Mike Lee

Mr. LEE

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

Mr. LEE. Ten or twelve minutes.

Mr. LEE. I remind my colleagues of the old adage that you can make excuses or you can make progress but you cannot make both--at least not simultaneously. Our current course is unsustainable. Maintaining the status quo will inevitably impair our ability to fund everything from defense to entitlements. So sticking to this course isn't the solution. It can't be the solution. And if followed as a solution, it will have an impact that will prove devastating to America's most vulnerable populations. It is for exactly that reason I have proposed this budget--a budget that balances within 5 years, a budget that simplifies the Tax Code, a budget that puts health care decisions back into the hands of individual families, individuals themselves, and their doctors, where those decisions properly belong. We don't have much time. We have to get this done. I urge my colleagues to support this budget. I yield the floor.

Mr. LEE. Mr. President, I remind my colleagues of the old adage that you can make excuses or you can make progress but you cannot make both.

Mr. LEE. Yes.

Mr. LEE

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

Mr. LEE. Mr. President, I ask unanimous consent that we move to amendment No. 2100 to H.R. 2072.

Mr. LEE. Mr. President, it is time that we wind down the Export- Import Bank. My amendment, No. 2100, would do precisely that. The American people cannot be the world's financial backstop. The government should not be picking winners and losers. Businesses in Utah and across the country are not receiving government help and are shutting their doors after decades of serving their communities. We should not, through this government, be adding insult to injury by using the tax money they contributed to prop up companies overseas. We need to end the corporate welfare that distorts the market and feeds crony capitalism. The corporations that largely benefit from the Ex-Im Bank should have no trouble marshaling their resources to compete in today's economy. If they are struggling, then they are most likely not deserving of taxpayer help; and if they are turning billions in profit, then they clearly do not need taxpayer-subsidized loans. Further, government subsidies breed undue favoritism from government bureaucrats who control where the money goes. Unless we want more Solyndras, we should end the practice immediately. Some have suggested that the Ex-Im Bank is good for businesses. What is best for American businesses is getting the Federal Government out of their way, letting them operate without burdensome government regulations and without a complex tax system. Having the government pick winners and losers does not make industries stronger, it makes them more dependent on subsidies. When government is picking who wins, the loser is always the taxpayer. We have an opportunity today to reverse the status quo and defend the American taxpayer. My amendment winds down the Ex-Im Bank. I urge my colleagues to support amendment No. 2100. I yield the floor and suggest the absence of a quorum.

Mr. LEE

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

Mr. LEE

Mr. LEE. Mr. President, today I wish to recognize 10 exemplary Utahns and future officers in the U.S. military. Each of them will begin their education at a military academy this fall. James Cardinal, graduating from Layton High School, will be attending the Air Force Academy. As an Eagle Scout, he earned his Order of the Arrow, and is an honor student at his school. He was also a captain of his track and field team. Connor Crandall, graduating from South Summit High school, will be attending the Air Force Academy. He is a class officer and president of the student government. He is also an honor student and a General Sterling Scholar, and a captain of his wrestling team. Taylor Lanier, graduating from Viewmont High School, will be attending the Air Force Academy. She is an honor student, a member of the Youth City Council, and a Tae Kwon Do black belt. She is also a captain of her swimming team, and was a captain of her lacrosse team. Brandon Lloyd, a graduate of Highland High School and graduating from the Air Force Academy Prep School, will be attending the Air Force Academy. He is an Eagle Scout, and while attending Highland was honored with its Warner Award. He also was a captain of his wrestling team, of which he was named Wrestler of the Year. Bryce Magera, graduating from Hillcrest High School, will be attending West Point. He is an Eagle Scout and an honor student. He is also vice president of his Future Soldiers of America Club, and is trained in several types of mixed martial arts. Mormon Redd, graduating from Viewmont High School, will be attending the Air Force Academy. He is an honor student and a patrol leader in his scout troop. He was also a captain of his wrestling team last year, and he volunteers for the Youthlinc humanitarian program. Blair Roberts, graduating from Bingham High School, will be attending the Merchant Marine Academy. He is a captain of his swim team and a certified lifeguard. He has been named the KJZZ Prep Student Athlete of the Week, and helps children with cancer as a summer camp volunteer. Zachary Santella, graduating from Davis High School, will be attending the Naval Academy. He is an honor student, captain of his swimming team, and was named Most Valuable Swimmer and hardest worker by the team. Collin Shurtleff, a graduate of Parowan High School and graduate of Marion Military Institute, will be attending West Point. He is an Eagle Scout, an honor student, and president in his school's student government. He is also a captain of both his football team and his wrestling team. Amy Slaughter, a graduate of Weber High School and the Marion Military Institute, will be attending West Point. In high school, she was president in her student government. She was also a captain of her volleyball team and a captain of her track team, and was named an Academic All-State Athlete in track. One of my greatest honors as a U.S. Senator has been to get to know and nominate each of these young men and women. I know that our Nation's future is bright in the hands of these exemplary individuals who have distinguished themselves amongst their peers.

Mr. LEE

Mr. LEE. Madam President, I rise to speak about our Constitution's Federalist structure and the real danger of the Federal Government unduly interfering with the ability of States and localities to address activities and concerns in their communities. Everyone agrees that violence against women is reprehensible. The Violence Against Women Act reauthorization had the honorable goal of assisting victims of domestic violence, but it oversteps the Constitution's rightful limits on Federal power. It interferes with the flexibility of States and localities that they should have in tailoring programs to meet particular needs of individual communities, and it fails to address problems of duplication and inefficiency. First, violent crimes are regulated and enforced almost exclusively by State governments. In fact, domestic violence is one of the few activities that the Supreme Court of the United States has specifically said Congress may not regulate under the commerce clause. As a matter of constitutional policy, Congress should not seek to impose rules and standards as conditions for Federal funding in areas where the Federal Government lacks constitutional authority to regulate directly. Second, the strings Congress attaches to Federal funding in the VAWA reauthorization restrict each State's ability to govern itself. Rather than interfering with State and local programs under the guise of spending Federal tax dollars, Congress should allow States and localities to exercise their rightful responsibility over domestic violence. State and local leaders should have flexibility in enforcing State law and tailoring victim services to the individualized needs of their communities, rather than having to comply with one-size-fits-all Federal requirements. Third, even if the Federal Government had a legitimate role in administering VAWA grant programs, the current reauthorization fails to address many instances of duplication and overlap among VAWA and other programs operated by the Department of Justice and by the Department of Health and Human Services, nor does it address the grant management failings by the Government Accountability Office. My opposition to the current VAWA reauthorization is a vote against big government and inefficient spending and a vote in favor of State autonomy and local control. We must not allow a desire by some to score political points and an appetite for Federal spending to prevent States and localities from efficiently and effectively serving women and other victims of domestic violence.

Mr. LEE

Mr. LEE. Madam President, today I wish to congratulate the marching band of Davis High School in Kaysville, UT. The band was recently selected to represent Utah and the Mountain West region in the 124th Tournament of Roses Parade, an exceptional honor bestowed upon only 15 of the finest marching bands in the country. Director Steven Hendricks has been a music educator for 24 years and the director at Davis High School for 22 years. During his time there, the band has tripled in size and has been a five-time Bands of America regional finalist. Mr. President, 2013 will mark the second time that the band will march in the Tournament of Roses Parade under Hendricks's leadership, having already received the honor once in 2003. Earlier this year, Hendricks was recognized as Utah's Outstanding High School Music Educator by the Utah Music Educators Association. It should also be noted and is of equal importance that Davis High School regularly sets a high standard of academic excellence. The school is consistently ranked as one of the top 1,000 high schools in the country. In addition, the Davis High School advanced placement examination scores are among the highest in Utah. The members of the Davis High School Marching Band have worked diligently for this day, and the reward is undoubtedly well deserved. They will be able to demonstrate their talent and skill in front of nearly 1 million live spectators and tens of millions more watching on television. I know that the band will represent Utah and the Mountain West with excellence and professionalism.

Mr. LEE

Mr. LEE. Mr. President, I rise to express serious concerns that I have with the nomination of Miranda Du to serve as a judge on the U.S. District Court for the District of Nevada. In 2007, the very same court to which Ms. Du has been nominated imposed sanctions on Ms. Du for ``multiplying the proceedings . . . unreasonably and vexatiously.'' (28 U.S.C. section 1927.) The basis of this sanctions order was Ms. Du's prior refusal to dismiss a complaint she had filed on behalf of her client, even after the party her client was suing informed her--and she did not dispute--that the Federal District Court lacked subject matter jurisdiction. In imposing these sanctions on Ms. Du, the district court stated that she ``acted recklessly in failing to consider seriously the basic issue of lack of subject matter jurisdiction when the [opposing party] brought it to [her] attention.'' Ms. Du's errors were egregious, particularly because they involved Federal subject matter jurisdiction--the very basis of the limited jurisdictional reach of the Federal court system for which she has been nominated to be a judge. Ms. Du has not provided a satisfactory explanation for her conduct, but instead has repeatedly attempted to minimize the significance of her errors. When asked at her Judiciary Committee hearing why, in addition to dismissing her complaint against the third-party defendant, she did not have the case against her client dismissed for lack of subject matter jurisdiction, Ms. Du responded that she did ``not realize this was a matter [she] could raise,'' and that she in fact did raise subject matter jurisdiction but on other grounds ``that the district court disagreed with.'' However, as pointed out in a letter members of the Judiciary Committee sent to Ms. Du following her hearing, court filings show that she did not raise the issue of subject matter jurisdiction. In response to that letter, Ms. Du stated that she ``misspoke'' at her Judiciary Committee hearing and that she in fact had not raised the basic issue of subject matter jurisdiction. Troublingly, Ms. Du's belated candor was marred by an additional misleading attempt to minimize these same errors. In her letter, Ms. Du stated that the ``motion for sanctions was later dismissed as moot and no sanctions were ultimately imposed.'' By going out of her way to make this misrepresentation, Ms. Du attempted to suggest that her sanctions were somehow not upheld or not imposed. To the contrary, after the court was burdened with a number of additional filings and motions regarding how much Ms. Du should pay in sanctions for her reckless conduct, the parties settled the issue out of court. The only matter that was mooted was the dispute over how much Ms. Du should pay, not whether she should pay. It is misleading for Ms. Du to affirmatively assert to members of the Judiciary Committee that ``no sanctions were imposed'' when the district court found that her behavior was reckless and plainly required and imposed such sanctions. In light of the gravity of Ms. Du's errors and the importance to our Federal judiciary of the issue of subject matter jurisdiction, as well as Ms. Du's repeated attempts to minimize her errors, I must express serious concerns with her nomination and encourage my colleagues to vote against her nomination. I suggest the absence of a quorum.

Mr. LEE

Mr. LEE. I thank my colleague. And he is correct, Utah does indeed have a health care system that functions well, and functions well notwithstanding the fact it is not managed, it is not governed by the Federal Government. This is one of the great wonders of our Federal system. When we became a country about 200-plus years ago, we did so against a backdrop that is informative for us still today. We became a country, in part, because we discovered through trial and error, through our experience as British colonies, that local self-rule works best. People govern themselves much better than a large distant government can govern them. That is exactly why we became a country, because we learned that local self-rule works. We learned also that there is great danger to our individual liberty with any government, because whenever any government acts, whenever it does anything to regulate our lives, it does so at the expense of our individual liberty. We become less free by degrees whenever government does just about anything. But the risk to our liberty is especially great--it is at its highest--when the acting government is a large one, when it is a national government. National governments, as we learned in our experience with our national government before we became a country--our national government that was then based in London--national governments tend to tax us too much, they tend to regulate us too heavily, they tend to be inefficient, they tend to be slow to respond to our needs in part because they are operating so distantly from where many of the people reside. So when we became a country, we left most of the powers at the State and the local level. We eventually came up with this document, this almost 225-year-old document that has fostered the development of the greatest civilization the world has ever known. And in that document we came up with a list of powers that a national government must have in order to survive, and we kept that list fairly limited. We said the national government needs to have the power to provide for our national defense, to regulate commerce or trade between the States and with foreign nations and with the Indian tribes, to protect trademarks, copyrights, and patents, to establish a uniform system of weights and measures, to come up with a system of bankruptcy laws, laws governing immigration and naturalization, and a few other powers. But that is basically it. There is no power in this document that gives our national government, that gives us--Congress, as a national legislature--the power to regulate anything and everything. There is nothing in this document that gives Congress what jurists and political scientists refer to as general police powers; that is, the power to come up with any law that Congress might deem just and good and appropriate and advisable at any moment. That, again, was because of the calculated assessment made by the founding generation that we needed a government possessing only limited enumerated powers: to protect individual liberty, and to assure that we in America would continue to live as free individuals. Over time we have drifted somewhat in our understanding of what those powers mean. Over the last 75 years, the Supreme Court has been applying a deferential standard toward Congress in reviewing laws enacted under the commerce clause, clause 3 of article 1, section 8. The Supreme Court has, since about 1937--at least since 1942--said that Congress may regulate without interference from the courts under the commerce clause activities that, when measured in the aggregate, when replicated across every State, can be said substantially to affect interstate commerce. That is more or less the guideline the Court has given us. They are not necessarily saying that everything and anything that fits within that is necessarily within the letter and the spirit of the Constitution, but that, at least so far as the courts are concerned, so far as the courts have been willing to step in and validate or invalidate, that will be what guides the courts in making that assessment. Beyond that, the debate has to be hammered out within the Halls of Congress. The affordable care act--also known as Obamacare--contains an individual health insurance mandate that takes Congress's powers to a whole new level. For the first time in American history, our national legislature has required every American in every part of this country to purchase a particular product; not just any product but health insurance; not just any health insurance but that specific kind of health insurance that Congress, in its wisdom, deemed appropriate and necessary for every American to buy. This is absolutely without precedent. It is also, I believe, not defensible even under the broad deferential standard that has been applied by the U.S. Supreme Court since the late 1930s and early 1940s. Among other things, the limits that have been maintained by the Supreme Court, notwithstanding its deference to Congress under the commerce clause, have been limited by a few principles. First, the Supreme Court has continued to insist that although some intrastate activities will be regulated by Congress under the commerce clause, some activities occurring entirely within one State--activities that historically would have been regarded as the exclusive domain of States, activities such as labor, manufacturing, agriculture and mining--although some activities might be covered by Congress, those activities at a minimum have to be activities that impose a substantial burden or obstruction on interstate commerce or on Congress's regulation of interstate commerce. The Supreme Court has also continued to insist that the activity in question that is being regulated needs to be activity, first of all, and not inactivity. But it also needs to involve economic activity in most circumstances, unless, of course, it is the kind of activity that, while ostensibly noneconomic, by its very nature undercuts a larger comprehensive regulation of activity that is itself economic. Finally, the Supreme Court has continued to insist time and time again that Congress cannot, in the name of regulating interstate commerce, effectively obliterate the distinction between what is national and what is local. The affordable care act through its individual mandate effectively blows past each and every one of these restrictions, restrictions that even under the broad deferential approach the Supreme Court has taken toward the regulation of commerce by Congress over the last 75 years or so--even the Supreme Court, even under these broad standards, isn't willing to go this far. There are very good reasons for that, and those reasons have to do with our individual liberty. They have to do with the fact that Americans were always intended to live free, and they understood that they are more likely to be free when decisions of great importance need to be hammered out at the State and local level; that is, unless those decisions have been specifically delegated to Congress, specifically designated as national responsibilities. This one is not. Decisions about where you go to the doctor and how you are going to pay for it are not decisions that are national in nature, according to the text and spirit and letter and history and understanding of the Constitution. They are not, and they cannot be. If in this instance we say, well, this is important so we need to allow Congress to act--if we do that, we do so at our own peril. We stand to lose a great deal if all of a sudden we allow Congress to regulate something that is not economic activity; in fact, it is not activity at all. It is inaction. It is a decision by an individual person whether to purchase anything, whether to purchase health insurance or, if so, what kind of health insurance to purchase. Our very liberties are at stake, and that is why I find this concerning.

Mr. LEE

Mr. LEE. Mr. President, today I wish to congratulate Mr. Glade Sanders, a fine Utah resident who was recently honored with the prestigious Outstanding Eagle Scout Award. Only 150 such awards have been bestowed upon individual scouts in the entire country. Sanders also deserves congratulations for reaching the age of 100. He has spent many of those years working tirelessly in his community, including the period during the Great Depression when he led his local Boy Scouts in Troop 133 as scoutmaster. Troop 133 recently celebrated Sanders and his accomplishments during a Court of Honor. Sanders joined the scouting program at 17 years of age. Once there, however, he spent 29 years as an active scouter. In those days, scoutmasters could become Eagles, and Sanders became the first Eagle Scout in Nephi, UT, in 1934. He also received Scouting's Silver Beaver Award. Sanders would serve as scoutmaster for 9 years, toughing out the hard times of the Great Depression and helping his scouts do the same in whatever way he could. Today, Sanders' name is engraved at the top of a plaque recognizing all of the Eagle Scouts of Troop 133. He has dedicated his life to helping others and has earned his reward many times over by seeing young men attain the rank of Eagle. As a fellow scout, I deeply thank him for his service.

Mr. LEE

Mr. LEE. Madam President. I stand in this moment in opposition to the railroad antitrust amendment offered by my distinguished colleague, Senator Kohl, and I urge my fellow Senators to do likewise. As the Antitrust Modernization Commission noted in 2007, free market competition is the fundamental economic policy of the United States. In advancing this overarching policy goal, we should be wary of particularized exemptions from our Nation's antitrust laws. I know Senator Kohl shares my view in that regard. When properly applied, antitrust laws function to help ensure that market forces promote robust competition, spur innovation, and result in the greatest possible benefit to the American consumer. In many respects, Federal and State agencies enforce antitrust laws in order to forestall the need for burdensome and long-lasting government regulation. If competition thrives and market forces operate properly, there is no need for extensive government intrusion or interference. Likewise, when the antitrust laws do apply, comprehensive economic regulations should not dictate how an industry operates. It, therefore, makes little sense to impose upon a heavily regulated industry an additional layer of government oversight and enforcement through the application of antitrust laws while at the same time leaving in place a comprehensive regime of government oversight through economic regulation. Piling layer upon layer of government interference will not advance the cause of free market competition, innovation, and consumer welfare. I am concerned that such layering of government regulation is effectively what the Kohl amendment does. I worry that in extending the reach of antitrust laws to the freight rail industry, the amendment does not remove any authority or jurisdiction of the Surface Transportation Board, the regulatory agency currently overseeing the rail industry. As a result, the amendment simply imposes additional government supervision over the rail industry with attendant increased regulatory burdens and costs as well as inevitable conflicts and uncertainties resulting from a second layer of government oversight over the same activities. Given the highly regulated nature of the freight rail industry, application of antitrust laws would likely require courts to wade into the complex realm of rate setting and other highly technical matters--a task for which judges are particularly ill-equipped. In addition to this fundamental unease over multiplying government regulatory burdens, I am also very concerned with a number of the amendment's provisions that seem to reach beyond simply eliminating antitrust exceptions for the rail industry. First, I worry that section 4 of the amendment limits what is known as the doctrine of ``primary jurisdiction'' in those antitrust cases that involve railroads. Under this longstanding doctrine, which was established in 1907, a court will normally defer to an expert agency when that agency has jurisdiction over the subject matter of a legal dispute. This doctrine allows courts to balance regulatory requirements with other legal requirements for regulated industries. The primary jurisdiction doctrine is not an antitrust exemption and discouraging the use of this would be a legal and judicial change that reaches far beyond the antitrust laws and its implications. I would also note that section 4 would give trial lawyers the power to disregard agency action, but only with respect to the railroads. As a result, railroads would be singled out for special treatment, leaving the doctrine of primary jurisdiction available to the courts in cases involving electrical utilities and other regulated industries. I am unaware of any compelling justification for this disparity. My second concern relates to section 7(a) of the amendment which not only repeals antitrust immunity for rail rate bureaus but also repeals procedural protections that facilitate lawful rail transportation services. Because of their route structures, railroads are often not individually capable of providing rail transportation services to all locations that a customer may request or that regulations may require. As a result, approximately 40 percent of all rail travel is jointly handled by more than one railroad. While the railroads must work together to provide through service on some routes in order to meet their regulatory obligations and to meet their customers' transportation needs, the railroads compete with one another for freight movements on routes not involved with through service, and they are fully subject to the antitrust laws. Current law provides that proof of an antitrust violation may not be inferred from discussions among two or more rail carriers relating to interline movements and rates. In the conference report for the Staggers Rail Act of 1980, Congress explained the need for these evidentiary protections as follows: Because of the requirement that carriers concur in changes to joint rates, carriers must talk to competitors about interline movements in which they interchange. That requirement could falsely lead to conclusions about rate agreements that were lawfully discussed. To prevent such a conclusion, the Conference substitute provides procedural protections about lawful discussions and resulting rates. These evidentiary protections are not antitrust exemptions. They are designed to avoid prejudicial inferences from discussions the railroads must have in order to implement joint arrangements. I am unaware of any compelling reason to alter Congress's considered judgment in establishing these procedural protections. Were these protections to be discarded, railroads would be exposed potentially to legal liability for interline discussions, and they may choose simply not to participate, and rail customers would be faced with the burden of having to deal separately with each railroad in a given route in order to work out commercial and service details. Third, and perhaps most critically, I am concerned that section 8 of the amendment would effectively lead to retroactive application of antitrust laws, allowing a government agency or private plaintiff to bring a case attacking past railroad activities that were expressly immunized from the antitrust laws in that respect. Section 8(b) would allow antitrust lawsuits for ongoing railroad activity that was previously immunized from the railroad antitrust laws. This would leave open the possibility that conduct in accordance with railroad merger and line sale transactions previously approved by the Interstate Commerce Commission or the Surface Transportation Board as in the public interest, immunized by statute from antitrust laws, and implemented by the railroads, consistent with the agency's approval, could now be challenged as unlawful. Were this to become law, the impact on the railroad network and its ability to plan and invest to meet our Nation's growing transportation needs would be adversely affected in a significant way. In summary, if this amendment eliminated regulatory intervention in the marketplace for rail transportation and left the rail industry subject solely to the antitrust laws, I could, perhaps, endorse that effort. However, that is not the case. This amendment increases rather than improves government oversight of the rail industry's activities and, in my view, is inconsistent with the overarching goal of seeking greater competition in the transportation marketplace unfettered by intrusive government regulation. In addition, the amendment goes beyond simply eliminating antitrust exemptions and instead changes longstanding policies and judicial doctrine that are not antitrust law tenets. Last year, when the Judiciary Committee favorably reported S. 49, which is the text of Senator Kohl's current amendment, I made clear that my support was contingent upon resolving these and other concerns prior to floor consideration. Regrettably, such a resolution did not occur, and I must now oppose the amendment and ask my colleagues in the Senate to do likewise. Thank you, Madam President.

Mr. LEE

Mr. LEE. Madam President, the American people need help because they are suffering at the gas pump. With the national average price for gasoline up at around $3.75 per gallon, representing an increase of about 40 cents from a year ago and about 20 cents from just 1 month ago, citizens are suffering and they need relief. It is important to point out in this context that when President Obama took office, gas prices were at about $1.85 per gallon. Now that they are up to about $3.75 per gallon we can see a steady increase. Over this 38-month period of time of his Presidency so far, gasoline prices have risen an average of about 5 cents per gallon per month. This is staggering when we think about the fact that if he is reelected--if he serves out the rest of this term and if he is reelected--that is a total of an additional 58 months. With that increase, gas prices will be up at around $6.60 per gallon. This is a lot of money. It is staggering. It affects everything we do--from the miles we drive to the products we buy at the grocery store. Everything gets more expensive when the fuel we use to transport ourselves and our products becomes more expensive. Now, to some extent, one could suggest this was not only foreseeable, but it was actually foreseen. To some, it was considered a desired outcome. Let's consider, for example, that in 2008, Dr. Steven Chu, who now serves as President Obama's Energy Secretary, said: Somehow we have to figure out how to boost the price of gasoline to the levels in Europe. Well, Mr. Chu, it looks as though we are headed in that direction, and if we continue to follow this administration's energy policies, we may get there. As a member of the Senate's Energy and Natural Resources Committee, I was somewhat surprised when a suggestion was made just a few days ago that there are some who believe there is no relationship between U.S. production of petroleum and the price of gasoline in the United States. That simply is not true, and it cannot be true. With oil being the input ingredient into gasoline, it is the precursor for gasoline. Anytime we do anything that cuts off or restricts or limits the supply, that is necessarily going to have an impact on the price, and it does. The fact that it is indisputable that there are other factors which also influence the price of gasoline makes it no less true that we have to produce petroleum at home in addition to buying it from other places. In order to keep gasoline prices at reasonable levels, we have to produce more. There are some things we can do in order to help improve that trend. For example, we could open ANWR for drilling. We could open our country's vast Federal public lands to development of oil shale. It is a little known fact that in three Rocky Mountain States, a small segment of Rocky Mountain States--Utah, Colorado, and Wyoming--we have an estimated 1.2 trillion barrels of proven recoverable oil reserves locked up in oil shale. Now, 1.2 trillion barrels is a lot of oil. That is comparable to the combined petroleum reserves of the top 10 petroleum-producing countries of the world combined--just in one segment of three Rocky Mountain States. Yet we are not producing it commercially, in part to a very significant degree because that oil shale--especially in my State, the State of Utah--is overwhelmingly on Federal public land, and it is almost impossible to get to it, to produce it commercially on federally owned public land. We need to change that. We need to create a sensible environmental review process for oil and gas production generally. We need to improve the permitting process for offshore development in the Gulf of Mexico and in other areas. We need to allow the States to regulate hydraulic fracturing without the fear of suffocating and duplicative Federal regulations. We need to keep all the Federal lands in the West open to all kinds of energy development. And, of course, we need the President to approve the Keystone XL Pipeline. This will contribute substantially to America's energy security and will provide an estimated 20,000 shovel-ready jobs right off the bat. There are things we can do to help Americans with this difficult problem--one that will affect almost every aspect of the day-to-day lives of Americans. We need government to get out of the way. We need the government to become part of what the President laudably outlined as an all-of-the-above strategy in his State of the Union Address just recently. We need to get there. We cannot afford gas at $6.60 per gallon, which is exactly where we are headed if we continue to do things as this administration has done, which has lead to an increase in the price of gasoline at a staggering rate of 5 cents per gallon every single month.

Mr. LEE

Mr. LEE. Mr. President, today I wish to recognize the career of Assistant Police Chief Marcy Korgenski, who is retiring after 30 years with the Ogden Police Department and was the first female to hold the position in Ogden's history. A graduate of both Weber State University and the FBI National Academy, Chief Korgenski first joined Ogden's police force in 1982 as a patrol officer. She helped to found the department's gang unit in 1991, and, rising through the ranks, she became a sergeant in 1995 and a lieutenant in 1999. In 2010, Korgenski was promoted to assistant police chief, a position she had earned with hard work throughout her career. As assistant chief, Korgenski has been in charge of the department's Investigation Division, training and records operations, and selective enforcement. She has also directed officers assigned to the Weber- Morgan Narcotics Strike Force, established and managed the Ogden Police Apprentice Program, and joined prosecutors in establishing a special investigator for Hispanic victims of domestic violence. Using her experience to teach others, Korgenski trained members of the Volunteers in Policing program in techniques to assist local police in keeping residents safe. In 2011, Korgenski was awarded the Ogden/Weber Chamber Women in Business Committee's ATHENA award, which recognizes individuals who demonstrate excellence, initiative, and creativity in their profession. When interviewed about the award, Korgenski said that she encourages women to ``dream the impossible dream.'' Korgenski has also received her department's Distinguished Service Award, the Mattie Harris Spirit of the American Woman Award, and the Rotary Club's Outstanding Selfless Dedication and Public Service Award. Beyond her professional accomplishments, Korgenski is very active in her community. She is involved with the Ogden Area Youth Alliance, the American Cancer Society Relay for Life, the Special Olympics of Utah, and the Domestic Violence Coalition for Weber County. She also serves on the Swanson Foundation Advisory Board, the Ogden Noon Exchange Club Executive Board, Weber Sate's Child and Family Services Advisory Board, and the GOAL Foundation, and is a trustee for Youth Impact, a nonprofit organization dedicated to helping at-risk youths. Her decision to retire was made in part to devote even more time to her volunteering efforts. I join Ogden Mayor Mike Caldwell in saying that Marcy Korgenski's service to the public will be missed. Her career is a testament to the accomplishments of hardworking women everywhere, and I congratulate her on her many achievements and 30 years of excellence in her field.

Mr. LEE

Mr. LEE. Mr. President, I would like to congratulate Roy City, UT for reaching the 75th anniversary of its original incorporation in 1937. Roy City was first settled in 1873 by William Evans Baker. At the time, the area was seen as dry and desert-like, not a likely place for a town. Baker convinced three brothers-in-law to join him, eventually forming what would come to be affectionately known as ``Cousin Street'' because all of the residents along the road were cousins. The settlers came up with an industrious way to bring much-needed clean water to the area, digging a canal from nearby mountains. With water came a sense of permanence for the town. Twenty-one years after the first settlement, the area's residents agreed to establish a post office, which required that the town be given an official name. It had been called many things, from Central City to Sandridge to Lakeview. The decision was to be made in the wake of a tragic death, that of Roy Peebles, the young son of Reverend David Peebles. Locals decided that the town should be named after Roy, and on May 24, 1894, Roy had a name and a post office. Roy remained a quiet, sparsely populated area until the 1940s, when Hill Field was established nearby. Roy City suddenly grew rapidly, forcing an equally rapid expansion of services. For a brief period, overflowing classes for schoolchildren were held in the halls. A semi- permanent solution was found in busing students across Ogden to other solutions, and a permanent solution was finally completed in 1965 in the form of Roy High School. It became the largest high school in Weber County, and has been ranked as one of the top ten high schools in the country. Thanks to spending by members of the military working at Hill Air Force Base, the Navy Supply Depot, and the Defense Supply Depot, businesses in Roy City expanded quickly during and after WWII. In 1953, the city was granted a charter to establish Utah's first branch bank, paving the way for branch banks to spread throughout Utah. In recent years, Roy City has been called ``Weber County's Fastest Growing City,'' boasting over 35,000 residents. It has also been regularly lauded as one of Utah's most fiscally well-managed cities. Roy City now offers its citizens a host of modern businesses, conveniences, and services, from biking trails to an aquatic center. To mark this year's special anniversary, Mayor Joe Ritchie will be presiding over the burial of a time capsule that is to be opened in 25 years, exactly one century after the city's incorporation. May the last quarter of that journey be as productive and successful as the first three.

Mr. LEE

Mr. LEE. Mr. President, I now choose to turn to another topic--a topic that is important to many Americans, a topic that relates to an important anniversary we are recognizing. Today, we are highlighting the third anniversary of President Obama's failed stimulus package. The President promised 3 years ago that the stimulus would create what he characterized as millions of jobs. But today, unfortunately, devastatingly, there are nearly 13 million people in America who are still unemployed and many millions more have even given up on looking for jobs. Three years ago, the White House said that because of the stimulus package, unemployment would not exceed 8 percent. That has not happened. In fact, the unemployment rate has topped 8 percent for 36 straight months now--the longest stretch of high unemployment since the Great Depression. The Congressional Budget Office predicts it is going to go even longer. We will not see sub-8 percent unemployment, according to the CBO, until 2014. The President sold his stimulus package to the American people by claiming he would make immediate investments in what he characterized as ``shovel-ready'' jobs. But last June, the President acknowledged that ``shovel-ready was not as shovel-ready as we expected.'' Nevertheless, a lot of money has been spent, as we have been waiting for these jobs to materialize--jobs that never quite came about. In fact, some of it was spent in ways that have nothing to do with stimulating the economy. For example, consider some of the ways in which this stimulus money has been spent. Mr. President, $760,000 was spent on interactive dance software; $1.2 million was spent on a train museum; $2 million was spent to study ant behavior; $762,000 was spent to study improvised music--I am not sure what that is, but I am sure it is lovely, not necessarily deserving of scarce Federal resources-- $300,000 to track weather on other planets--great if one lives on another planet, not so great if one lives on Earth in a country that has accumulated an unprecedented debt exceeding $15 trillion--$153,000 for an indoor water park; and $712,000 to develop a ``machine-generated humor'' system--in other words, a joke machine. This big joke is on the American taxpayer. Unfortunately, it is no laughing matter. In the last 3 years, we have added more than $4 trillion to the national debt, we have recorded the three largest annual deficits in our Nation's history, and we are on pace for a fourth straight deficit exceeding $1 trillion. This week, the President submitted a budget that calls for adding $11 trillion in new debt over the next decade. His own Treasury Secretary calls the level of spending unsustainable, and it is. Despite the overwhelming evidence that his stimulus package has failed, the President has called for additional increases in spending. I know the President is a good man. I also know he faced a difficult economy when he took office. But the President is unwilling to tell the truth to the American people about what lies ahead, about some of the challenges we face. I think he needs to do so, and he needs to acknowledge the fact that this stimulus package has failed so we can avoid making similar mistakes in the future. Today we cannot celebrate the anniversary of the President's stimulus. Rather, we must lament a tremendous lost opportunity by this administration to put this country back on the right track over these last 3 years. For the sake of future generations, I hope it is not too late to change course. I suggest the absence of a quorum.

Mr. LEE

Mr. LEE. Mr. President, on January 4, 2012, President Obama bypassed the Senate's constitutional right to advise and consent to nominees and, instead, unilaterally made appointments to the Consumer Financial Protection Bureau and to the National Labor Relations Board. He purported to do so under the Constitution's recess appointments clause, even though at the time of the appointments the Senate was holding pro forma sessions roughly every 72 hours. If allowed to stand, President Obama's unprecedented and unconstitutional recess appointments could result in Presidents of both parties routinely circumventing the Senate's advice-and-consent function and thus depriving the people and the people's representatives of an essential check on the executive branch. President Obama's actions also violate the Constitution's fundamental system of separation of powers. He has asserted the unilateral power to override Congress's own determination of when it is in session and when it is in recess. At an absolute minimum, the Senate's institutional prerogatives demand that we be allowed to make our own rules. Yet President Obama's actions would deprive our body of even that basic right. In the past, I have given pretty broad deference to the President's judicial nominees. Both in the Judiciary Committee and on the floor of the Senate, I have voted in favor of the vast majority of President Obama's nominees, including many with whom I have fundamental disagreements on various points. But I can do so no more. The Founders expected that each branch of the Federal Government would exercise the necessary constitutional means to resist any encroachments by the other branches. Among those constitutional means is the Senate's advice-and-consent function, which I exercised today by voting against a nominee who otherwise might have received my support. Thirty-three other Senators did exactly the same. The President cannot expect the Senate's full cooperation at the same time he does violence to this body's constitutional prerogatives. The threshold for confirming President Obama's nominees must change accordingly. Simply put, there is a new standard for confirmations as a result of the President's own actions. I find this unfortunate but ultimately necessary. Both today and in the coming days, I will join with other Senators to act as a check and a balance on the President's unconstitutional conduct by voting against some nominees. I expect that many of my Republican colleagues, and in time some of our Democratic counterparts, will rise in defense of the Constitution and vote against President Obama's nominees until such time as he takes actions to restore the Senate's full constitutional right to advise and consent to his nominations.

Mr. LEE

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

Mr. LEE

Mr. LEE. Mr. President, I ask unanimous consent to speak for a period of up to 7 minutes.

Mr. LEE. Mr. President, I rise in opposition to this nomination. I do so not because of the qualifications of this particular nominee, but instead I do so in defense of the U.S. Constitution. In opposing President Obama's appointments, I have repeatedly made clear this is a constitutional issue. Each time I have spoken--and I have done so on numerous occasions--I have set forth in detail the reasons why I believe on a legal basis, on a constitutional basis, why President Obama's recent purported recess appointments are unprecedented and unconstitutional. I have also made absolutely clear that my opposition to President Obama's appointments is not partisan and that I will hold a Republican President equally accountable whenever any Republican President makes a similarly unconstitutional claim of power. This President has enjoyed my cooperation up to this point. I voted for many, if not most, of his nominees. That cooperation cannot continue--not in the same way he has enjoyed it up to this point. In light of the fact he has disrespected our authority within this body, he has disrespected the Constitution. Unfortunately, many of my colleagues have refused to engage on the real substance of this issue. Instead, they have repeatedly changed the subject to partisan politics, the nominations process, and Richard Cordray's qualifications to head the CFPB. Even worse, and despite my repeatedly making clear I intend to hold any Republican President to the same standard to protect the institutional and constitutional prerogatives of the Senate rather than the interests of any political party--given those are at stake--the Democrats, including the President himself, have accused me of playing politics. I wish to be clear again: This is not the case. I am here to defend the constitutional prerogatives of the Senate and the separation of powers and the system of checks and balances that are at the heart of our constitutional system. The Senate's advice-and-consent role is grounded in the Constitution's system of checks and balances. In Federalist 51, James Madison wrote: . . . the great security against a gradual concentration of the several powers in the same [branch of government], consists in giving to those who administer each [branch] the necessary constitutional means and personal motives to resist encroachments of the others. Among those constitutional means is the Senate's ability to withhold its consent for a nominee, forcing the President to work with Congress to address that body's concerns. The key conclusion of the Department of Justice's Office of Legal Counsel memorandum, on which President Obama relied in making these recess appointments, is that the President may unilaterally decide and conclude that the Senate's pro forma sessions somehow do not constitute sessions of the Senate for purposes relevant to the recess appointments clause, in clause 3 of article II, section 2. If allowed to stand, this deeply flawed assertion would upend an important element of the Constitution's separation of powers. Under the procedures set forth by the Constitution, it is for the Senate, not for the President, to determine when the Senate is in session. Indeed, the Constitution expressly grants the Senate that prerogative, the power to ``determine the Rules of its Proceedings.'' Commenting on this very provision in his authoritative constitutional treatise, Joseph Story noted: [t]he humblest assembly of men is understood to possess [the power to make its own rules,] and it would be absurd to deprive the councils of the nation of a like authority. Yet this is precisely the result of President Obama's attempt to tell the Senate when it is or is not in recess. I am saddened some of my colleagues in the Senate are not more jealous of this body's rightful constitutional, institutional prerogatives. As they well know, the Constitution's protections do not belong to any one party, and its structural separation of powers is meant to protect against the abuses of present and future Presidents of both parties. Acquiescing to the President in the moment may result in temporary political gain for the President's party, but relinquishing this important piece of the Senate's constitutional role has lasting consequences for Republicans and Democrats alike. It is on this basis, and because of the oath I have taken to uphold the Constitution of the United States, that I find myself dutybound to oppose this nomination. I strongly urge my colleagues on both sides of the aisle to take seriously their obligation both to the Constitution and to the institutional prerogatives of the Senate and to do the same. I yield the floor.

Mr. LEE

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