Floor Statements

Mr. President, there currently is no cap at all on the amount taxpayers will reimburse contractor employees for compensation except for just a handful of executives, and that limit is already too high at $693,951. That is far above what the chief executive of the U.S. Government gets paid at $400,000 a year.

So that is why we would cap it at no more than what the President can get. I presume the Senator from Michigan is aware of that and willing to help us on that process by adopting this amendment.

I thank the Senator.

I say thank you to the managers of the bill for helping us with this very important amendment.

Mr. President, I ask unanimous consent to speak as in morning business.

For anybody interested in how long I might be, I would say roughly 10 minutes.

Mr. President, for nearly a year, I have been investigating the Bureau of Alcohol, Tobacco, Firearms, and Explosives' operation known as Operation Fast and Furious. I have followed up on questions from that investigation as the Senate Judiciary Committee held oversight hearings over the past few weeks with both Secretary Janet Napolitano and Attorney General Eric Holder. Each of them testified about the aftermath of the shooting of Border Patrol agent Brian Terry. I have sought to clarify with facts some of the half-truths that were said during these meetings.

Each claimed they were ignorant of the connection between Agent Terry's death and Operation Fast and Furious until my letters with whistleblower allegations brought the connection to light. However, documents that have come to light in my investigation draw those claims into question. I would like to address a couple of those discrepancies.

Secretary Napolitano went to Arizona a few days after Agent Terry's death. She said she met at that time with the FBI agents and the assistant U.S. attorneys looking for the shooters. She also said at that point in time that nobody knew about Fast and Furious. Yet documents show that many people knew about Fast and Furious on December 15, the day Agent Terry died.

Secretary Napolitano referenced the FBI agents looking for the shooters. The head of the FBI field division was present at the December 15 press conference about Agent Terry's murder. At that very press conference the FBI head told a chief assistant U.S. attorney about the connection to an ongoing ATF investigation. That same night, U.S. attorney Dennis Burke confirmed that the guns tied back to Operation Fast and Furious. These connections were made days before Secretary Napolitano's visit at that time. The very purpose of her visit was to find out more about the investigation.

So a very important question comes up: The Department of Homeland Security oversees the Border Patrol. Why wouldn't the Phoenix FBI head have told Secretary Napolitano that the only guns found at the scene of Agent Terry's murder were tied to an ongoing ATF investigation?

Let's not forget the U.S. Attorney's Office. Secretary Napolitano said she met with the assistant U.S. attorneys looking for the shooters. The chief assistant U.S. attorney for the Tucson office, which coordinated the Terry investigation, found out about the ATF connection directly from our Federal Bureau of Investigation.

So a very important question comes up that needs to be answered: Why would they conceal the Fast and Furious connection from Secretary Napolitano days later?

The Tucson office is overseen by the U.S. attorney for the District of Arizona, Dennis Burke, who confirmed to Tucson that guns came from Operation Fast and Furious. When Ms. Napolitano served as Governor of Arizona,

Mr. Burke served as her chief of staff for 5 years. Secretary Napolitano acknowledges that she had conversations with him about the murder of Agent Terry.

So a very important question comes up: Why would Mr. Burke conceal the Fast and Furious connection from Secretary Napolitano?

Even before Secretary Napolitano came to Arizona, e-mails indicate Mr. Burke spoke on December 15 with Attorney General Holder's deputy chief of Staff, Monte Wilkinson.

So a very important question is unanswered: Before finding out about Agent Terry, Mr. Burke e-mailed Mr. Wilkinson that he wanted to ``explain in detail'' about Fast and Furious when they talked. In that phone call--and this is a very important question--did U.S. attorney Burke tell Mr. Wilkinson about the case's connection to a Border Patrol agent's death that very day?

The next day, the Deputy Director of the ATF made sure briefing papers were prepared about the Operation Fast and Furious connection to Agent Terry's death. He sent them to individuals in Washington, DC, in the Deputy Attorney General's Office at the Justice Department. Within 24 hours, they were forwarded to the Deputy Attorney General. They were accompanied by personal e-mails from one of the Deputy Attorney General assistants explaining the situation.

Two weeks later, that Deputy Attorney General, Gary Grindler, was named Attorney General Holder's chief of staff. Yet a month and a half after Agent Terry's death, Attorney General Holder was allegedly ignorant of the Operation Fast and Furious connection to the murder of Agent Terry.

So a very important question is unanswered: Why wouldn't Mr. Grindler bring up these serious problems with Attorney General Holder, either as his Deputy Attorney General or as his chief of staff?

It is clear that multiple highly placed officials in multiple agencies knew almost immediately of the connection between Operation Fast and Furious and Agent Terry's death.

The Department of Justice and the Department of Homeland Security have failed to adequately explain why Attorney General Holder and Secretary Napolitano allegedly remained ignorant of that connection. Whether it is the Attorney General or the Secretary or members of their staff, somebody wasn't doing their job. Somebody wasn't serving their higher-ups as they should have been, as proper staff people.

In the case of Secretary Napolitano, either she was not entirely candid with me and others or this was a gross breach on the part of those who kept her in the dark. The Border Patrol and the Department of Homeland Security lost a man--Agent Terry being murdered. It was their right to know the full circumstances surrounding that from people who served under them.

No one likes the unpleasant business of having to fess up, but the FBI, ATF, and U.S. Attorney's Office owed it to Agent Brian Terry and his family to fully inform the leadership of the Department of Homeland Security. This was the death of a Federal agent involving weapons allowed to walk free by another agency in his own government.

Let me explain ``walking guns.'' The Federal Government operates under the rule of law, just like all of us have to live under that rule of law. There are licensed Federal gun dealers, and Federal gun dealers were encouraged to sell guns illegally to straw buyers and, supposedly, follow those guns across the border to somehow arrest people who were involved with drug trafficking and other illegal things. Two of these guns showed up at the murder scene of Agent Terry. So it is a very serious situation that we need to get to the bottom of.

If what I have just described, with all these unanswered questions, is not enough to brief up to the top of the Department, then I don't know what is. In other words, staff people ought to be doing their job or, if staff people were doing their job, then the Congress, in our constitutional job of oversight, is being misled.

I yield the floor.

Madam President, at a time when the national security budget is under immense pressure, it is vitally important that we spend our defense dollars more wisely.

The Boxer-Grassley amendment will contain runaway spending in contractor salary reimbursements. Notice that I said ``salary reimbursements,'' not salaries.

Someone not familiar with government contracting might ask why it's any of our business what government contractors get paid, and I would agree if we're talking about what their company pays them out of its own pocket.

When most people hire a contractor to renovate their bathroom or re- shingle their roof, they find the one that does the best work for the least cost.

Having done that, you are not likely to ask or care what their cut is or what they pay their crew.

To the extent that government contracts work the same way, the same principle applies. Unfortunately, not all government contracts do work that way.

A large proportion of government contracts actually reimburse the contractor directly for the costs they incur, including for the salaries of their employees. These types of contracts are risky because contractors lose the incentive to control costs. They are only supposed to be used when a fixed price contract is not possible for instance, if the scope or duration of the work is not possible to determine at the outset.

Nevertheless, cost-reimbursement type contracts are used extensively by Federal departments and agencies.

The Defense Department alone accounted for over $100 billion in cost reimbursement type contracts in fiscal year 2010.

President Obama has criticized the widespread use of these types of contracts and has set a goal of slowing the growth and ultimately reducing their use.

He has made a little progress. However, we are talking about a small dent in a large bucket.

It's clear that cost type contracts are going to account for a major proportion of the dollars spent on federal contracting for the foreseeable future. As a result, we must take steps to limit unreasonable expenditures under these types of contracts.

Senator Boxer and I worked together to try to head off this problem back in 1997.

At that time, we proposed capping salary reimbursements at the salary level of the President of the United States.

However, a compromise was ultimately enacted that capped how much the top 5 highest earning contractor executives could charge the federal government for their salaries.

The cap was set at the median salary of the top five executives at companies with annual sales over $50 million, which must be recalculated annually.

Since that time, the cap has more than doubled from $340,650 to $693,951. That's 53 percent faster than the rate of inflation.

The House-passed version of the National Defense Authorization bill expands the current cap to all contractor employees, not merely the top five executives, closing a loophole that was being exploited.

The version of the DoD Bill before the Senate extends the cap only to the top 10 to 15 executives.

However, Senator Boxer and I think it's time to reconsider a fixed cap at the level of the President's salary, which I should add was doubled by Congress to $400,000 since our previous proposal.

That is more than generous.

Surely the taxpayers should not be asked to pay the salary of a contractor more than the President makes, which is twice what any cabinet secretary makes.

Keep in mind that this cap just limits how much Uncle Sam can be billed for, which is on top of whatever the company chooses to pay its employees out of its own pocket.

Not only would our straightforward cap save man-hours in the Office of Federal Procurement Policy, which has to gather the data every year to determine the current convoluted cap, but it would save millions of dollars that need not be spent.

Again, we cannot afford to go on wasting our increasingly limited defense dollars.

We have to be more aggressive in weeding out waste in defense spending and this is one unnecessary expenditure that we can easily eliminate in favor of higher priorities.

I urge my colleagues to join us in this commonsense cost cutting measure.

I yield the floor.

Mr. President, I rise to inform my colleagues that I am placing a hold on H.R. 3012, the Fairness for High-Skilled Immigrants Act. This bill would eliminate the per-country numerical limitations for employment-based visas and increase the numerical cap for family- based immigrants. I have concerns about the impact of this bill on future immigration flows, and am concerned that it does nothing to better protect Americans at home who seek high-skilled jobs during this time of record high unemployment.

I ask permission to speak for 20 minutes in morning business, but it will probably be less than that.

Yes, go ahead.

Amendment No. 1174

Mr. President, when the Congress passed the health care law, it imposed a mandate on individuals who lacked health insurance to purchase it. Since then, a number of courts have held that the individual mandate exceeds the power of Congress to regulate interstate commerce.

The Supreme Court will soon hear a case on this question.

The Supreme Court, which usually gives a case 1 hour of oral argument, is giving the various issues in this case 5\1/2\ hours. This is a modern record.

The Supreme Court should exercise its powers of judicial review carefully. One of its major principles of judicial restraint is that an act of Congress is presumed to be constitutional. But this is a presumption that can be rebutted. It derives from the respect that one branch of government gives when reviewing the actions of another.

If Congress has made a determination that a statute is constitutional, the Supreme Court should give that finding some level of deference.

But the presumption rests on a premise that Congress has made a considered judgment on the constitutionality of the laws it passes. In the case of the health care bill, this did not happen. Republicans raised a constitutional challenge to the individual mandate that was brushed aside by Democrats who favored the bill as a policy matter, and were not going to let a serious constitutional issue get in the way of passing the law.

In fact, we know that there was no Congressional consideration of the constitutionality of this unprecedented restriction of the freedom of American citizens.

I mean unprecedented literally. Congress has never before discovered or exercised this power in more than 200 years of this country's history. And since Congress has never before imposed a requirement to purchase a product, no Supreme Court precedent has ever found that Congress may do so.

Instead, apart from the regulation of items such as navigable waterways or communication lines, the Supreme Court has always discussed the subjects that Congress may regulate under the Commerce Clause as ``activities.'' The Court has never held that Congress can use its Commerce Clause power to regulate inactivity--or require people to engage in commerce. The Court has found that Congress cannot regulate intrastate economic activities that in combination do not affect commerce. And Congress cannot regulate non-economic activities, such as carrying a gun in a school zone.

So it should be clear that Congress cannot regulate inactivity--such as a thought or a decision not to purchase health insurance.

Congress has great power under the Commerce Clause to reduce individual freedom. In 1942, the Court ruled in Wickard v. Filburn that a farmer could be penalized for exceeding a quota on the amount of wheat he could produce, even when the excess went for providing food for his own farm and its livestock.

And that Commerce Clause decision has allowed Congress to pass many significant regulatory laws, such as environmental laws, drug laws, and the public accommodation provisions of the civil rights laws.

But in every such case, the regulated person retained the freedom to avoid being regulated. A person who did not want to comply with environmental laws could stop engaging in the activity that fell under the environmental laws. A person who did not want to be subject to the drug laws could avoid transporting drugs.

And a person who did not want to adhere to the public accommodation laws could leave the public accommodation business.

The individual mandate is different. The mandate requires action. And there is no escape. A person cannot opt out of the activity that triggers the regulation because the mandate applies even to inactivity. If the person is alive, then he or she has to buy health insurance. That is a serious and novel threat to individual freedom.

Congress has offered incentives to change people's behavior.

But it is hard to see why Congress would do that if it had the power it now claims to force people to buy particular goods and services. Under this logic, Congress could require people to buy new GM cars, so it would not have enacted Cash for Clunkers. Similarly, this supposed power would allow Congress to order people to pay money to third parties rather than raising taxes. And a decision upholding the mandate would permit Congress to keep beef prices high by requiring vegetarians to buy beef.

Members of Congress could use this supposed Commerce Clause power to entrench themselves in office. They could require people to buy houses or cars or other products in areas where their political party has its base of support.

Despite the arguments of the Obama Administration, the power it claims that Congress can use to compel people to buy goods and services is not unique to health care. The judges who are honest recognize that if Congress can force people to buy insurance, Congress can force the purchase of any product or service.

It can regulate inactivity because that can affect interstate commerce.

This conclusion is consistent with the opinion of the Congressional Budget Office. In a 1994 memo, CBO wrote that ``a mandate-issuing government'' could lead ``in the extreme'' ``to a command econom[y] in which the President and the Congress dictated how much each individual and family spent on all goods and services.''

In June of this year, the Supreme Court unanimously decided in the Bond case that an individual--not only a State--could challenge the constitutionality of a Federal statute as exceeding the power of Congress to enact under the 10th Amendment. The Court wrote, ``By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.''

The case now before the Supreme Court raises first principles about our republic. The people are the sovereign in our country. The government serves the people, not the other way around. That is enforced through a Constitution that gives the Congress limited powers. In the Federalist Papers, James Madison wrote that the powers of the Federal Government are few and defined, and the powers of the States are many and undefined. Although there is much more interstate commerce in today's economy than there was in 1787, the power is still limited.

If Congress can require Americans to purchase goods and services that Congress chooses, without a limiting principle, then there is no limited Federal Government. There would be no issue that Congress could not address at the

Federal level. There would be no range of State powers that the Federal Government cannot usurp. The 10th Amendment would be a dead letter, as there would be no powers reserved to the States.

Congress exceeded its enumerated powers in passing the individual mandate.

It attempted to create an all-powerful Federal Government that posed a threat to liberty that the Supreme Court unanimously warned against in the Bond case. All the Supreme Court need do to strike down the mandate is to adhere to its position in Bond. If it departs from that view and upholds the mandate, then our hopes for liberty may depend on a new President charting the course contained in Judge Kavanaugh's dissenting opinion in the D.C. Circuit case. Judge Kavanaugh wrote that a President is not required to enforce a statute that regulates private individuals that the President believes is unconstitutional.

This is true even when a court has held the statute to be constitutional.

Mr. President, the upcoming Supreme Court decision on the constitutionality of the individual mandate is important not only for the fate of that provision, but for its effect on the powers of the Federal Government and the very survival of individual economic liberty.

I yield the floor.

I suggest the absence of a quorum.

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

I ask for the yeas and nays.

Mr. President, since the Senate last convened, I have learned of the loss of a brave Iowan who was defending freedom overseas. Marine Corporal Zachary Reiff was wounded during combat operations in Helmand Province, Afghanistan and later succumbed to his wounds. This news has hit the close knit community of Preston, IA very hard. My prayers go out to all who knew Zach, particularly his parents Marcia and Matt, as well as his brother Kolby and his sister Emily. By all accounts, he was active in school, having played football, wrestled, and ran track as well as participating in school plays. As such, there was certainly no shortage of people in the community with memories to share. It is also evident that Zach is well thought of judging by the outpouring of good will following the news that he had been wounded. Zach is described as a caring person. Certainly, the beaming smile in many pictures posted on a Facebook prayer page in his honor makes even those who didn't know him wish that they had.

Friends say that Zach was proud to serve his country and liked his work. Zach Reiff is one of those special Americans who throughout our history have not hesitated to put their life on the line for the Stars and Stripes and everything it stands for. Our country is truly blessed to have patriots such as Zach Reiff. We owe him more than we can express and we have an obligation to remember him and his sacrifices in the name of liberty.

I ask unanimous consent to address the Senate as in morning business.

Mr. President, I am pleased the Supreme Court has agreed to hear the arguments in three cases challenging the constitutionality of the health care reform law Congress passed 2 years ago. I appreciate that the Obama administration asked the Supreme Court to hear this question. In light of the importance of these cases, I have written to Chief Justice Roberts asking him to provide live audio and video coverage of the oral arguments.

The constitutionality of the health care law was the subject of a hearing in the Judiciary Committee last February. Regrettably, the Judiciary Committee would not hold such a hearing until after the bill became law. Those who voted for that law should have given these constitutional questions more attention before they voted for the bill. Today I wish to discuss the issues that are presented in the cases, focusing primarily on the constitutionality of the individual mandate and another recent appellate court ruling on that topic.

When Congress passed this law last year, we were told it would be very popular and truly and clearly constitutional. Neither is true. Polls show that the law remains unpopular. The law's individual mandate provision requires nearly all Americans who do not otherwise have health insurance to purchase such insurance or to pay a monetary penalty. That provision also raises serious constitutional questions about the scope of congressional power to regulate interstate commerce.

Normally, the Supreme Court grants only 1 hour for oral argument. Here, the constitutional questions associated with the bill are so difficult that the Supreme Court has decided to devote 5\1/2\ hours to oral argument. The answers to the questions are not clear. Besides considering the commerce clause question, the Court will also hear oral arguments on three other questions. The first is severability: Will the remainder of the law stand if the individual mandate is struck down? Normally, the Court does not even consider severability until it has decided that a part of a statute is, in fact, unconstitutional. The fact that at least four Justices have voted to hear arguments on this question should cause uneasiness among those who are confident that the law is constitutional. The second issue is the constitutionality of the law's expansion of the Medicaid Program upon the States. The third is whether procedurally the law can be challenged in the courts before it actually takes effect.

There is always the possibility that after all the briefs, all the arguments, and all the public expectations, the Supreme Court will finally resolve whether the health care law is, in fact, constitutional. Conversely, the Court could determine that it is too soon for it to rule on the issue because the law hasn't fully gone into effect.

Before the Supreme Court agreed to hear these cases, the U.S. Court of Appeals for the DC Circuit ruled that the individual mandate was within the constitutional power to regulate interstate commerce. That court concluded that this result followed from existing Supreme Court decisions. It also ruled that Congress could, therefore, require private individuals to purchase any product that Congress chose. The majority opinion was written by Judge Laurence Silberman.

I respect Judge Silberman, but I strongly dispute his ruling and I wish to take this opportunity to outline my disagreements with Judge Silberman.

I think Judge Silberman has selectively read Supreme Court decisions. For instance, he noted that no Supreme Court has ever held the commerce clause authority is limited to people who are currently engaging in an activity that involves interstate commerce, but it is equally true that no Supreme Court case has ever held that the commerce clause covers people who are not engaging in an activity and may never do so in the future. It is not clear why Judge Silberman focused only on the first formulation and did not consider the second. This omission is even more peculiar when compounded by his omission of the Supreme Court's repeated skepticism of congressional claims that it can exercise a power that it never before discovered in more than 200 years of our constitutional history. The Court has always been wary when a new power is claimed.

Judge Silberman recognized that the power claimed here to require that the purchase of a product or service is novel, but he did not continue with the next step that the Supreme Court

would have taken. Instead, the judge concluded that the argument against the power was equally novel.

I think it is common sense no one would have made such an argument if Congress had not claimed this power. For instance, when the Supreme Court in the Plaut case ruled that Congress could not reinstate a statute of limitations once it had expired, it pointed out that Congress had never done that. It did not belittle the argument against the practice by characterizing it, as Judge Silberman did, as novel. In fact, the argument against the novel claimed power won.

Judge Silberman stated that Congress cannot regulate noneconomic behavior based on a weak link to interstate commerce. He ruled that Congress cannot regulate intrastate economic activity that in the aggregate does not substantially affect interstate commerce. Agreeing with Judge Silberman, so far so good. But then he found that decisions whether to purchase health insurance do affect interstate commerce. However, the Supreme Court has never ruled that Congress can regulate decisions--in other words, thoughts--on whether to purchase a good or service. The Court for decades has referred to the power of Congress to regulate activities that affect interstate commerce.

Since Congress cannot regulate noneconomic activities or intrastate economic activities that have no combined effect on commerce, then it follows naturally that Congress cannot regulate at all inactivity--such as refraining from buying a product.

Judge Silberman considered the ``activity'' argument and, in my mind, he repeated an earlier error. He concluded that no Supreme Court case had ever said that existing activity was necessary for Congress to exercise its power to regulate interstate commerce.

But it is just as true that many Supreme Court cases have described the kinds of activities Congress may regulate under the commerce clause. Judge Silberman could have as accurately found that no Supreme Court case has ever held that Congress has the power to regulate commerce in the absence of an activity.

Another way Judge Silberman selectively read the Supreme Court precedents is that he could have struck down the individual mandate consistent with all Supreme Court precedents.

This point was confirmed in the Judiciary Committee hearing we held in February. I asked the witnesses whether the Supreme Court could strike down the individual mandate without overruling any of these precedents. The Republicans' witnesses both responded that the Court could do so. The Democrats' witnesses identified no cases that would have to be overturned. So not only is the individual mandate unconstitutional, but the Supreme Court could strike it down without overturning any of its precedents.

Judge Silberman disagreed. He said the mandate here is close to the facts of Wickard v. Filburn, a famous 1942 Supreme Court decision that broadly read the powers of Congress to regulate interstate commerce. The Court then upheld the second Agricultural Adjustment Act. Under that law, a farmer could be penalized for growing wheat on his own farm even for the use of his own family and livestock. He could not grow that wheat if he exceeded his wheat quota. The homegrown wheat substituted for the wheat the farmer otherwise would have had to purchase on the open market, so the Court concluded that would depress the price of wheat when combined with the actions of similar farmers all across the country. So, obviously, in Filburn, that farmer affected interstate commerce. That may not make sense to us today, but it made sense in 1942, and it is still a precedent.

Judge Silberman, however, ruled that the regulation at issue in that case is very similar to the individual mandate, which is an inactivity if you decide not to purchase it, and that any activity involved in the Wickard case was incidental to simply owning a farm.

I take issue with that. The Wickard case differs conceptually from the individual mandate. Farmer Filburn, in 1942, could avoid the regulation by ceasing to farm, by no longer engaging in the regulated activity. In fact, that is true in all of the cases Judge Silberman cited. A person can avoid laws penalizing cultivation of marijuana by not cultivating marijuana. A person can avoid laws criminalizing child pornography by not downloading child pornography. A person can avoid public accommodation regulations by not operating a public accommodation. Those are activities Congress can constitutionally regulate under the commerce clause.

But that is not the case with the individual mandate. You cannot avoid being subject to that mandate. If you exist, if you are alive, an individual in this country, you are regulated. And, of course, that is not the situation with respect to any other decisions Judge Silberman cited. It is why he is, respectfully, wrong to find that the infringements on liberty are the same in those cases as they are in the individual mandate. The liberty of avoiding the regulation was preserved in the laws at issue in those cases. Liberty would prevail because you did not have to abide by the law if you were not in that business, but not so with the individual mandate under the health care reform bill.

Moreover, I disagree with Judge Silberman's assertion that it is for political reasons and not constitutional ones that it took until 2010 for Congress to conclude that the Constitution allows it to force people to buy goods or services. If this power truly existed, Congress would have exercised it frequently and long ago.

Why would Congress pass tax incentives to encourage people to buy hybrids if Congress could simply order you or anybody else to buy hybrids? Why would Congress give strong incentives for farmers not to grow wheat so as to keep the price up when it could force people--the consumer--simply to buy wheat? Why could it not raise the price of beef by requiring vegetarians to purchase it, so long as it did not require them to eat that beef? Why would Congress take the political heat for raising taxes when it could order some people to pay third parties for goods and services?

Even more sinister, Members of Congress could use this supposed power under the commerce clause to entrench ourselves in office. Congress could require that the goods and services Americans must purchase be limited to those providers who contribute to the political party of the Members. Or it could prohibit purchases from those providers who contribute to the other political party. It could require people to buy houses or cars or other products in areas where that political party has its base of support. Sounds a little bit like Mussolini's Italy, doesn't it?

Before the Supreme Court's Lopez decision, there were people who believed Wickard v. Filburn, since 1942, gave Congress the ability to regulate anything Congress chose to regulate. Then, in the Lopez case, the Supreme Court ruled that the commerce clause did not permit Congress to regulate the possession of handguns near schools. At the time, there was widespread fear among liberals that the power of Congress to regulate interstate commerce would be jeopardized. Those fears did not materialize. Similarly, today, people such as Judge Silberman again believe that Wickard v. Filburn gives Congress the ability to regulate nearly anything it chooses and, therefore, the individual mandate must be upheld. I do not agree.

Where I give Judge Silberman credit--and if you knew the man, you would know this is his character--is in his intellectual honesty. Unlike the Obama administration, Judge Silberman recognizes the truth. If Congress can force people to buy health insurance, he admits, it can force people to buy any goods or services. It can regulate inactivity because it can affect interstate commerce. This is consistent with the opinion of the Congressional Budget Office, which wrote in a 1994 memorandum that ``a mandate-issuing government'' could lead ``[i]n the extreme'' to ``a command economy, in which the President and the Congress dictated how much each individual and family spent on all goods and services. . . . '' That is not the America our Constitution writers envisioned.

At the oral arguments in the DC Circuit, the judges asked the Obama administration lawyer if Congress could require Americans to buy broccoli, or to buy cars to keep General Motors in business, or to set up mandatory retirement accounts in place of Social

Security. The lawyer weaseled an answer, saying that ``It would depend.'' That is not a principled position on the nature of the supposed powers of Congress, which has no limit.

Judge Silberman is a former Ambassador to what used to be Yugoslavia. He understands the difference between a command economy and a free market economy. What his decision implicitly states is that Wickard v. Filburn permits Congress to enact a command economy with no individual economic freedom whatsoever. But our Constitution provides protections for private property and for contracts. It establishes some form of a free market system. Judge Silberman's interpretation may imply that Wickard v. Filburn was wrongly decided and should be overturned, but I do not believe it is necessary to overrule that decision, any more than it was necessary to reverse the Filburn case when they decided the Lopez case.

Apart from cases, we need to go back to the basics. We should consider first principles in evaluating the constitutionality of the individual mandate in the health care reform bill. The people are sovereign in our country. The government serves the people, not the other way around. That is enforced through our Constitution. And that Constitution gives Congress just limited powers.

In the Federalist Papers, James Madison wrote that the powers of the Federal Government are few and are defined, and the powers of the States are many and are undefined. Although there is much more interstate commerce in today's economy than there was in 1787, the power is still limited. If Congress can require Americans to purchase goods and services that Congress chooses, without a limiting principle, then there is no limited Federal Government. There would be no issue that Congress could not address at the Federal level. There would be no range of State powers that the Federal Government cannot usurp. And there would be no individual economic autonomy that the Federal Government must respect. Surely, the Constitution would not have been ratified if Americans had understood it to permit such a result.

The upcoming Supreme Court decisions on the constitutionality of the individual mandate are important, not only for the fate of that provision but for their effect on the powers of the Federal Government and for the very survival of individual economic activity.

I yield the floor.

Mr. President, I would like to alert my colleagues that I intend to object to any unanimous consent agreement for the consideration of S. 1793 or its companion, H.R. 2076, the Investigative Assistance for Violent Crimes Act of 2011. Unless changes are made to address my concerns with the legislation, I will continue to object.

I oppose S. 1793/H.R. 2076 in its current form because it would expand the jurisdiction of the Federal Bureau of Investigation by giving it authority to conduct investigations of State crimes, and I believe that that is a bad precedent to set. The FBI should not be turned into a roving national police force.

I do believe in allowing Federal law enforcement agencies to assist State and local agencies, when requested. Agents providing assistance should be afforded civil liability protection.

Unfortunately, the bill excludes all other Federal law enforcement agencies that routinely provide law assistance to local law enforcement when requested. For example, local police believed the Secret Service possessed the expertise they needed to assist in their investigation of the Boston ``Craigslist Killer.'' As a result of this expert assistance, the killer was captured. There is no reason to limit States and localities to the assistance of the FBI alone, when other agencies may have the particular expertise that is needed.

Too many people think that only the FBI helps local law enforcement. That's simply not true. State and local officers develop positive relationships with their Federal law enforcement counterparts. When a violent crisis occurs, they often request assistance from the Federal agents they already work with.

I support the idea behind the legislation: to allow State and local agencies to request the assistance of Federal law enforcement to address serious State and local crimes. But that should apply to all agencies, and should be done without expanding the authority of any Federal law enforcement agency to conduct investigations of State and local crimes on its own, at the expense of other State, local, and Federal law enforcement agencies.

The bill as reported also contains an ill-advised requirement that the Bureau cannot provide assistance to State or local law enforcement agencies unless three persons have died. Given that the bill purports to permit assistance in the case of attempted mass murder, a requirement that three people have died before assistance can be provided, is flawed. Moreover, there have been serious crimes involving mass shootings in which, fortunately, no one has died. No assistance could be provided to investigate such crimes under the bill in its current form.

Until these concerns are addressed and further changes are included in the bill, I support holding this legislation on the Senate floor.

Mr. President, I appreciate the kind words of the Senator from Louisiana. Likewise, it is a pleasure not only to work with her, but the two of us have been able, on most foster care and adoption issues, to find a broad coalition of Senators. Many people don't have permanence because of the lack of adoption or because of faults within the foster care system. These Senators are very interested in bringing changes in legislation that makes that permanence and stability more a fact and creates a better quality life for these young people. I thank Senator Landrieu for her leadership.

I likewise, as she has, rise to honor National Adoption Month. I will take a few minutes to discuss my support for S. Res. 302 and for policies that promote and encourage adoption.

For years, I have championed efforts to increase awareness of adoption and help streamline the process for families who open their hearts and homes to children who have no other family. S. Res. 302 helps promote national awareness of adoption and the children awaiting families, celebrates children and families involved in adoption, and, lastly, encourages the people of the United States to secure safety, permanency, and well-being for all children.

As cofounder and cochair of the Senate Caucus on Foster Youth, I have taken a keen interest in helping children who find themselves in the foster care system. In the United States today, more than 400,000 children live in the foster care system. Many of these children have been welcomed into adoptive homes. However, over 105,000 of those in foster care are still waiting to be adopted.

According to the Administration of Children and Families in my home State of Iowa, more than 4,700 kids entered the foster care system last year, a total of 6,500 kids were in my State's foster care system in 2010.

Foster youth simply desire to have what so many of us were blessed to have; that is, a home with caring, loving parents and siblings. In other words, in a short statement, they want permanency. They want stability. Too many older children in foster care, especially those with special needs, are often the ones who wait the longest to leave foster care. These kids are less likely than younger children to find what we refer to as ``forever homes.''

While research shows that 40 percent of the Americans have considered adopting, many are reluctant because they are unsure of the adoption process. They have inaccurate perceptions about the children who are eligible to be adopted. Some believe children in foster care are there because of delinquency and other behavioral problems. The unfortunate fact is most children who are in foster care are there because they are abused, neglected or abandoned. These vulnerable children desperately need a family structure. They need parents who serve as positive role models, helping them become bright and successful members of their community.

While progress is being made to increase adoption, there is always more work to be done. Helping in this process are numerous agencies and nonprofit organizations that work tirelessly to find worthy American families who want to be adopting parents. In Iowa, one such agency is Four Oaks Family and Children Services of Cedar Rapids, IA. Four Oaks has had a recruiter working with Wendy's Wonderful Kids since 2005.

Wendy's Wonderful Kids is an innovative program of the Dave Thomas Foundation for Adoption, named after the late American business icon who founded Wendy's Restaurants. The foundation's mission is to promote adoption. It recently released a report about the success of the Wendy's Wonderful Kids Program. Specifically, the program is more focused on hard-to-place children. Recruiters work with children to find them the most appropriate placement. This program is a success story.

Congress has also adopted and acted on legislation. In 2008, I was part of a bipartisan effort to pass the Fostering Connections to Success and Increasing Adoption Act of 2008. This new law represented the most significant and most far-reaching improvement in child welfare in over a decade. It provided additional Federal incentives for States to move children from foster care to adoptive homes. It included legislation that I had introduced to make it easier for foster children to be permanently cared for by their own relatives, including grandparents, aunts and uncles, and to stay in their home communities. That, of course, is one way of bringing about greater stability.

Provisions in the law also made all children with special needs eligible for Federal adoption assistance. Previously, that assistance had been limited to children who were removed from very low-income families. The law broke new ground by establishing opportunities to help kids who age out of the foster care system at age 18 by giving their respective States the option to extend their care and by helping them pursue education or vocational training.

In late 2009, Senator Mary Landrieu and I formed the Senate Caucus on Foster Youth to give older youth in and out of care and their families a place where their voices could be heard. We wanted foster youth to be part of this legislative process. By hearing from young people and from their families who have experienced the foster care system firsthand, congressional leaders will become more aware of the issues facing young people and their families.

The caucus has and will continue to generate new ideas to prevent negative outcomes and create new opportunities for success. We wanted to focus on helping young people when they age out of the foster care children, typically at age 18. As many as 29,000 children age out every year without ever having found adoptive placement. Without the security of a family, they often end up homeless, end up incarcerated or end up maybe addicted to

drugs. Children who age out of the system enter adulthood without knowing what it was like to be raised having their own families because they were under the State's supervision. In a sense, the State was their family, and that is not much of a family. They missed out on having a mom and a dad and maybe brothers and sisters to grow up with and to learn from and with whom they would have relationships for the rest of their life. They missed out on a very important part of childhood that they will never know, one that too many of us take for granted.

They are thrown into the world and forced to take care of themselves. They struggle to pay bills, to find and hold a job, and to simply make ends meet.

That is why adoption awareness is so very important and hence the resolution we are talking about. Since the First National Adoption Day in 2000, more than 35,000 children have joined ``forever families'' during National Adoption Day. In 2010 alone, adoptions for almost 5,000 children were finalized through 400 National Adoption Day events in all 50 States, the District of Columbia, and Puerto Rico.

These are impressive numbers--numbers that make us proud of the work being done to help foster children get the proper care. But there is always more work to be done. I have said that twice but can't say it too many times. It is through awareness such as this that we can help the work to continue.

In passing S. Res. 302, this body will make an important statement about our collective support for the needs of foster children. It recognizes the families who took the giant leap to open their homes to other children. National Adoption Month is about kids who need a home, it is about kids who just want a mom and a dad, it is about helping children who are victims of neglect and abuse, and it is about giving children living in foster care the ability to live their dreams.

We need to keep working together to break down the barriers to adoption so every child feels the relief of a solid family. I am proud to support the many kids who wait for permanency and stability but, more importantly, I want to salute the many organizations that are helping to make their dreams come true.

I yield the floor, and I suggest the absence of a quorum.

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

Mr. President, because of the attack against Congresswoman Giffords, there has been some legislation introduced for more gun control. We are going to have to take a good look at that piece of legislation, as we have unanimously passed legislation after the tragic shooting in Virginia Tech in April of 2007. I am not going to deal directly with that specific piece of legislation, but I wish talk about some of the general approaches to gun control that are being discussed.

Getting back to Virginia Tech, the national debate surrounding updating Federal gun laws gained national attention following the tragic shooting at Virginia Tech and now, of course, has come up again because of the attack against Congresswoman Giffords.

Following the terrible tragedy at Virginia Tech, Congress passed the National Instant Criminal Background Check System. That goes by the acronym of NICS, N-I-C-S, so I will be referring to the national instant criminal background check by that acronym.

This bill, as I said, passed the House and the Senate by unanimous consent and was signed into law by President Bush. Despite the strong bipartisan support the NICS Improvement Act had, the improvement act was not a perfect piece of legislation and is a good example of why we need to be very careful when we legislate to avoid unintended consequences. So I am raising some of these issues in regard to the possible consideration of legislation that has been introduced because of the terrible attack on Congresswoman Giffords.

For example, in the next bill it actually--with unintended consequences but still doing it--stripped thousands of veterans and their beneficiaries of their second amendment rights simply because they had a fiduciary appointed on their behalf. Oftentimes, a fiduciary is appointed simply for managing disability compensation pensions or survivor benefits.

Under an interpretation by the Department of Veterans' Administration, veterans who have a fiduciary appointed are often deemed ``mentally defective,'' and are then consequently reported to the FBI's NIC system and consequently prohibited from purchasing a firearm.

Under the NICS Improvement Act--and that was a bipartisan bill--with unintended consequences, this happened: Around 114,000 veterans and their beneficiaries have been automatically denied their second amendment rights.

It is a terrible irony that veterans, who have served their country on the battlefield, who have been entrusted with our national security and have been provided firearms by their very government, are the same people the NICS Improvement Act harmed by taking away their second amendment rights, all without a hearing or formal adjudication.

We honored and celebrated Veterans Day last Friday. Yet, we are possibly going to be debating new legislation to restrict the second amendment rights of citizens without fixing the unintended consequences of our last major gun law, the NICS Improvement Act.

While the horrific events in Tucson are still fresh in our memories, as we discuss new gun control laws we also need to move forward on bipartisan legislation, such as the Veterans Second Amendment Protection Act, introduced by a bipartisan couple, Senator Burr and Senator Webb. This bill would fix the unintended consequences to thousands of veterans caused by the NICS Improvement Act.

A hearing we had this week offered me an opportunity to discuss illegal firearms tracking and the government's efforts to stop it. At the forefront of this is the Department of Justice's failed operation called Fast and Furious, where the ATF knowingly allowed illegal purchasers to buy guns. The more we learned about Fast and Furious, the more we have discovered that senior Justice Department officials knew or should have known about these nearly 2,000 guns ending up in the hands of criminals, including the drug cartels in Mexico.

At the first House oversight hearing on Operation Fast and Furious, multiple ATF agents testified that fear spread through the Phoenix field division every time there was news of a major shooting event. So that brings us back to the tragedy for Congresswoman Giffords.

Specifically with regard to the Congresswoman's shooting one agent said:

There was a state of panic, like, . . . let's hope this is

not a weapon from that case.

And ``that case'' was the Fast and Furious case, where our government decided to encourage licensed gun dealers to illegally sell guns to straw purchasers with the idea that we would follow them across the border. But there wasn't any following. So it was an effort doomed to failure in the first place. The Fast and Furious operation was failed in concept, in design, and in execution.

As the Attorney General said last week, before our Judiciary Committee: It should never have happened. And the Justice Department officials who knew about this program, including those who allowed false statements to Congress, need to be held accountable.

I thought it was fitting that late last week, Attorney General Holder finally wrote to the family of Agent Terry, the person who was murdered with two of these Fast and Furious guns found at the murder scene. This is the very same Attorney General who had an opportunity to apologize to the Terry family when he was asked by Senator Cornyn, Have you apologized to the Terry family? The Attorney General said, No. He said, Would you like to apologize now? That is what Senator Cornyn asked him. He gave an answer, but it wasn't an apology. So we have a letter late last week going to the Terry family. In his letter, he stated he was sorry for their loss, although he refused to take responsibility for the Department's role in Agent Terry's death.

At the root, then, of Fast and Furious--and a lot of rhetoric surrounding gun control legislation--have been the gun trafficking statistics provided by ATF. These unclear statistics have fueled the debate and contributed to undertaking such a reckless operation as Fast and Furious.

For example, in 2009, both President Obama and Secretary of State Clinton stated that 90 percent of the guns in Mexico were from the United States. But that statistic later changed to 90 percent of the guns that Mexico submitted for tracing to the ATF were from this country. This year, that number has become 70 percent of the guns submitted by the Mexican Government for tracing were from the United States. All the different percentages beg the question, what are the real numbers?

Articles discussing the 70-percent number misrepresent the facts, as I pointed out in a letter to then-ATF Acting Director Melson in June of this year.

First, there are tens of thousands of guns confiscated at crime scenes annually in Mexico. The Associated Press stated that in 2009, over 305,424 confiscated weapons were locked in vaults in Mexico. However, the ATF has acknowledged to my staff, in a briefing on July 29, 2011, that ATF does not have access to the vault in Mexico described in that story.

ATF also acknowledges that only a portion of the guns recovered in Mexico are actually submitted to the United States for tracing. In a November 8, 2011 court filing, the chief of ATF's firearms operation division made a declaration saying--now, remember, this is in a court filing:

It is important to note, however, that ATF's eTrace data is

based only on gun trace requests actually submitted to the

ATF by law enforcement officials in Mexico, and not on all of

the guns seized in Mexico.

That court filing further states that:

In 2008, of the approximately 30,000 firearms that the

Mexican Attorney General's Office informed ATF that it had

seized, only 7,200, or one quarter, of those firearms were

submitted to ATF for tracing.

So if Mexico submits only 25 percent of the guns for tracing, then the statistics could be grossly inaccurate one way or the other.

The discrepancies in the numbers do not stop there. ATF also informed my staff that the eTrace-based statistics could vary drastically by a single word's definition.

We have an example of different definitions. The 70-percent number was generated using a definition of U.S.-sourced firearms. That happens to include guns manufactured in the United States or imported through the United States. Thus, the 70-percent number does not mean that all guns were purchased at a U.S. gun dealer and then smuggled across the border; it could simply mean that the firearm was manufactured in the United States.

So when my staff asked ATF, how many guns traced in 2009 and 2010 were traced to U.S. gun dealers, the numbers were quite shocking in comparison to the statistics we previously heard. For 2009, of the 21,313 guns recovered in Mexico and submitted to tracing, only 5,444 were sourced to a U.S. gun dealer. That is around 25 percent.

For 2010, of the 7,971 guns recovered in Mexico submitted for tracing, only 2,945 were sourced to a U.S. gun dealer. That is only 37 percent, a far cry from 70 percent or 90 percent that we have been hearing over a long period of time, not to mention that the guns in 2009 and 2010 from gun dealers could include some of the nearly 2,000 firearms that were walked as part of our own Justice Department's Operation Fast and Furious.

We need clearer data from ATF and from Mexico. Mexico needs to open the gun vaults and allow more guns to be traced, not just the ones the Mexican Government selects. We need to know if military arsenals are being pilfered as a source--as media articles have claimed the State Department points to in diplomatic cables.

When it comes to the diplomatic cables, I sent a letter to--actually it was yesterday--Secretary of State Clinton seeking all diplomatic cables discussing the source of arms from Mexico, Central America, and South America. I believe this information is relevant to Congress, given that I discovered in a July 2010 cable, as part of my Fast and Furious investigation, that cable titled, ``Mexico Weapons Trafficking--The Blame Game,'' seeks to dispel myths about weapons trafficking. Among other things, the State Department authors discussed what they perceived as ``Myth: An Iron Highway of Weapons Flows from the U.S.''

These cables are vitally important to Congress's understanding of the problem. Further, given that they appear in documents that ATF submitted to Congress as part of Fast and Furious, there should be no reason for the State Department to withhold them as part of our legitimate oversight, even if they are classified.

There is a lot more to be said about the specific problems with the legislation that might be coming before the Judiciary Committee as a result of Congresswoman Giffords' tragedy. We have to ask a lot of questions to flush out some of these serious problems. We don't want to happen in this legislation what happened in the NICS Improvement Act when 114,000 veterans were denied their second-amendment rights and, consequently, avoid these unintended consequences. We should not be legislating away any constitutional rights people have under the second amendment.

I yield the floor and suggest the absence of a quorum.

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

I thank Senator Johanns for his leadership in this area. He has spoken on regulations quite regularly on the Senate floor and also in our caucus, and I thank the Senator for his leadership in that area.

No. 1, I would say there is a certain irony between a President who is going around the country now and talking about, We have got to pass legislation to create jobs, at the very same time as the Senator demonstrated in his remarks that there is a health care bill law being instituted that is making people unemployed.

There is also a certain irony in what the President does and the Secretary of HHS does with what Speaker Pelosi said at the time the bill was up: You know, we have got to pass this bill to see what this bill does. Well, now we are finding out what it does, and people don't like what it does.

You spoke about regulations causing unemployment, and you spoke about 10,000 pages of regulations. That is probably 10,000 pages of regulations out of the 66,000 pages of regulation that we have had this year, and 10,000 of that deals with health care. But think about the other 57,000 pages that deal with other pieces of legislation that are a problem for small businesses--particularly small businesses. I guess it is a problem for all business, but particularly for small business. And so far, a few regulations have been issued adding up to that 10,000 pages.

People can read this 2,700-page bill and understand what is in it, and most of them read it and understood what was in it before Speaker Pelosi said, ``We have got to pass it to find out what is in it,'' and didn't like what was in it. But in this bill, there are 1,693 delegations of authority to write regulations. So if you have 10,000 pages so far based upon the new regulations that have been written, just think what it is going to be like when all of the pages are printed for the 1,693 regulations. So I think we are at the tip of the iceberg so far in this legislation, and the damage that is done to employment and lack of job creation has just started. That is my comment on that.

I have some remarks I wish to make, if it is okay with the Senator; and if he has to go to a committee meeting, I understand.

This is not the first time this situation has happened in Iowa, and it is coming at a time when people need stability. American families are struggling to put food on their table, pay their utility bills as winter arrives, and purchase health insurance as costs are skyrocketing.

In other words, the President has promised: Pass this legislation and it is going to keep health care premiums down, but that is misleading people, and at a time when, as Senator Johanns said, another promise made was: If you like what you have, you are going to be able to keep it.

Well, I don't know exactly the figure--I have got it here coming up. There is a figure of several thousand people in our State who aren't going to be able to keep the health insurance they like and they already have because of this company closing down individual policies.

Unemployment continues to hover around 9 percent and 1 million Americans are underemployed, and here we have a health care bill that is causing more people to be unemployed, as well as not keeping the health insurance they want. With the economic situation our country is facing, Congress must reexamine its actions and realize the errors that were made because of partisan votes. This bill was an entirely partisan piece of legislation, unlike most social contracts in America that have been passed, such as Social Security, Medicare, and Medicaid, civil rights legislation. Those were bipartisan pieces of legislation because it was felt that when you are making this difference in America, you ought to have a broad consensus that major changes such as this ought to be made. But in this particular case, it was very partisan.

I want to go over to what Senator Johanns said about the Des Moines Register article. The American Enterprise Group, an insurance company participating in individual health insurance markets in Iowa and Nebraska, is leaving the market. This action

shows the importance of repealing and replacing the health care overhaul passed by Democrats in Congress and signed by the President last year before the situation deteriorates even further. Just think what it is going to be like when we get the rest of these 1,693 delegations of authority to the bureaucracy to write regulations.

American Enterprise notified 110 employees in Iowa and Nebraska that they will lose their jobs sometime during the next 3 years. American Enterprise is leaving the individual health insurance market as a result of the instability caused by the implementation of this health care reform bill. American Enterprise stated it will no longer sell individual health insurance policies because of the regulatory environment created by the health care reform bill.

This isn't an isolated incident for Iowa, this one company, because the Principal Financial Group left the small group insurance market in 2010, and Principal Financial isn't a small Main Street operation. It is one of the major financial groups in the United States, but still, they could not find it to be competitive to stay in the individual market.

This has cost many Iowans their jobs, while leaving scores of small businesses and their employees to choose from health insurance plans in a health insurance market where there is less and less competition. The regulatory culprit in this incident is a medical loss ratio regulation of this legislation. This regulation requires insurers to pay a certain percentage of premiums in claims.

I know supporters will defend the regulation as ``keeping insurers in check.'' But the real world effect is to force insurers to leave the market, thereby reducing competition and choice available to consumers--not exactly what the President promised, that we are going to have competition, keep price down, and people are going to have choice, they are going to be able to keep what they want if they have it. But in this case, for these people, that isn't a promise kept. That turns out to be a falsehood.

The small group and individual markets happen to be very vulnerable. That is the problem. Insurers risk and set their premiums accordingly. Insurers are making a rational decision to get out of the market because the risks have become too great. Competition is reduced. Costs rise.

Once upon a time, the President promised Americans that if they liked the insurance program they have, they can keep it. This is more evidence that that promise rings hollow.

This recent planned pullout will leave 35,000 individuals without insurance plans that they have grown accustomed to. Forcing people to choose a different insurance option can lead to higher costs and may limit the health care accessibility these individuals have depended on for years. This is especially detrimental when these individuals have preexisting conditions or acute chronic disease. The President specifically promised that if these people want to keep their health care coverage, they would be able to do it with the passage of that law. This is just one of the many examples of how this overhaul has led to broken promises made by the President when pushing through the passage of this legislation in a partisan way.

These problems will certainly continue as more regulations are written. The Congressional Budget Office expects people in the individual market to see an average of a 10-percent to 13-percent rise in premium costs solely based on the passage of the health care law. Does that increase accessibility or affordability? No, of course it doesn't.

Not only has the health care overhaul caused health insurance companies to leave parts of the health insurance market and health insurance costs to increase, it has also put added burden on employers. Some employers will no longer offer their employees health care coverage. Higher taxes and mandates put on employers by the new health care law have left many employers without resources to maintain current coverage for family members of their employees. The negative impact this legislation is having on large employers and those insured by employers was demonstrated by the National Business Group on Health. In its recent annual survey, overall planned costs for larger employers are expected to rise by 6 percent in 2012. The National Business Group on Health also notes that 7 out of 10 employers will lose their grandfather status, meaning employees will lose their current health care plans and employers will be subject to additional regulations.

According to the same survey, 3 out of 10 employers are unsure if they will continue to insure employees due to the health care overhaul. Other employers will increase the employee share of the insurance premium, and many employers state they will likely lower the level of health care coverage offered to their employees. Walmart, as an example, will not allow many of its new part-time employees to receive health care insurance through the company. Many of these workers are underemployed. They work hard yet do not always have adequate resources to purchase health care insurance on their own, especially as costs in the insurance markets continue to increase due to the new law.

Additionally, many businesses are simply dropping coverage for their own employees because of the extra costs incurred in the legislation. It is more affordable for some employers to drop coverage for their employees and pay the fine associated with the employer mandate. An employer must provide health insurance for their employees if they have more than 50 employees or 50 full-time equivalents. Employers who are required to insure employees will be fined $2,000 per employee who seeks health insurance through one of the exchanges created under the health care overhaul, and any employer-sponsored plan must meet the definitions of HHS on what an adequate plan is under the mandate.

This requirement will increase insurance costs for employers and employees when they must upgrade health insurance benefits in order to meet the standards defined by HHS. Forcing employers to provide health insurance when they have a tough time hiring new employees just adds to the burden employers are facing in this struggling economy. Employers will likely pay their increased health insurance costs by reducing employee take-home pay or by increasing the employee share of health insurance premiums. Also, employers will continue struggling in future years as the Federal Government increases year by year the requirements of health insurance benefits needed to avoid a penalty.

Furthermore, employers already faced with economic uncertainty have to deal with the government regulations that continue to change, adding to uncertainty. An HHS rule released last November allows fully insured group plans to switch insurance providers as long as the insurance benefit provided to the beneficiaries remains comparable. However, this is only for group plans that switched after November 15 last year.

HHS wrote this new rule so more group plans can find affordable coverage and shop around for similar coverage at cheaper rates. But if the group insurance plan carrier was changed before November 15, the plan would lose grandfather status and then be subject to a whole bunch of new regulations. Ironically, what created the need for this new rule was another rule the President's administration and HHS crafted in June last year that stated plans would lose their grandfather status if they switched carriers. This chaotic situation shows what happens when the government is given more authority to regulate the health insurance market.

What we have is a mess. We need to put a halt to the implementation. We need to repeal the law and start over again with commonsense solutions. We need to move away from the regulatory and bureaucratic nightmare that is costing Americans their coverage and too many Americans their jobs.

With 10,000 pages of regulations at this point, just think what it will be like when all 1,693 regulations get written.

I yield the floor.

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

Mr. President, today the Senate will confirm Judge Evan Jonathan Wallach to be a U.S. circuit judge for the Federal Circuit. With this vote, we will have confirmed 54 article III judicial nominees during this Congress, and 18 in just over a month. In only eight sessions of Congress in the past 30 years has the Senate confirmed more judicial nominees.

Our progress extends beyond the Senate floor and into the Judiciary Committee, where 88 percent of President Obama's judicial nominees have had their hearing. That is compared to only 76 percent of President Bush's nominees at a comparable point in his Presidency, in the 108th Congress. To date, 72 percent of the judicial nominations made by President Obama have been confirmed. Overall, we have made real progress on 85 percent of the judicial nominees submitted this Congress.

Furthermore, these nominees have been processed in a very fair manner. Circuit nominees have had a hearing within 66 days after nomination, on average. President Bush's nominees were forced to wait 247 days. The same can be said of President Obama's district court nominees, who had their hearings, on average, in just 79 days. President Bush's district court nominees waited 120 days, on average, for a hearing.

President Obama's circuit and district nominees have been reported faster than those of President Bush--in fact, almost 35 percent faster. I would hope that my colleagues on the other side of the aisle would acknowledge this cooperation, and they sometimes do. But it is important to remind everyone that our duty as U.S. Senators is not to rubberstamp the President's nominees. We must carefully examine the records and qualifications of each nominee before us to determine if they are fit to serve the public for lifetime positions. I don't believe my constituents would expect any less.

The fact that we are here, confirming the 54th article III judicial nominee, shows we have been performing our due diligence. However, we will continue to hold quality confirmed over quantity confirmed.

I would like to say a few words about Judge Wallach.

Judge Wallach presently serves as a judge of the U.S. Court of International Trade. He was appointed to that court by President Clinton in 1995, following confirmation by the Senate.

I would note that the Federal Circuit, the court to which Judge Wallach is nominated, is the appellate court for the Court of International Trade. In addition to international trade, the court hears cases on patents, trademarks, government contracts, certain money claims against the U.S. Government, veterans' benefits, and public safety officers' benefits claims. Of particular interest to me, this court has exclusive jurisdiction over cases related to Federal personnel matters. That includes exclusive jurisdiction over appeals from the Merit Systems Protection Board, MSPB, which hears whistleblower cases under the Whistleblower Protection Act.

Evan Wallach received a bachelor of arts from the University of Arizona in 1973, his juris doctorate from University of California Boalt Hall School of Law in 1976, and his bachelor of laws from the University of Cambridge in 1981.

Judge Wallach began his legal career as an associate attorney with Lionel Sawyer & Collins where he eventually made partner. Over time, the emphasis of his practice became media law. He also defended libel actions and represented newspapers on day to day issues, including employee grievances, collection actions, and copyright protection.

While he remained with Lionel Sawyer & Collins, he took several leaves of absences. From 1987 to 1988, Judge Wallach worked as a general counsel and public policy adviser to Senator Harry Reid. He also served as a judge advocate for the Nevada Army National Guard from 1989 to 1995. In 1991, Judge Wallach was called up to active duty to serve as an attorney in the Office of the Judge Advocate General of the Army-International Affairs Division during the first gulf war.

The American Bar Association Standing Committee on the Federal Judiciary has rated Judge Wallach with a unanimous ``Well Qualified'' rating.

Mr. President, I ask unanimous consent that all time be yielded back.

I ask for the yeas and nays.

Is there a sufficient second? There appears to be.

The clerk will call the roll.

Madam President, today the Senate will confirm two more judicial nominees, which will be the 52nd and 53rd article III confirmations of this Congress. We have confirmed 17 judges in the past 30 days.

I may sound like a broken record, but despite what others have said, we have and continue to make real progress on consensus nominees. We have taken positive action on 85 percent of the judicial nominees submitted by President Obama this year. Over 91 percent of nominees submitted during President Obama's Presidency have had their hearing. With these votes, only during 8 of the last 30 years has the Senate confirmed more judicial nominees than we have done during this year.

I would like to say a few words about the nominees, both of whom I support.

Scott Wesley Skavdahl is nominated to be a district court judge for the District of Wyoming. He is a graduate from the University of Wyoming and their College of Law. Judge Skavdahl began his legal career in 1992 as an associate attorney at the law firm of Brown, Drew, Massey & Sullivan. After 2 years with the firm, he departed for a 3-year clerkship with the Honorable William F. Downes on the District Court for the District of Wyoming.

In 1997, he returned to private practice at the firm Williams, Porter, Day & Neville, where he made partner in 2000. From 2001 to 2003, Judge Skavdahl served as a part-time U.S. magistrate judge. He also served as a State district judge for the Seventh Judicial District of Wyoming from 2003 to 2011. In February 2011, Judge Skavdahl was appointed U.S. magistrate judge for the District of Wyoming, a post he holds to this day.

The American Bar Association Standing Committee on the Federal Judiciary has rated Judge Skavdahl with a unanimous ``well qualified'' rating.

Richard G. Andrews is nominated to be a district judge for the District of Delaware. Mr. Andrews received his bachelor of arts from Haverford College in 1977 and a juris doctorate from the University of California at Berkley Boalt Hall School of Law in 1981.

He began his legal career as a law clerk to the Honorable Collins J. Seitz, Chief Judge of the U.S. Court of Appeals for the Third Circuit. Mr. Andrews then joined the Office of the United States Attorney for the District of Delaware as a Federal law clerk. After a year in that position, he was named an assistant U.S. attorney.

Mr. Andrews spent the next 24 years in that office, handling a mix of criminal and civil cases in Federal district court. He has served on three occasions as acting or interim U.S. attorney, was first assistant for a number of years in the office, and served as chief of the Criminal Division.

Since 2007, Mr. Andrews has served as State prosecutor within the Delaware Department of Justice.

The American Bar Association Standing Committee on the Federal Judiciary has rated Mr. Andrews with a substantial majority ``well qualified,'' minority ``qualified'' rating.

Madam President, I intend to object to proceeding to the nomination of Jessica Rosenworcel and Ajit Pai to be commissioners on the Federal Communications Commission.

I will object to proceeding to the nomination because the FCC continues to stonewall a document request I submitted to the FCC over 6 months ago on April 27, 2011, regarding their actions related to LightSquared and Harbinger Capital. Since then, I have repeated my request to the FCC through letters I sent on July 5 and September 8 and the FCC continues to deny my request for documents.

During the course of my correspondence with the FCC, the FCC has made it clear that it will not voluntarily turn over documents to the 99.6 percent of the Members of Congress and Senators who do not chair a committee with direct jurisdiction over the FCC. As I said in my September 8, 2011, letter their actions are misguided and unsupportable.

It not only sets a dangerous precedent for Federal agency to unilaterally set the rules on how it engages with

Congress it also prevents any meaningful ability for the vast majority of Congress to inform themselves of how an agency works.

Several months ago, I had to take similar action when I supported Senator Chambliss' hold of James Cole's nomination to be Deputy Attorney General in order to get documents from the Department of Justice. In the end, the documents we uncovered shed light on the Department's actions regarding Operation Fast and Furious and the murder of Agent Brian Terry.

I strongly believe that it is critical for Congress to have access to documents in order to conduct vigorous and independent oversight. It is unfortunate that this administration, which has pledged to be the most transparent in history, disagrees. As long as they continue to do so, I will be forced to take steps like this in order to ensure that Congress receives a complete picture of this administration's actions.