Older Americans Act Amendments of 2012

Madam President, in defense of the Constitution, I stand against an action taken recently by our Chief Executive. President Obama's January 4, 2012, appointments to the Consumer Financial Protection Bureau and to the National Labor Relations Board are different in kind than previous recess appointments made by Presidents of the United States made by both political parties. These four appointments are unconstitutional because they did not, as required by article II, section 2, receive the ``advice and consent'' of the Senate, even though such advice and consent was necessary under the circumstances.

President Obama has asserted that the appointments are constitutional under the recess appointments clause. That clause provides that the President may ``fill up all Vacancies that may happen during the Recess of the Senate.'' That clause does not apply here, however, because the Senate was not in recess when President Obama made the appointments in question.

In making these appointments, the President did not state that he believes an intrasession adjournment of less than 3 days constitutes a recess, and there can be little dispute that such a brief adjournment as occurred between January 3, 2012, when the second session of the 112th Congress officially began, and January 6, 2012, when the next pro forma session of the Senate occurred, does not, in fact, constitute a recess for purposes of the recess appointments clause.

The Department of Justice has consistently maintained that an intrasession adjournment must be longer than 3 days to constitute such a recess. The text of the Constitution evidences that the Framers did not consider an adjournment of less than 3 days to be constitutionally significant. Indeed, in article I, section 5, we read that ``neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.''

Now, at the time these appointments--the appointments in question-- were made, the Senate had not received consent from the House of Representatives to adjourn for a period of time of more than 3 days. If an intrasession adjournment of less than 3 days were to be considered constitutionally sufficient for the President to exercise his recess appointment power, it is unclear what, if anything, might prevent the President from routinely bypassing the Constitution's advice-and- consent requirement and appointing nominees during even weekend adjournments.

The Department of Justice's Office of Legal Counsel asserts that the President may unilaterally conclude that the Senate's brief pro forma sessions do not constitute sessions of the Senate for purposes of the recess appointments clause. But this assertion is deeply flawed. It is for the Senate and not for the President of the United States to determine when the Senate is in session. The Constitution expressly grants the Senate the power to determine the rules of its own proceedings.

Granting the President unilateral power to override the Senate's determination of when it is in session would undermine the constitutional prerogative and violate the Constitution's fundamental principles of separation of powers.

The OLC memorandum on which the President relies asserts that the ``touchstone'' for determining when the Senate is in session is ``its practical effect: viz. whether or not the Senate is capable of exercising its constitutional function of advising and consenting to executive nominations.'' This analysis contradicts the text and the original understanding of the recess appointments clause.

The purpose of that clause, we read in Federalist No. 67 which was authored by Alexander Hamilton, was to avoid obliging the Senate ``to be continually in session for the appointment of officers.'' Nothing in either the Constitution's text or in the debate surrounding the recess appointment clause suggests in any way that the President should have the unilateral power to appoint officers and judges at times when the Senate is regularly meeting, even if that body is not conducting substantial business.

In addition, the OLC memorandum's functionalist argument fails on its own terms. During the Senate's pro forma sessions, including its session on January 6, 2012, the Senate was manifestly capable of exercising its constitutional function of advice and consent. Notably, at one such pro forma session on December 23, 2011, the Senate passed a significant piece of legislation demonstrating that it is, in fact, capable of conducting business--meaningful business--at such sessions.

But regardless of how much business the Senate conducts during pro forma sessions or how much business it indicates in statements that it intends to conduct in advance of such sessions, the Senate has been and continues to be capable of conducting business at such sessions-- including advising and consenting as to nominations for the President should it decide to do so.

OLC's argument boils down to an untenable assertion that because the Senate has chosen not to act on the President's nominations during its sessions, it was incapable of doing so.

Finally, OLC's assertion that pro forma sessions are not cognizable for purposes of the recess appointments clause violates established constitutional practice and tradition. The Constitution provides that ``[n]either House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days,'' and that ``unless [Congress] shall by law appoint a different day,'' Congress shall begin each annual session by meeting ``at noon on the 3d day of January.''

The Senate has commonly and without objection used pro forma sessions to fulfill both constitutional requirements, evidencing a past consensus that such sessions are of constitutional significance. President Obama's novel assertion that such sessions no longer count for purposes of the recess appointments clause thus upsets precedent and creates an internal contradiction in the treatment of Senate sessions for purposes of the Constitution.

President Obama's January 4, 2012, appointments to the CFPB and the NLRB are unconstitutional. As duly sworn Senators, we each have an institutional and a constitutional duty to preserve and defend the prerogatives of the Senate, particularly from the encroachments of the Executive. The President's unconstitutional appointments simply cannot stand.

Throughout my time as a member of the Judiciary Committee, I have made it a point to work collaboratively with Members from across the aisle, and I have also gone out of my way to cooperate with the current administration to ensure that the overwhelming majority of the President's nominees to judicial and other positions are considered and receive a vote. Both in the Judiciary Committee and on the floor I voted for dozens of nominees with whom I fundamentally disagreed on various issues simply because they were nominated by a President who was duly elected by the people. But I will do so no more.

My concerns, to be clear, are nonpartisan, and I will be equally critical of any Republican President who might attempt to make recess appointments under the same deeply flawed legal theory. Given this President's blatant and egregious disregard for proper constitutional procedures and for the Senate's unquestioned role in such appointments, I find myself duty-bound to resist the consideration and approval of additional nominations until the President takes steps to remedy the situation.

Regardless of what precise course I choose to pursue, the President certainly will not continue to enjoy my nearly complete cooperation unless and until he rescinds his unconstitutional recess appointments.

Thank you, Madam Chair.

Mr. President, it is no great secret that our country today faces many enormously difficult problems. We remain in the midst of a very serious recession. Real unemployment is at about 15 percent. Our middle class continues to decline. The gap between the very rich and everybody else is growing wider. Fifty million Americans have no health insurance. Millions of young people are struggling, trying to figure out how they are going to make it into college and pay for their college education. But in the midst of all of those problems, I hope very much that we do not forget about the problems facing one of the most vulnerable sectors of our society; that is, senior citizens.

We are an aging population. That is no secret. Today, and every day, some 10,000 Americans reach the age of 65. If we as a nation do not begin to address the very serious reality of an aging population, we are going to be in a lot of trouble that we are not anticipating.

One of the issues we have to understand is that not only are we an aging population, but many of those people who are becoming 65 and older are dealing with issues of poverty. Incredibly enough, 20 percent of the seniors in this country are living on average incomes of $7,500 per year--$7,500 per year average income for the bottom 20 percent of seniors in this country. Frighteningly, and embarrassingly, more and more seniors in this country are literally going hungry. Today, there are almost 1 million seniors who go hungry and many more who face the threat of hunger. That should not be happening in the United States of America.

What America is supposed to be about is that when we age, we can live out our remaining years with security and dignity, not trying to find food in order to stay alive.

Now, that is the bad news. The good news is that we have Federal legislation called the Older American Act which, to some degree, begins to address these very serious problems.

I am happy to announce, as the chairman of the Subcommittee on Primary Health and Aging, we are introducing legislation to reauthorize and improve the Older Americans Act.

The legislation we are offering is going to do its very best to say senior citizens in this country will not go hungry. This legislation is going to significantly increase funding for senior centers all over this country, to provide congregate meal programs in senior centers. In my view, these congregate meal programs are enormously important, not only because they provide good nutrition to seniors all over our Nation but also they allow seniors to come together to socialize, to talk to each other, to get some of the professional help they need in their waning years. So we have to strengthen the congregate meal program, and that is what this bill does.

In addition to that, there is another program which is almost life and death to some of the most fragile and vulnerable people in this country; that is, the Meals on Wheels Program. What Meals on Wheels is about--it takes place all

over this country--is, you have people in senior centers and in other institutions who take meals--a good, quality, nutritious hot meal--to seniors, sometimes living at the end of a dirt road in Vermont or in Utah or in New Hampshire. These are people who cannot leave their homes, especially in the wintertime. These are people who, in some cases, would not survive if they did not have that Meals on Wheels Program.

I wish to take this opportunity to thank the many volunteers from senior centers and other institutions who get in their cars and trucks to take these hot meals to seniors all over this country through the Meals on Wheels Program.

What we are finding in my State of Vermont--and what we are finding around the country--is, many senior centers simply do not have the resources now to accommodate the growing number of seniors who need the Meals on Wheels Program.

Let me further say to any of my friends who say: Senator Sanders, this is a good idea. It is going to cost money. Yes, it will. Increased funding for Meals on Wheels and congregate meals will cost additional revenue. But at the end of the day, the Federal Government will save money. We have had hearings on this issue. We have had physicians come forward, and they say one of the reasons seniors end up in the hospital, seniors end up in the emergency room, is because they are malnourished. Sometimes, literally, because of poor nourishment, they fall, break their hips, at great expense to Medicaid or Medicare. So not only is it the right and moral thing to do to keep seniors in this country from going hungry; in the long run, we save money by keeping them healthy.

Furthermore, in this bill, we are going to do something I think is long overdue. There has been a lot of discussion in the Senate and in the House about Social Security. Some of my friends--often Republicans, sometimes Democrats--think we should cut Social Security, we should try to move toward a balanced budget by cutting funding for some of the most vulnerable people in this country. I strongly oppose that.

One of the arguments brought forth to cut Social Security is: The COLA--the Consumer Price Index for the Elderly; how we determine what the COLA is--it is too generous. It is inadequate. When I tell that to senior citizens in Vermont, do you know what they do? They laugh. They literally laugh when I tell them there are people in Washington, DC, who believe the formulation as to how we determine COLAs is too generous, and they say: Bernie, we have not gotten a COLA for the last 2 years, so how is this too generous? They are, of course, right.

The way we, in my view, formulate the COLA right now is inadequate, not because it is too generous but quite the contrary. The truth is, seniors' purchasing needs are different than the general population. Everybody knows that. Seniors spend a higher percentage of their income on prescription drugs. They spend it on health care. In cold-weather States such as mine and New Hampshire, they spend it on keeping warm. Senior citizens are not out there, by and large, buying flat-screen TVs or laptop computers or iPhones or iPads. Their money is going into health care.

What has been happening in recent years is, while the cost of some products--electronics in general--has been going down, the cost of prescription drugs and health care has been going up. So when you tell seniors their COLA is too generous, they tell you that makes no sense at all because they are spending more and more on health care, prescription drugs, staying warm in the wintertime.

So what we have done in this bill is requested that the Bureau of Labor Statistics improve the Consumer Price Index for the Elderly, or CPI-E, by including more of the items seniors spend money on, such as prescription drugs and other health care costs. We must have a more accurate measure for COLAs for seniors, and I believe this is the path to a fair COLA.

I look forward to working with all the Members of the Senate to make sure we do right by our parents and our grandparents, that we make sure seniors in this country can live out their remaining years in security and dignity by reauthorizing a strong and fair Older Americans Act in the coming months.

I especially want to applaud Senators Kohl, Mikulski, Casey, and Franken for introducing other thoughtful, innovative, and important Older Americans Act amendments.

We are at a critical moment in American history. In the midst of all the other challenges we face, let us not turn our backs on those who sacrificed, who fought the wars, who built the economies that made this country great. Let us support a strengthened and improved Older Americans Act.

Mr. President, it is no great secret that our country today faces many enormously difficult problems. We remain in the midst of a very serious recession. Real unemployment is at about 15 percent. Our middle class continues to decline. The gap between the very rich and everybody else is growing wider. Fifty million Americans have no health insurance. Millions of young people are struggling, trying to figure out how they are going to make it into college and pay for their college education. But in the midst of all of those problems, I hope very much that we do not forget about the problems facing one of the most vulnerable sectors of our society; that is, senior citizens.

We are an aging population. That is no secret. Today, and every day, some 10,000 Americans reach the age of 65. If we as a nation do not begin to address the very serious reality of an aging population, we are going to be in a lot of trouble that we are not anticipating.

One of the issues we have to understand is that not only are we an aging population, but many of those people who are becoming 65 and older are dealing with issues of poverty. Incredibly enough, 20 percent of the seniors in this country are living on average incomes of $7,500 per year--$7,500 per year average income for the bottom 20 percent of seniors in this country. Frighteningly, and embarrassingly, more and more seniors in this country are literally going hungry. Today, there are almost 1 million seniors who go hungry and many more who face the threat of hunger. That should not be happening in the United States of America.

What America is supposed to be about is that when we age, we can live out our remaining years with security and dignity, not trying to find food in order to stay alive.

Now, that is the bad news. The good news is that we have Federal legislation called the Older American Act which, to some degree, begins to address these very serious problems.

I am happy to announce, as the chairman of the Subcommittee on Primary Health and Aging, we are introducing legislation to reauthorize and improve the Older Americans Act.

The legislation we are offering is going to do its very best to say senior citizens in this country will not go hungry. This legislation is going to significantly increase funding for senior centers all over this country, to provide congregate meal programs in senior centers. In my view, these congregate meal programs are enormously important, not only because they provide good nutrition to seniors all over our Nation but also they allow seniors to come together to socialize, to talk to each other, to get some of the professional help they need in their waning years. So we have to strengthen the congregate meal program, and that is what this bill does.

In addition to that, there is another program which is almost life and death to some of the most fragile and vulnerable people in this country; that is, the Meals on Wheels Program. What Meals on Wheels is about--it takes place all

over this country--is, you have people in senior centers and in other institutions who take meals--a good, quality, nutritious hot meal--to seniors, sometimes living at the end of a dirt road in Vermont or in Utah or in New Hampshire. These are people who cannot leave their homes, especially in the wintertime. These are people who, in some cases, would not survive if they did not have that Meals on Wheels Program.

I wish to take this opportunity to thank the many volunteers from senior centers and other institutions who get in their cars and trucks to take these hot meals to seniors all over this country through the Meals on Wheels Program.

What we are finding in my State of Vermont--and what we are finding around the country--is, many senior centers simply do not have the resources now to accommodate the growing number of seniors who need the Meals on Wheels Program.

Let me further say to any of my friends who say: Senator Sanders, this is a good idea. It is going to cost money. Yes, it will. Increased funding for Meals on Wheels and congregate meals will cost additional revenue. But at the end of the day, the Federal Government will save money. We have had hearings on this issue. We have had physicians come forward, and they say one of the reasons seniors end up in the hospital, seniors end up in the emergency room, is because they are malnourished. Sometimes, literally, because of poor nourishment, they fall, break their hips, at great expense to Medicaid or Medicare. So not only is it the right and moral thing to do to keep seniors in this country from going hungry; in the long run, we save money by keeping them healthy.

Furthermore, in this bill, we are going to do something I think is long overdue. There has been a lot of discussion in the Senate and in the House about Social Security. Some of my friends--often Republicans, sometimes Democrats--think we should cut Social Security, we should try to move toward a balanced budget by cutting funding for some of the most vulnerable people in this country. I strongly oppose that.

One of the arguments brought forth to cut Social Security is: The COLA--the Consumer Price Index for the Elderly; how we determine what the COLA is--it is too generous. It is inadequate. When I tell that to senior citizens in Vermont, do you know what they do? They laugh. They literally laugh when I tell them there are people in Washington, DC, who believe the formulation as to how we determine COLAs is too generous, and they say: Bernie, we have not gotten a COLA for the last 2 years, so how is this too generous? They are, of course, right.

The way we, in my view, formulate the COLA right now is inadequate, not because it is too generous but quite the contrary. The truth is, seniors' purchasing needs are different than the general population. Everybody knows that. Seniors spend a higher percentage of their income on prescription drugs. They spend it on health care. In cold-weather States such as mine and New Hampshire, they spend it on keeping warm. Senior citizens are not out there, by and large, buying flat-screen TVs or laptop computers or iPhones or iPads. Their money is going into health care.

What has been happening in recent years is, while the cost of some products--electronics in general--has been going down, the cost of prescription drugs and health care has been going up. So when you tell seniors their COLA is too generous, they tell you that makes no sense at all because they are spending more and more on health care, prescription drugs, staying warm in the wintertime.

So what we have done in this bill is requested that the Bureau of Labor Statistics improve the Consumer Price Index for the Elderly, or CPI-E, by including more of the items seniors spend money on, such as prescription drugs and other health care costs. We must have a more accurate measure for COLAs for seniors, and I believe this is the path to a fair COLA.

I look forward to working with all the Members of the Senate to make sure we do right by our parents and our grandparents, that we make sure seniors in this country can live out their remaining years in security and dignity by reauthorizing a strong and fair Older Americans Act in the coming months.

I especially want to applaud Senators Kohl, Mikulski, Casey, and Franken for introducing other thoughtful, innovative, and important Older Americans Act amendments.

We are at a critical moment in American history. In the midst of all the other challenges we face, let us not turn our backs on those who sacrificed, who fought the wars, who built the economies that made this country great. Let us support a strengthened and improved Older Americans Act.

I thank the Chair.

(The remarks of Senator Sanders pertaining to the introduction of S. 2037 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')