and vote against this terrible bill that has been slapped together for political purposes. I suggest the absence of a quorum.

Mr. HATCH

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

Mr. HATCH. Mr. President, the great pamphleteer of the American Revolution, Thomas Paine, famously characterized our Nation at its founding by asserting that in America the law is king. This sentiment has undergirded centuries of our Nation's political culture: The rule of law protects us from arbitrary government actions. It is what guarantees our liberties, it is what fosters our prosperity and our flourishing as a free people, and it is a source of our Republic's legitimacy. For as the Declaration of Independence teaches, governments derive their just powers from the consent of the governed. For these reasons, when drafting the Constitution, the Framers obligated the President to take care that our laws be faithfully executed, but they were careful not to give the President the authority to make or change the law on his own. Our Nation's Founders knew, in the sage words of Montesquieu, that ``in all tyrannical governments . . . the right both of making and of enforcing the laws is vested in one and the same man, or . . . body of men; and wherever these two powers are united together, there can be no public liberty.'' To safeguard our liberties as the Constitution requires, the Constitution vests Federal legislative powers in the Congress--the House of Representatives and the Senate--which were designed to engage in a particularly thorough and deliberative legislative process. By ratifying the Constitution, the American people established this system as the supreme law of the land applying to all of us--including the President. Despite these Constitutional foundations, President Obama has simply decided that he ``won't take no for an answer'' when Congress refuses to go along with his far left agenda. In direct opposition to our centuries-old system of legislation and the binding authority of the Constitution, the President has audaciously declared that ``when Congress won't act, I will.'' And he has followed up these threats with a variety of unilateral executive actions, many of which are flatly inconsistent with the law and the Constitution. Over the past weeks and months I have come to the Senate floor to speak out about a series of specific instances that exemplified the brazen lawlessness of this administration. This pervasive and illegitimate outreach has come in many different forms. We have seen the President regulate contrary to the plain text of the law, simply ignoring the clear commands of duly enacted Federal statutes. For example, a hallmark of the President's so-called pen-and-phone strategy has been an Executive order forcing contractors to raise their minimum wage. He issued this directive despite the fact that a Federal statute already governs the minimum wage for Federal contractors. Although a different statute gives the President some discretion in the area of Federal procurement, its plain language demands, as courts of law have upheld, that there be a sufficient nexus between the President's orders and the statute's stated goal of efficiency and economy in Federal procurement. President Obama's order increasing contractors' labor costs by hiking their minimum wage is thus wholly inconsistent with the law. We have seen the Obama administration seek to rewrite existing law and thereby usurp Congress's legislative authority through the use of conditioned waivers. Consider how the Department of Education has issued waivers of No Child Left Behind's requirements to 43 of the 50 States and the District of Columbia. Even when Democrats had large majorities in both the House of Representatives and the Senate, President Obama refused to pursue legislative reauthorization of the statute to set realistic goals going forward. Apparently, he wanted to avoid spending his energies and political capital on a legislative process that might expose divisions within his own party or force him to compromise. The President chose simply to establish an entirely different set of education policies by attaching his own conditions to the waivers that States need to receive Federal money. His administration has not been shy about enforcing conditions that bear little resemblance to provisions of the law itself. The State of Washington learned this recently when it became the first to lose its waiver and much of its Federal funding primarily because it did not meet the administration's mandate for teacher and principal evaluation--a mandate that has no grounding in the actual statute. We have seen President Obama and his subordinates stretch what lawful authorities the executive branch does have beyond recognition to advance its preferred policies. Take, for example, the Nation's drug laws, an area in which the Obama administration decided it disagrees with the criminal statutes on the books and wants to implement a different policy. The President has demonstrated an eagerness to do so unilaterally, no matter the governing Federal law, and no matter the broad and bipartisan support for sentencing reform in Congress. The administration's new clemency push for drug offenders seeks to employ the President's specific constitutional power--one limited to relieve individual instances of injustice--to provide relief to large swaths of criminals who fit a few broad criteria. The President has also directed major changes over which Federal drug crimes are charged and at what level to do this. His administration has cited prosecutorial discretion--a limited authority derived from the power to adapt enforcement for an individual's specific circumstances--to implement what are, in fact, broad standards affecting thousands upon thousands of prosecutions. Given the scope of these actions, compared to the Executive's narrowly tailored authorities, the administration's invocation of prosecutorial discretion and the clemency power have become transparent excuses to justify flouting existing Federal law. We have seen President Obama claim the power to gut the law by unilaterally creating gaping enforcement carve-outs, thereby effectively rewriting policy set by legislation. Take immigration, an area in which many of us--myself included--support reform but which is currently governed by existing law. For years the Obama administration has advanced a growing number of enforcement carve-outs for increasingly expansive classes of illegal immigrants. First, it exempted those brought here as children, then veterans, then their families. Now the administration is contemplating excluding from the application of duly enacted immigration law anyone who has not committed serious felonies. While nearly everyone agrees that violent criminals should be our highest priority, the administration has gone much further and essentially declared its intention to make current immigration law a dead letter in virtually every other case. We have seen the Obama administration openly ignore its statutory obligations without meaningful justification. Consider the President's decision to release the top five Taliban leaders in U.S. custody without notifying Congress, as required by Federal law. The administration's excuses for delaying notification could not stand up to scrutiny under the President's own rationales. Indeed, the administration's own statements demonstrate that it deliberately withheld advance notification of the release from Congress for the illegitimate purpose of minimizing congressional opposition. We have seen some of the Obama administration's worst abuses of executive power in creating and implementing its signature legislative programs. In Dodd-Frank, for example, the administration created a new agency with unprecedented and unchecked power--no meaningful administrative controls on its power, no congressional control over its budget, and no effective judicial review of its far-reaching decisions. And of course, any discussion of executive overreach by this administration must include ObamaCare. Back when the administration was writing that 2,000-plus page monstrosity, the bill's proponents argued that its length and complexity were necessary evils--that its many intricate parts were essential to achieving the bill's promised objectives. The individual mandate, the employer mandate, the minimum coverage requirements, the cuts to Medicare Advantage, and the limits for subsidies to State-run exchanges--we were promised these provisions and others were both critical and carefully timed to expand coverage and rein in costs. Yet, when the time came to implement the law, the administration's tune changed. To justify violating a number of clear statutory mandates, the administration has mustered a weak and unconvincing hodgepodge of legal acrobatics--all for the purpose of allowing the administration to avoid enforcing the central provisions of its own signature law. Consider some of these particularly egregious justifications: claiming that limited transition authority exercised by one agency justified another agency exerting that power even more broadly; or asserting that subjective impressions of excessive cost could justify a hardship exemption, when the statute specifically defines excessive costs in objective terms; or defining explicit, carefully timed deadlines written into the law by Congress, the timing of which is supposed to anchor the whole statutory scheme; or abusing a small pilot program to mitigate the law's vast cuts to Medicare Advantage; or simply ignoring a critical provision limiting how billions of dollars in tax subsidies are to be spent. These are only a few examples of this administration's lawlessness in implementing ObamaCare. I could continue on about the significant legal concerns surrounding this administration's abusive handling of high- risk pools, its dubious actions involving the small business exchange, its sweetheart deals granting unauthorized exemptions for labor unions, and many other similarly problematic actions. But the point is clear: Time and again, the Obama administration has flouted its constitutional responsibilities, exceeded its legitimate authority, ignored duly enacted law, and sought to escape any accountability for its unilateralism. Today I have simply scratched the surface of the Obama administration's legally dubious actions. I could also discuss the way the administration is manipulating the Endangered Species Act to assert control over private property, or the EPA's many abuses: its existing source rule, its cross-State air pollution rule, its waters of the United States rule, and its CAFE standards. Or I could catalog the illegal actions of the President's appointees to the National Labor Relations Board, the Nuclear Regulatory Commission or the Federal Communications Commission. In each of these areas, the Obama administration's executive overreach simply cannot stand--and it won't. The President is rightly facing increased scrutiny and criticism in a range of areas for his illegitimate approach. Over the past two weeks, the Supreme Court strongly rebuked the President's lawlessness in three key cases. The Utility Air Regulatory Group v. EPA case involves one of the most controversial issues debated today: regulating carbon dioxide emissions in an effort to stop global warming. Americans and their elected representatives have been seriously debating whether and how to pursue that, just as we should when weighty matters of national policy are considered. Congress has considered various pieces of legislation over the years to grant Federal authority to regulate carbon dioxide emissions, most notably President Obama's 2009 cap-and-trade bill. Each time we have considered such legislation, the majority of us have made the careful choice that the purported benefits are not worth the undeniably massive costs: hundreds of thousands of jobs destroyed and gas and electricity prices sent soaring. President Obama, though, told us again that he ``won't take no for an answer''--or, in other words, that he refuses to accept that the Constitution delegates to the people's representatives in Congress--and not to him alone--the power to make or change the law. Defying Congress and the law, he claimed authority under the Clean Air Act to regulate carbon emissions from powerplants. But the Clean Air Act plainly does not provide him that authority. In attempting to provide a shred of legal justification for its actions, the Obama administration took a detailed provision of the law, complete with precise numerical thresholds, and unilaterally rewrote it through regulation to claim power Congress never, in fact, gave. The Supreme Court rightly struck down the administration's abuse of authority in this instance, as it has done in past cases. But, unfortunately, such regulatory overreach has become so common in the Obama administration that Federal bureaucrats have become experts in manufacturing supposed legal authority out of thin air. And the courts are simply unable to keep up with the explosion of executive overreach by President Obama's administration. Perhaps the most extreme example of such executive abuse was at issue in the Burwell v. Hobby Lobby case. Under the auspices of ObamaCare, the Department of Health and Human Services issued a regulation requiring employers to pay for a full complement of birth control methods for every employee. The Obama administration applied this mandate to almost all employers--even those who run small, closely-held businesses and whose deeply-held religious beliefs conflict with the mandate. Some media outlets have focused on the conflict between this latest ObamaCare abuse and the principles enshrined in the First Amendment's protection of the free exercise of religion. Others have focused on the Obama administration's argument that corporations are not people--as if the particular form of how individuals organize themselves to do business somehow allows the Federal Government to trample their religious liberties. But in all of the sound and the fury, a central point has been lost: The Hobby Lobby case was actually about a direct threat to the separation of powers. It pitted the Obama administration's unilateral mandate against a law passed by Congress. In issuing this regulation, the Obama administration completely disregarded a duly enacted Federal statute, the Religious Freedom Restoration Act, which specifically bars such government infringement on Americans' right to exercise their religious beliefs. The ObamaCare contraception mandate flies in the face of the law's requirement that the government not substantially burden the exercise of religion unless it is the least restrictive means of furthering a compelling government purpose. I know. I was the prime sponsor of that bill in the Senate, and I got my friend Senator Kennedy to go along with me. The President said it was one of the most important bills in history, that religious freedom may be the most important of all of our freedoms. As a lead author of the Religious Freedom Restoration Act, it has been particularly frustrating to see the Justices of the Supreme Court wrongly criticized for supposedly limiting access to birth control. In reality, all the Court did was hold the Obama administration accountable to the law--specifically, a law that passed Congress with near unanimity and was signed by President Clinton, who lauded the law. I was there. I was on the south lawn when he signed that. So were many others. In the NLRB v. Noel Canning case, by contrast, the administration violated one of the Constitution's central checks on Presidential power, the requirement that nominations of principal officers receive the advice and consent of the Senate except during the recess of the Senate. Concern about Executive appointment abuse was on the minds of our Fathers when they devised the Senate's role in the process. Their fears were strikingly similar to what President Obama has sought to make reality: a radical set of National Labor Relations Board appointees who promised to tip the balance of the Board toward an extreme and divisive agenda and a Consumer Financial Protection Bureau Director nominee endowed with unprecedented power--no checks on his removal, no congressional control over his budget, and no effective judicial review of his actions. But President Obama again proclaimed he would not take no for an answer and claimed the power to use the recess appointment power to install these four nominees, even though the Senate had completely different rules. But even the Department of Justice admitted that a 3- day adjournment was too short to give the President lawful authority to bypass the Senate. Instead, the President audaciously claimed the power to decide that, in his opinion, our so-called pro forma sessions during this period did not count as sessions of the Senate, even though they had always counted, and the Senate should decide its own rules, and that has always been the rule around here. Not only, as Hamilton explained in Federalist 69, did the Framers specifically deny our President the King's power to deem the legislature out of session, but during these sessions the Senate was fully capable of engaging in its business. In fact, during similar sessions the previous fall, the Senate had twice passed legislation that President Obama himself signed. So extreme were the administration's arguments that the Supreme Court unanimously held President Obama's actions unconstitutional. In doing so, the Court confirmed that the Constitution does not create in the President an endlessly flexible power to bypass Congress when he happens to disagree with us--as if our advice-and-consent role were merely an inconvenience to be avoided, rather than the organizing principle of how the constitutional process is designed to work. Taken together, these three cases represent a resounding victory for the rule of law and the Constitution over the President's unilateralism, and they are far from unique examples. The Court has ruled unanimously, by a vote of 9 to 0, against the Obama administration 20 times--20 times, 9 to zip. These include many significant cases, such as the Hosanna-Tabor case, in which the Obama administration tried to control a religious organization's hiring of its ministers; the Sackett case, in which the Obama administration tried to take away the lawful right to challenge unlawful EPA fines of up to $75,000 a day on a poor couple who were just trying to improve their property; and the Arizona case, in which the Obama administration tried to displace State law with mere Federal enforcement priorities. But instead of taking these rebukes to heart, the President has doubled down on his go-it-alone attitude. He has vowed more Executive orders of questionable legality, he has reaffirmed his commitment to an extreme anti-energy agenda and a willingness to abuse his legal authorities to unleash an onslaught of new regulations, and he has used the mistrust he created by refusing to enforce existing immigration law to justify further nonenforcement. President Obama's shameful defiance in the face of the Supreme Court's rulings means our fight against his lawless overreach has only just begun. While we should applaud the Court's recent decisions, we should also realize the limits of courtroom litigation to check executive branch abuse. Indeed, the Obama administration has gone to great lengths to shield its lawlessness from judicial review by surreptitiously crafting many of such actions to prevent any plaintiff from having legal standing to launch a challenge in court, by aggressively challenging the legitimacy of suits that have been filed, by significantly curtailing the availability of judicial review, and by brazenly packing the DC Circuit--the Nation's most important court for most regulatory cases--with compliant judges. The Speaker of the House has announced plans to vote on a measure to authorize a lawsuit against President Obama for his unfaithful execution of the law. While I support the legislative branch using every tool at our disposal to hold this President accountable to his constitutional obligations, we should also be mindful of our decades- long fight to limit the judicial power to its proper role under the Constitution. We should not seek to replace one constitutional travesty--the lawlessness of this President--with another by breaking down the structural limits on the judicial power. On the other hand, the House may very well succeed because of the actions of this President because something has to be done to curtail these inappropriate, unilateral, illegal actions. In the end, we cannot rely on the courts alone. With such a powerful and aggressive President, all of us must stand and fight back against this executive lawlessness. I urge all my colleagues--both Democratic and Republican--to use the rightful and legitimate constitutional authorities the Framers gave us to stand and resist the President's recklessness. But whether blinded by partisan loyalty to the President or too inexperienced to understand this body from any other perspective than having a like-minded Senate majority and President, my colleagues on the other side of the aisle have allowed--even facilitated--this administration's attempts to break down the constitutional checks on Executive power. I urge them to change course. That is the tradition of some of the greatest Senators on both sides of the aisle--of Mike Mansfield, Howard Baker, and Robert Byrd. That is the purpose of the Constitution's division of powers, for as Madison counseled in Federalist 51, ``. . . the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others.'' If this body is to maintain a meaningful role in preserving liberty and prosperity, we must dutifully fulfill our constitutional obligation of checking the President's unlawful attempts to assert illegitimate power. I began my service here in 1977. Bob Byrd was the newly elected majority leader. R.C. Byrd was one of the alltime procedural experts in this body. He was a very strong personality. He would not be putting up with what this President is doing. He would not be putting up with the usurpation of the Senate's power or of the legislature's power, the Congress's power. I call on my Democratic friends on the other side to start standing up. If they do not start standing up, I think the people are going to hold them accountable because these are separated powers and the legislative body is supposed to handle these matters and not some President unilaterally changing the law at his whimsy. With that, I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, I have introduced legislation to reauthorize the Traumatic Brain Injury Act. It is my pleasure to be joined in this effort by my colleague and fellow member of the Senate Health, Education, Labor and Pension Committee, Senator Bob Casey, Jr. Brain injuries are among the most frequent reasons for visits to physicians and emergency rooms, and contribute to about thirty percent of all injury deaths. A critical health issue for military personnel, TBI has also become a signature wound of war. According to a Defense and Veterans Brain Injury Center, DVBIC, analysis of surveillance data released by the Department of Defense, DoD, 33,149 U.S. military personnel were diagnosed with a TBI in 2011 alone. People who survive a TBI can face observable effects lasting just a few days, or serious lifelong disability. A survivor of a severe brain injury typically faces five to 10 years of intensive services and estimated lifetime costs in the millions. TBI affects not only the person living with TBI, but also the family and community of which the individual is a part. Families are the primary caregivers for a person with brain injury. The Traumatic Brain Injury Act is the only Federal legislation that specifically addresses issues faced by the millions of American children and adults who live with a long-term disability as a result of TBI. I first introduced the TBI Act with the late Senator Ted Kennedy nearly 20 years ago. The TBI Act of 1996 launched an effort to conduct expanded studies and to establish innovative programs for TBI. Three agencies within the Department of Health and Human Services, HHS, administer the TBI program: the Centers for Disease Control and Prevention, CDC, carries out projects relate to prevention, surveillance, and education about TBI; the National Institutes of Health, NIH, funds basic and applied research; and the Health Resources and Services Administration, HRSA, assists states in improving access to health and other services, including protection and advocacy services. The TBI Reauthorization Act of 2014 will continue these vital supports for an extremely vulnerable population. This bill also continues to encourage interagency coordination and requires HHS to develop a coordination plan for all Federal activities with respect to TBI. According to the CDC, in 2009, nearly a quarter of a million children age 19 or younger were treated in emergency departments for sports and recreation-related injuries that included a diagnosis of concussion or TBI. This legislation also requires the review of scientific evidence regarding brain injury management in children and adolescents, including current and promising additional research. The TBI program offers balanced and coordinated public policy in brain injury prevention, research, education, and community-based services and supports for individuals living with traumatic brain injury and their families and I ask my colleagues' support for the Traumatic Brain Injury Act of 2014.

Mr. HATCH

Mr. HATCH. Madam President, before I begin, I want to pay tribute to my friend and former colleague Howard Baker. I was honored to work with him in the Senate and later worked closely with him when he was President Reagan's White House Chief of Staff. He loved the Senate, and he built an impressive leadership role as majority leader. He was a skilled negotiator, an honest broker, an effective legislator, and a great steward of this institution. I offer my deepest condolences to his wife Senator Nancy Landon Kassebaum Baker, an incredible woman, a dear friend, and a respected colleague as well. It was truly a privilege to learn from and serve alongside Howard, and I know I am far from alone among his many friends and colleagues in missing him deeply. We miss Nancy too. It was wonderful to see the two of them together. They cared a great deal for each other. He was a wonderful man, she is a wonderful woman, and I personally love both of them. We will miss him.

Mr. HATCH

Mr. HATCH. Madam President, I rise to commend the holding of the Supreme Court's decision this morning in NLRB vs. Noel Canning. The Court's decision is a critical victory for the principle that we are a nation of laws, not of men. It is a vindication of the fundamental notion that the Constitution binds us all, including even the President, and it is a triumph for the rightful prerogatives of this institution, the U.S. Senate, the authority of which has been under siege throughout the Obama years. One of the most important powers endowed in this body by the Constitution is the requirement that nominations of principal officers receive the advice and consent of the Senate. The confirmation process provides Members of the Senate with a wide range of tools--up to and including outright refusal to confirm a nominee--in order to influence the proper execution of the laws we pass. When aggregated, these tools amount to a critical check on the workings of the executive branch. The Senate's advice and consent rule did not rise from accident--far from it. As the Supreme Court has explained, quoting the famed historian Gordon Wood, ``The manipulation of official appointments had long been one of the American revolutionary generation's greatest grievances against executive power, because the power of appointment to offices was deemed the most insidious and powerful weapon of 18th century despotism.'' The Founders' worry about the dangers of the Executive appointment power should ring true today given many of the Obama administration's actions, including a radical set of National Labor Relations Board nominees who promised to tip the balance of the Board toward an extreme and divisive agenda, hurting both employers and employees, and a Consumer Financial Protection Bureau Director nominee poised to exercise unprecedented and unchecked power thanks to the dangerous provisions of Dodd-Frank--no checks on his removal, no congressional control over his budget, and no effective judicial review. These are exactly the sorts of circumstances that motivated the Founders' concerns about an unchecked appointment power in the Executive. They are the very reasons the Presidential nominees must obtain the Senate's consent before taking office. The only exception to this body's power to decline its consent to a nomination is the President's power ``to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.'' But the President's power to make recess appointments is wholly contingent on what the Constitution terms ``the Recess of the Senate'' actually occurring, and the power to decide when that happens rests squarely with the legislative branch. This is the obvious consequence of the Senate's constitutional power--conferred in article I, section 5--to determine the rules of its proceedings. And it is well supported by longstanding practice and precedent, acknowledged by the executive branch going as far back as 1790. Consider what would happen if the President could unilaterally determine when the recess of the Senate occurs. With no check on the President's discretion to declare the Senate in recess, he could employ the recess appointment power whenever the Senate refused to give immediate and unencumbered consent to his or her nominees. The advice- and-consent process would become a dead letter. The exception would swallow the rule, and the Senate would be deprived of a central tool our Nation's Founders specifically conferred to prevent Executive mischief. The Founders realized the severity of this threat. They had fought royal abuses of the appointment power, asserting in the Declaration of Independence how the King's government had ``erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.'' As Hamilton explained in Federalist 69, ``They deliberately chose not to give the President the King's often- abused power to discontinue a session of the legislature.'' So concerned were the Framers with the legislature's power to control its own sittings that the Constitution gave each House the power to prevent the other from adjourning for more than 3 days. In essence, the Senate and the House of Representatives both have the power to prevent the recess of the Senate and thereby avoid the activation of the President's recess appointment power. So when the Senate was confronted by the prospect of an out-of- control National Labor Relations Board and an unchecked Consumer Financial Protection Bureau led by President Obama's appointees, we were facing threats that our Founders had themselves faced and for which they had specifically provided us with the tools to resist. When we refused to act as quickly as the administration wanted and merely rubberstamp these nominees, we acted exactly as the Constitution's Framers had intended. And the House of Representatives wisely refused to consent to a recess of the annual session of the Senate, thereby refusing to grant the President authority to make lawful recess appointments. I don't relish rejecting nominees--quite the contrary. Over the past 38 years, I have voted for the vast majority of nominees from each of the six Presidents under whom I have served and with whom I have served alongside, including President Obama. But scrutinizing the President's nominees and occasionally withholding consent when circumstances warrant represents Congress fulfilling, not abdicating, its constitutional responsibilities. So when faced with our legitimate and lawful use of the powers endowed in the legislative branch by the Constitution, what did the Obama administration do? Did it seek to accommodate our concerns about the unconstitutional structure and unprecedented powers of the CFPB? Did the President seek to help develop a compromise package of the NLRB nominees, as Ted Kennedy and I always did? Sadly, no. Instead, President Obama simply proclaimed that he ``wouldn't take no for an answer'' despite what the Constitution may say. He chose instead to use--or rather abuse--the recess appointment power to install these four nominees, including two who had been nominated only 2 weeks before--hardly long enough for the Senate to vet them thoroughly. But, of course, we were not in ``the Recess of the Senate'' that the Constitution requires to activate the recess appointment power. Even the Solicitor General admitted that a 3-day adjournment was too short to allow the President to bypass the Senate lawfully. Instead, President Obama audaciously claimed the power to decide for himself when the Senate was in recess and determined that in his personal opinion, our so-called pro forma sessions during this period did not really count as sessions of the Senate, at least for the purposes of the Constitution's requirements. But during these sessions the Senate was fully capable of engaging in its business. Indeed, during a similar session the previous fall, the Senate twice passed legislation that President Obama himself signed. We have also used these sessions to appoint conferees, to read calendar bills, and to engage in other such activity characteristic of the Senate operating in session. While the Senate planned to conduct no subsequent business under a unanimous consent agreement, even the Obama administration admitted that there was a possibility that we might decide otherwise. Whether the Senate chooses to conduct business has no relevance here. Instead, it is the ability of the Senate to conduct business if it so chooses that matters. Faced with this reality, the Obama administration even argued that the Senate, by refusing to adjourn for more than 3 days, could not deny the President his recess appointment power--as if he was owed the opportunity to use this power. This argument turns basic structure of Presidential appointments on its head, as if our advice-and-consent role were merely an inconvenience to be avoided rather than the organizing principle of how the entire constitutional process is designed to work. The Constitution does not create in the President an endlessly flexible power to bypass Congress when he disagrees with us. In fact, it does exactly the opposite: It vests in Congress both the power and the responsibility to resist a President's ill-advised policies and Executive overreach. The actions and arguments advanced by the Obama administration represent a direct assault on the Constitution's division of powers between the different branches. This brazen power grab takes President Obama's already audacious overreach to a new level. I applaud the Supreme Court's willingness to fulfill its constitutional obligations and check this abuse of power by the White House. While I agree most with the reasoning of Justice Scalia's concurrence, which respects the fixed and discernible meaning of the Constitution's text and its controlling power, the unanimous nature of this decision reflects just how egregious the President's action was. But those of us who care about checking the Obama administration's overreach cannot place our faith in the courts alone, although they must play an important role. Too often this administration has been crafty in implementing its breaches of the law to avoid judicial review, frequently structuring its overreach to prevent any plaintiff from having any legal standing to sue in court. This White House has even used its role in the legislative process to advance provisions that eliminate the potential for judicial review, as it did in Dodd- Frank. And when the courts have found legitimate occasion to scrutinize President Obama's overreach, the administration has often fought to keep litigants out of court, as in the Fast and Furious litigation. Perhaps most disturbing is what happened with the DC Circuit, the second most important court in the land that oversees our massive regulatory state, the court that originally held the President's appointments unconstitutional. When the DC Circuit tried to hold the Obama administration accountable to the law and the Constitution, President Obama and his allies sought--in their own words--to ``switch the majority'' on the court and to ``fill up the D.C. Circuit one way or another.'' In the rush to eliminate any possible judicial obstacle to accountability by packing the DC Circuit, the Obama administration ran roughshod over the rules and traditions of this body by blowing up the filibuster. Whether through unilaterally changing the Senate rules or abusing the recess appointment power, the President and his allies have demonstrated a willingness to work untold and permanent damage to the institutions of this great body and to our constitutional system itself. With such a powerful and aggressive President, no single institution can restore the constitutional checks on President Obama's often lawless exercise of power. Restoring constitutional government will require great effort by all of us: The courts, the Congress, and most importantly the voting public. That is why it is essential for my colleagues on both sides of the aisle to stand and defend the institutional prerogatives of the Senate. That is every Senator's sworn duty under the Constitution. Many of my colleagues--even those with whom I rarely agree--have the potential to be great Senators, worthy stewards of this institution, zealous guardians of its prerogatives and true defenders of its role in our constitutional system of government. Sadly, whether blinded by partisan loyalty to the President or too inexperienced to understand the Senate from any other perspective than having a like-minded Senate majority and President, my colleagues on the other side of the aisle have allowed--even facilitated--this administration's attempts to break down the constitutional checks on Executive power. Bob Byrd must be rolling over in his grave. He would never allow the Senate's power to be as diluted and dissipated as it has been during this Presidency. He would have stood up to them. He would have taken the Senate's prerogatives and made them very clear to this President and anybody else who tried to invade the Senate's prerogatives--and I might add constitutional prerogatives at that. We must all realize what is at stake. This is not some petty turf war. As Madison warned in Federalist 47, ``The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.'' To disregard this central principle of constitutional government is to abolish the barriers protecting us from arbitrary government action and to undermine the rule of law. We in the Congress should make no apology for protecting the legal prerogatives of the body in which we serve, for as Madison counseled in Federalist 51: ``[t]he great security against a gradual concentration of the several powers in the same department consists of giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.'' If this body--and constitutional government generally--are to maintain a meaningful role in preserving liberty, we must all realize the importance of connecting the President's unlawful and illegitimate attempts to assert power. We must use the rightful and legitimate constitutional authorities that the Founders gave us to stand and fight back. This is important. This is not just a battle between the two sides. This is not just an itty-bitty, little problem. This is one that has thwarted the intentions of the Founders to have three separated powers, each with its own duties and responsibilities, not infringed by the other powers that disregard the duties and responsibilities of the legislative branch. I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. I yield back the time.

Mr. HATCH

Mr. HATCH. I ask unanimous consent that I be permitted to continue and finish my remarks.

Mr. HATCH. Madam President, I have been really interested in this debate. Let's just be honest about it. The Senate is being run in a shoddy fashion. I don't care which side you are on. I have only been here 38 years, and I have never seen a bigger mess than we have right now. I have never seen the majority stifling amendments by the minority like we have right now. I have never seen cloture filed almost immediately when a bill is brought up, like we are filibustering when we are not. All we want are amendments and to have a vote up or down-- something we always gave the Democrats on crucial bills like this one. It is pathetic, and it has to change. Frankly, if the American people really knew--we have had nine amendments since last July that we voted on. The Democrats have had only seven. Now, even some of my Democratic friends are up in arms about it. They are not able to act as Senators. They are not able to do the work. They are not able to be part of it. I mean, my gosh, is protecting your side from the election--is that more important than having the Senate run the way it should? The answer to that is a resounding no. This is pathetic. I have never seen anything like it. To come out here and act holier-than-thou about it, as if it is just normal around here, is just plain wrong, and everybody knows it. That is the thing that just kills me. If we were doing that, if we were in the majority, my gosh, the whole world would be coming down on us, especially with the beloved media we have in this country--and rightly so if we were pulling the kinds of the stunts that are being pulled on the Democratic side. Look, I am tired of it. I know Democrats who are tired of it. Every Republican is tired of it. We are being treated as though we don't count in this battle--in this battle between the two parties in the Senate. It doesn't have to be a battle every time. Both sides have been wrong from time to time but nothing like this. This is pathetic.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that I be permitted to deliver my remarks in full.

Mr. HATCH. Mr. President, I ask unanimous consent that the distinguished Senator Brown be permitted to speak immediately following my remarks for 10 minutes.

Mr. HATCH. Thank you, Mr. President. Guantanamo Releases I rise today out of serious concern about the release of the five senior Taliban commanders detained at Guantanamo and the way in which the Obama administration has accomplished it. These individuals that the Taliban successfully demanded the release of in exchange for SGT Bowe Bergdahl were some of the most dangerous terrorists in our custody. Some had close operational ties to Al Qaeda. Others perpetrated horrifying war crimes. All were senior leaders in the Taliban--a group with whom we remain at war. These former detainees, the Taliban five, are only subject to a 1- year international travel ban. It seems shockingly unrealistic to expect that they will not seek to undo everything our brave men and women in uniform have fought and died for in Afghanistan. However foolish, the prospect that we might release the most dangerous Guantanamo detainees has been a matter of national debate for some time. President Obama and his subordinates have long espoused a singular devotion to closing the detention facility at Guantanamo. Many of us in Congress have remained decidedly less sanguine about this longtime leftwing fantasy. We are wary of the dangers, inappropriateness, and oftentimes the impossibility of prosecuting battle-hardened terrorists in civilian court as if they were common criminals. We are frustrated by the procedural roadblocks to pursuing justice through military commissions. Above all else we are alarmed by the more than one in four released detainees who have apparently rejoined the fight. And unlike the administration, we have long been disabused of the notion that our enemies and perennial critics would somehow fall in love with America if we simply close Guantanamo. With these concerns in mind, we exercised our rightful legislative authority under the Constitution to prevent the transfer of any further detainees out of Guantanamo. Nevertheless, the Obama administration bitterly opposed any release restrictions. Facing incessant and intense pressure from the administration to repeal our ban, Congress acted on a bipartisan basis to reach a compromise--a compromise that was extraordinarily generous to the administration's position. Under the new law in effect--section 1035 of last year's National Defense Authorization Act--Congress must be notified 30 days before any detainee transfer. The notification must contain a detailed statement of the basis of transfer, an explanation of why the transfer is in the national security interests of the United States, and a description of the actions taken to mitigate the risks of detainees returning to the fight. Our subsequent funding legislation also banned the Obama administration from using any of the appropriated money to transfer detainees except in accordance with these agreed-upon procedures. Despite this good-faith effort on the part of Congress to find common ground with the President, he chose to simply disregard his statutory obligations to inform Congress of this highly controversial release of the Taliban five. While we should celebrate the return of any American from Taliban captivity, the President's actions carry very troubling consequences. When a lawmaker animatedly denounces the President's violation of a technical provision so wonky and seemingly unimportant as a statutory notification requirement, many Americans might understandably dismiss such a concern as a petty turf war--if their eyes don't glaze over first. Although perhaps intuitive, such an impression couldn't be more wrong. First, notification requirements such as this one have proven critically beneficial to national security decisionmaking, particularly in the national security context. The most prominent example is our oversight of the intelligence community. For more than 30 years, prior congressional consultation has been a key foundation of ensuring effective policymaking on intelligence-gathering activities and covert operations. On these incredibly sensitive and weighty issues, the executive branch is required to brief certain members of the legislative branch on all such proposed activities before they happen. The discussion of such highly classified information necessitates a strict observance of secrecy, which Congress has a long tradition of respecting. Discussions behind these closed doors provide the benefits of deliberation outside of the fishbowl of the ordinary policy process. In this setting concern about national security and the wisdom of the contemplated action dominate. Politics takes a back seat. The administration can modify or cancel proposed actions without the costs that attach to public policy pronouncements. And by assuaging our concerns before execution, the administration gets the congressional buy-in that is so necessary when these sorts of difficult decisions are taken. Although the system certainly has its critics on all sides, I remain a passionate believer in its overall effectiveness. I should know: I served on the Senate Select Committee on Intelligence longer than any other Republican ever has. For years I was intimately involved in this process and witnessed up close just how well it works to produce good policy. In the context of national security--an area in which our Nation regularly faces so many critical and difficult decisions--we need a well-functioning congressional oversight process to ensure our safety and security, now more than ever. But even beyond improving an administration's national security decisionmaking, we should genuinely concern ourselves as a nation that formal restraints on power be observed by the coordinate branches of our government. Whether the administration agrees with the restrictions on its power to release Guantanamo detainees, those restrictions remain enshrined in a duly-enacted Federal statute, and the President remains obligated to take care that the laws be faithfully executed. To ignore the law and the President's constitutional obligation to see that the law is enforced may seem enticing in an instance of apparent pressing need, but our Constitution provides no such authority. Consider the wisdom of Justice Jackson in his seminal concurrence in the Steel Seizure case: The appeal . . . that we declare the existence of inherent powers [out of necessity] to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were. . . . [T]hey made no express provision for exercise of extraordinary authority because of a crisis. I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so. . . . Indeed, the central organizing principle of the Federal Government is the division of powers and authorities between the different branches. As a 21st-century American, it is far too easy to treat the separation of powers as a cliche confined to the civics classroom rather than a meaningful cornerstone of our liberty. But we should recall Madison's warning in Federalist 47 that ``[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.'' To disregard these central precepts of constitutional government is to vitiate the barriers protecting us from arbitrary government action and to undermine the rule of law. We in the Congress should make no apology for zealously guarding the legal prerogatives of the body in which we serve, for, as Madison also warned in Federalist 51, ``[T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.'' Nevertheless, out of respect for a coordinate branch of government, the Obama administration's arguments excusing its action in releasing these five dangerous Taliban detainees merits thoughtful consideration and analysis. I have never been shy about defending the powers of the President when exercised lawfully, no matter how unpopular. Nevertheless, such an examination of the Obama administration's explanations reveals not only the ridiculousness of its arguments but also demonstrates deeply concerning attitudes and priorities that guided the administration's action. The Obama administration has advanced multiple distinct arguments about the legality of its move to release these senior Taliban leaders. Advancing multiple, sometimes contradictory arguments does not exactly instill confidence in the administration's commitment to its legal obligations. Some have been patently absurd, such as the suggestion from the White House Press Secretary that briefing Members of Congress more than 2 years ago about the potential for the detainee exchange constituted sufficient compliance with the detailed statutory notification requirements for an actual decision to transfer. I want to examine the two more sophisticated rationales advanced by the administration because it is in the details of these arguments that my gravest concerns arise. First, I want to consider the National Security Council spokeswoman's written statement to the press asserting that ``Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.'' Trying to read Congress's mind when interpreting the law, as the administration purports to do, has always struck me as absolutely absurd. Article I of our Constitution creates a legislative process that today includes 536 different individuals. To assume the existence of a single intent among so many different minds--all with different interests, different purposes, different philosophies, and different methods--runs counter to basic logic, not to mention the theory of representative government at the foundation of our Constitution. This notion that we should be governed by easily manipulated arguments about what Congress supposedly would have wanted long justified the hijacking of the law to undermine the clear meaning of the text. Fighting this abuse of the law and the Constitution has animated so much of my work over the past 38 years. We have made enormous progress in reestablishing the bedrock principle that we are governed not by vague claims about intent but, rather, by the words themselves--words that have a fixed and discernible meaning, with the power to bind us all--including the President. I will continue to fight for this principle as long as I have the honor to serve our people in this country. In this light, a proper reading of the detainee transfer and release notification requirements includes no such exception that the Obama administration imagines exists. We should always be skeptical of arguments assuming unwritten exceptions to laws, and here the relevant factors counsel strongly against assuming such an exception into existence. The statute uses strong universally applicable language: ``the Secretary of Defense shall notify''; ``each notification shall include, at a minimum''; ``the Secretary of Defense may transfer . . . only if'' and the like. The text of the provision is particularly detailed. This detail, especially when read in conjunction with the numerous other incredibly detailed provisions in the National Defense Authorization Act and its many predecessors--many of which contained detailed exceptions-- demonstrates that Congress is quite capable of creating exceptions to a provision like this one but instead actively chose not to include one here. Finally, as had been clearly established, lawmakers were aware of the administration's desire to conduct exactly this sort of a transaction before the beginning of the legislative process. To assume such an exception, when the Congress was aware of the administration's desire and proffered need for such a provision but chose not to provide one, would completely undermine the notion that Congress has the power to choose its preferred policies by legislation. Put another way, how could Congress have been clearer that no detainee transfers could be accomplished outside its established process? If Congress's bright-line rule can be wished away by the Obama administration in this case, when can the Congress act to establish a policy to which the administration cannot carve out exceptions-- exceptions that destroy the very core of the law? In advancing this rather ridiculous attempt to misconstrue the transfer and release notification requirements, the Obama administration is simply avoiding making their more controversial argument explicit. The administration's Pentagon General Counsel admitted as much last week. This argument centers on the President's contention that ``in certain circumstances'' the transfer and release notification requirements ``would violate constitutional separation of powers principles.'' Other senior administration officials have made statements, albeit hesitantly, invoking the President's authority under the Constitution to disregard the statute. Although the administration attempts to cloak it in the complex obscurity of statutory construction, this is the real issue at hand. As a threshold matter, the rule of law and the separation of powers both depend on the longstanding notion that an unconstitutional statute is no law at all. We should take the Obama administration's arguments about the constitutionality of the notification requirement as applied to the Taliban five trade very seriously. When appropriate, I have defended the President's authority to act in contravention of certain statutes. And I absolutely stand by the positions I have taken before--no matter how unpopular they have sometimes been. I feel it is incumbent upon me to lay out my case of why I am so disturbed by the administration's actions here not to deflect any charge of hypocrisy for personal benefit but because I feel so passionately about the Obama administration's overreach in this and so many other cases. To risk having these arguments dismissed without serious consideration of their merits would be unbearable. I feel compelled to lay out my case in some detail. Here, the Obama administration's arguments fail on the administration's own terms and in so doing demonstrate some disturbing trends at work within this administration. Now, the Obama administration has not advanced the notion that the transfer and release notification requirements are always unconstitutional. Instead, the administration has been very careful to suggest that the notification requirements unconstitutionally encumbered the executive branch because of the specific circumstances at issue in the Taliban five trade. The general terms of the Obama administration's rationale initially seemed potentially reasonable: that it feared Sergeant Bergdahl would be endangered unless the administration moved swiftly and secretly to make the trade, and compliance with the notification requirement would have prevented the President from exercising his lawful authority to order the detainee swap. However, the logic of the administration's rationale falls apart under closer inspection of the two key factors that were cited as creating the specific circumstances in disregarding the statute: the need for swiftness and the need for secrecy. First, the need for swift action. The Obama administration has--at various times--suggested that Sergeant Bergdahl's health was in rapid and accelerating decline to the point of necessitating immediate rescue, and that the Taliban would refuse to agree to Bergdahl's release unless the administration executed the trade quickly. After examining what evidence the administration provided us, a number of my colleagues from both parties, including the senior Senator from California, the chair of the Senate Select Committee on Intelligence, have expressed significant doubt about these claims. But even if we accept the Obama administration's claims that there existed a need for swift action, that when faced with this realization, compliance with the 30-day notification requirement would have endangered the potential for recovering Sergeant Bergdahl, and that these are the sort of circumstances where the Constitution authorizes the executive branch to act in defiance of a notification requirement-- even if we accept everything the administration suggests, their argument doesn't totally nullify the administration's obligations under the statutory notification requirement. Under the administration's own logic that the notification requirement is not unconstitutional per se but, rather, only under certain circumstances, the executive branch still has a duty to take care that the laws be faithfully executed. Thus, even if it is authorized to order a transfer or release of detainees in less than the 30 days mandated by the statute, the President remains obligated to comply as substantially and faithfully as possible, mitigating any anticipated breach by keeping Congress abreast of negotiations and complying with the notification requirements as soon as any transfer decision is made or undertaken. But that clearly is not the case here. Instead, we know from the statements of senior administration officials that the administration deliberately withheld notification from Congress until after the trade occurred--months after negotiations to make this trade resumed and intensified, weeks after the detainee transfer agreement with Qatar was signed, and days after the final decision itself was taken. Given that the administration accepts the constitutionality of the legality of the notification requirement generally, its actions represent a direct effort to undermine the obvious core purpose of the law: giving Congress the opportunity to raise its objections and lobby against an ill-advised release or transfer before it happens. This is not maximally faithful compliance. This is outright flouting of the statute. The administration, though, has also claimed a need for secrecy-- specifically, that informing Congress would endanger the prospects for Sergeant Bergdahl's safe return. I take this concern for secrecy extraordinarily seriously, and I know that every one of my colleagues does as well. Preserving secrecy as not to endanger ongoing operations remains an absolutely vital cornerstone of congressional oversight of national security issues, and my long service on the intelligence committee engendered in me a particular appreciation for how necessary it is. But administrations have for decades briefed Congress on extraordinarily sensitive matters. Take the Bin Laden raid. It is hard to think of an operation more sensitive than that. In both the Taliban five swap and the Bin Laden operation, the mission objectives as well as the safety of our troops would have both been completely unattainable if details leaked. Yet, even before the Bin Laden operation, the administration kept Congress regularly briefed as required by law, which is, to me, testament to the extraordinary resiliency of our oversight structure. Even those of us who have long defended robust executive powers in the national security context have long asserted that: The constitutional basis for withholding notification can only be invoked credibly, by its own terms, in very rare circumstances. A generalized fear that Congress might leak would not by itself suffice, because the same fear could be invoked equally from all [secret operations]. In the case at hand, the Obama administration accepts the constitutionality of congressional notification requirements in most circumstances. Yet it has also failed to articulate any particular reason why notifying Congress would impose a particular problem when compared to other sensitive operations. But the implication that it did not notify Congress just because of a generalized fear of leaks not only disregards decades of successful congressional oversight of intelligence collection and covert operations but also makes an exceedingly radical argument that would give the President essentially arbitrary power to ignore what he acknowledges is a valid law. In this case, though, the administration's actions wholly undermine the notion that there was an unusual secrecy concern at issue here. First, consider that the administration itself estimated that between 80 and 90 executive branch officials were told of the decision to release the Taliban five ahead of time--in an administration that leaks sensitive national security information like a sieve, but zero--zero-- Members of Congress were informed. The Secretary of Defense and his General Counsel even admitted that Justice Department lawyers were told of the upcoming trade for the very purpose of keeping even a few key Members of Congress in the dark. In light of the statutory requirement to notify just a key handful of Members of Congress, this situation appears flatly absurd and certainly inconsistent with maximally faithful compliance with the statute. Furthermore, the administration had already discussed with Congress the potential for such a deal. They ran into bipartisan opposition, as expressed in the bipartisan letter of early 2012 signed by the top Democrat and top Republican on both the House and Senate intelligence committees. In response to that letter, media reports indicate that the then-Secretary of State and former Senator from New York promised the administration would pursue further congressional consultations before making the exchange. And in 2013 the White House Press Secretary responded to a question about trading Sergeant Bergdahl for Taliban detainees in stark terms promising: ``We would not make any decisions about transfer of any detainees without consulting Congress.'' So why the more than 2 years of radio silence from the Obama administration? Why the disregard of the Federal statute when the administration's arguments for doing so in this case are so disturbingly unconvincing? Why wait until after the decision could not be challenged before telling Congress? After reviewing these events, the answer seems obvious. President Obama and his subordinates illegitimately chose not to inform Congress until after the decision was irrevocable because they knew that Congress would object. Two administration officials told Bloomberg News as much: The failure to notify key Members of Congress in advance was a deliberate move to skirt opposition to releasing the five Taliban prisoners. While the vigor of the Obama administration's defense of the deal has shocked many, it has not shocked me. To this President, this deal represents the apex of responsible winding down of the conflict in Afghanistan--not only in returning Sergeant Bergdahl but also in releasing the Taliban five, whom the administration has eagerly sought to release so often before. Just take it from the majority leader who said he was ``glad to get rid of these five people.'' And for a President and an administration that have demonstrated endless reservoirs of faith in the goodwill of hostile forces abroad, there is also surely hope--no matter how ridiculous--that giving into the Taliban's demands will somehow inspire a renewed interest on the part of the Taliban in peace talks, as if that did anything but demonstrate how the Taliban's current tactics will get them concessions from the Obama administration. President Obama has on many occasions annunciated very clear beliefs of our detention operations at Guantanamo, articulating a nearly religious conviction that detention of Taliban, Al Qaeda, and associated forces under the law of armed conflict is a beacon of this nation's evils to the world. And although the administration has faced immense political pressure to reconsider from many of us, I have absolutely no doubt President Obama intends on following through with his long-time, recently repeated promise to make every effort to close Guantanamo during his remaining time in office. Many of my colleagues and I share a diametrically opposed view from the President's--one that is more focused on securing the stability of the Afghan Government that our men and women in uniform fought so hard to establish. But in our honest disagreements, President Obama only sees reflexive intransigence. On Guantanamo and on so many other matters, President Obama has proven himself unable to accept good-faith differences with those of us elected to a coordinate and coequal branch of government. This frustration has motivated the President to enact his agenda unilaterally. In doing so, he not only poisons the well of congressional oversight of sensitive national security matters, as troubling as that is, but also by arrogating power with casual disregard for the structural restraints of the Constitution, he stretches our longstanding laws and norms past the breaking point. My allegiance to constitutional government and the rule of law compels me to stand up to this overreach by President Obama and the executive branch. I will continue to speak out against what I strongly believe are serious instances of overreach by this administration--as I have already done on immigration, sentencing, education, Benghazi, and, of course, ObamaCare. I urge all of my colleagues to join me, for what is at stake is not just our rightful authority to get done what our constituents sent us here to do but also the very precepts at the core of our Constitution. That is why I have joined my colleague, the junior Senator from Ohio, to cosponsor a resolution declaring that the Obama administration violated the statute and calling for an investigation into the matter. With all that is at stake, registering our objection in this way could not be more important. Additionally, in light of these troubling events--which also involve the Justice Department, which should hold the separation of powers in the highest regard--I should note I found myself now unable to support the nomination of Peter Kadzik to be Assistant Attorney General for Legislative Affairs. My deference to the administration's choice of appointees can only go so far, and I cannot support a nominee who has so persistently refused to share the Department's memos on the release of the Taliban five. Absent a real commitment from Mr. Kadzik and the Justice Department to respect Congress's role under the Constitution, I felt compelled to oppose his nomination. On their own terms, the Obama administration violated the law by releasing the Taliban five--dangerous men who are sure to return to the fight. In doing so, he not only endangered the lives of our men and women in uniform but also jeopardized everything they fought and died for in Afghanistan. My commitment is to them and to the Constitution's division of powers and authorities amongst the coordinate and coequal branches of government which they fight to protect. These loyalties are what have compelled me to stand up to the Obama administration. I urge all of my colleagues, regardless of party, to join me in this fight. Too much is at stake to let petty partisan concerns and blind political loyalty to the President take precedence over the weighty matters of national security and constitutional authority that are at stake, and especially when one considers how much this branch of government is being ignored on almost a daily basis by this out-of- control White House. Democrats and Republicans have to put a stop to this, and they have to start standing up on these issues or we are in danger of losing the Constitution itself. Mr. President, I yield the floor.

Mr. HATCH

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

Mr. HATCH

Mr. HATCH. Madam President, the world lost an amazing man last week. William Mack Watkins was a wonderful husband, father, brother, grandfather and friend. After a lengthy battle with progressive supranuclear palsy, PSP, Mack passed away peacefully on Thursday, June 5, 2014, with his beloved wife Julia and other family by his side. Mack was born in Tremonton, UT, on May 30, 1936, to Clifford Charles and Lois Oswald Watkins. Rising from humble beginnings, Mack was proud of his rural Northern Utah roots, often saying he was ``just a poor peach picker from Brigham City.'' Those who had the privilege of knowing Mack knew that he was so much more. Mack was a stern believer in the power of education, evidenced by his own studies at Box Elder High School and his degree in history from the University of Utah, where he was a member of the Sigma Chi fraternity. A proud and loyal member of The Church of Jesus Christ of Latter-day Saints, Mack served in a variety of capacities including a proselyting mission in the Swiss-Austrian Mission from 1956-1959. Later, he was called to serve as president alongside his wife over the Czech-Prague mission from 1998-2001. He undoubtedly left a lasting legacy at both missions. Mack had a unique ability to bring people together, and he connected with people of all walks of life. He continued and valued continuing relationships. He created lifelong friendships with missionaries he served with, the Austrian people, business partners and members of the LDS church and community. Mack's keen insight in finances led to his professional success in the finance industry. After working for two renowned Utah companies, Mack formed his own financial services business, WMW Management Inc. But for all his professional success, Mack's proudest achievements came as a loving husband and proud father of nine children whom he loved dearly. Mack's love for music and fine arts was evident through the 10 years he sang in the Mormon Tabernacle Choir as well as his talents with the trumpet and guitar. He served as president of the Utah Opera Company and enjoyed his season tickets to the Utah Symphony and The Pioneer Theater Company. And his patience and perseverance was displayed in his love for one of the most humbling hobbies any person can enjoy--golf. While Mack was taken from us, his legacy will live on. It is my honor to stand with the Watkins family this week and pay tribute to this remarkable Utahn we are so proud of, and who we all loved. He will never be forgotten.

Mr. HATCH

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

Mr. HATCH. Madam President, I rise to speak on a matter of great importance that seems to have slipped through the cracks of the public's consciousness. However, with the growing furor over the recent scandal at the Veterans' Administration, I expect more and more people will be made aware of it. I don't think it is unreasonable to argue that most Americans would be outraged to learn the Federal Government pays tens of millions of dollars every year to pay hundreds, if not thousands, of government employees not to work. This practice used to be called featherbedding. ``The term `featherbedding' originally referred to any person who is pampered, coddled, or excessively rewarded.'' It was later used to describe certain labor relations practices. According to Wikipedia: The modern use of the term in the labor relations setting began in the United States railroad industry, which used feathered mattresses in sleeping cars. Railway labor unions, confronted with changing technology which led to widespread unemployment, sought to preserve jobs by negotiating contracts which required employers to compensate workers to do little or no work or which required complex and time- consuming work rules so as to generate a full day's work for an employee who otherwise would not remain employed. Congress tried to put an end to the practice in the 1947 Taft-Hartley Act amendments, which defined and outlawed featherbedding. However, the U.S. Supreme Court has narrowly defined the terminology, leaving most practices undisturbed. The featherbedding-like practice I am referring to today is most often called official time, wherein government employees--who are highly compensated, often including overtime pay--are paid to perform no work for the government, only work for the benefit of their unions. These ``employees'' are not union employees, nor are they paid by the union. Instead, they are union members paid by the taxpayers to work full time for the union while working for the Federal Government. Of course, this practice also goes on in the private sector. However, in the private sector, the featherbedding comes off of the bottom line and is negotiated as a measure of ensuring labor peace and in exchange for other union concessions. In the Federal Government, where the bottom line is the taxpayer and where unions are not permitted to strike, this practice is a way for weak managers to use government funds to reward public sector union political supporters and financial contributors, passing the costs along to the unknowing taxpayer for services not rendered. In the private sector, official time is carefully monitored and controlled. In the Federal sector, managers generally look the other way. According to the Office of Personnel Management, or OPM, during fiscal year 2011 unions represented 1,202,733 nonpostal Federal civil service bargaining unit employees--an increase of more than 17,000 employees compared to fiscal year 2010. In that same year agencies reported that bargaining unit employees spent nearly 3.4 million hours on official time--an increase of nearly 10 percent compared to the previous year. How much money are we talking about, and why should American taxpayers shoulder the entire burden if the official time is only for union work? Some may wonder what this has to do with the VA scandal. I don't think it is a coincidence that the VA--which is plagued by incompetence, dishonesty, and bureaucratic ineptitude--utilizes the practice of official time more than any other Federal agency, according to OPM. In 2011 the VA reported paying out nearly 1 million hours in official time--an increase of more than 23 percent over the previous year. The cost of official time in 2011 amounted to nearly $43 million. That is $43 million paid out to VA ``employees'' to do union work full time. Wall Street Journal Editorial Board writer Kimberley Strassel noted a few weeks back: The VA boasts one of the largest federal workforces, and VA Secretary Eric Shinseki bragged in 2010 that two-thirds of it is unionized. That's a whopping 200,000 union members, represented by the likes of the American Federation of Government Employees and the Service Employees International Union. I ask unanimous consent that the article be printed in the Record following my remarks. Union supporters often lament that under Federal law Federal employee unions are relatively toothless, especially when compared to the very powerful State employee unions. However, as Ms. Strassel noted, given its size and influence, the VA union may be an exception to that rule. Once again, two-thirds of the VA workforce is unionized, and the agency has paid more than $40 million in salaries to full-time union workers in a single year. That has to have an impact on the VA's efficiency. And that is for workers who don't even work--except for the union. Obviously, the inefficiency of the VA has recently been the subject of a very high-profile public debate. However, the impact unions have had on the VA's operation was being talked about well before news of the recent scandal broke. For example, Senators Portman and Coburn sent a letter to former VA Secretary Shinseki in 2013 noting that the vast majority of VA employees on official time were trained nurses, instrument technicians, pharmacists, dental assistants, or therapists. In other words, these were employees hired specifically to fulfill roles in direct support of veterans. Yet, instead of caring for veterans, processing claims, and helping to eliminate the horrendous backlog, these employees were being paid to do union work full time-- all at the expense of taxpayers. On top of that, union-negotiated work rules over things such as seniority and job classification have contributed to the bureaucratic nightmare at the VA. In addition, the unions have been the most vocal opponents of any reform proposals that would give veterans access to outside health care. While it may be overstating the unions' influence to assign to them the blame for the entire VA scandal, it is clear that these unions have at least contributed to the problems we are now seeing at the agency. They are at least partially to blame for the backlog in veterans' claims. They are at least partially to blame for the failed VA bureaucracy. They are at least partially to blame for the failure of reasonable attempts to reform the agency in the past, and it is almost impossible to reform it the way it is currently run. I wish I could say this problem is isolated at the VA. Unfortunately, there is at least one other scandal-plagued agency with a similar union problem. I am talking, of course, about the IRS. We are all pretty familiar with the IRS targeting scandal. By its own admission, the agency was targeting Tea Party groups in the runup to the elections in both 2010 and 2012. Like the VA, the IRS consists of a heavily unionized workforce. About 66 percent of IRS employees belong to the National Treasury Employees Union, or NTEU. It shouldn't surprise anyone to learn that the NTEU is extremely active in politics, having twice endorsed President Obama. During the 2010 election cycle, when the IRS first began targeting conservative groups, the NTEU raised over $600,000 through its PAC, almost all of which went to Democrats. In the next election, in 2012, the NTEU PAC raised more than $700,000, 94 percent of which went to Democrats. In other words, during the same campaign cycles in which the IRS was targeting conservative organizations--organizations that were critical of the President, his administration, and in many cases the IRS itself--for harassment and extra scrutiny, the union that represents nearly two-thirds of IRS employees was busy raising and donating well over $1 million to Democratic candidates. And we wonder why the IRS-- which should not be partisan in any way, shape, or form--is filled with partisanship. We should not have unions at the IRS or at the VA. Is it any surprise that the agency found itself predisposed toward harming conservative organizations or their causes? Of course, the IRS has its own issues with the practice of paying out official time. Indeed, as of 2011 there were at least 200 IRS employees working full time for their union--all at taxpayers' expense. In that same year, the agency paid out more than 625,000 hours of official time. The total cost of these union activities was roughly around $27 million. But that is only the beginning. That is $27 million in a single year paid to ``employees'' of the Federal Government who did nothing but union work. That is simply preposterous. As I said, if the American people understood that this type of fleecing of the taxpayers goes on every day, they would be outraged. Current law allows most Federal employees to be represented by a union. There are, however, some exceptions--and good reasons for these exceptions. Most of these exceptions are for agencies that perform a national security function or other highly sensitive work. One would think the IRS would fit in that category. One would think the VA would fit in that category. For example, we don't allow employees at the FBI, the CIA, or the Secret Service to be unionized. There is good reason for that: We don't need partisan political activities in those agencies. But we don't need them in the IRS or the Veterans' Administration either. We also don't allow employees at the GAO or the Federal Labor Relations Authority to unionize. In days to come, Congress is going to have to take a hard look at reforming both the Veterans' Administration and the IRS. One of the questions we are going to have to ask ourselves is whether these agencies, with their important and sensitive missions and their poor performance in the recent past, should be added to the list of agencies not permitted to unionize, not permitted to be partisan. And anybody who doesn't understand that doesn't understand anything about politics. In addition, as we continually look for ways to improve the efficiency of our government, we will need to examine the overall practice of official time and determine whether it should be eliminated entirely. I, for one, don't believe taxpayers ought to be footing the bill for union work. I think the majority of the American people, if given an opportunity to fully understand this practice and the abuse it entails, would agree with me. One thing is for sure: If what we have seen at the VA and the IRS is in any way representative of the influence unions have on government agencies, drastic changes are going to be necessary. How can any American citizen feel the IRS is above politics when it is run by a union? And we all know that unions support almost 100 percent one party over the other. How can we feel the VA is going to be handled right when it has a union representing it and determining all the workloads? I have talked to the IRS Commissioners since I have been on the Finance Committee, and they admit that to try to correct or punish an IRS employee who is out of control and not doing what is right takes upward of a year if you are lucky. That is why there are all kinds of politics in these agencies and they act with impunity in advancing what really are liberal causes. If there are any two agencies that should not have unions in them, one ought to be the IRS and the other ought to be the Veterans' Administration. I was raised in the union movement. I learned a trade. I went through a formal apprenticeship program, and I became a journeyman. I am proud of that. I believe unions have a place in our society, but they have become more and more partisan. It is reported that 40 percent of union members are Republicans. Yet almost 100 percent of every dime that is given in politics is given to Democrats. So by any measure we have to say that these folks are partisan, which I think is their right. But should we have partisan control of agencies such as the IRS, which everybody has to deal with at one time or another in their life, and the Veterans' Administration, which is in dire jeopardy right now because of the way it is being run? I have been very much trying to do a straightforward investigation of the IRS and these accusations that have been thrown at it, many of which are true. The more I get into it, the more I realize it is being run in a partisan way for one party when it should be run in a nonpartisan way--for neither party. I am going to do something about it, and I hope the American people pay attention to it because I think most people, including younger Members, would be outraged to know that there is partisanship at these agencies that is not just average partisanship. It is blatant partisanship. The more I get into it, the more I realize that is true. Madam President, I ask unanimous consent to have printed in the Record the Wall Street Journal article that I previously referred to.

Mr. HATCH

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

Mr. HATCH. Madam President, today the Senate is expected to vote on the nomination of Sylvia Mathews Burwell to be the next Secretary of the Department of Health and Human Services. I expect her to be confirmed, and I expect she will receive a fair number of votes from both sides of the aisle. I, for one, plan to vote in favor of confirming Ms. Burwell. I believe she is well qualified and well suited for this position. But let's be clear. If Ms. Burwell is confirmed, she will have a difficult job ahead of her, particularly when it comes to implementation of the so-called Affordable Care Act. While I support Ms. Burwell's nomination, no one should mistake that to mean that I have somehow softened in my resolve against ObamaCare. Indeed, I am as committed as ever to repealing and replacing this horribly misguided law. I hold this position not due to politics or partisanship but due to the real--very real--problems this law is causing for our citizens, for our government, and for our Nation's health care system. I would like to take a few minutes today to talk about some of the specific problems we are seeing with ObamaCare and what some of my colleagues and I are doing to address them. As we all know, under the Affordable Care Act, States are required to have an online exchange where citizens can go to purchase health insurance. The law gives the States the option of creating their own exchange, using the exchange provided by the Federal Government or using a hybrid of the two. The Department of Health and Human Services gave every State $1 million to fund research and analysis to determine what type of an exchange they would use. Additional grants were given in two stages-- two stages--for those States that chose to build all or part of their own exchanges. On top of that, HHS awarded seven early innovator grants to States that decided early on to build their own exchanges in order to help support the development and early implementation of the necessary information technology systems. All told, States received $4.7 billion from HHS to assist them in building their exchanges. The problem we are seeing now is that, apparently, this money was just handed out with little or no accountability. At least seven States--seven States--have failed to build a successful Web site and exchange, even though they received and accepted Federal taxpayer dollars specifically for that purpose. Now these States are scrambling to either rebuild their entire systems or to transition to the Federal exchange. These seven States received roughly $1.3 billion from HHS to build their exchanges. That is $1.3 billion--with a ``B''--to just seven States in the Union. That is more than one-quarter of the total amount HHS provided to States for the purpose of building their own State health care exchanges. And apparently these States have little or nothing to show for it. In fact, at least three of them are looking to drop their own exchanges entirely and use the Federal exchange instead now. You heard that right, three States--that between them received hundreds of millions of dollars from the Federal Government to build their exchanges--now want to abandon the prospect entirely and join the Federal exchange. Let's keep in mind that adding them to the Federal exchange will not be simple, nor will it be cheap. More millions will be spent to transition these States--along with any other States that may choose the same course in the future--into the Federal exchange. This is simply preposterous. Where is the accountability? Where is the outrage from HHS over those lost and misspent funds? There does not seem to be any. For her part, the President's nominee to run HHS, Ms. Burwell has at least acknowledged that there is a problem here. During her confirmation hearing in the Finance Committee, I asked her whether States that have negligently mismanaged their exchange funds should be required to reimburse the taxpayers for those losses and for their failures? Her answer was somewhat encouraging. She said that if she was confirmed she would want to get to the bottom of this problem and ``use the full extent of the law to get those funds back for the taxpayers.'' Unfortunately, in answer to my followup question--whether she would commit to withholding additional exchange-related funds from those failing States--she was not quite so definitive. Still, I was glad to hear her at least acknowledge the problem and make a commitment to recouping taxpayer funds lost in these debacles. If she is confirmed, I hope with all my heart she will live up to this commitment, and I expect her to do so. That said, it is clear that, if we are going to make the taxpayers whole on this matter, we are going to need to do something besides waiting around for HHS to address the problem. Indeed, if our experience has taught us anything, it is that commitments made in the context of a confirmation hearing often fall by the wayside. I do not intend to have this one fall by the wayside. That has been particularly true, though, with this administration, especially when the commitments deal with ObamaCare. That is why I have joined with the ranking member of the Senate Judiciary Committee, Senator Grassley, in an investigation into this matter. Congress needs to exercise proper oversight on this issue. We need to get answers. We need to get them now. One way or another we are going to get them. Last month Senator Grassley and I sent a letter to CMS Administrator Tavenner asking for information about CMS's communications with the States with regard to the difficulties they have had setting up exchanges and their use of Federal funds. As I said, all told, these failures amount to over $1 billion in lost funds. The American people deserve to know where the money went and why it was so horribly misused. That is not all the American people deserve. They also deserve to be paid back for these losses. That is why I have joined with Senator Barrasso in introducing the State Exchange Accountability Act, a bill to require the States to pay back these wasted funds. Every Senator here, Democrat or Republican, ought to be willing to back that bill. Specifically, if enacted, our bill would require those States that operated a State exchange in 2014 and subsequently chose to use the Federal exchange to repay all of their establishment and early innovator exchange grants. The bill would give them a 10-year timeframe to do so. States would have to enter into an agreement with HHS to repay at a minimum 10 percent of the total grant money they received every year. States that fall under these requirements but fail to enter into such an agreement would see their Federal assistance medical percentages, or FMAP, reduced by HHS. The FMAP reduction would be uniform and take place over a 10-year period and would be equal to the amount of exchange grant money the State received. Under the bill, HHS would be explicitly prohibited from reducing the amount of reimbursement that States owe to the Federal Government. I expect some would deem this approach to be too punitive, but they should not. I do not think anyone can reasonably dispute there is a problem that needs to be dealt with. Our solution is reasonable and achievable. All we ask is the States that have wasted taxpayer funds repay them within a reasonable period of time. We give these States 10 years to pay the money back. This is not punitive; it is necessary. More than anything, the failures we are seeing with the State health care exchanges demonstrate that the Affordable Care Act has been flawed from the beginning. Indeed, it was the law itself that included an open-ended appropriation to help States build their exchanges without any mechanism to make States accountable for wasting those funds. Given these fundamental problems, I expect we will see more States take this route, especially if there are no steps taken to make them accountable. Congressional oversight into these failings is vital. I hope the administration will cooperate in our effort to resolve these problems. Our legislation is no less important. It is the only way to guarantee the American taxpayers get their money back. But that is not all we need to do. Make no mistake, ObamaCare is doing serious damage to our Nation's health care system and our Nation's fiscal future. When it comes to his health law, the President's favorite argument is that Republicans have not produced an alternative of their own. However, this is simply untrue. I suspect the President knows that. Earlier this year two of my colleagues and I unveiled a legislative proposal that would undo the damage ObamaCare has inflicted on the American people. Unlike the Affordable Care Act, our proposal would actually reduce costs and shore up our entitlements. It would do so without all of the harmful distortive mandates and regulations we see under ObamaCare. Once again, in the immediate future, we need to solve this problem with the failed State exchanges. But we also need to keep our eyes focused on the long-term goal of repealing ObamaCare once and for all and replacing it with something that will actually work for the American people. I hope that as time wears on, more of my colleagues, particularly those on the other side of the aisle, will recognize this is what we really need to do. As I said, I intend to vote today in favor of Ms. Burwell's nomination to lead HHS. I have helped that process to go smoothly. I want it to go smoothly. I believe she is a good choice for this job. I am hoping with all my heart that she will be that good choice she has indicated she is, and I have deduced she is. But I still have a number of concerns about the direction the agency is headed. During the course of her confirmation hearing, Ms. Burwell made two very important commitments to me. The first commitment she made was to respond promptly, within 30 days, to questions and inquiries submitted to HHS from Members of Congress. This is an important commitment, one I hope she lives up to. Under this administration HHS has been one of the least transparent of all Federal agencies. Letters and inquiries oftentimes have been ignored entirely. When we do receive letters in return from HHS, they are almost in every case unresponsive. Ms. Burwell is committed to changing that practice. I respect her for it. It is part of the reason I led the charge to have her confirmed. Once again, I surely hope she does help change that practice. I mentioned the other major commitment she made to me earlier in dealing with the failed State exchanges. Ms. Burwell committed to doing everything in her power to retrieve the wasted taxpayer funds. This commitment is also important, because thus far HHS has refused to acknowledge many of the problems they faced in implementing the Affordable Care Act. The fact that she made this commitment to me demonstrates she is at least willing to admit there are some major problems with the program. I support Ms. Burwell's nomination in large part because of these commitments she has made. I hope she lives up to them. I think she has the ability to live up to them. I have high hopes of that. No one should misread my vote today as an acknowledgement that all is now right in the world of ObamaCare and at HHS, because nothing can be further from the truth. But Ms. Burwell has, for her part, acknowledged that problems exist and has committed to doing what she can to fix those problems. Under this administration, that is probably the best we can hope for. This is an important nomination. She is a very qualified woman, in my opinion. She has had some significant experience in the Federal Government. I have high hopes that she will turn out to be a wonderful Administrator at HHS. It is almost an uncontrollable, unadministratable agency. I am going to give her all the help I possibly can to help get that agency under control and get it right again. This is important. I feel deeply about it. People in the bureaucracy know if they work with me I will move heaven and Earth to try to help them. It is time our government is more responsive to its citizens, more responsive to what people believed when they were confirmed, and more responsive in solving those problems that are so significant, so costly, and so important to the American people.

Mr. HATCH

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

Mr. HATCH. Mr. President, I ask unanimous consent that I be permitted to finish this speech.

Mr. HATCH. Mr. President, I rise today to speak about our Nation's first freedom--religious liberty. Last week a court in Sudan sentenced a woman to death for converting from Islam to Christianity and gave her just days to recant. Sadly, this sort of tragic oppression is common across the globe. The Pew Research Center says that three-quarters of the world's people live where restrictions on religion are high or very high and that religious hostilities have been increasing for years. In the last 10 years the number of countries on the Commission on International Religious Freedom's watch list has grown by 150 percent. Simply put, religious freedom is increasingly in peril around the globe. When compared to the rest of the world, some might think that religious liberty in America is alive and well. But, in truth, basic religious freedom is under attack here at home. Professor Thomas Berg writes that ``establishing freedom of religion as both constitutional principle and social reality is among America's greatest contributions to the world.'' But we have to ask ourselves whether meaningful religious liberty is still such a reality in American society and whether our Nation is still making that essential contribution to a world that needs it now more than ever. Hundreds of books, studies, papers, articles, and court decisions have explored various aspects, nuances, and implications of religious freedom. In the coming days and weeks, I will explore some of these issues in greater detail. Today I wish to speak about the definition and importance of religious freedom in America as seen both in history and in four important documents. For 170 years before Thomas Jefferson penned the Declaration of Independence, one religious society after another came to America so that they could live their faith. Puritans, Congregationalists, Roman Catholics, Jews, Quakers, Baptists, Presbyterians, and Methodists had all found refuge in the British Colonies by the time the United States was born. Roger Williams founded Rhode Island as a haven for religious dissenters. William Penn established religious liberty in the colony that bears his name. From its earliest days, religious freedom in America has been freedom not only of belief but also of behavior. In addition to our Nation's early heritage, four key documents establish the same understanding of religious freedom as encompassing both belief and behavior in both private and public spheres. The first document is the U.S. Constitution. The First Amendment protects the free exercise of religion, a phrase that on its face plainly includes conduct as well as belief. It is a phrase that had been in use for more than a century when America's Founders placed it in the First Amendment. The plain meaning of this phrase, as well as its history, is simply incompatible with the view that our constitutional freedom of religion is limited to the profession of belief and somehow excludes religious conduct. As Professor Michael McConnell, director of the Constitutional Law Center at Stanford and perhaps America's leading scholar of religious liberty has shown, such an artificial and cramped view is unsupportable. By its own terms our First Amendment protects both religious faith and action. The second document is the Universal Declaration of Human Rights, which the United States signed in 1984. Article 18 states that every person has the fundamental ``right to freedom of thought, conscience and religion,'' and that ``this right includes . . . freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.'' Plainly stated, religious liberty by its very nature encompasses both belief and behavior. In articulating broad principles of basic human rights, the authors of the Universal Declaration of Human Rights acknowledge that it is meaningless to have one without the other. The third document is the Religious Freedom Restoration Act. In 1990, the U.S. Supreme Court held that government needs only a rational basis for laws that burden but do not target the free exercise of religion. That decision changed decades of Supreme Court precedent that had required a compelling reason for laws that burden the exercise of religion. This shift was not just some legalistic or semantic exercise. If government needs only a rational justification for burdening the exercise of religion, it could do so essentially at will, but if government must have a compelling reason, it must respect the fundamental liberty and may burden it only when absolutely necessary. By shifting from one standard to the other, the Supreme Court made it dramatically easier for government to burden the free exercise of religion. Congress responded to the Supreme Court's decision with the Religious Freedom Restoration Act, or RFRA, which established the compelling standard. It passed the House unanimously by voice vote and the Senate by a vote of 97 to 3. I was the primary Republican cosponsor of the Religious Freedom Restoration Act in the Senate. In all of our discussions about RFRA, both Democrats and Republicans were united on one fundamental principle, the right of all Americans to the free exercise of religion should be equally protected. I remember when I went to Ted Kennedy, I said: You are going to be on this bill with me. He said: No, I am not. I said: Yes, you are. To his credit, he came on the bill. By the time we articulated on the floor and afterward when it was signed by President Clinton at the White House, on the White House south lawn, one of the biggest boosters was my friend Ted Kennedy. The fact is I will make that point again. As the primary sponsor of the Religious Freedom Restoration Act in the Senate, in all of our discussions about RFRA, both Democrats and Republicans were united on one fundamental principle: the right of all Americans to the free exercise of religion should be equally protected. Each religious claim should be judged by the same standard as every other, a standard that reflects the true importance of religious freedom. We rejected amendments that would have excluded some religious claims or favored others. In October 1993 I spoke in favor of RFRA on the Senate floor, explaining that the bill would restore to all Americans protections of the free exercise of their religious conviction. In fact, I stated directly that exempting anyone from the basic principle of free exercise would set a dangerous precedent. The fourth and final document is the International Religious Freedom Act enacted in 1998. The House passed it by an overwhelming bipartisan majority. The Senate followed suit by a vote of 98 to 0. This law established the U.S. Commission on International Religious Freedom, and declared that ``the right to freedom of religion undergirds the very origin and existence of the United States.'' It cited the Universal Declaration of Human Rights and reaffirmed yet again that religious freedom necessarily includes both belief and practice, individually or collectively, in public or in private. As the U.S. Commission on International Religious Freedom has explained, by its very nature religious liberty is ``a broad, inclusive right, sweeping in scope, embracing the full range of thought, belief, and behavior.'' It is central to human identity and dignity. It is essential to individual and social well-being. It is beneficial to political, economic, and civic life. Religious freedom is a fundamental constitutional liberty as well as a universal human right. In America religious liberty has always included both the freedom to believe and the freedom to act on that belief, the protection to do so collectively as well as individually, and the right to do so publicly as well as privately. Those basic tenets form the only proper standard by which to assess the state of religious freedom in America today. Unfortunately, there is much cause for concern. Let me share a few disturbing examples. The equal and universal application of religious liberty is now in doubt. Congress was united when enacting the Religious Freedom Restoration Act that the right to exercise religion freely belongs to everyone and should be protected by the same rigorous standard in each case. When balanced against important government interests, some religious claims would win and others would lose, but a rigorous legal standard that creates a high hurdle for government action that burdens religion must be applied universally, since the free exercise of religion is a fundamental right of all Americans. That conviction, however, is unraveling. This year marks the 50th anniversary of the Civil Rights Act of 1964. Title VII of that landmark law prohibits workplace discrimination based on religion and requires that employers reasonably accommodate the religious practices of employees. The Supreme Court, however, interpreted the ``reasonably'' so broadly that the exception swallowed the rule and workers have been without this legal protection ever since. Legislation called the Workplace Religious Freedom Act was introduced to reestablish legal protection and accommodation for religious workers. Originally, it applied this protection to all religious claims, just as RFRA required. It would balance the right to religious exercise with the legitimate needs of employers, but the most recent version of this legislation introduced in the 112th Congress abandoned universal applicability and instead would protect some religious claims but not others. Rather than allowing religious claims of all varieties to stand or fall under the same standard, some claims were covered and others were excluded from that standard altogether. This is not the only example of religious liberty under attack. Among its many other maladies, ObamaCare likewise struck a blow to the free religious exercise of religion. Although President Obama has called religious freedom a universal human right, his administration apparently paid that fundamental liberty no regard when drafting ObamaCare. Likewise, the Religious Freedom Restoration Act plainly states that its basic religious protections apply to every future Federal statute. Yet the Obama administration gave no consideration whatsoever to such religious freedom in formulating the President's signature law, ObamaCare. As a result, dozens of lawsuits have challenged ObamaCare's requirement that employers provided no-cost health insurance coverage for abortifacient drugs and devices as a violation of RFRA's plain protections. Two of those cases are before the Supreme Court, one from the U.S. Court of Appeals for the Tenth Circuit and one from the Third Circuit. In the face of its clearly universal requirement, the Obama administration nevertheless argued that the Religious Freedom Restoration Act does not apply to these plaintiffs. Despite the statute's plain text, Obama officials insist that the law does not apply to all cases after all. One step at a time, they seek to exclude classes of citizens from the basic protections of religious liberty. My final two examples involve recent Supreme Court decisions. In Hosanna-Tabor v. EEOC, the Supreme Court unanimously held that the First Amendment's protection for the free exercise of religion allows a church to choose its own ministers. The Obama administration argued instead that civil rights statutes trump the Constitution and allow judges to dictate to churches who may serve as ministers. In fact, as the Supreme Court described it, Obama administration lawyers were so dismissive of religious freedom that they argued churches were no different in this regard than labor unions or social clubs. Can you imagine that? To the Obama administration, the First Amendment and its protection for the free exercise of religion apparently offers no real protection at all. Thankfully, the Supreme Court responded this way: ``We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization's freedom to select its own ministers.'' Finally, just 2 weeks ago, the Supreme Court held that allowing citizens to offer a prayer of their choice to open a town meeting is not an establishment of religion, but four Justices joined a dissenting opinion arguing that only certain prayers, using certain language, in a certain pattern, would achieve a certain level of diversity and therefore be permissible. Four Justices actually believe Federal judges may dictate the content and presentation of prayers offered by private citizens. I can offer many more examples of how our Nation's cherished religious freedom is under attack, with forces seeking to limit, regulate, manipulate, and undermine the most basic natural and constitutional rights we possess. I mentioned at the outset that three-quarters of the world's population lives under substantial religious restriction. Here at home, the same percentage of Americans believes that religion is losing its influence in American life. Liberal politicians, secular activists, and even some judges are seeking to reduce religion to what Justice Antonin Scalia described as ``a purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one's room.'' It is no wonder that nearly one-quarter of Americans say religious freedom is more threatened than any other First Amendment freedom. These recent efforts mark a radical departure from the religious freedom that took root in our colonial experience, was nourished by the Declaration of Independence, earned a primary place among our constitutional liberties, and has been generously applied by generations of Americans. The notion that religious freedom belongs only to some, even then only in private, stands in direct opposition to our traditions, our laws, and our beloved Constitution. Some peoples throughout the world may be bound by oppressive governments that strictly regulate who may express their religious faith, when they may practice the tenets of their faith, and where they may act according to their religious convictions. But that is not America's heritage, and it must not be our future. Instead, America must once again be a beacon of religious freedom for all--protecting rights of conscience at home and promoting religious liberty throughout the world--and I expect it to be that. I am hopeful our courts will come to their senses--the ones that aren't there--and realize this was listed as the first freedom in the Bill of Rights for a very good reason; that is, because our Founding Fathers knew how important religion is to a nation that wants to be free. I suggest the absence of a quorum.

Mr. HATCH. Mr. President, on behalf of Senator Paul, I will have to object.

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

Mr. HATCH. Mr. President, I note for the record that I support Mr. Fischer for this position, but there is a legitimate objection by a Senator on our side that I had to advance. I hope we can resolve these problems, but I appreciate the distinguished majority leader's attempt to do this today. With that, I suggest the absence of a quorum.

Mr. HATCH

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