Mike Lee

Mr. LEE

Mr. LEE. Mr. President, the Electronic Communications Privacy Act was first enacted in 1986. I would ask my colleagues, what were you doing in 1986? Mr. President, 1986 was a long time ago. In 1986 I was in the ninth grade. This was an age when not everyone had a personal computer. My family didn't have a computer. Most of the people I knew who had a computer had something like the Commodore VIC-20, which was a very small computer with very little processing power compared to what we have today. But this law, the Electronic Communications Privacy Act--or ECPA, as it is sometimes known--was and still is an important law with an increasingly important objective; that is, to ensure that government agencies respect the Fourth Amendment in accessing an individual's electronic communications. In the nearly three decades since ECPA became law, technology has advanced rapidly, dramatically, far beyond the capacity of this particular law, ECPA, to keep up. The prevalence of email and the low cost of electronic data storage have made what were once robust protections vastly insufficient to ensure that citizens' rights are protected with respect to their electronic communications, such as email. There is no reason we should still be operating under a law written in the analog age when we are living in a digital world. This is a little bit like operating with a DOS-based operating system in the age of much more sophisticated software systems that help us interact relatively seamlessly with our computers. That is why Senator Leahy and I have come together to craft this truly bipartisan piece of legislation which would modernize ECPA and bring constitutional protections against worthless searches and seizures into harmony with the technological realities of the 21st century. The Lee-Leahy ECPA Amendments Act of 2015 would prohibit electronic communications or remote computing service providers--such as Gmail or Facebook or Twitter, for example--from voluntarily disclosing the contents of customer emails or other communications. It eliminates the ambiguous and outdated 180-day rule that some government agencies believe grants them warrantless access to the content of older emails. That is any emails older than the very young age of 180 days old. Instead, all requests for the content of electronic communications would require a search warrant--a search warrant required by the Fourth Amendment, a search warrant based on probable cause--and law enforcement agencies would be required to notify within 10 days any persons whose email accounts were searched, subject to some logical and narrow exceptions, of course. This legislation is also carefully crafted so that it would not impede the ability of law enforcement agencies to conduct legitimate investigative activities consistent with the Fourth Amendment. I am pleased to say that our bill enjoys very broad support from the technology industry, from privacy advocates, constitutional scholars, and policy groups on both ends of the ideological spectrum in America. The Lee-Leahy ECPA Amendments Act of 2015 is truly bipartisan in nature. The Senate bill, in addition to Senators Leahy and myself as the principal sponsors, also has six additional cosponsors. We have Republican Senators Cornyn, Moran, and Gardner and Democratic Senators Shaheen, Merkley, and Blumenthal. I hope and expect that we will have a lot of additional Senators of both political parties who will join us in this effort. The House version of this bill has 228 additional cosponsors--a very critical majority. By working together as a Democrat from Vermont and a Republican from Utah, we hope all Senators will join with us to pass this meaningful, bipartisan legislation that would benefit all Americans. Congress should pass ECPA reform this year, and President Obama should sign these important privacy reforms into law. I will end this discussion as I began. What were you doing in 1986? As it relates to your interaction with the digital world with computers, I would imagine that even though your life might be in many respects similar to what it was in 1986, it is very different in the way you interact with computers, with technology, with the online world, which basically no one was even aware of in 1986. Since 1986 the world has changed. We need to change the world to keep up with the times. We need to change the law to hold in place those protections that have been in our Constitution since 1791 to make sure the privacy rights of the American people are respected. I encourage each of my colleagues to support this bill

Mr. LEE

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

Mr. LEE. I suggest the absence of a quorum.

Mr. LEE

Mr. LEE. Mr. President, tomorrow afternoon the Senate will vote to begin consideration of the bill called H.R. 240. This is a bill that authorizes funding for the Department of Homeland Security, or DHS. It would fund DHS through September of this year. This, of course, is a procedural vote we have scheduled for tomorrow, not a substantive one. The only question on the table, the sole question in connection with this particular vote, will be whether the Senate is ready to begin voting and debating on H.R. 240. I am ready--I am eager, in fact--to begin this debate. It does need to begin. That is what this vote is about. Not just because we have only 25 days before the current budget authority for DHS expires but also because this debate will finally allow the American people to see where their elected representatives, right here in the U.S. Senate, stand on President Obama's recent Executive action on immigration. The legislature is the only lawmaking branch within our Federal Government because it is the only deliberative branch in our government. Before Congress enacts a piece of legislation--before it makes a new piece of law--we first debate the merits of that legislation--weighing the various pros and cons of each proposal in a candid and transparent discussion, and allowing the various sides of the issue to make their case. Open, robust debate is not merely incidental to the lawmaking process that goes on here, it is the essence of that lawmaking process. It is at the very heart, the very center, the very core of this process that we hold near and dear and was established by our 227-year-old founding document. It is the only way for Members of Congress to fully explore the cost and consequences of a particular policy under consideration. It is the only way for the American people to know exactly where their elected officials stand on an issue; and, just as importantly, why they stand where they stand. When the President of the United States announced in November of last year he was singlehandedly going to rewrite our immigration laws, in effect, he short-circuited this process of debate and of deliberation that is at the very heart of our constitutional lawmaking process. His announcement showed us what it looks like when one person ignores the limits of his office and claims the power to change the law all on his own, just as an expression of his own unilateral will. Policies are written behind closed doors, in consultation with lawyers and special-interest groups, rather than the American people. The law is pronounced from behind a podium as a fait accompli rather than discussed and debated in an open, transparent, fair contest of ideas and open to inspection by 300 million Americans who will be affected by these decisions. This is not how our Republic works. It is not what the American people expect from their elected officials in Washington, DC. Indeed, poll after poll shows most people disapprove of the President's Executive action on immigration--that same action taken just this last November. Even those who agree with the President on policy grounds, even those who think the President's amnesty action would be the kind of policy they would prefer, even those people disagree with the President on the process because the American people understand that the process does matter. Especially among those people who have taken an oath to uphold, protect, and defend the Constitution of the United States--that same document that prescribes the formula by which our laws are made. According to one poll, when asked if the President should ``sidestep Congress and act on his own using Executive orders,'' only 22 percent of the public said he should--22 percent. It is hardly a rousing mandate from the American people. In other words, the American people know what our President seems to have forgotten: that in a constitutional republic the ends don't justify the means. The American people oppose lawmaking by fiat not out of some abstract loyalty to the abstract concept of separation of powers. No, that is not why. Rather, they understand quite intuitively that when a President sidesteps Congress and avoids open, robust debate on a particular policy, it is probably because the public isn't likely to accept and isn't likely to like the substance of that policy. Otherwise, he wouldn't need to take this kind of action. Otherwise, he could do it through the people's duly elected representatives who have been put in office specifically for the purpose of making law through this open, deliberative, transparent process. This is certainly what we have seen in the aftermath of the President's Executive order on immigration. The more the people discover about the content and about the consequences of his policy, the less they like it. For instance, the President claimed that his Executive order would honor the golden rule of American exceptionalism: If you work hard and play by the rules, you can get ahead. We now know his plan subverts this very basic fundamental bargain by paving a path to citizenship for millions of immigrants who have broken the rules and violated the law, and by granting them work permits and benefits such as Social Security and Medicare. Likewise, we were told the President's Executive order would make our immigration system more fair and more functional, more accessible for everyone. But we now know his plan will only exacerbate the problems in our labor market for American workers by giving more power and more money to the dysfunctional U.S. Citizenship and Immigration Services, or USCIS. This is the agency within the Department of Homeland Security that was recently reported to have given over 900,000 work permits to illegal immigrants since 2009. We know that unless we do something to stop it, unless we do something to reach back and take back our constitutional privilege, our institutional privilege as the lawmaking branch of the Federal Government, the President's Executive order will go into effect at a time when all net job growth in our economy since 2007 has gone to immigrants. These are the kinds of facts and figures that ought to inform the legislative process and ought to not be treated as some sort of afterthought. These are not, coincidentally, exactly the kinds of observations, the kinds of facts and figures, the kinds of details that could have been and should have been and, undoubtedly, inevitably would have been explored had this policy been implemented through the constitutionally prescribed formula. Last November the President may have chosen to ignore these facts and to circumvent debate altogether, but that doesn't mean we have to respond in kind. That certainly doesn't mean we have to capitulate and say, okay, the way he wants to do it is fine. It is not constitutional. It is not legal. It is not what the American people want, but we just have to accept it. No. On the contrary, I believe we have not just a right but we have a duty, we have an affirmative obligation to make every effort to ensure lawmaking by edict does not become the new normal in this country. Not now, not ever, not in the United States of America. Beginning debate on this bill will give us the opportunity to do just that, to make sure this never becomes the new normal. Some have said we shouldn't be debating the President's Executive action on immigration right now. They say it has nothing to do with funding the operations of the Department of Homeland Security. To this I have a very simple reply: If not now, when? If we are not going to do it right now, when are we going to do it? When will there be a better time? When will there be any adequate time for us to respond to this constitutional overreach, this grave injustice? If we don't debate the legality of the President's Executive orders when we are in the very process of authorizing money to the Department that is tasked with carrying out those very orders, then when exactly will we have that debate? The truth is now is the perfect time because it is the only time. It is the only time when we can do this. It is the only time for us to have a meaningful debate on the President's Executive action on immigration. At any other point our debate is more or less hypothetical. Now is the time, when we are exercising our constitutional power of the purse, that our debate has consequences, real consequences. They are consequences the American people can see and feel, consequences that will inure to the betterment or the detriment of the American people. Now is the time when this needs to be debated. The power of the purse is the power to allocate money to fund government operations as well as the power to withhold money from improper or illegitimate government operations. It is what enables Congress--and only Congress, uniquely Congress--to reform dysfunctional government. We like to talk about the power of the purse as a tool that Congress can use, use as a check and a balance against the excesses of an overbearing President. That is absolutely true. There is no doubt about it. But first and foremost, it is a tool for Members of Congress themselves to represent the interests of our constituents and to fix the very things that are broken within our government. Our Constitution grants the legislative branch--this branch, Congress--the power of the purse not simply to achieve some abstract equilibrium or balance of power, but to compel the national government to truly represent the American people and to be faithful stewards of taxpayer funds. At the end of November of last year, President Obama made his choice. It was an unfortunate choice; it was a wrong choice. It was a choice not backed up by law, not backed up by the U.S. Constitution, and flatly inconsistent with the same. President Obama made his choice in November. Now it is time for us to make ours. The President chose to sidestep Congress, and in the process to avoid debate and to rewrite our immigration laws on his own. Now we must decide: Are we going to be a deliberative body or are we going to be a rubberstamp for the President's agenda, whoever the President is happens to be in power, whether it is now or years from now? Are we going to be that kind of legislative body that just rubberstamps what the President does, or are we going to exercise our prerogative as an independent coordinate branch of this government to make sure our laws are faithfully and carefully executed in a manner consistent not only with the wishes of the people but also with the formula prescribed by the Constitution? Are we going to acquiesce to an Executive who disregards the boundaries of his office, or are we going to stand up for the rule of law and for the will of the American people? I choose the latter. I urge my colleagues to choose the latter. I hope my colleagues will join me in voting to at least begin debate on H.R. 240. This is a debate the American people have been waiting for Congress to have for far too long. If not now, when? The time is now. We need to get on this bill. We need to debate it. We need to allow our constituents to be heard. The American people have a will, and that will is expressed though regular elections. Those elections choose those people who occupy seats in this Chamber and in the House of Representatives. We must represent them. We must do so in a manner fully consistent with the oath that every one of us has taken as required by article VI of the Constitution. We can begin to do that by voting to proceed to H.R. 240 tomorrow. I yield the floor, and I suggest the absence of a quorum.

Mr. LEE

Mr. LEE. Mr. President, I stand to urge my colleagues to support this amendment. The purpose of this amendment is to expedite the process by which the Bureau of Land Management processes applications for a permit for drilling on Federal land. We all know that drilling and the production of oil and natural gas in our country on Federal lands is an essential activity for our energy security and therefore for our national security. The fact is that although these applications are supposed to be handled in an expedited manner, they are not. The average right now for them to be processed is about 7\1/2\ months. That is too long. We need a simple up-or-down ruling by the Bureau of Land Management, especially given the fact that these lands, once they get to this stage, have already been deemed by the Bureau of Land Management as suitable for oil and gas leasing. I therefore urge each of my colleagues to support this amendment and thereby secure our energy security.

Mr. LEE. I move to reconsider the vote.

Mr. LEE. Mr. President, I stand today to encourage my colleagues to support my amendment No. 71. This amendment would solve a problem that has severely hamstrung oil and gas development on Federal lands, a problem that is particularly severe in the Western United States and that involves excessive delays in the issuing of permits by the U.S. Bureau of Land Management. Federal law requires the BLM to approve or deny these permits within 30 days. They have 30 days to go one way or the other. But according to a report issued last year by the inspector general within the U.S. Department of Interior, BLM took an average of 228 days to approve each drilling permit in 2012--228 days. That is 7\1/2\ months. That is a lot longer than the 30 days under Federal law. In Moab and in Salt Lake City, UT, the average processing delay is 220 days. In Price, UT, the backlog is around 250 days. It doesn't have to take this long. In fact, to explain why, let's look at how States handle it. State governments, by comparison, process these same permits in 80 days or less. Approval of these permits is further complicated by endless environmental reviews, reviews that sometimes can take years upon years. The result of all this redtape is a serious backlog of about 3,500 permits. My amendment would address this problem in a few ways. First, it would require BLM to issue a permit within 60 days of receiving an application. If the permit is denied, the BLM would be required to specify the reasons for its decision to deny the permit and to allow the applicant thereafter to address any issues. The amendment would also address delays stemming from reviews under the Endangered Species Act and under the National Environmental Policy Act. Reviews under these statutes are required to be completed within 180 days. To provide companies with certainty and to hold BLM accountable, if either of these deadlines is not met, the applications would be deemed approved. Significantly, there are currently 113 million acres of Federal land open and accessible for oil and gas development. Much of this Federal land contains abundant domestic energy resources. In Utah alone we have hundreds of acres available for drilling, acres that are currently being held up by bureaucratic delays. My amendment would ensure that Utah and other States in the West that are dominated by Federal land can access the energy, the vast wealth that lies within their borders, and provide the United States with a reliable source of domestic energy production. Look, our security--our energy security and our national security, more broadly--depends ultimately on our ability to produce energy. I understand that fuel prices right now are down relative to what they have been. We cannot get too secure in this. We cannot assume it is always going to be the case. Certainly, when the Federal Government insists on owning this much land--roughly one-third of the land in the United States as a whole, roughly two-thirds of the land in my State of Utah--if we are going to own this much land within the Federal Government, we should be using the resources within it. We need to make sure we are using that land to shore up our energy independence. The less energy independent we are in this country, the more dependent we become on other countries that are producing their energy, that are using their natural resources--countries such as Saudi Arabia and Venezuela and other countries where there are a lot of people growing wealthy off of our petrodollars and where many of those same people are using our own petrodollars to fund acts of terrorism against us, countries that are often hostile to our interests. We need to do this because it makes sense economically and we need to do this because it makes sense from a national security standpoint as well. But in order for any of this to work, we have to have procedures in place to make sure that those people who choose to go out and want to develop land--want to develop Federal land that has already been identified as suitable for oil and gas production within Federal lands--that they have some modicum of due process, that they have some ability to predict what the procedural outcome is going to be, what set of procedures they will have to follow and what kind of timeline they will be facing as they approach this often lengthy process. We do need to be careful. We do need to be sensitive and we need to make sure we are developing our natural resources in a way that respects our environment and doesn't endanger our health or that of our Federal land, but this can be done in a way that doesn't have to result in open-ended and completely unforeseeable delays. For this reason I strongly encourage my colleagues to support this amendment, amendment No. 71, with the understanding that as they do so, they will be shoring up America's energy independence, and with it, America's national security. Thank you, Mr. President. I suggest the absence of a quorum.

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

Mr. LEE

Mr. LEE. Mr. President, I rise today to pay tribute to Becky Lockhart, former Speaker of the Utah House of Representatives, who tragically passed away on January 17, after a brief battle with a rare and devastating disease. Becky Lockhart was the first woman to serve as Speaker of the House in the State of Utah. She did so in a truly extraordinary manner. She established a pattern of leadership that will be a model and a guide for wise legislative leaders in our State and across this great Nation for many, many years to come. I affectionately yet admiringly refer to Speaker Lockhart as the iron lady of Utah as she possessed so many of the qualities of the original iron lady, Margaret Thatcher. Grounded in conservative principles, passionate about policy, and committed to federalism and local control, she knew where she stood and she stood firm every single time. She followed the admonition of another great leader in American politics, Abraham Lincoln, who said, ``I will stand with anybody that stands right, stand with him while he is right and part with him when he goes wrong.'' Professionally trained as a nurse, Speaker Lockhart also understood the softer yet equally important gifts of compassion and concern, as well as listening and laughter. Even in the most heated discussion, she could change a room with a flash of her charismatic smile, a wink and a grin, or even some well-worded sarcasm to provide a little bit of levity. Combining her nurse's intuition and strong leadership made her the perfect combination of satin and steel. She could and would and did stand up to any political or business bureaucracy, forcefully correct a colleague, rebuke an inaccurate report, and challenge the small-minded ideas and thinkers. Less reported was her impact and influence as a mentor to new members of the Utah House of Representatives, her work in helping more women become involved in the political process, and how she gave voice to those who did not have a strong voice of their own. Above all, Speaker Lockhart looked out for, longed to be with, cherished and loved her family. She knew that the work she did in the walls of her own home was the most important work she would or could ever do. Becky also recognized that family is the bulwark of society and the strength of our Nation. More than the ink of good press and the accolades of others, Speaker Lockhart knew that her most important legacy would not be recorded in history books, it would not be recorded in the Utah State code that has so many of her words written on it. No, it would be written in the hearts of her family and her friends. I have been lifted by Becky Lockhart's leadership, inspired by her insight and her integrity, and encouraged by her commitment to the U.S. Constitution, and her love of country and am most blessed to call her my friend. Speaker Becky Lockhart, the iron lady of Utah, will indeed be heralded for her satin-and-steel leadership in the Utah House of Representatives. She will indeed be remembered for all that she did, but more significantly she will hold a special place in countless hearts because of who she was. I pay tribute to this special person, this amazing leader, and this beloved friend, whose loss we mourn this very week, and who some Members of this body were privileged to know. It is my honor to do so.

Mr. LEE

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

Mr. LEE. Madam President, excessive litigation under the Endangered Species Act has become an obstacle to the act itself and the good it promises to do for the American people. According to the Department of Justice, more than 500 Endangered Species Act-related lawsuits have been filed or opened against the Federal Government since 2009. As a result, Federal agencies have to spend their time, their energy, and taxpayer-funded resources fighting lawsuits instead of protecting endangered species. One of the primary reasons for this excessive litigation is the potential for massive awards of attorney's fees under section 11(g)4 of the Endangered Species Act. These awards can be granted regardless of whether the parties seeking the attorney's fee award prevails, and there is no limit on the hourly fee that can be collected. These attorney's fees can reach upward of $700 per hour. In one case involving a series of lawsuits related to the operation of hydroelectric power facilities in the Northwestern United States, attorney's fees were awarded in an amount totaling nearly $2 million-- in one case lasting just a few years. Such lofty levels of compensation would be high even in a private law firm setting, even in a big city, but they are completely indefensible when one considers they are paid for by American taxpayers, often to well-funded activist organizations. Excessive awards of attorney's fees also create perverse incentives for cottage industries of lawyers to sue the Federal Government in order to advance specific policies--policies that cannot be achieved through the legislative process and are therefore sought out by these very same lawyers in the courts. This is what many call a sue-and-settle strategy: Sue the Federal Government and then settle with the Federal Government. Achieve what you want to achieve and then get paid by the court without limit. Sue-and-settle is the dishonest, distorted practice of suing the Federal Government not to achieve a judicial outcome in court but to resolve the suit in a settlement with terms that advance narrow political ends, narrow political goals. The recent decision by the Fish and Wildlife Service to grant Gunnison sage-grouse protected status under the Endangered Species Act is the result of this precise sue-and-settle strategy. Congress must put an end to policymaking by litigation, and it must do so by removing the incentives to engage in this kind of litigation. My amendment would do just that by bringing a citizen's suit provision of the Endangered Species Act into harmony with a similar provision of the Equal Access to Justice Act. The Equal Access to Justice Act limits awards for attorney's fees to $125 per hour and allows those awards to be granted only to prevailing parties. Any departure from this limit has to be approved by the judge based on some unique circumstance in that case. If such terms are acceptable for nearly every other type of lawsuit against the Federal Government, certainly they should be acceptable as applied to the Endangered Species Act. This simple fix would deter the frivolous lawsuits that so often end up in closed-door settlements with Federal agencies. There is a lot of work to do to reform the implementation of the Endangered Species Act. This amendment is just one of many reforms I am developing with my colleagues in the Senate and our counterparts in the House of Representatives. I ask for support on this amendment. Again, this is something that just brings into harmony section 11(g)4 of the Endangered Species Act with requirements that are already in existence, already on the books in connection with the Equal Access to Justice Act. We need those same limitations in this Endangered Species Act that already exist in the Equal Access to Justice Act. I ask all my colleagues to support this amendment and to help us resolve this problem that has crept into Federal law based on an inequity and imbalance in these two statutory regimes. Madam President, I yield the floor, and I suggest the absence of a quorum.

Mr. LEE. Mr. President, I ask unanimous consent to set aside the pending amendment to call up my amendment No. 71.

Mr. LEE. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. LEE. I yield the floor.

Mr. LEE

Mr. LEE. Mr. President, I rise in opposition to the nomination of Sarah Saldana to be in charge of Immigration and Customs Enforcement within the U.S. Department of Homeland Security. As we all know, the President of the United States recently announced he will take unilateral Executive action on immigration. In so doing, he has circumvented the democratic process, and he has broken the law and subverted our constitutional order. It is incumbent on every Member of this body, no matter what their politics or what immigration policies they might prefer to enact, to oppose that usurpation of legislative power and to defend the rule of law. Fulfilling that duty--the duty to defend the rule of law and our constitutional order--leads me to oppose Ms. Saldana's nomination to be the Director of Immigration and Customs Enforcement, or ICE, as it is commonly known. Although I respect her and respect her record of public service, including an admirable and independent streak she demonstrated as U.S. attorney, I am concerned that she has also demonstrated that her commitment to the rule of law may falter where the Immigration and Nationality Act is concerned. In response to a question raised by several members of the Senate Judiciary Committee, including me, Ms. Saldana said that she agreed with DHS Secretary Jeh Johnson that immigrants who enter the country illegally and have now been targeted for the so-called deferred action program have ``earned the right to be citizens.'' That is bold. This is an extraordinarily bold assertion on her part. No doubt Congress could and many people think Congress should ease the path to citizenship for some aliens, some immigrants who are currently here unlawfully, but to assert that citizenship--not just the right to remain here for a time but full-blown citizenship--is a matter of right and that it has been earned by the very act of breaking our immigration laws is an unacceptable view for a person who has been nominated to be the head of our Nation's immigration enforcement office, but, as I told the Senate last week, this seems to be precisely the mentality of this administration. Although President Obama has repeatedly denied clearing a path to citizenship for those who have crossed our borders illegally, his denial is false, and he knows it. A 2010 Department of Homeland Security memorandum explicitly contemplated this very thing. We see some evidence of this. There was a 2010 memorandum within the U.S. Department of Homeland Security--one that made it all the way up to then-Secretary of Homeland Security Janet Napolitano--that explicitly contemplated using a legal device called parole to enable aliens who crossed our border unlawfully to become citizens. Now, the law makes it possible for aliens with U.S. citizen children who have been paroled into the United States to adjust their immigration status and become green card holders, but parole is supposed to be very rare. In other words, there is a way to get here but not by use of parole. Federal law--specifically INA S. 212 (d)(5)(a)--forbids the President, forbids the executive branch of government from paroling aliens into the country except for under very limited circumstances, including ``urgent humanitarian reasons or significant public benefit.'' That is the text of the statute enacted into law by Congress. But now, despite denying having cleared the path to citizenship, the administration has begun granting parole to beneficiaries of deferred action under the very thinnest of pretexts: The President's policies now allow deferred action recipients to get advanced parole so long as they have a client meeting or an interview or some academic research to perform overseas--hardly an urgent humanitarian crisis. When they get back from their trips, these same individuals would then be paroled into the country and will eventually become eligible to adjust their status and get green cards--exactly as the 2010 DHS memo suggested. All of this, of course, is illegal. But it is worse than illegal; it is illegitimate. If Congress decides to make it easier for illegal immigrants who have children here to obtain citizenship, then so be it, but that is a decision for the American people through their elected officials in the legislative branch of the Federal Government to make. If the President dislikes the law, he, as any other citizen, must ask this body to change the law--must ask Congress to change that law. He has no more right than anyone else who lives in this country to ignore or change the law outside the constitutional process. But the President and this administration have talked themselves into doing just that. They can try to rationalize that action--to us and perhaps themselves--only by donning the mantle of moral indignation. It isn't just that it would be prudent or merciful to reform our immigration regime. Instead, the administration's argument is that those who flout our laws have, by the very act of flouting them and by the very act of breaking them, earned some kind of moral entitlement to have the law changed or at least to have the law ignored. If Congress will not oblige them, they will do it themselves. They will draft a law called an Executive order that overturns national immigration policy as established by law and passed by Congress, and they will announce it at a press conference. There will be no debate; there will be no amendments; there will be no vote. In short, there will be no democracy. We have passed through the looking glass. And to see how far we have gone inside, observe: Today, the President asks us to install as custodian of our border a person who evidently believes that crossing our border illegally earns you the right to vote. The Constitution gives the Senate the responsibility to give the President advice about his Executive nominations and ultimately consent. My advice is this: The President should not proffer a nominee for the job of executing our immigration laws who affirmatively supports subverting those very same laws, those same laws she would be called upon to enforce and implement and execute if, in fact, she were confirmed to this position. But that is exactly what the President does. That is exactly what the President has done by submitting this name to the Senate for confirmation. I cannot and will not give my consent. With that, I yield the floor. I suggest the absence of a quorum.

Mr. LEE

Mr. LEE. Madam President, reserving the right to object. The American people have grave concerns with the President's decision to take action unilaterally with regard to Executive amnesty. This is an action that is rather unprecedented and rather unsupported by law, notwithstanding the President's insistence to the contrary. It is an issue that is of concern to a great many people. Right now we are being asked to punt all of our activity until Monday at 5 p.m. I don't see any reason to do this. I don't see any reason why the Senate should suspend its operations while the American people are waiting for us to act. I don't see any reason why we should wait until Monday at 5 p.m. I certainly don't see any reason why we should agree to move forward then and not have any assurance that we would at least have an opportunity to vote on an amendment that would impose a spending limitation on the President's ability to implement his Executive amnesty action. I would respectfully request that the majority leader modify his request and that he modify his request to assure us that we would receive a vote on a spending limitation amendment that we could have in connection with the CR/omnibus when we reconvene.

Mr. LEE. In that case, I object.

Mr. LEE. Mr. President, I rise in opposition to the spending bill before us. I rise in opposition to the cynical substance of the legislation. I rise in opposition to the un-Republican and undemocratic process by which a small collection of political and economic insiders crafted it to benefit each other at everyone else's expense. Finally, I rise in particular opposition to the signals that this so- called CRomnibus sends, the signal it sends to political insiders on both ends of Pennsylvania Avenue in Washington, the signal it sends to special interest cronies on Wall Street and K street, and the signal it sends to working families struggling on Main Streets across this country who have been waiting for a decade for someone in this city to start putting them first. Those problems with this bill--each one alone enough to merit opposition--do not even speak to its greatest weakness, its failure to correct the President's lawless Executive amnesty. Since last night when it was taken up in the House of Representatives, supporters of the CRomnibus have couched their support in the language of compromise: ``This isn't a perfect bill,'' they say. But on the contrary, it is perfect. As a representation of everything wrong with Washington, DC, as an example of exactly the kind of unfair, unrepresentative legislating that triggered successive electoral waves of bipartisan condemnation in 2006, 2008, 2010, and again in 2014--the CRomnibus is perfect. Members of my party do not have the luxury of blaming this latest failure on the outgoing Senate majority. No. This one is on us. Americans just last month thought they went to the polls and voted for change to stop this kind of thing: unread, 1,000-plus page bills written in secret, filled with hidden favors for special interests while funding the lawlessness of an out-of-control President. Americans looking for that change will not find it in this bill. Rather, they will find what the discarded revolutionaries of ``Animal Farm'' found at the end of George Orwell's classic: The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which. Americans across our country are facing a new and unnatural kind of squeeze, an opportunity deficit that is warping our free enterprise economy and our voluntary civil society. This opportunity deficit is not simply the result of globalization or technology or free trade. No. It is the result of politicians creating a welfare system that traps poor families in poverty--sometimes for generations at a time--and locks lower skilled workers out of potential jobs, an education system that traps poor kids in bad schools and college students into a lifetime of debt, a health care system that locks the poor in second- class care and erases what few wage gains the middle-class families ever see, a tax system that unfairly discourages work, saving, investment, marriage, and children. Government policy unfairly protects the privileges of those who have already climbed the ladder of success, while putting that ladder out of the reach of those who have not yet grasped its very bottom rungs. On Wall Street, corporate profits continue to soar. In Washington the influence economy booms and booms on. Almost everywhere else, take-home pay is flat. Jobs remain scarce. Small businesses are struggling to grow, while new businesses are struggling even to get off the ground. More and more today in America, the people who work hard and play by the rules are being forced to subsidize political and economic elites who don't. It is not big business or big special interests who created this toxic environment. All they can do is ask. Only government--big government--can rig the system. Only government can carve out a regulatory exception for certain big banks while intensifying its regulatory squeeze on smaller banks or tweak accounting rules to line the pockets of certain big insurance companies or create new taxpayer subsidies for certain industries and cynically present all of the above as unamendable--take it or leave it, take it or shut down the government propositions, as this bill does. We wonder why the American people distrust their government, distrust this government. We wonder why the principled grassroots of both political parties--conservatives and progressives--are up in arms against their Washington establishments over this bill. The American people do not trust Congress because, as we are proving once again today, Congress is not trustworthy. Yet as rotten as the CRomnibus before us is, I want to state for the record that this week leaves me with nothing but optimism about the prospects we have for real reform and revival in the coming years. The miserable process we witnessed this week represents the last gasping throes of a discredited Washington status quo. Ten years ago this bill would not have been controversial. Five years ago an easy majority would have been purchased with earmarks. This week, with the full weight of both party's leaderships, it barely made it over the finish line. Change comes slowly, as we know, and it comes most slowly to those institutions that make the rules, but change is coming. The era of passing 1,600-page bills, written in secret, via a process that includes lobbyists but excludes the American people is coming to an end. The era of big government rigging the rules for special interests while leaving everyone else behind is coming to an end. A new era is coming in which Washington will once again be forced to work for the American people instead of the other way around. To those Americans who have watched with dismay what Congress did--and did not do--this week, who made their voices heard by flooding both sides of the aisle with phone calls and emails, my message is simple. Take heart. It may not look like it today, but you are winning. America is winning. The beltway establishments of both parties are exhausted, out of ideas, and running out of time. Next year a new unified Congress has an opportunity, a real open opportunity, to reshape the national debate, to challenge Washington's failing status quo and its failed champion in the Oval Office. We can finally begin the hard, overdue work of rescuing our economy from the grips of government dysfunction and political privilege, of rescuing our health care system from ObamaCare, of reviving our education system and modernizing our transportation system, of ending special interest manipulation of our tax system and reforming regulations to level the playing field for small and new businesses, of fixing our broken immigration system. Next year, just next month, we can begin to craft a new reform agenda, to increase access to and opportunity within America's middle class, an agenda that grows the economy and increases take-home pay, an agenda that restores mobility and opportunity to working families and communities while putting political and corporate elites back to work for everyone else. We can look to our own House of Congress to reform the way Congress conducts the people's business, the way we budget and spend the people's money, so embarrassments such as this CRomnibus might become relics of the past. We can do this. We must do this and we will. For too long the working families of and aspiring to America's middle class have been fighting an all-too-lonely battle to keep up and to get ahead. For too long, Washington has been an obstacle, even an opponent, in that fight. That fight will remain uphill, but the first time in a long time there is hope. There is a real chance that fight may get a little less steep, and it might get a little less lonely. Help is on the way. I know it is hard to see right now. It is hard to see it in Washington, and it must be even harder to see out in the country, but change is coming. A new Congress is on the way, with new ideas and a new renewed reform sense of purpose. Temporary setbacks such as this bill should not discourage us, and they will not deter us, for the only way to keep winning is to keep fighting. Washington may still be broken, but America is ready to fix it, no matter how long it takes and no matter how much Washington resists it. Our opportunity to finally begin that work is almost here. We just need to know where to look for it, for: . . . not by eastern windows only When daylight comes, comes in the light; In front the sun climbs slow, how slowly! But westward, look, the land is bright! I yield the floor.

Mr. LEE

Mr. LEE. Mr. President, I ask unanimous consent to temporarily set aside the pending amendment so that I may call up my amendment, amendment No. 3996, which is at the desk.

Mr. LEE. In that case, I object.

Mr. LEE. Mr. President, reserving the right to object, I ask unanimous consent that the request be modified and that the Lee amendment to strike section 801 of this legislation be agreed to.

Mr. LEE. I thank my distinguished colleague, the senior Senator from Michigan, whose presence we will miss and whose leadership we have appreciated over the years. Madam President, I have offered this amendment today, which is an amendment that was crafted several years ago by me and Senator Feinstein. We created this as a document that we originally called the Due Process Guarantee Act. Senator Feinstein and I had one objective with the Due Process Guarantee Act, which was to guarantee the right of the American people that while they exist, while they live from day to day on U.S. soil, they will be free from indefinite detention without trial, without their rights that are protected by our Constitution, without the rights we have come to associate with our habeas corpus guarantees and our other constitutional protections. These are rights that we understand are inseparably connected with liberty and they long predated the existence of our Constitution and our Republic. They were so fundamental, in fact, that not only were they incorporated into our Constitution--this right to be free from a chance of being locked up by government indefinitely in prison, without trial, without counsel and so forth--they were discussed at length at our Constitutional Convention. They were discussed at length by members of our founding generation as they debated and discussed the merits of our Constitution. Notably, in Federalist No. 84, James Madison referred to these rights, and he quoted a great luminary of that time--a luminary who is still a legal force to this day--Judge William Blackstone. He quoted a very meaningful excerpt from volume 1 of William Blackstone's ``Commentaries on the Laws of England,'' published in 1765. I want to read briefly some of what he said there that is relevant to this day. He says these rights are very important; they are the right to be free from detention, from arbitrary indefinite detention. He says: To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is---- And here he is referring, of course, to the British constitution at the time --that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing. So in other words, he was referring to something contemplated and built into our constitutional structure as well, which is that, sure, there may be times of invasion, there may be times of national emergency, of an exigency so great, so threatening to the safety of the people that this kind of action might be warranted. But where that does happen, it has to happen by an express declaration by the legislative body--that the right to habeas corpus is, in fact, being suspended. I will conclude with this quote, where he says: . . . this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with its liberty for a while, in order to preserve it for ever. What was true in William Blackstone's time remains true today. What was true during the founding era, remains true today. What was true at the time of the drafting and the ratification of our other constitutional protections, including those in the Fourth, Fifth and Sixth Amendments to the Constitution, remain true today. That is that we are a free people, and as a free people, we have come to expect certain rights that we have. By virtue of being Americans--Americans living on U.S. soil--we have the right to be free and to be free from this risk of indefinite detention without trial. When those very rare circumstances might arise, as arose, for example, during the Civil War, where they cannot be allowed to stand, they may be suspended only by an act of Congress expressly suspending the habeas corpus protections we have come to rely on. For this reason, Senator Feinstein and I put this bill together. I offer it up now as an amendment. I understand this motion has already been objected to, and I state my concerns with the objection. I thank the Chair.

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

Mr. LEE

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

Mr. LEE. As we all know, President Obama recently announced Executive action on immigration, what he refers to as deferred action, for millions of aliens who are here illegally but who have children who were born in the United States and by virtue of their birth in the United States are U.S. citizens. Now the President has repeatedly assured the American people that he is not creating a pathway to citizenship for those individuals, but that isn't true. He and his administration have cleared the pathway to citizenship for millions of people who have crossed into our borders illegally. They know that is what they have done, and it is illegal. Immigration law is quite complicated, but here is the bottom line on this issue: If you are the parent of a U.S. citizen, when that child reaches the age of 21, assuming you haven't committed certain crimes or done other things that might exclude you from what the law generally allows, you can get a green card and eventually you can get citizenship. But there is a catch. If you are in an illegal status inside the United States because you crossed into our borders illegally and that is how you became an illegal alien--that is, you entered without inspection, as that term is known in immigration circles--then in order to get back on the path to citizenship you are first required under existing law to leave the country and then to come back across the border into the country legally. Because you broke immigration laws before you came into the country, the law says you have to wait either 3 years or 10 years to return, depending on how long you were inside the country illegally before you left. When we talk about clearing the path to citizenship for this set of immigrants--that is those who are close relatives of U.S. citizens-- that is what we are talking about: getting around the rule that those who cross our border in secret must leave the country, wait a period of years outside the country because they broke our laws, and then return. So when the President says he isn't clearing such a path to citizenship, that is Washington shorthand for, don't worry, I am not circumventing the law. What stands between these people and citizenship is the need to enter the country lawfully, which they cannot do until they leave, wait a period of time that Congress has set by law, and then and only then come back. The President claims he is not touching this rule, but that is exactly what he is doing and exactly what he has done, and he is doing it through a program called advance parole. Advance parole is essentially a form of permission for an undocumented immigrant to travel outside the country and then return. When he gets back to the country and approaches the border, he presents an advance travel document to border officials and they will parole him into the country. What is more, the President has announced if you leave the country under a grant of advance parole, the administration will treat you as though you never left at all, waiving the 3-year to 10-year wait mandated by Congress for people who have come here unlawfully and then left the country. When that is done, as it turns out, the illegal immigrant will become eligible to take advantage of a different way to become a citizen: getting what is known as adjustment of status. Adjustment of status, which gives you a green card without having to leave the country, is available to parents of U.S. citizens so long as they crossed our border lawfully, which advanced parole lets them do. So how hard will it be to get advance parole, which leads to a green card, which in turn leads to citizenship? Well, it is supposed to be very hard. Parole is kind of a temporary emergency pass that lets someone into the country for an extremely urgent reason, even though the law says that an immigrant in that circumstance cannot be admitted for one reason or another. In fact, there is a Federal statute passed by Congress that restricts the power of the executive branch of the Federal Government to use parole to a very narrow, very confined set of circumstances. That law, INA section 212(d)(5)(a), says that the executive branch may parole individuals into the United States ``only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.'' That term ``urgent humanitarian reasons'' means conditions such as getting medical treatment or perhaps attending a funeral of a close family member. ``Significant public benefit'' usually means circumstances such as one being a witness in a crime and as such needing to come into the country to testify at trial. To be clear, it is illegal--illegal--to parole people into the country who don't meet that standard. But for deferred action recipients, here is the standard the President is using: A person warranting advance parole, which again also eventually leads to citizenship, must file a form I-131 with USCIS. The instructions for this form explain that deferred action recipients can get parole for ``educational purposes, employment purposes or humanitarian purposes . . . '' I continue: Educational purposes include but are not limited to semester abroad programs or academic research; Employment purposes include but are not limited to overseas assignments, interviews, conferences, training or meetings with clients. . . . In no universe is a meeting with a client or a conference an urgent humanitarian reason. Nowhere in the universe are those circumstances for a significant benefit to the American public. Imagine this scenario. Imagine that a foreign national approaches our border. The border officials ask the individual for a visa, and he says, oh, I don't have a visa, but I do have a business meeting in Denver. Can I come in, even though I don't have a visa? There is no doubt he would be turned away promptly. But for the new deferred action recipients under the President's Executive action plan, so long as you have a business meeting in Toronto or an overseas assignment in Buenos Aires, you can get permission to leave and be paroled back into the country immediately upon your return, along with the government's promise to ignore the 3-year or 10-year bar that is supposed to keep you out of the country. And once you do that, you can adjust your status and get a green card and eventually citizenship. How do I know this? Well, in 2010 the American Spectator published a leaked Department of Homeland Security memo, a version of which purportedly reached the Secretary of Homeland Security--then-Secretary Janet Napolitano--exploring the administration's options on immigration. That memo explicitly contemplated using parole as a way to sidestep Congress and give citizenship to illegal immigrants who are relatives to U.S. citizens. It says ``individuals could . . . be paroled into the U.S. for purposes of applying for adjustment of status to render immediate relatives of U.S. citizens eligible for parole, DHS could issue guidance establishing that family reunification constitutes a significant public benefit.'' So let me be clear. Advance parole leads to citizenship for parents of U.S. citizens. The administration knows that, and they are giving advance parole for reasons such as client meetings that clearly violate Federal law. This is the danger of unilateral Executive action, drafted in secret and announced to the American people as a fait accompli. In our system, policies are debated in the legislature and their consequences need to be explored through debate. Here, the President's action has avoided that constitutional lawmaking process, but it has also broken existing laws passed by Congress. Thank you, Madam President.