Floor Statements

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I spoke a bit earlier in relation to the nomination of Jeh Johnson to be Secretary of Homeland Security.

It is an important department with 240,000 employees, and includes the Coast Guard, the Secret Service, TSA airport personnel, and ICE officers who enforce immigration laws, our Border Patrol officers who patrol the border, the Citizenship and Immigration Service which evaluates and approves or disapproves people who apply for admission to the United States, and agency after agency.

I have watched many of these complex departments and do not believe they have been brought together to the degree they ought to be, and it hasn't had the kind of strong leadership it needs to have to be effective for the American people.

In addition to that, we have the difficulty that this administration has basically told the immigration component of Homeland Security--one of its largest components--that they shouldn't do their job. They have been blocked and instructed not to enforce the law to a degree that Professor Turley said represents an unacceptable alteration of the Madisonion understanding of the separation of powers.

In other words, the President is charged with the duty to enforce law, to see that the laws of the United States are faithfully enforced. He is not given the power to flatly direct his officers not to enforce laws of the Congress.

I am sure Mr. Johnson has many abilities. He is apparently a Wall Street lawyer, a big political campaigner, has raised a bunch of money

and gave money to President Obama. He is a close confidant of President Obama, was made the legal counsel for the Department of Defense--about which he said he was President Obama's man at the Department of Defense.

But he has not had any real leadership and management experience. He shows no interest in or desire to seize control of this Department, to make it better, and to honor the officers who are a part of it and who serve their country often at risk every day, only to find that high political appointees in that Department undermine their ability to enforce the law and place their lives at risk.

You say: Jeff, that is an exaggeration. I am going to talk tonight in some detail about some of the things this administration has done to undermine, block, and frustrate the ability of the fine law enforcement officers--ICE officers, customs enforcement officers, Border Patrol officers--who serve our country on a daily basis at risk to themselves, and it is not good.

A lot of people might not know that I was a Federal prosecutor and Attorney General of Alabama. Back in the mid-1990s when I was traveling the State, I would meet the law enforcement officers and I would ask them: What happens when you apprehend somebody in Alabama whom you identify as illegally in the country?

Their answer was: Nothing. We let them go. We are told by the Federal officials--who are the only ones that can deport anybody: If you don't apprehend at least 15, don't bother to call us. So we just don't do it.

People are shocked at that. I would have town meetings and I would ask people: What happens if your local police officer or local sheriff apprehends somebody? They think they turn them over to the Federal Government for deportation, and that did not happen. It hasn't happened in a long time. But it has gotten worse than that.

The argument was: What we would do is enforce the workplace and we would keep people from getting a job. If they don't have a job, they won't come to America. We are going to enforce that. That has never been effectively enforced. That is just talk. It is not happening. At a time of extraordinarily high unemployment, at a time when wages for working Americans are sliding downward and not going up, and when every month that goes by we see large numbers of people hired part time rather than full time, all of this is happening while we are totally unwilling to take any action which would stop illegal workers from getting jobs that Americans need.

We have American people that are hurting. We have American people unemployed. We have children and grandchildren and grandparents and mothers and fathers unemployed or only in part-time jobs. Over the last 5 or 6 years, the number of people who have gotten jobs in America is about 1.9 million over that period. That is how many immigrant workers entered the country. So the net improvement in employment in a mathematic sense has all gone to foreign workers who come to America-- legally or illegally.

So we need to be serious about this. We need to ask ourselves: Don't we have an obligation to the American people to faithfully enforce the laws, and to end the lawlessness and create a good immigration system which serves the interests of America and of American workers? I think we do. I think that is what the American people want. I think they are entitled to that, and I want to show tonight how far away from that we are today.

The reason I am talking about this is we just confirmed Jeh Johnson as the Secretary of Homeland Security. He is the political confidant of the President, and the President has no intention of enforcing the laws and has created a circumstance which is not good for this country.

Mr. Johnson, in my brief conversation with him, seemed like a nice enough gentleman. But I asked him: Why do you want this job, Mr. Johnson? You say you believe in law and you believe the laws ought to be enforced. If you take this job, you are not going to be allowed to enforce the laws. You just need to know that.

I asked him, was he going to be willing to confront the President and tell him: You can't do this. I am a sworn officer here. I have thousands of law enforcement officers working for me out there on the streets, out there dealing directly with people in violation of American law, and I can't keep telling them not to do what they are required to do. I don't have the ability to deny them the right to enforce the laws of the United States.

This issue was defined early in the Obama administration.

President Bush was slow. But President Bush, after comprehensive reform in 2006 and 2007 failed, seemed to get it. So he called out the National Guard, which made a positive difference. He stepped up enforcement. We finally began to build fencing, and he began to have a pretty good bit of workplace enforcement. They raided some chicken plants in Georgia, and they found hundreds of people working here illegally.

What happened in Georgia was they had to raise pay to get legal immigrants to come to work. What is wrong with that? Pay is too low in America. We need higher wages.

So the people during the campaign who had been interfacing with the Obama administration obviously had a deal. They were told they were going to stop these kinds of enforcement and they weren't going to do them anymore. The Immigration and Customs Enforcement raid in Washington State was a completely justified enforcement action. But pro-amnesty groups complained. As a result, the Secretary of Homeland Security Janet Napolitano--who Mr. Johnson will replace--vowed that she would get to the bottom of this problem.

An article in the Washington Times quoted a Homeland Security official as saying: The Secretary is ``not happy about it.'' Instead of enforcing the law, the Secretary investigated the law officers who were simply doing their duty--apparently in response to some demands of advocacy groups who had been pushing them during the campaign.

Then Esther Olavarria, Deputy Assistant Secretary of Homeland Security, said on a phone call with employers and pro-amnesty groups: We are not doing raids or audits under this administration.

This statement symbolized the end of workplace enforcement in America, and it is in violation of law. Workers are not entitled to work illegally in American factories or plants. Where did this come from? How did it ever get to be the idea that Americans can have their jobs taken by people illegally in the country, and you can't ever do an investigation or enforcement action and remove people who are illegally here and not authorized to work?

Then, in 2010, the administration began implementing its plan to dismantle the immigration law enforcement system as we know it.

On May 19, 2010, in an interview with the Chicago tribune, then- Director of ICE John Morton announced that ICE may not even process or accept the transfer of illegal aliens to the agency's custody by Arizona officials. Arizona, of course, was facing a very serious problem.

Mr. President, on May 27, 2010, an internal ICE email revealed that top officials declared that the low-risk immigration detainees would be able to have far greater visitation rights, with visitors staying an unlimited amount of time during a 12-hour window--which can really make maintaining order at a detention facility difficult--and also that they, the detainees, would be given access to unmonitored phone lines. The mayor of your town, who is in jail over tax evasion, doesn't get unmonitored phone line use, but apparently illegal aliens do. They get email, free Internet calling, movie nights, bingo, arts and crafts, dance and cooking classes, tutoring and computer training. All of these are for people who have been apprehended while illegally in the country. It really should be on a fast turnaround to be returned to the country from which they came.

On June 25, 2010, the National ICE Council, which is the union that represents more than 7,000 fine ICE officers, cast a unanimous vote. They voted ``no confidence'' in their Director, John Morton. According to the union, the vote reflected ``the growing dissatisfaction among ICE employees and union leaders that Director Morton

had abandoned the agency's core mission of enforcing United States immigration laws and enforcing public safety and has instead directed their attention to campaigning for programs and policies relating to amnesty.''

I have been here in the Senate now for going on 17 years and I am not aware of a major governmental employee union voting ``no confidence'' in its boss, particularly when it deals with the simple policies of law and enforcement, not even relating to some workplace rule or complaint.

In August 2010 top ICE officials began circulating a draft policy that would significantly limit the circumstances under which ICE could detain illegal aliens. In effect, ICE agents were no longer authorized to pick up an illegal alien for illegally entering the country or for possessing false identification documents. False documents? You go to the bank or you go to get on an airplane and you use a false document, somebody is going to prosecute you. But if you are, apparently, a noncitizen who entered the country illegally, you are given immunity by the administration. Why? Because they do not want to see the law enforced. That is the reason. They basically have made that decision. Under the new policy, illegal aliens could only be detained if other law enforcement agencies made an arrest for a specific criminal violation. This was the beginning of what would become known as administrative amnesty.

Then in December 2010 a Washington Post article on internal ICE emails and communications reported that ICE had padded its deportation statistics. Many of you have heard that the administration claims they deported far more people than before; therefore, they should be applauded for being effective law enforcement officers. But it is a fact that those numbers were padded and exaggerated. According to the Washington Post article, ICE included 19,422 removals in fiscal year 2010 that were actually removals from fiscal year 2009.

We have had a problem in this country. There is a growing concern about this administration not telling the truth. Their philosophy seems to be, we say whatever is convenient at the time, and when we get caught we do not worry about it, we just keep right on going and our friendly press will ignore it. But it is beginning to bite now. People are getting tired of this.

This is a deliberate--by 19,000--misrepresentation of the number of removals.

The article also described how ICE extended a Mexican repatriation program beyond its normal operation date, adding 6,500 to the final removal numbers--again, making them look better than they were.

In a March 2, 2011 memo, ICE Director Morton outlined new enforcement priorities and encouraged agents not to enforce the law against most illegal aliens and to only take action against those who meet certain priorities.

On July 17, 2011, ICE Director Morton issued a second memorandum further directing ICE agents to refrain from enforcing the law against certain segments of the illegal alien population--criteria similar to that under the DREAM Act--despite having no legal or congressional authority to do so and despite the fact that Congress had explicitly rejected the DREAM Act three times. This is a matter of serious constitutional import.

On June 17, 2011, ICE Director Morton issued a third memo instructing ICE personnel to consider refraining from enforcing the law against individuals engaged in a protected activity related to civil or other rights. So if you are in the country illegally and, for example, union organizing or complaining to authorities about employment discrimination or housing conditions, you can be protected from being deported. Anybody who is in a nonfrivolous dispute with an employer, landlord, or contractor seems to be eligible to avoid the consequences of being in the country illegally.

On June 23, 2011, the ICE Agents and Officers' Union again expressed outrage over Director Morton's actions, noting that since the administration was ``unable to pass its immigration agenda through legislation, it is now implementing it through agency policy.'' That is exactly what they did. Everybody who knows enough about what is going on knows that is what they did. But somehow, like the frog in the ever- warming water, we are oblivious to the consequences when an executive branch declares and directs a law to be enforced and carried out that was never passed and in fact was rejected in recent years three separate times.

The ICE officers association accused the appointees of working hand in hand with the open borders lobby--they see this on a daily basis-- while excluding its officers, the ICE officers, from the policy development process.

In effect, ICE officers allege that the political appointees at ICE were advancing the agenda of those here illegally and maneuvering against their own law enforcement officers trying to do their duty--to enforce the law and end the illegality in America. That is exactly what they said was happening, and that is exactly what is happening, colleagues.

On June 27, 2011, an internal memorandum revealed that ICE officers attempted to publicly distance themselves from the administrative amnesty policies and deny that they ever existed after the Houston Chronicle exposed the Department of Homeland Security directive to review and dismiss valid deportation cases then in process.

On August 1, 2011, the Justice Department filed a lawsuit in Federal court to stop Alabama's law that was designed to assist the Federal Government in identifying and bringing forth to the Federal officials people in the country illegally.

On August 18, 2011, Secretary Napolitano announced that DHS was reviewing all pending and incoming deportation cases to stop proceedings against those illegal aliens who were not DHS priorities.

On September 28, of 2011, at a roundtable with amnesty advocates, President Obama admitted that his deportation statistics were misleading. He said:

The statistics are actually a little deceptive because what

we've been doing is . . . apprehending folks at the borders

and sending them back. That is counted as a deportation even

though they may have only been held for a day or 48 hours.

That is pretty interesting. So the President is meeting with amnesty advocates, and he is admitting this to them but not to the American people. He told the American people they had an enhanced number of deportations. But when he met with the amnesty people to assuage their complaints that too many people were being deported, he said the numbers were not correct.

We need the President of the United States to look the group in the eye and say: If you come to America illegally, expect to be deported if we apprehend you. What else should he say? He is the chief law enforcement of America. He is charged with ensuring that the laws of the United States are faithfully executed.

On October 12, in testimony before the House Judiciary Committee, Director Morton admits that Cecilia Munoz, a former senior vice president of the National Council of La Raza and now assistant to the President and Director of the White House Domestic Policy Council, assisted in the preparation of the administrative amnesty memorandum.

La Raza has been awfully aggressive on these issues. They have every right to be aggressive, but I have to tell you their positions are nowhere near anything that comes close to being an advocate for a lawful system of immigration in America. They want the lawlessness to continue.

On October 18, 2011, ICE refused to take any action after the Santa Clara County, CA, Board of Supervisors voted to stop using county funds to honor ICE detainers except in limited circumstances.

Let me tell you about this. I have been an attorney general and a U.S. attorney. A detainer is a very useful law enforcement tool that is critical for harmonious relationships between various agencies. If somebody arrests somebody and they are serving time for drug dealing or burglary and another jurisdiction has a charge against him, they place a detainer against him at that jail. As soon as they finish their term, they are not released; they are turned over to the agency that has another charge pending against them.

So the Santa Clara County Board of Supervisors voted not to allow the Federal Government to place detainers on people in their jail who were here in the country illegally and voted, in effect, not to turn them over, as all law

enforcement officers do and have done for decades.

So ICE didn't do anything about it. They still send them Federal money for law enforcement. They have things that they could do. They just went along with it because I guess they don't care.

On October 19, ICE refused to act after the mayor of District of Columbia, Vincent Gray, issued an order to prevent the DC police from enforcing U.S. immigration law. Among other things, the order prohibits all public safety agencies from inquiring about an individual's immigration status--they can't even inquire about it--or from contacting ICE if there is no nexus to a direct criminal investigation other than immigration.

The District of Columbia knows better than that. ICE says their officers can't even inquire to see if somebody is illegally in the country? That is a stretch. That is unacceptable. We ought to cut off funds for cities that refuse to at least conduct minimal cooperation with Federal law enforcement.

October 31, 2011, the Justice Department filed a suit against South Carolina to block their immigration law designed to help the Federal Government enforce immigration laws. They had plenty of time to sue States and other entities who want to help them enforce the laws. They had plenty of time also to meet with amnesty groups but no time whatsoever to meet with these law officers and find out what their concerns are or to draft policies that would help us to be more effective.

On November 7, 2011, USCIS issued a memo stating that USCIS will no longer issue ``notices to appear'' in immigration court to illegal aliens who do not meet administration priorities. That is a major step backward.

On November 22, the Justice Department filed suit against Utah's immigration enforcement system. They have plenty of time to sue Utah, which would like them to help enforce the law.

On November 22, ICE refused to act after Mayor Michael Bloomberg signed a measure ordering all New York City jails to ignore certain ICE detainers issued to deport illegal aliens from those jails. So the mayor of New York issues an order not to honor the detainers placed there by the Federal Government--the U.S. government.

Mr. Bloomberg is spending millions of dollars of his billion-dollar wealth to lobby the House to pass an amnesty bill. It is his money; I guess he can spend it where he wants to. But just because he has made $1 billion, I don't think it suggests to me that he has any better idea about how to run the immigration system of the United States than I do, since I spent 14 years dealing with Federal law enforcement.

On December 15, 2011, DHS rescinded Maricopa County, Arizona's 287(g) agreement, a cooperative agreement whereby local law enforcement received training in identifying and apprehending illegal aliens and handling them in a way preferably consistent with law--being very careful in how we treat people who are detained in a decent and very fine way. The 287(g) Program is a very fine program. It really is good. And it is a great disappointment to me that this administration has basically killed it.

I remember Alabama was the first State in the Nation that participated in the 287(g) Program. A certain number of officers--not a huge number--came to a training center for several weeks and were trained on how to be of valuable assistance to the Federal officers to maximize their ability to be effective. This has been canceled. It basically ended under this administration.

Director Morton told a Maricopa County attorney that ICE will no longer respond to calls from Maricopa County sheriff's officers involving traffic stops, civil infractions, or other minor offenses. DHS's legal reasoning is unclear given that Federal law requires the Federal Government to respond to inquiries by law enforcement agencies to verify immigration status. In other words, local officers apprehend somebody and they make an inquiry as to whether this person is lawfully in the country and they have a right to be responded to. Apparently, they have chosen not to respond to that basic law enforcement request.

On December 29, 2011, ICE announced the creation of a 24-hour hotline for illegal alien detainees to be staffed by the Law Enforcement Support Center--the same organization that ICE had already stated was understaffed as far as keeping up with the immigration status check requests for State and local law enforcement. They were getting lots of requests for statuses on people, about whether they were legally or illegally here, from local law enforcement. They don't have enough time to do that, but now these officers have been given the extra duty of having a 24-hour hotline for illegal alien detainees. Who are we serving here?

ICE then revised its detainer form to include a new provision which states ICE should consider this request for a detainer operative ``only upon the subject's conviction'' of an offense. It completely ignores the fact that presence in the United States of America illegally is a violation of federal law.

On January 3, 2012, there was a report by the inspector general that revealed that USCIS officials or top political officials pressured the employees to approve applications that should have been denied and that employees believed they did not have enough time to complete the interviews of applicants, ``leaving ample opportunity for critical information to be overlooked.'' The 911 Commission said people should be interviewed face-to-face, but that idea has completely collapsed today.

On January 10, 2012, the President promoted Cecelia Munoz to be the new Director of his Domestic Policy Council. She previously served as senior vice president of La Raza. We need an objective person in that position, not an advocate for undermining the law. I am not saying she is a bad person. She is perfectly legitimate to be an advocate for amnesty or open borders. It is a free country. But she ought not to be put in a top position where the duty is to enforce the law.

On January 17, 2012, DHS stopped the rollout of the Secure Communities Act in Alabama, according to a DHS email, because the administration disagrees with Alabama's immigration law. They just quit cooperating.

In January 2012, ICE attorneys in Denver and in Baltimore recommended that the agency voluntarily close 1,667 removal cases, resulting in the release of illegal aliens already in proceedings without consequence of their violation of immigration law.

On January 19, 2012, the President issued an Executive order waiving certain screening safeguards, allowing those applying for nonimmigrant visas--people who come here to work only--to obtain them more easily from China and Brazil. On the same day, the State Department announced it will waive the longstanding statutory requirement of in-person interviews by a consular officer.

On February 7, 2012, ICE announced the creation of a public advocate who is to serve as a point of contact for aliens in removal proceedings, community advocacy groups, and others who have concerns, questions, and recommendations they would like to raise about the enforcement of laws and amnesty efforts.

In February 2012, the President revealed in his budget a proposal to cut funding for ICE and the 287(g) Program, effectively gutting the program.

On April 17, 2012, the administration announced it would reduce National Guard troops stationed at the border from 1,200 to 300. Is this an action of an administration that seems to be interested in seeing that we have a lawful system of immigration we can be proud of, a legal system that promotes the interests of the United States of America? Are we at a point in time where we are undermining law?

I have about half of these done so far, and I could continue. It goes on and on and on. It is a consistent trend and agenda. It is basically, if you don't grant amnesty, Congress, I am not going to enforce the law. Just forget it. I am going to direct my officers to do what I want them to do, not what the law of the United States requires them to do. It is a deep and fundamental challenge to the very integrity of American constitutional order.

People say: Jeff, you are exaggerating.

Let me tell my colleagues about a recent House Judiciary hearing that was held on the President's constitutional duty to faithfully execute the laws. Chairman Goodlatte summarized the reason for the hearing as follows:

The Obama administration has ignored the Constitution's

carefully balanced separation of powers and unilaterally

granted itself the extra constitutional authority to amend

the laws and to waive or suspend their enforcement. This raw

assertion of authority goes well beyond the executive power

granted to the President and specifically violates the

Constitution's command that the President is to take care

that the laws be faithfully executed. The President's

encroachment into Congress's sphere of power is not a

transgression that should be taken lightly. As English

historian Edward Gibbon famously observed regarding the fall

of the Roman Empire, the principles of a free constitution

are irrevocably lost when the legislative power is dominated

by the executive.

From ObamaCare to immigration, the current administration is picking and choosing which laws to enforce. So this is correct. I believe Chairman Goodlatte is discussing an important issue.

What about the testimony of the witnesses at that hearing? It was stunning. One witness, Professor Jonathan Turley, well known throughout the country, writes a lot in publications and legal journals. He is the Shapiro Professor of Public Interest Law at George Washington University Law School and is a nationally recognized constitutional scholar. He said he is a supporter of President Obama's policies and voted for him. But I want you to hear this, colleagues. Professor Turley, at the hearing, said this:

I believe the president has exceeded his brief. The

president is required to faithfully execute the laws. He's

not required to enforce all laws equally or commit the same

resources to them. But I believe the president has crossed

the constitutional line in some of these areas.

(Ms. WARREN assumed the Chair.)

He goes on--this is a direct quote--

This goes to the very heart of what is the Madisonian

system. If a president can unilaterally change the meaning of

laws in substantial ways or refuse to enforce them, it takes

offline that very thing that stabilizes our system.

He goes on:

I believe the members will loathe the day that they allow

that to happen.

He is talking about Members of Congress. ``I believe the members [of Congress] will loathe the day that they allow that to happen.''

He goes on:

This will not be our last president. There will be more

presidents who will claim the same authority.

When I teach constitutional law, I often ask my students,

what is the limiting principle of your argument? When that

question is presented to this White House, too often it's

answered in the first person, that the president is the

limiting principle or at least the limiting person. We can't

rely on that type of assurance in our system.

That is what Professor Turley said, who voted for President Obama and is a well-known legal scholar. That is dramatic testimony and we need to listen to it. I am hearing it from my constituents daily. They think this administration is not telling the truth on a regular basis. They cannot imagine how we can pass a health care law, and the President is just going and picking and choosing what parts of it he wants to go forward, what parts he wants to delay. How can this happen? Is this a legal system or not?

Mr. Turley goes on:

The problem of what the president is doing is that he is

not simply posing a danger to the constitutional system; he

is becoming the very danger the Constitution was designed to

avoid: that is, the concentration of power in any single

branch. This Newtonian orbit that the three branches exist in

is a delicate one, but it is designed to prevent this type of

concentration.

Wow. This is very strong. Then, when Professor Turley was asked whether the President has acted contrary to the Constitution, Professor Turley answered in the affirmative. He said further:

I really have great trepidation over where we are heading

because we are creating a new system here, something that is

not what was designed. We have this rising fourth branch in a

system that's tripartite. The center of gravity is shifting,

and that makes it unstable. And within that system you have

the rise of an uber presidency. There could be no greater

danger for individual liberty, and I really think that the

framers would be horrified by that shift because everything

they've dedicated themselves to was creating this orbital

balance, and we've lost it. . . .

That makes the hair stand on the back of my neck. This goes to the core of our government. Are we a legal system or not? If we start eroding these classical principles of law, duty, and responsibility-- the appropriate balance between the three branches of government--we have done something that is important. As Professor Turley said, we are undermining the orbital balance. Indeed, he said we have lost it-- Professor Turley, not me.

Professor Turley goes on to say:

It's not prosecutorial discretion to go into a law and say

an entire category of people will no longer be subject to the

law. That's a legislative decision.

It is a legislative decision, not the President's decision. The legislature represents the people. Over a period of years, people are elected to this body and the House.

It goes on. Professor Turley said:

Prosecutorial discretion is a case-by-case decision that is

made by the Department of Justice. When the Department of

Justice starts to say, we're going to extend that to whole

sections of law, then they are engaging in a legislative act,

not an act of prosecutorial discretion. Wherever the line is

drawn, it's got to be drawn somewhere from here. It can't

include categorical rejections of the application of the law

to millions of people. . . .

Great Scott. He is so correct. Prosecutors have discretion. They do not have to prosecute every case that comes before them. But the President does not have power just to eviscerate whole sections of law that affect millions of people. Professor Turley hit that exactly correct. He goes on to say:

Many of these questions are not close, in my view. The

president is outside the line. . . . And that's where we have

the most serious constitutional crisis, I view, in my

lifetime, and that is, this body is becoming less and less

relevant.

He is talking to the House, the House of Representatives. You are becoming less and less relevant. He considers this to be ``the most serious constitutional crisis . . . in my lifetime.'' We sit here oblivious to what has been happening. I have talked about it an awful lot, but I guess I have not been very effective. Professor Turley's arguments and remarks just hammer home how serious it is, this question we are dealing with.

So he goes on to say this:

I believe that [Congress] is facing a critical crossroads

in terms of its continued relevance in this process. What

this body cannot become is a debating society where it can

issue rules and laws that are either complied with or not

complied with by the president. I think that's where we are .

. . [A] president cannot ignore an express statement on

policy grounds. . . .

He says the President cannot ignore an express act, statement of law because he has a different policy view.

Now, does anybody contend that he can? I would like to see them send me a note on it. Any Member of this body who thinks the President of the United States can ignore an express statement of law because he just disagrees with it on policy grounds--I would like to hear them defend that issue or explain their position on it.

He goes on to say:

[I]n terms of the institutional issue . . . look around

you. Is this truly the body that existed when it was formed?

He is talking to the House now.

Does it have the same gravitational pull and authority that

was given to it by its framers? You're keepers of this

authority. You took an oath to uphold it. And the framers

assumed that you would have the institutional wherewithal

and, frankly, ambition to defend the turf that is the

legislative branch.

Isn't that true?

. . . the framers assumed that you would have the

institutional wherewithal and, frankly, ambition to defend

the turf that is the legislative branch.

We are sitting here, we had the majority leader stand before the Presiding Officer and break the rules of the Senate to amend the Senate rules just a few weeks ago. It was a stunning development. This is Third World stuff. This is not the United States of America, a constitutional Republic that I served as a prosecutor year after year.

We took so much pride, my staff and I, in trying to make sure nobody was given an advantage or disadvantage based on status or wealth or race, intelligence or background or whatever advantage they had: equal justice under the law. We enforced the law whether anybody would have voted for it or not had we been in Congress. It was passed by Congress, we enforced the law. At that same hearing, Nicholas Rosenkranz, a professor of law at Georgetown University Law Center and the author of the single most downloaded article about constitutional interpretation in the history of

the social science research network, also testified before the House Judiciary Committee.

He stated that the President's Constitutional duty to take care that the laws be faithfully executed ``is not optional; it is mandatory,'' and that President Obama's ``wholesale suspension of law . . . is the paradigm case of a `take care' clause violation.''

He further testified:

What's striking about this is the president's decision to

enforce the immigration laws as though the DREAM Act had been

enacted, when in fact it has not. . . . Rather than declining

to comply with a duly enacted statute, the president is

complying meticulously, but with a bill that never became

law.

So they offered a bill. It was rejected by the Congress. The President is almost to the letter enforcing a bill rejected by the people's representatives. Professor Rosenkranz goes on to say:

Congress has repeatedly considered . . . the DREAM Act. The

President favors this act. Congress has repeatedly declined

to pass it. So the President simply announced that he would

enforce the Immigration and Nationality Act as though it had

been--as though the DREAM Act had been enacted. To put the

point another way, the president's duty is to take care that

the laws be faithfully executed, laws capital L, not those

bills that fail to become law, like the DREAM Act.

I think this is a serious matter and I think Professor Rosenkranz hits it directly. Professor Rosenkranz was in agreement with Professor Turley that ``prosecutorial discretion is one thing.''

It is real.

But wholesale suspension of law is quite something else,

and that is what has happened under ObamaCare. Likewise, in

the immigration context, kind of case-by-case prosecutorial

discretion is one thing, but a blanket policy that the

immigration act will not apply to 1.8 million people, that's

quite something different. This is a scale of decision-making

that is not within the traditional conception of

prosecutorial discretion.

That is certainly true. It is hard to believe we are here. I think we are here because in the great law schools of America and the top levels of our academic world in our new media and so forth, we have moved in sort of a postmodern world in which words do not have meaning. They are subject to being altered whenever they choose to fit the mood of a moment.

The President said, when he nominated people for the Supreme Court, he wanted nominees who would show empathy. What is empathy? It is not law. Is it politics? Is it bias? Is it personal opinion? Our system is based on law, not empathy, not bias, not politics, not ideology. This is a serious matter. Chairman Goodlatte then interjected:

In fact the president has taken it a step further and has

actually given legal documents to the people in that

circumstance, well beyond simply deciding not to leave them

there and not prosecute them, but to actually enable their

violation of the law by giving them documents to help them

evade the problems that ensue from living in the country that

they're not lawfully present in.

Professor Rosenkranz replied, ``Quite right.'' This matter

is not going away. We are going to deal with it. I truly

believe the American people expect this government of theirs

that works for them to produce an immigration system, a legal

system that involves ObamaCare and other policies that is

committed to law and not to the feelings of the chief

executive and not to his policy preferences.

We avoid that or we have a serious matter in this country that goes to the heart of the strength of this Republic. You could sap that strength, erode the power of our legal system. The legal system, in my opinion, is the greatest strength this Nation has.

I yield the floor.

Mr. President, we are definitely proceeding in an unusual manner at this point in time in the history of the U.S. Senate. We are moving under regular order. Nominations are being processed in regular order. Votes are being held. Debate is being shut off by the appropriate procedures. But it is unusual from what we have been doing all year and what we have been doing historically. So I guess the question is, how did we get to this point? What has happened in the Senate that has caused the difficulties we now have?

I believe it is becoming clear to our colleagues that actions that have been taking place in recent days have altered the very nature of the Senate, have eroded the collegiality that makes this body work on a daily basis, the kind of actions in which people unanimously agreed to allow things to happen different from the regular order, that allowed things to be proceeded up and go faster and move forward. It has been done on a regular basis.

But we have had a conflict, an alteration in the rules of the Senate that is so serious that it impacts the very nature of this institution and causing great concern. We have a lot of new Members in the Senate, and they have not seen how the Senate operated just in the--what?--16, 17 years I have been here. I have seen the great change, and it is a concern to me, and it is even different from that more classical operation before I came here.

It is not healthy, it is not good, and it cannot be allowed to just happen without any discussion, without any full understanding of how the majority leader of the Senate has accrued to himself powers never before allowed to be held by the majority leader of the Senate. It has altered the very nature of the debate here and the processes that involve our constitutional responsibility.

So I believe we need to talk about it. I believe we need to understand it, and somehow we need to alter what has happened.

I remember when I came to the Senate. Senator Robert Byrd loved the Senate. Senator Robert Byrd said there are two great Senates: the Roman Senate and the U.S. Senate. He gave all of us new Members a lecture about the great heritage of which we are a part. He wrote a book on the rules of the Senate.

We have had rules for quite a number of years. The standing rule of the Senate is rule XXII. It is a clear, simple directive passed by two- thirds of the Members of the Senate duly chosen and sworn.

This is what rule XXII says. It is not confusing. It is very clear. It was adopted by two-thirds of the Senate.

It says: A motion signed by 16 Senators--that is, to negotiate something, to shut off debate, you have to have 16 Senators to file a motion--a motion signed by 16 Senators to bring to a close the debate upon any measure, motion, or other matter pending before the Senate-- any measure, motion, or other matter pending before the Senate, which includes nominations--shall be decided by three-fifths of the Senators duly chosen and sworn, except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting.

Crystal clear. The rules of the Senate are to be decided by two- thirds. To bring to a close debate upon any measure, motion or matter pending before the Senate requires three-fifths, 60 votes out of our 100. That is the rule of the Senate. That has guided us for generations. It has worked well. I am going to talk a little bit about this, and I could go into even greater detail and say that the process has been working very well.

Senators on the Republican side have treated the nominees of President Obama very well, far better than were the nominations of President Bush when he came here in 2000. When I was here in 2000, his nominees were hammered, filibustered for the first time in history, held by some of the same people who now with great outrage attack those who have blocked and filibustered a few of the Obama nominees--just a few.

So it is really almost unbelievable to me that we are at this point of the rules process of the Senate. So how did it happen? Precisely what happened? I think the American people need to know.

Senator Reid, apparently irritated that he was not able to have three judges confirmed to the District of Columbia Circuit bench, decided that he was going to change the rules. Senator Schumer said he was going to get those nominees confirmed one way or the other.

I am the ranking Republican on the budget committee. This country is spending money it does not have on things it does not need on an absolutely regular basis. We are wasting taxpayers' money. So the actions of the President and the Senate majority that filled three seats on the District of Columbia Court of Appeals were scrutinized.

In my opinion, I believe it is uncontestable that these positions did not need to be filled. They just didn't. They do not have enough work on that court to need these judges. The average caseload per judge on the DC Circuit was 149 per judge--149. Well, what does that mean? Is that a lot or not a lot? It is not a lot. It is the lowest number by far of any circuit in America. The caseload has been steadily declining.

I have been chairman in the Judiciary Committee of the court subcommittee that deals with these issues. Senator Grassley was there before I came. I have been ranking member and am now ranking member on that subcommittee. We have been watching the DC Circuit. The cases continue to decline. So with 8 judges now active on that court, they are down to 149 cases per judge. Well, is that a lot? How about my circuit, the Eleventh Circuit Court of Appeals in Atlanta, GA, covering Florida, Alabama, and Georgia? How many cases do they have per judge? Hold your hat: 740. That is how many my court handles per judge.

They say they do not need more judges. In fact, they prefer not to have the court get so large that there will not be a coherent court and be able to have consistency in the law. That has been their tradition for many years, more than 20 years. They do not want more judges. Actually, we know that the judges on the DC Circuit have said they do not need more judges. We know they took off last summer. They take off long summers, unlike any other court of appeals, from May 16 to September 16. They did not hold court from May 16 to September 16.

The next lowest circuit in America has almost twice as many cases per judge as the DC Circuit. I know that our frugal Presiding Officer, as Governor of Maine, as part of that Yankee frugality for which they are famous, he knew how to manage his money when he was Governor. It costs $1 million a

year, we are told, to maintain a Federal judgeship. That is a lot of money. So we are adding three judges to the DC Court of Appeals who absolutely are not needed--absolutely are not needed.

This Senate refused to confirm them. We voted not to confirm these judges and blocked moving the final vote. They lacked the three-fifths vote to confirm those judges. But Senator Schumer said: We are going to get them done one way or the other. We do not worry about principle. We do not worry about law. We do not worry about the heritage of the Senate. We do not worry about whether we need those judges. We are going to put them in anyway.

Well, I did not pay much attention to that. I did not think he was serious about that, I have to tell you. I thought our Democratic colleagues would really understand that we have confirmed almost all of the President's nominees. Only two or three prior to that had failed out of the whole 6 years he has been in office. President Bush lost five on 1 day--good nominees--for no other reason than they had a classical view of restraint on the part of a judge.

We do not need these judges. As a matter of fact, Senator Grassley and I offered and passed legislation that moved one of the DC Circuit judges to the Ninth Circuit Court of Appeals in California, a liberal circuit. But that circuit wanted more judges and appeared to need more judges to handle the caseload.

We moved one. We have legislation to move others to someplace in America where they are needed because we are going to have to fill and add some judgeships around the country because, unlike the DC Circuit, some of the areas in our country are adding cases and are needing judges and are short of judges. So good management simply says that you take them from where you do not need them and you move them to places where you do need them and you serve the interests of the American taxpayer and you protect the money they send us. We have a holy charge to protect every single dollar extracted from every American.

The former Speaker, the Democratic leader in the House, Nancy Pelosi, said: We have cut all we can cut. We cannot find any more waste in our government. There is nothing left to cut.

Well, there are places left to cut. These three judges on the DC Circuit are just one of thousands, tens of thousands of places we could save the money we are spending that we do not need to be spending, that does not help America, does not make us stronger and does not benefit the rule of law.

So how did it happen? What happened that so upset Senator Reid? The majority leader is one of 100, puts his britches on one leg at a time. He does not get to dictate to this Senate. He gets to stand right there, and because his Presiding Officer is selected by Senator Reid-- he is the majority leader--the Presiding Officer will always recognize him first.

It is done when Republicans have the majority. It is done when the Democrats have the majority.

He asked for recognition and received it. This is how he changed the rules of the Senate that require a three-fifths vote to shut off debate. Remember, a change of the rules of the Senate is supposed to take a two-thirds vote, 67 votes.

He said to the Presiding Officer at that point, the President pro tempore of the Senate, Senator Patrick Leahy, chairman of the Judiciary Committee, a man who is most experienced in all of these matters--this is what Senator Reid said, and it makes the hair on the back of my neck stand up.

I talked to a reporter, an experienced, well-known reporter, the other day. He was talking about it, and he said--he didn't ask for confidentiality. He probably used my name.

He said: I didn't think he was going to do it, and when it started, everybody in the newsroom just stopped and we looked.

Wow. Because this was a big deal. This was a huge event in the history of the Senate. This is what Senator Reid said and everybody needs to know how it happened.

He said, ``I raise a point of order that the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.''

The vote on cloture to shut off debate, he moved that under rule XXII. He said ``under rule XXII'' that the vote on cloture to shut off debate for all nominations ``other than for the Supreme Court''--he thought of that, I suppose--``is by majority vote.''

Rule XXII says, `` . . . a motion signed by sixteen Senators, to bring to a close the debate on any measure, motion, other matter pending before the Senate . . . shall be decided . . . by three-fifths of the Senators duly chosen and sworn.''

The majority leader of the Senate, knowing precisely what rule XXII said, stood right there and asked the chairman, the Presiding Officer, to pretend that this is not a rule of the Senate and that only a majority vote is needed. That is what he said.

What did Senator Leahy say? The transcript shows Senator Leahy is the President pro tempore of the Senate. He said, ``Under the rules, the point of order is not sustained.''

It is exactly right. Senator Reid's petition that it ought to be decided by a majority vote couldn't be sustained because it is absolutely in violation of the rules of the Senate. Senator Leahy so ruled, as he was advised, I am sure, by the Parliamentarian, also selected by Senator Reid.

There is no question about this. There is absolutely no question about it.

But there is this little deal that on a matter where a Parliamentarian rules on matters dealing with the rules of the Senate, somebody can ask and appeal the ruling of the Senate, an appeal of the whole Senate to check to decide whether the Parliamentarian is correct.

They used this corrective measure to allow the will of the Senate to interpret the rules of the Senate, to break the rules of the Senate. That is what they did, lemming like, my Democratic colleagues, surely not understanding what they did, one by one they walked up and voted or voted from their chairs in support of Senator Reid.

All but two of the Democratic colleagues voted--over 50, a majority voted--to say that the rules of the Senate don't mean what they say and they will just ignore them.

The net effect was that once that was ruled, then cloture could be shut off, debate could be shut off with a simple majority. That became the rule of the Senate in a way contrary to the rules of the Senate which say ``--except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds. . . . ''

To change that rule of the Senate that says it takes 60 votes to shut off debate through a majority to shut off debate would take two-thirds. They just ignored that.

The reason it is so important is every other rule, tradition, and standard of the Senate is at stake. A very wise Senator, Carl Levin of Michigan, a longtime Democrat, chairman of the Armed Services Committee on which I sit, I have watched him work all the years I have been in the Senate and I have been very impressed. He and I don't agree on many of the substantive issues and how we approach spending, taxes, and regulations. He knows how to preside in a committee to give everybody a fair shake. He said we shouldn't do this. He pleaded with his Democratic colleagues not to vote in this fashion.

He said that if you can change a rule in this fashion, if you can alter the rules of the Senate this way, there are no rules. There is no power, no protection for the minority, other than the simple power of the majority vote. There is nothing in this Senate if we follow this precedent that can't be changed by a simple ruling of an appeal of the chair and all those rights that have always protected the minority.

That is a very dangerous thing. It was played with and talked about by the Republicans on one occasion when the entire ground rules of the Senate for confirmation of judges was altered. We found ourselves with a stunning filibuster of 10 of the first 12 nominees President Bush submitted for the court of appeals, but it was never executed. An agreement was reached to alter that.

Indeed, when this tension rose at the beginning of this year, Senator Reid agreed that changes in the process gave the majority party and the President

more power to expedite nominees and gave them more power over the minority. He was able to secure that agreement in a way consistent with the heritage of the Senate. He said at that time he was not going to seek to change the rules of the Senate again.

I wish to say this should not be looked at as a little matter. It is a very big matter. I am extraordinarily troubled by it. That is part of what is happening now.

I wish to mention one more thing on a chart I have that talks about the caseload for the DC Circuit. Look at these numbers. This is the Eleventh Circuit, 720 cases per judge, not 740, as I said earlier. Look at these caseloads per judge until you get down to the DC Circuit, 149 per judge.

We didn't need to add three judges. The existing, active judges, not counting the vacancy, just 8 active judges, only have 149 cases per judge. We don't need to add one new judge.

The President was determined to try to shove that through, and that he did, and got us into all of this turmoil when the Senate didn't agree--three-fifths of the Senate not agreeing to move forward to a final vote resulting in the lack of confirmation of those judges. That is where we are.

In the Fifth Circuit in Texas, there are 488 cases per judge; the Ninth Circuit in California, 472 cases per judge. The Second Circuit, handling some of the more complex cases in America, Manhattan in New York, there are 440 cases per judge. We can see the caseload averages around the country.

The average is 384 cases per judge. That is about 2\1/2\ times the number of cases that the DC Circuit has per judge. That is why there were objections to the nominees. I said when this happened most of these nominees would probably be confirmed, because if it hadn't been for the low caseload, that there was not a question--I suggested, without going into detail, the nominees were probably qualified and it would be unlikely that they would be filibustered because of lack of qualifications, although I was probably wrong in that for at least one of them. Pillard's nomination represents a judge whose views on the law are so outside the mainstream that I don't believe, having studied that record subsequent to those remarks, she should have been confirmed on the merits.

My basic view, as I stated from the very beginning, is not a question of the merits of the nominees. The question was do we need to spend $3 million a year for these three judges when we have other circuits that need judges and they don't need them there.

I will share with you what President Obama was looking for in his nominee.

Ms. Pillard went to Yale and Harvard. She also spent 6 years with the American Civil Liberties Union and the NAACP Legal Defense and Education Fund. She is a long-time member of the very liberal activist American Constitution Society. They believe in activist judges and advocate for that. In recent years an activist conservative legal movement has--she has been a professor at Georgetown. She has written many controversial articles and has a record exclusively devoted, it seems to me, as a very extreme, progressive, judicial philosopher who says judges do not need to be objective and are empowered to read the meanings of the Constitution to advance an agenda. It seems to be in harmony with President Obama's openly stated views about what he looks for in judges, and that is a judge who is empathetic. He has empathy.

What does that mean, ``empathy''? What it means is he wants a judge not committed to law. That is what it means.

What is empathy? Feelings, ideology, politics--that is what it sounds like to me.

The American heritage of law is based on objective criteria, the rule of law. Judges take an oath to serve under the Constitution of the United States and the laws of America. They are under them. They serve the law. They don't write the law. They don't amend the law. They don't change the law. They don't change the meaning of words in our laws or our Constitution to meet some empathetic feeling they have, some political agenda they have. And the American people are on to it. They know this is happening too much. They do not like it. They want it to stop. They do not want this kind of judge on the bench.

But many of our great law schools, many of our judicial philosophers and writers think this is all great. They think we need this kind of thing. We need to advance the law. That is what they say, and the hero to them is the one who comes up with some gimmick to reinterpret the plain meanings of our Constitution to have it say what they want it to say at a given time--to help decide a lawsuit they would like to see helped to advance an agenda.

It is really part of a post-modern approach to life, to law. Senator Reid's nuclear option execution is also a post-modern power thing. It is the result, it is the end, it is the ideology, it is the revolution. Advance the cause. No rules apply.

Some may say: Jeff, you are too hard. You shouldn't say that. That is exactly what it is, I have to say, in my belief. Remember, in 2001, when President Bush got elected, there were virtually no filibusters. A few judges had problems that were held up for a while, but there were no filibusters of judges. The Democrats met in retreat--Laurence Tribe, Marcia Greenberger, Cass Sunstein were there, according to the New York Times, and they came out of the retreat with a decision, and the decision was to alter the ground rules of confirmations. They immediately accepted the two nominees President Bush had submitted that were Democrats. One of them hadn't been confirmed under President Clinton so he renominated them. They took those two and confirmed them. They blocked ten great judges, great nominees, and this went on for over a year.

There was vote after vote after vote, and they steadfastly--Senator Schumer, the leader--blocked those judges from being voted on by a filibuster, because there weren't 60 votes to shut off debate to effect cloture. So this went on for an extraordinary time, and at some point the threat was that the nuclear option would be executed. So a group of Senators met and said: Look, let's not change the rules of the Senate by breaking the rules of the Senate. Let's reach an agreement. And this is what they said. They said: You shouldn't filibuster judges any more unless there are extraordinary circumstances to justify it. Normally, you should just vote yes or no for the judge. In most cases yes or no should be the vote, and serious filibusters of nominees should not occur except for extraordinary circumstances.

I thought that was OK. I didn't really think we should filibuster, period. But it seemed to be a reasonable compromise in a political body that would do the right thing for the confirmation process. We have been operating under that since 2002, I guess it was when that agreement was reached. I thought it was pretty good, actually. I was sort of proud of the way that came out. Therefore, President Obama has had very few filibusters.

But when this gang of 14 reached their agreement, and it sort of was adopted by the Senate, there were ten judges being filibustered out of the first batch of judges President Bush had nominated. What came of it was that five were confirmed and five failed. So on one day, five judges were defeated without, in my opinion, anything like a justifiable basis to defeat those judges. But that is the way it was. We agreed to it. Five judges were blocked and never got to serve; five more were confirmed.

And who orchestrated that? It was Senator Reid. He complained mightily when anybody would even think about ending the right to filibuster a judge, and Senator Schumer was leading the filibusters.

So when the three judges that were nominated for absolutely unneeded seats on the DC circuit were blocked, you would have thought this was the first time in history anybody had ever been blocked from being a judge in this Senate. And they went and changed the rules of the Senate. It is just unbelievable to me that we are at this point.

I truly believe that President Obama's nominees were treated fairly. I believe they have been evaluated fairly, and only a very few have been blocked.

On one day Senator Reid filed cloture on 17 nominations. It was totally set up, and do you know what he said? He said it was because we were filibustering these. Every time he filed cloture he said a filibuster was occurring.

None of these judges were blocked. All of these judges got confirmed. There was not even a vote on cloture for the 17. Yet when he claimed there was some unprecedented number of filibusters in the Senate, he is counting that. There has not been this situation.

So this is part of the tension we are involved in, and we remember that brooding over all of this is the Affordable Care Act--Obamacare-- and how that legislation was opposed by a substantial majority of Americans, consistently 2 to 1. Virtually 2 to 1 consistently the American people rejected ObamaCare. They told this Congress not to pass it. We did everything we could on the Republican side to keep it from passing. We pleaded with our colleagues not to do this.

But, oh no, they had to pass it. President Obama wanted it, and they were going to pass it. We would find out later what was in it. That was literally the gist of what happened.

Senator Scott Brown from Massachusetts--liberal Massachusetts, the home of Ted Kennedy, who believed in government's involvement in health care--was elected on a promise in Massachusetts to be the vote to kill it. There was a vacancy. Senator Kennedy's death had created this vacancy, and Senator Brown campaigned to kill and be the vote that would deny the Democrats the 60th vote, in essence.

So what did they do? They used the reconciliation budget process to pass this monumental policy change in America in a way that kept Scott Brown--and the American people, through the electoral process--from ending this piece of legislation that put us in the position we are in today, where you don't get to keep your doctor, you don't get to keep your health care, where deductibles are going through the roof, where the price of insurance is going up, where people are not being hired, where two-thirds of the people who get a job this year in America only get a part-time job, which is clearly being driven by business interests in trying to avoid being caught up in the obligations of the Affordable Care Act. But the Democrats insisted.

Senator Reid has used every parliamentary maneuver possible to block any votes that would actually fix this bill or alter it in any way.

So I just have to say we are at a point where we have to wonder whether democracy is happening in the Senate.

So we go back home. People get elected to the Senate. They campaign, and they say they want to go to Washington and change ObamaCare. Have we had a single vote this year to change ObamaCare? No, because Senator Reid knows how to fill the tree and block any votes and keep it from happening. We are not voting on it.

The House has repeatedly passed all kinds of legislation and sent it to the Senate, supposedly to cause us to respond to it, to review the legislation, to have votes, offer amendments and see what kind of response we would have to fixing the problems with ObamaCare. But what happens? Senator Reid obstructs that process. He does not allow these votes to occur. They might as well have thrown their legislation down the well.

What good is it for the House to send a bill to the Senate if it never gets brought up on the most important issue facing our country today--health care? We can't even have a debate about it or vote about it. Is this the great Senate that Robert Byrd referred to?

What about the Defense bill? The Defense bill is over here now. It spends over $500 billion--about half of the discretionary spending the United States Congress spends. What are we told? We are told the Senate is too busy. We can't bring up the Defense bill and have an amendment. No more amendments. The two little amendments that were voted on in an entire week are all we are going to get. No more amendments will be accepted. We are going to pass the bill as it is or we can vote no on it.

Why? Why? Because Senator Reid knows there are some very important issues involved in the Defense bill and they are controversial. People have different views about them, and some people on his side of the aisle don't want to vote on those because they have to stand up before their constituents and before America and before the world and actually cast a vote and be accountable for their tenure in the Senate.

Members on this side, such as Senator Tom Coburn, have ideas to fix the Defense Department and to save money. But Senator Reid won't give him a vote on it, and he objects. Senator Reid says: Senator Coburn, you are obstructing. You are one of those Republican obstructionists. You don't get a vote, Senator Coburn. I decide who votes here. I have filled the tree. I know how to fill the tree. I am the majority leader, and if you want a vote, you have to ask me, and I'm not giving you any more votes. I have had enough of you guys.

That is kind of the way it has been. It is the way it has been with the ObamaCare bill and with the Defense bill. The very idea that national security is at stake and we have a $500 billion Defense bill-- now, I'm on the Armed Services Committee, and we tried to work together. We basically had an almost unanimous vote on it. Last year we had a unanimous vote on the Defense bill. But there are still matters we carry to the floor with the full understanding there will be debate and votes on those disputed issues and the whole Senate would get to vote on them. They are not being allowed to vote on those.

This is unusual, colleagues. This has never happened in the history of the Senate. There was a study that found in the last 28 years previous to Senator Reid, the tactic of filling the tree to limit debate was done 40 times. Since Senator Reid has been the majority leader, he has done it 77 times. It is every time, really. He is in complete control of the amendment process in the Senate.

We had a Democratic colleague who said he thought he had to get approval of the Republican leader, Senator McConnell, before he could get his amendment voted on. Why? Well, Senator Reid says the Republicans filed 20 amendments. Senator Reid says: You can only have three. So he starts with Senator McConnell, and Senator McConnell says: That is not enough, Senator Reid. You can get five, but I want to approve them. I suppose Senator McConnell may say: How many are you going to have? I want to know what they are before I reach an agreement with you.

So I suspect it may be true that we have Democratic Senators having to ask the minority leader of the Senate for approval to get their amendments up.

That is not the way this should operate. It has never operated that way. Our history is open and free debate, unlimited debate in which the great issues of our time can be discussed here and actually voted on. And our constituents back home, if they don't like the way we are voting, can vote us out of office and send somebody else up here. So politics is driving it. There is no other reason.

The contention is that there wasn't enough time to vote on the Defense bill, but the Defense bill was on the floor an entire week. We could have had 10 votes a day, 15 votes a day easily on the Defense bill.

Senator Inhofe, the ranking Republican on the Armed Services Committee, told Senator Reid he had limited the number of amendments that Senators on our side had to 25, and those could have been done easily in a week. But what was also true, as Senator Inhofe noted, was that a lot of those votes would actually never occur because a person would realize they didn't have the votes to pass, the manager of the bill would agree to some of the amendments, or something else would happen. So it is very unlikely that many votes would have been cast. But that is what we have done in the past. We have had 2 and 3 weeks of time spent on the Defense bill, and we have had multiple amendments-- 30, 40, 50 amendments--and that has just ended.

So here we are, at a time when our country has a crisis on its hands, the American people are suffering from a massive takeover of health care that was rammed through this body against their will, and they still remain steadfastly opposed to it. Those of us who share those same concerns and want to change and alter this bill that is damaging to our economy, that is damaging health care, that is hammering the middle class, we can't even get votes on it because we have a leader

who has dictated how things are done here.

This has to end. It has to end. It cannot continue. I don't see how any Member of this body can go back home if they are a Democrat and say: I couldn't get up an amendment.

Why?

Well, Senator McConnell wouldn't let me.

I go back home to my State, and others go back home to their States, Senator Toomey goes back to Pennsylvania and says: I offered all these amendments to improve ObamaCare.

His constituent says: Well, did you vote on it?

No.

Why not?

Senator Reid wouldn't let me.

Where did this become part of the history of our country? Is this what we teach our children in grade school about how democracy is supposed to work? No. It has to end.

I appreciate the opportunity to share these remarks tonight. We are at a point where this Senate has to stand, reverse the trends that have been going on, and ensure that we operate in an open way. People have to vote and vote and vote so they can be held accountable to the people who sent us here. And when we make people mad, they have every right to vote us out of office. We don't have any right to come here and hide under our desks, not to expose ourselves, not to let people know how we really feel and how we have really been moving the country.

So I think the tea party rightly has concerns about that kind of thing, and I hope we can make progress to improve this situation that is essential for our country.

I yield the floor.

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

Madam President, throughout our Senate history we have had Senators such as Senator Levin. Before he does depart, I thank him for his principled approach to this complex issue.

Just to share with all of our colleagues, he is completing his service in the Senate this year. He is not running for reelection. He certainly would have been reelected. This weekend I was at a national security conference at the Reagan Library. The first winners of an award for national security were former Secretary of Defense Gates, who served two Presidents, and Senator Levin was the other winner. I think it is a tribute to his commitment to this country.

We have disagreed on a lot of issues and no one should think he is not a strong and effective advocate for values around here. But I think all of us should listen to his remarks and his warning, a very simple warning. That warning is that if a majority can change the rules with a simple majority vote in order to defeat what heretofore was a right of a minority party in the Senate, there are no minority rights left. They simply exist at the will of the majority. This is a fundamental matter. It is an important matter.

We have had some close calls and a lot of intensity, but we have avoided this kind of action. I think it is fair to say without dispute that the significance of this rule change today dwarfs any other appeal of the ruling of the Chair that we have seen--maybe in the history of the Republic. This is a big event. It changes what goes on because we deal with power and the exercise of power.

This whole thing is simply Majority Leader Reid--and he has a difficult job. I have tried to not make his life more difficult than it needs to be.

But he is not a dictator. He does not get to dictate how this Senate is operated. He does not have the right to come in and change the rules because he wants to fill three judgeship slots that are not needed. There is no way one can justify filling these court slots, based on simple need or by caseload per judge.

He is unhappy about that. Maybe he wants to change the mood of the country from ObamaCare and the overreach that was executed to pass that bill on December 24, to ram it through the Senate on a straight party- line vote. I suspect that is part of it. But this is not the way to do business.

The only reason those judges were blocked, the only reason they did not get a confirmation, was because we did not need them. This country is going broke. There are districts in America that need judges. The DC Circuit does not need more judges. It does not need the eight they have. Yes, they have 3 vacancies, but with the current 8 judges, their average caseload per judge was 149, and they have been continuing to drop. My circuit, the Eleventh Circuit, the Chair would be interested to know, has an average caseload per judge of 740. The next lowest caseload per circuit is twice 149. The average is well above that per circuit. The judges themselves say they do not need anymore judges. They take the whole summer off.

These judges would not have been rejected if we had needed them. But the President is so determined to try to leave a legacy of friends on that court

that he just shoved them anyway and demanded the Senate pass them, and Senator Reid demanded that we confirm these judges. The judges say they do not need anymore judges on that court. They do not need them, whether they say they need them or not. I know how to look at the caseload. I am on the Judiciary Committee. I am on the courts subcommittee. I have chaired it and been ranking member of it for years. I know how to analyze weighted caseloads. There is no justification for adding or filling a single slot on that court and we should not be doing it.

I am also ranking Republican on the budget committee, and I know we cannot keep throwing away money for no good reason. The last thing we should do is ask the American people to fund $1 million-a-year judges. That is what each judge and the staff are estimated to cost--and there are three of them. It is akin to every year burning $1 million on The Mall. We do not have $1 million to throw away. But we do have judges, we do have circuits, we do have district courts around the country that are overloaded and we are going to add some judges to them. We ought to close these judge slots and move them to a place they are needed, as any commonsense person would do.

So it was not any animosity to any of the nominations and their character or decency that led to this rejection. It was because we warned against it.

Senator Grassley and I serve on the judiciary committee. He previously chaired the court subcommittee, and Senator Grassley blocked President Bush in filling one of those slots. Oh, they wanted to fill the slot. They thought they might leave a legacy judge who would be influential to them. That is what they suggested, but we refused. We were actually able to transfer one of those slots to the Ninth Circuit. That is how good business should be done around here. We are at a point where we don't need to fill that slot, and it should in no way cause the majority leader to feel as if his power was threatened or that his majority was threatened. We are changing the rules of the Senate so he can get three judges confirmed that we do not need. I will be prepared to debate that issue anywhere, anytime on the merits. Not one of those slots should be filled.

They have the lowest caseload per judge in America. Their cases are not so complex that it would slow down their work and demand more judges. That has been analyzed, and it is not true.

Senator Reid asked for this job. That is what my wife says to me when I complain. She says: Don't blame me; you asked for the job. He asked to be the majority leader of the Senate, and it is not easy. There are a lot of Members and a lot of different ideas about what ought to be done.

Trent Lott called it herding cats. I suppose that is a pretty good description of it. One time he said it is like putting a bunch of frogs in a wheelbarrow. You put one in and two jump out. It is not easy to move the Senate. I understand that. Changing the rules, as Senator Levin said, by a simple majority vote and significantly altering the tradition of the Senate is dangerous.

Senator Reid said we have been wasting time on the procedural hurdles thrown up in the Senate. He also said Congress is broken and the American people think that Congress is broken. They thought it was broken when they used legerdemain on December 24 before Scott Brown from Massachusetts could take office so they could pass a health care bill that the American people overwhelmingly opposed.

Maybe the reason the American people are frustrated with the Congress is that they passed a bill that the American people opposed without a single Republican vote in the House or the Senate. Maybe that is why the American people are not happy with us.

I will explain, colleagues, what is causing the greatest frustration in the Senate. It is a trend that began some years ago--not long after I came to the Senate 17 years ago--and it has accelerated. It has reached a pace with Majority Leader Reid we have never, ever seen before, and it undermines the very integrity and tradition of the Senate. It has to stop. We have to recover the tradition of this body. We owe it to those who will be filling these seats in the years to come.

This is the problem: A maneuver called filling the tree was discovered. It is a parliamentary maneuver where the majority leader, who gets recognition first in the Senate, seeks recognition and then he fills the tree. That parliamentary maneuver basically blocks anyone else from getting an amendment. A Senator cannot introduce his or her amendment. So how do we have an amendment? You have to go hat in hand to Senator Reid and say: Senator Reid, I would like an amendment.

Well, I don't think so.

I don't like that amendment.

But I like it. I want to vote on it.

Sorry. We don't want to vote on it.

That is the way it has been going every year. The Defense bill commonly had 30 or more amendments of substance when it hit the floor-- $500 billion. It was the biggest appropriation bill we had--$500 billion. Senator Coburn has an amendment directly related to the Department of Defense that would save some money.

Senator Reid will not give him a vote on that.

People say: Why don't you do something, Sessions? Why don't you get an amendment passed? I cannot bring an amendment to the floor unless he agrees. He says it is because of delay. He says it is because it creates time difficulties. We have been on this bill for a week, and we have only had two votes. We have gone for days with no votes. It is not about time. Let me tell you what it is: The majority leader of the Senate is protecting his members from tough votes. He does not want them to have to cast votes on critical issues in this country. He is not concerned about time or delay. There is plenty of time.

We could have already cast 15 votes on this bill, and everybody would be satisfied. That is the way it was when Senator McConnell was here. That is the way it has been. That is the way it had been when I came here. We had 60-something votes on a bankruptcy bill. It went on for 3 weeks.

This is causing tension and frustration. One of our new Members in the Senate when we were debating this very question some months ago said: They tell us we have to get Senator McConnell's decision before they will let us introduce an amendment. I said: Wait a minute. Do you not understand that you are a duly elected Senator from the United States of America and you have to ask permission of the Republican leader before you can get a vote on an amendment? How did this happen?

This is a background issue that is undermining collegiality in this body. I am tired of asking the majority leader for permission to give me a vote in the Senate. It is not right.

Yes, I will yield for a question.

An amendment can't come up for a vote in the House unless it is approved by the Rules Committee.

That is the difference between the House and the Senate.

I thank the Senator so very much. His insight is correct. I will wrap up and say that what happened today is very significant, and it is a sad day. It represents the greatest alteration of the rules without proper procedure that we have probably seen in the history of the Republic.

It erodes legitimate minority rights in a way that subjects every right a minority party has in the Senate and the right any individual Senator has in the Senate. It places that right at great risk. A majority can do that at any time. That was explained so eloquently by Senator Roberts a few moments ago. I was so impressed with his analysis.

We will wrestle through this and work at it. I know that Senator Alexander has worked hard in every way possible to avoid this day. He has expressed great interest in it, and I look forward to hearing his comments at this time on where we are and what is going to happen to us.

I thank the Senator and yield the floor.

Mr. President, I want to thank Senator McCain, because I remember very vividly Senator McCain was part of a group of 14 Senators who avoided this kind of occurrence.

In 2005, I guess it was, right after President Bush took office, a group of Senators, really the entire Democratic Conference, went into a retreat, as reported by the New York Times. I think Senator Schumer was the organizer of it, but the whole conference attended. Cass Sunstein, Laurence Tribe, Marcia Greenberger were their experts. They discussed what to do about President Bush's new election and his ability to appoint judges. They announced they were changing the ground rules of confirmation, and for the first time immediately thereafter the Bush nominees were filibustered systematically. He nominated a Mr. Gregory who had been nominated by President Clinton and not confirmed. President Bush renominated him in a bipartisan act. He was promptly confirmed.

But I believe the very next 10 nominees were all filibustered, every one of them. We had never seen a real filibuster of any judges at that time. But they were changing the ground rules to commit systematic filibusters. They filibustered virtually the first 10 judges President Bush nominated. It went on for weeks and months.

We brought up nominees every way we could. These were some fabulous nominees, Supreme Court Justices, people with high academic records. But they were all blocked. It was something we had never seen before in the Senate. There was great intensity of focus on it. It went on for quite a long time.

Finally there was a feeling on this side that this systematic filibuster was so significant that it undermined and neutered the ability of the President of the United States to appoint judges. There was a discussion about changing the rules. As time went by, that became more and more of a possibility. I think the American people turned against my colleagues who were blocking these judges, because they did not appreciate it.

But finally a compromise was reached. This was what it amounted to: We will not filibuster a judge unless there are substantial reasons to do so. That was sort of the agreement. At that moment, five judges were confirmed--and a lot of people remember that. But what is forgotten is five went down. Five highly qualified judges were defeated on a partisan, ideological basis right out of the chute. They were some of the first judges President Bush ever nominated.

I would just say that what has happened so far is that we have confirmed over 200 of President Obama's judges. Only two have been blocked. They have brought forth at this time three judges for the DC Circuit, the District of Columbia Circuit, the Federal Circuit. They are not needed. This country is financially broke. Even with the vacancies on the court today, with the 8 judges they have, their average caseload per active judge is 149. The average caseload for all the judges in all of the circuits around the country is 383, almost 3 times, more than twice. My circuit, the Eleventh Circuit, the average caseload per judge is 778. They say they are not asking for more judges; they have been able to maintain that caseload.

They say: Well, this is such a horrible, complex circuit. It is not a horrible, complex circuit. That is not so. The judges take the whole summer off because they do not have sufficient caseloads to remain busy. Judges on that circuit say they do not need any more judges. They do not need any more judges.

I have been the ranking Republican on the courts subcommittee of the Judiciary Committee and chairman of it at times. The entire time I have been in the Senate I have been on that subcommittee one way or the other. I know how the caseloads are calculated, weighted caseloads and actual caseloads.

That is why these judges were not confirmed, because we do not need them. Not for some ideological purpose. But the reason the President has insisted that they be appointed is an ideological purpose, because he wants to pack that court because he thinks he can impact regulatory matters for years to come. But I would just say, President Bush tried to do the same thing. Senator Grassley and I, who had been opposing to expanding the circuit, resisted President Bush's importunings to approve one of his judges.

We eventually were able to fully transfer and close out one of those slots and move it to the Ninth Circuit where the judge was needed. Still, the caseloads have dropped. The caseloads in the DC Circuit have continued to drop year after year after year.

We are going broke. This country doesn't have enough money to do its business. We are borrowing and placing our children at great risk. It is obvious we ought not to fill a judgeship we don't need. It is about $1 million a year, virtually $1 million a year to fund one of these judgeships. For the judges, the clerks, the supporting secretaries, the computer systems, and courtrooms we have to supply is $1 million. It is similar to burning $1 million a year on The Mall. We don't have $1 million a year to throw away.

We have other places in America that need judgeships. Senator Grassley has asked--and I have supported--and our bill would call for hearings and then we would transfer these judges to places that have greater need. That is why the judges were not moved forward.

The caseloads continue to decline. The need is less than ever, and we don't

have the money to fill a slot we don't need.

It is heartbreaking to see that we have crossed this rubicon and changed these rules when the President--as a matter of actual ability to perform the job--has only had 2 judges fail to be confirmed out of over 200.

This is breathtaking to me. There is a growing concern on our side of the aisle that Senator Reid, the majority leader, is very unwilling to accept the process. He is unwilling to accept the fact that he can't win every battle, and he changed the rules so he could win.

I feel this is a dark day for the Senate. I don't know how we can get out of it. It is the biggest rules change--certainly since I have been in the Senate, maybe my lifetime, and maybe in the history of the Senate--where it has changed by a simple majority by overruling the Chair.

The Parliamentarian advises the Presiding Officer of the Senate, when Senator Reid asked that these judges be confirmed by a majority vote, the Parliamentarian advises the Chair and the Chair ruled we can't confirm them on a majority vote. We can't shut off debate without a supermajority vote. The Chair ruled.

Senator Reid says: I appeal the ruling of the Chair. I ask my colleagues in the Senate to overrule the rules of the Senate, by a simple majority vote, to overrule the Parliamentarian and the Presiding Officer of the Senate.

This is what happened. When our rules say to change the rules of the Senate, it takes a two-thirds vote.

This is a dangerous path which I hope my colleagues understand. Many things that are bad have been happening in the Senate. I will speak more about things that should not have happened and are eroding the ability of this Senate and the way it should function, that are eroding the ability of individual Senators from either party to have their voices heard.

I thank the Chair and yield the floor.

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

Mr. President, to follow up on some of the comments I made earlier about the DC Circuit, there have been accusations--and I guess everybody has their perspective--that seem to suggest that Republicans, for ideological reasons, won't fill these judgeships slots.

I have voted for probably 90 percent of President Obama's judges-- well over 80, I know--and the Senate has had confirmed over 200 of President Obama's nominees. I earlier said 250--I think maybe it is over 200. Only two have been denied confirmation.

So these three judges have been appointed to a circuit where the caseload has been falling, and it already, by far--by far--has the lowest caseload in the country based on the eight judges now active in that circuit. So adding three more judges would bring that caseload down substantially further and create an even more underemployed court, which we don't need to do, especially when we have courts around the country that do need more judges. We need more district judges than circuit judges, but there are some circuit judge slots that need to be filled. So I say that out of respect to my colleagues. But it was a cause for concern that the President and other supporters of his judicial vision have openly stated their goal for filling these slots is to advance their agenda.

President Obama says:

We are remaking the courts.

Senator Schumer:

Our strategy will be to nominate four more people for each

of those vacancies. We will fill up the DC Circuit one way or

the other.

One way or the other. In other words, no limit to what we will do to fill these slots that are not needed.

Senator Harry Reid:

Switch the majority. People don't focus much on the DC

Circuit. It is, some say, even more important than the

Supreme Court.

I have heard conservatives make somewhat that statement, but that is totally wrong: It is not that important a circuit.

It is an important circuit. Occasionally, key administrative rulings get filed in the DC Circuit, and they never get appealed to the Supreme Court. Their decision may be final on some administrative powers, but it is not equivalent to the Supreme Court--nowhere close. You can see that based on how few cases they actually handle.

Senator Reid goes on to say:

There are three vacancies. We need at least one more, and

that will switch the majority.

Apparently, he is saying there is a division within the circuit and a one-vote majority for a more restrained view of the administrative rulings the court deals with sometimes and a group that is more activist, and he wants to switch that majority. A bunch of others have said the same thing. They have said it.

Doug Kendall, a liberal activist has said:

With legislative priorities gridlocked in Congress--

Now, get this--

--they want the court to advance their political agenda that

cannot be passed in the Congress.

Let me repeat that. The liberal activist goal is to advance an agenda that cannot be passed by the Congress--the duly elected representatives.

I remember Hodding Carter, who served President Jimmy Carter, went on one of the morning Sunday talk shows--Meet the Press or something. He was one of the regular guest hosts, and he said one time: We Democrats and liberals have got to just admit it. We want the courts to do for us that which we cannot win at the ballot box.

Judges shouldn't be doing that. But that is what Mr. Kendall says. He says:

With legislative gridlock in Congress, the President's best

hope for advancing his agenda is through executive action.

That runs through the DC Circuit.

Nan Aaron, long active in advocating for activist Federal judges, said this:

This court is critically important. The majority has made

decisions that frustrated the President's agenda.

So the President is being pressured by a lot of these special interests, and there are others who are advocating these kind of actions. But the court is a court that is well constituted to do its duty, and it will continue to do so and needs no more judges. We don't have the money to fill them. We don't have the money to spend on it just to allow the President to pack the court with some of his nominees that will more likely advance an agenda. At least the agenda that he and his activist friends seem to favor that.

When I came to the Senate, Senators on both sides of the aisle got to offer amendments. I remember Senator Specter, who was then a Republican--an independent Republican and a great Senator. He loved the Senate. He switched parties and became a Democrat. We were right down there on the floor. He was managing a health bill, and I had something I wanted him to accept as part of the manager's package, and he didn't want to do it. So I asked him again and he didn't want to do it, and I asked him again and he didn't want to do it. I wanted him to agree because I didn't want to offer the amendment and have Senator Specter oppose it because I figured I would lose the vote. So I asked him again, and he finally got irritated with me bugging him and he said: You are a United States Senator. If you want to offer your amendment, offer your amendment.

That is the way it was when I came to the Senate.

If you didn't like something, you could offer your amendment. But the managers of the bill had a lot of respect from the colleagues, and if the managers urged people not to vote for it, you were likely not going to win, but at least you could get a vote.

If you promised your constituents back home that you believed in something and you were going to fight for it, you could at least get a vote, even if you lost. You could tell people you did that. And then you could hold people accountable for voting against what some might like and others would oppose, and people would know where Senators stand.

We have had a significant, dramatic reduction in the number of votes. I think it started in maybe the late 1990s. I know Senator Frist filled the tree a number of times, but not many, over his time here. But Senator Reid has just exploded this process.

A perfect example is this Defense bill. It was on the floor all week. We have normally had at least 25 or 30 votes on the Defense bill. We spend $500 billion in that authorization. There is a lot of concern and interest about defense money is spent and policies over sexual assault or other issues relative to the military, and those are important issues that people have concerns about and are willing to vote on. Why shouldn't they be able to get a vote? Really, why shouldn't they be able to get a vote?

Some of the new colleagues who got elected in 2012 particularly wanted to change the rules of the Senate and demanded that we do better. I raised the question of what the majority leader had been doing. Let's take this Defense bill I mentioned. What did he do? He gets the right of first recognition in the Senate, and there are only a certain number of amendments that can be put on the amendment tree. He fills all those slots--we call it filling the tree--and then no one else can get an amendment pending that the majority leader doesn't approve. It is really unbelievable. And like frogs in warming water, we don't even realize the pan we are in has about got us cooked. We have Members on our side who have missed what is happening to us. I guess half of our Members even on the Republican side were not here when all this started. All they have known is this process.

So Senator Reid fills the tree. He says he approved two sexual assault amendments for the military. That is all we have had all week, and he immediately files cloture. He immediately files to shut off debate. When he does that, he then says we are filibustering. He is saying that is a filibuster and he is going to file cloture, demand that we grant cloture and move the bill without any amendments.

This is unacceptable. So Republicans say: We are not going to end debate on the bill until we have a legitimate opportunity to file amendments to the Defense authorization bill and actually vote on some of the key issues facing America's national security and our men and women in uniform. We want a robust ability.

No.

Well, submit a few amendments. Well, that is too many. We are not going to vote on that one. I don't like that one. I don't like that one. No, you can't get a vote on that one. Our Members don't want to vote on that. You can only have a constricted number.

So we have this spectacle of Senators from great States all over America, hat in hand, bowing before the majority leader, pleading that he allow them to have their amendment up for a vote. It is not right. It is an alteration of the whole concept of the free and open debate the Senate is all about. I truly believe it is, and we are going to have to stop it.

I blame myself. I have complained about this probably as much or maybe more than anyone on our side, but I haven't taken the action maybe that we need to take to begin to confront this issue.

When my new young colleagues and I were discussing this, one of them said: Why, we even have to ask Senator McConnell and get his permission to offer our amendment.

How could this happen? How could a Senator from one of the great States of America be in a position--a Democratic Senator. He has a majority in the Senate. How could he be in a position to have to seek Senator McConnell's approval to call up an amendment?

Here is the answer. Senator Reid tells Senator McConnell: I am not going to have all of these amendments. We are only going to have five amendments, and you can't have this one, this one, and this one.

What are your amendments, Senator McConnell says to Senator Reid.

He says: Well, these are the amendments we want to offer.

Senator McConnell says: Well, you have restricted my amendments. I don't want to vote on those two amendments of your five. You are going to have to pull those down.

So, in a sense, that young Senator was telling me the truth. I suspect Senator Reid goes back and says: Senator So-and-So, Senator McConnell is objecting to your amendment. We can't call it up.

Well, why can't you call it up? I mean, the very idea that a Senator from New York has to ask a Senator from Kentucky whether he can have an amendment is contrary to the approach of the Senate.

So filling the tree is altering the whole process. Again and again, Senator Reid takes the floor, he fills the tree, limits amendments, and files cloture immediately. And those of us who say: No, we are not going to agree to shut off debate through cloture because you haven't allowed us to have a legitimate chance to offer amendments--we vote against cloture, and he says: You are filibustering the bill. And he adds these up, and he says that Republicans to an unprecedented degree are filibustering, when all it is, is a reaction to his railroading tactics that have never been used to this degree in the history of the Senate.

Senator McCain was quite correct in pointing out the switching of positions

that Senator Reid now takes. While he was opposing this kind of tactic before and supporting filibusters, he has now taken the exact opposite.

With regard to our judicial issues, the Democrats went to a retreat in 2000 and decided to change the ground rules. I believe Senator Reid was involved, and Senator Schumer was one of the organizers, according to the New York Times. He said: We are going to change the ground rules. And they started immediately and held the first 10 Federal judge nominees to the courts of appeals of President Bush and filibustered. We had never seen anything like that.

Now, according to this document I have, Senator Schumer says: We are going to confirm these judges one way or the other, and if you use the right to filibuster--which I pioneered and Senator Reid pioneered--if you use that right, now that we have the majority, we are going to change the rules with a simple majority, and we are not going to allow these judges to be blocked even though we have no need for one of them. We are going to ram it through, and we are going to make the taxpayers pay for it, $1 million a year, one way or the other.

So that is where we are, and I don't believe it is good.

I am not opposed to modernists. I believe we need to be consistent in our principles. We need to defend the history of the Senate. And I don't believe you can change it one year and change it back the next and act as if nothing significant happened. I believe there is a truth and I believe there are values that need to be consistently upheld--at least at a minimum--so this Senate can function.

Senator Reid has to stop this process. He cannot continue to dominate the Senate the likes of which has never happened before. There is no one-man dictator in this Senate. We need to say no. That is just the way it is. There is no way the majority leader of the Senate of the United States should be dominating this body the way it is happening today and going to the ultimate of changing the rules as was done today. I feel strongly about that. We are going to continue to talk about that.

We have an institution to preserve. Senator Byrd would never have allowed this to happen--as Senator McCain said--the historian of the Senate, who explained this great Senate's history. When I first came here, he lectured to both parties and new Members about what it is all about. The love he had for this institution was strong.

I happened to have the honor earlier today to hear Senator Levin talk about this issue. He is leaving this body. He is a great Senator. He is smart. I have been so impressed with how he has handled the Armed Services Committee, on which I am a member and he is chairman. He gets virtually unanimous votes on the defense authorization bill. And the only reason we had no votes on the bill on the floor today in committee was because they marked the spending level above what the Budget Control Act says. They shouldn't have done that. Under that proposal, we would spend more money than we are allowed to spend under law. But it was done. Otherwise, all the differences were freely discussed. We had multiple amendments. Senator Levin is very precise. He allows people to make amendments. He suggests compromise. He allows people time to discuss with staff, come back, amend, agree, disagree, and finally have a vote. It creates good spirit, and it creates a committee such that even legislation as important as this can pass unanimously out of committee. I believe last year the bill was unanimous out of the Armed Services Committee, which is hard to achieve in any legislative body.

This is a dark day. I am disappointed at where we are. This is a matter that can't just be forgotten. It won't be forgotten. We don't need to act precipitously, but we need to make clear that for the Senate to work, individual Senators of both parties have to be free to offer amendments--that clearly needs to be so--and certain rights the minority party might have cannot be eroded anytime they become effective to frustrating the majority leader's desire to advance certain pieces of legislation or nominees.

This is not going away. We will keep discussing it. I hope and pray we will be able to reach some sort of solution which puts us back on the right path.

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

Mr. President, reserving the right to object, I say to our colleagues, this is not a good day to move forward with this legislation. We will be glad to give it serious attention. I know it is the kind of thing we probably can clear at some point, but I object.

Madam President, we need to be moving forward with the Defense bill. It is very important. I am a member of Armed Services Committee, and we had a good bipartisan vote out of committee to bring the bill to the floor. Chairman Levin has been fair to us in committee, so we got a good committee process. But there are some disagreements over a number of issues that the full Senate needs to discuss and vote on. They just should be able to do that.

We are drifting into a process that is absolutely contrary to the history of the Senate--the real concept of the U.S. Senate--where we bring matters up and vote on them. Just because it cleared our committee does not mean the full Senate does not get to vote on some of these differing opinions.

I voted in the committee on a number of amendments that did not pass. We had amendments up in committee that we decided not to vote on, and the phrase was: Well, we will carry that to the floor. In other words, it will be brought up and the whole Senate will vote on it, not just the committee. Maybe in the interim something could be worked out. But if not, it would go to the full Senate, and the full Senate would work its will, would have its debate and vote.

We are going days now with nothing happening, no amendments being voted on. They could have already been voted on. So Senator Reid has filled the tree, and that means he has complete control over the process. He has the ability to say we will not have a single amendment. In fact, except for, I think, two, all he has agreed to in this process is to have maybe two amendments up, and that is unacceptable. Senator Reid ought to know that. You cannot move the Defense bill of the United States of America, spending $500 billion, and not have amendments and Senators actually offering suggestions on how to spend that money better and do better for America. What are we here for?

So I am really worried about this. I am afraid that this whole thing could collapse over the failure of amendments to be offered. I look here at a chart. Back, basically, when Republicans were in charge, we had 27 amendments, 25 amendments, 13 amendments actually voted on. The average number was 11.5 amendments voted on.

We already have well over 100 amendments filed. Over half of them, two-thirds of them, will eventually be withdrawn or the managers of the bill will agree to some form of that suggestion with different language and we would move on. But we should have already started on amendments, and we should recognize that a good Defense bill is going to require an open process where we can actually discuss how to fix it and make it better.

In addition, we are facing, under the Budget Control Act and the sequester, some real financial challenges for the Department of Defense that are historic. It is significant. We need to be able to talk about that and work on that and try to figure out a way to strengthen the ability of the Defense Department to function in a rational way and not do unnecessary damage to them while they work to contain spending. That is a critical thing.

So I would say to Senator Reid, who has a tough job--there is no doubt about that--Senator Reid, you should not attempt this dramatic reduction in the ability of the Senate to actually have amendments to a bill as large and as important as the Defense bill. You are overreaching, Senator Reid.

We cannot agree to that. The loyal opposition, the Republican opposition--I say, the bill that came out of committee was bipartisan, overwhelmingly bipartisan, with a big vote in the committee. But there are things that need to be voted on here, and we are not going to agree to a handful of amendments. So if you try to move forward with this bill without allowing at least a legitimate amendment process, you are not going to go forward because we are not going to agree to go forward when you fill the tree and block amendments and have the power to deny amendments of any significant degree on the floor of the Senate.

I am worried about that. I hope my friend, Senator Levin, and Senator

Reed, who is here, and others, can talk with the majority leader and reason with him, and let's get on with the business of proceeding with these amendments and some actual debate about the future of America's defense posture because we do have challenges in the years to come--a lot different than we have had--and we need to reconfigure defense, and we need to be asking ourselves honestly and in a bipartisan way, what will we need to do in 15 years, what will we need to be doing in 2025.

I had the honor to be at the Reagan Library this weekend for a national security conference dealing with what our defense structure should be in 2025. Senator Levin, along with former Secretary of Defense Gates, was given the first award they give for patriotic service. So our Armed Services chairman, let me note, was honored--our Democratic chairman--was honored at the Ronald Reagan Library for his commitment to national defense.

But I am just saying, ladies and gentlemen, in a bipartisan way we need to be thinking about what our future defense policy should be. We need to be thinking about how to move this bill. But it will not move, and I will not support going to a bill that does not allow this Senate to have a reasonable opportunity to have amendments.

I thank the Presiding Officer and yield the floor.

Mr. President, today I wish to pay tribute to Honor Flight South Alabama, a truly great branch of a great organization which is dedicated to bringing our World War II veterans to their memorial in Washington, DC.

Honor Flight South Alabama has brought over 1,000 veterans and their companions to the World War II Memorial created in their honor and located in Washington, DC. The World War II Memorial honors the 16 million veterans who served in the Armed Forces of the United States, the more than 400,000 who died, and all who supported the war effort from home.

They are truly a remarkable breed of patriots. They endured and survived the biggest war in the history of the world, and deserve such a great memorial in their honor. This Nation owes a debt of gratitude for the sacrifices of these Americans, who left their families and lives behind to go ``fight the good fight.''

The veterans I have spoken to are so positive and enjoy the visit so much. It is remarkable. To be recognized this way has meant so much to them. I have taken great pleasure in having the chance to share in the fellowship of these veterans.

As in any great organization, there are many wonderful leaders who should be recognized. I wish to take a moment to appreciate a few of the directors of Honor Flight South Alabama.

Ms. Margaret Coley, the Director of Volunteer Activities and School Support Systems, had the responsibility of the in-flight mail call program and Welcome Home Ticker Tape parade at Mobile Airport.

COL Pat Downing, the Director of Guardian Training, was charged with the most responsible position on the team, that of presenting an in- depth safety training program to all guardians, thereby allaying any fear on the part of the families in releasing their loved ones for flight day.

Ms. Ann Eubanks, the director of the Medical Support Staff for Springhill Hospital, who was in charge of coordination of comprehensive medical support for our WWII veterans.

Ms. Tina McGrath, the director of Administration, who organized and documented all of the administrative and financial information for the Honor Flight Program.

COL John New, the director of Security, who organized all of the security arrangements between Mobile Regional and Washington Reagan airports and served as the liaison with the National Park Service for all memorials.

CDR Pete Riehm, the director of Operations, who designed, organized, and maintained order for every phase of Honor Flight South Alabama activities.

Finally, Dr. Barry L. Booth, the director of the Veteran-Guardian Program, who coordinated the assignment of all veterans and guardians and assisted in fund-raising activities.

Without these patriotic men and women stepping up to organize this wonderful program, many of the WWII veterans in the region would not have had the opportunity to visit their capital and see the memorial they so richly deserve. I am grateful to all of those who contributed to the Honor Flight programs throughout the country and to those veterans who fought to preserve the freedoms we enjoy today.

Mr. President, I don't know whether Senator Boxer was to be recognized.

Mr. President, I understand that Senator Boxer wants 5 minutes, and I will yield to the fine chairman of the Environment and Public Works Committee for 5 minutes.

I ask unanimous consent that Senators on the Republican side be allocated 10 minutes each.

Mr. President, I wish to share some thoughts about the filling of the District of Columbia Circuit Court of Appeals judgeships. I have been involved in that issue for well over a decade. We started looking at the case numbers when President Clinton was in office. I, along with Senator Chuck Grassley, both Republicans, blocked President Bush from filling a vacancy, because that court did not need another judge and they wanted to fill it. Let's be frank. Presidents want to fill the DC Circuit Court of Appeals because they think they can shift the balance there and be able to advance their agenda throughout the judicial process because a lot of key cases are filed there, and lobbyists and outside forces that care about judges want the Presidents to put their kind of people in those positions--maybe even their law partner or their friend or their political buddy on that court. But there are some great judges on the court. But I am Ranking Republican on the Budget Committee also. I serve on the Judiciary Committee and on the Budget Committee. We have no money in this country to fund a judgeship that is not needed.

The last time we were able to move one of those judges to the Ninth Circuit where the position was needed. Today, it is clear that the caseload for the DC Circuit continues to fall. The number of cases per judge in the DC Circuit continues to decline. Senator Grassley has been a champion of this issue for years. He chaired the court subcommittee of the Judiciary Committee. I chaired it after he did. We have seen these numbers.

Senator Durbin says, Oh, it is a shame. It is a shame these nominees don't get confirmed. As Senator McConnell noted, it was a shame that Peter Keisler, a fabulous nominee, didn't get confirmed. But, in all honesty, the court didn't need that slot filled and they don't need any of the three slots today that are vacant. They do not need to be filled. Congress has no responsibility to fill a vacancy that is not needed, and we shouldn't do it. Each one costs about $1 million a year. That is what it costs to fill a judgeship.

We have needs around the country. We have certain needs around the country, and we are going to have to add judges. Why would we fill slots with judges we don't need and not fill slots with judges we do need? That is my fundamental view about it. I will just say this: It is not going to happen. We are not going to fill these slots. This country is in deep financial trouble.

The majority basically is saying: Oh, the Budget Control Act and, oh, we have cut to the bone. We can't find another dime in savings. Do you know what the problem is, America? You haven't sent us enough money. If you would just send more money to Washington, we could spread it around and everything would be fine.

This is basically what we are hearing from the leadership: No more cuts. In fact, the Budget Control Act reduced spending too much. Oh, this is critically important. Every dollar we spend is critically important and we can't reduce a dime of it or even the growth of it. That is what we have been hearing: Send more money to Washington. We want to raise taxes. We are open about demanding increases in taxes to fund whatever it is we want to spend.

Is there any waste and abuse in this government? There absolutely is. Look at this chart. Senator Durbin is on the Judiciary Committee. He has been involved in this. He knows these numbers. There is nothing phony about what I am showing my colleagues today. This is absolute fact: Total appeals filed per active judge. These are the judges on the court today. The DC Circuit has eight judges. They have eight judges. The number of appeals filed per judge in their court is 149, and the average per circuit judge in America is 383. The average is 2\1/2\ times that number. We do not need to fill these slots.

Look at the Eleventh Circuit. They have vacancies, but at this point they are doing almost 800 cases per judge per year. Think about that. In the Second Circuit, which is Manhattan--a very important circuit with very complex cases--there are more than 2\1/2\ times the number of cases than the DC Circuit. Remember, this is the current number of judges, I say to my colleagues. This isn't if we were to add three more judges. If we added three more judges, it would be a little over 100 cases per judge, not 149. This is absolute fact. They take the entire summer off. No other circuit does this. They have canceled oral arguments they had scheduled because there were no cases to argue. They take the summer off.

I talked to one circuit judge in another circuit who said: At least one of

the judges in the DC Circuit goes around the country sometimes and helps out, but none of our judges can because we are so busy we don't have time to do it.

Most of our judges are working very hard. I am a total believer in the integrity and the value of the Federal judiciary. I respect them greatly. They do important work. But it has just so happened in the course of our American system that the DC Circuit is at a point where it has the lowest caseload per judge in decades, of any circuit and it needs to be fixed and the number of cases continues to decline.

So what I would say to my colleagues is I believe we should give deference to the President in the nomination of judges. I voted for, I am sure, close to 90 percent of the nominations the President has submitted. I voted for almost 90 percent, I would suggest. But I am not going to support three judges we don't need. The last thing we need to be doing is burning on the Mall of the United States of America $3 million a year to fund judgeships we don't need. There are other places in this government we can cut wasteful spending as well, but this one highlights the situation.

I suggest to my colleagues this is a test to this Senate. This is a test for all of the Members of the Senate. If we say there is no place to save money in Washington; if we say we have found every bit of waste, fraud, and abuse there is--well, look at this court.

I am not condemning any of the nominees. I am not complaining about their quality or their ability. I am saying the taxpayers of America should not have extracted from them another $3 million a year to fund three judges that absolutely are not needed, particularly when we have legitimate needs in other courts around the country that need more judges.

Look at the Eleventh Circuit, my circuit: Almost 800 cases per judge filed. This circuit, the DC Circuit, 149, and they want three more judges--not so.

I believe we have a 10-minute limit. How much time remains?

So, in conclusion, I appreciate the opportunity to be here. It looks as though we will vote on the Millett nomination maybe later today. With no personal criticism of that nominee in any way, I think it is important for us to say we just don't need these slots. We are not going to fill them. Not one of the three needs to be filled. We are not going to fill any of them. We are going to honor the finances of the American people.

Once again, I express my appreciation to Senator Chuck Grassley, the ranking member of the Judiciary Committee, who has led the fight on this issue for a number of years. I have worked with him on it. We have legislation to transfer these judgeships to other places. That is what we should be doing, moving them to where they are needed. It has been great to work with Senator Grassley.

I thank the Chair and yield the floor.

Mr. President, if the Senator will yield for an inquiry, under the UC were we going to divide 30 minutes per side? Was that the intent of the unanimous consent request I made earlier?

In the usual form. All right.

Mr. President, I was honored to be at the funeral services at Arlington for ADM Tazewell T. Shepard, Jr., an American patriot, a native of Mobile, AL, a man widely recognized for his character and integrity as well as for courage, intelligence, and professionalism.

Admiral Shepard was born in Mobile, AL, attended Murphy High School, one of Alabama's great high schools, and joined the Navy when World War II began. He married the daughter of Senator John Sparkman and they were partners for 71 years. He received the Navy Cross, the Navy's highest award for heroism during the Battle of Guadalcanal acting with coolness and courage to direct action and to care for casualties.

He was a naval aide to President John F. Kennedy and advised the President during the Bay of Pigs crisis in 1961. He published a book John F. Kennedy: Man of the Sea, in 1965.

His quiet and firm character was the quality that stands out in this life well lived. Former Justice Sandra Day O'Connor spoke at the service and recalled those times of friendship--tennis, bridge, and dancing--enjoyed by their families. His son, Tazewell Shepard Ill, spoke also and provided insights that revealed the strong values and positive qualities of his father. The service, honored by the presence of a naval detachment, closed with the naval hymn.

Admiral Shepard through the quality of his life set an example of faith, family and patriotism. We extend our sympathy to his fine family and even in this time of loss celebrate his wonderful and productive life.

Madam President, I thank the Chair for the opportunity to share some thoughts, and I thank Senator Corker for his commitment and leadership on these difficult budget issues.

As a businessman and someone who fabulously ran an important city in Tennessee, he knows we have to live within our means. There are limits as to what we can do and maintain a healthy financial future for America. I think that is important for all of us.

I first want to respond to a couple of things Senator Reid, the Democratic leader, and Senator Durbin said earlier this morning that sort of surprised me. First of all, he said there is no plan to break the caps. I was--as the Senator from Tennessee was--with the President on Friday, and he said there was a strong push from Democratic Senators to spend above the limits of the Budget Control Act that we all agreed to in August of 2011.

The Budget Control Act allowed substantial growth in spending. Instead of growing $10 trillion over the next 10 years, we would have reduced the growth of the budget to $8 trillion. It is not really a cut over the 10-year period.

The President submitted a budget in February of 2012, 6 months later, that would spend $1 trillion over those cuts. The Democratic budget that just passed this year--the first time in 4 years--would have increased spending by $1 trillion over those cuts. I am a little bit uneasy because I think there is an effort, and there will be an effort, which is unacceptable, to deal with those cuts--or to break the caps that limit the growth of spending, which is the right way to say it. Of course, there are some cuts we need to make.

Then Senators Reid and Durbin talked about President Bush's problems with deficits. He didn't do a great

job in containing deficits. The highest deficit he had in 1 year was $487 billion. The year before he left office, the deficit he had was $167 billion. President Obama took office and rammed through, with unanimous Democratic support, a stimulus bill that added $1 trillion to the debt of the United States--the biggest single spending bill ever, and every penny of that borrowed because we didn't have any money. We were already in debt. So we borrowed $1 trillion to spend.

So for 5 consecutive years we will have averaged over $1 trillion in deficits per year. We have never been over $500 billion a year before that, and $1 trillion is $1,000 billion. So President Obama's average in 5 years is unprecedented. It is stunning. We have never, ever seen such a debt accumulation in such a rapid period of time. I think we need to understand that. Our colleagues continue to defend it and still want to spend more, and their budget would spend $1 trillion more that they voted on and passed in this Congress.

They use the word ``extreme'' for anybody who wants to reduce spending and try to attack people who want to reduce spending.

Senator Durbin talked about how we need a sound dollar. Is the dollar sounder today, I ask Senator Corker, because we, this Congress, reached a bipartisan agreement to reduce spending by $2.1 trillion and the growth of spending by that much? Isn't it stronger today than it would have been if we hadn't done that? It was a tense time in August 2011. People weren't sure how it would all end, but it ended in a modest reduction in the growth of spending which I think made the country better as a result. The last thing we should ever contemplate is backing off of that agreement and not at least adhering to that agreement. We need to do a good deal more.

So I wish to share a few thoughts in general. I will go into detail, if we have time, about the nature of the Budget Control Act and explain it in more detail.

We have heard the word ``extremist'' thrown around a lot over recent days. Let me share with my colleagues what I think is extreme. Extreme is adding $6 trillion to the debt of the United States in 5 years--that is extreme--and saying there is no spending we can cut. ``We have cut every dime we can cut.''

Extreme is forcing a health care law through that the American people oppose and telling them we can take $500 billion out of Medicare, and strengthen Medicare, and then fund ObamaCare, double counting the $500 billion that will come back to haunt us in the future. Extreme is refusing to make any concession, negotiation, or alteration to a health care law that is going to financially bankrupt us. It will add another $6 trillion to the long-term debt of America--almost as much as Social Security, according to the Government Accountability Office.

They say it would be fully paid for. The President said in a joint session of Congress it would not add one dime to the debt now or ever, period, and the Government Accountability Office says it will add $6 trillion to the long-term debt of America. This is how a nation goes broke. Instead of fixing Social Security and Medicare, which need fixing, we start a whole new program that adds almost as much debt over time as they do.

Extreme is knowing we are on an unsustainable debt path and refusing to do anything about it. In the last 5 years, we have spent more than $15 trillion and added more than $6 trillion to the debt. Never has so great a sum been spent for so little benefit. Consider: Nearly 60 million working-age Americans aren't working. They are out of work. I wish the unemployment rate were 5 percent, but the truth is the unemployment rate in this country is 7.3 percent, and we have the lowest workplace participation since 1975. There are fewer people working today than there were in 2007. That is the key number. How many people are working? Our population is up, but the number of people actually having jobs is down, and more and more of those are part-time jobs.

Median household income is lower than it has been on any year since 1998. Two-thirds of the job creation this year has been part-time. We spent $1 trillion last year on welfare and poverty programs, State and Federal combined. One in six Americans are on food stamps. Let me repeat: One in six people in this Nation are receiving food stamps from the Federal Government. This economy is not healthy. Despite the endless inundation of Federal funds in some of our big cities, one in three children still live in poverty in our Nation's capital. In nearby Baltimore, one in three residents are on food stamps, and one in three youth live in poverty.

This isn't a booming, growing economy. We borrow, tax, and spend. It hasn't produced results that are good for our country. Growth is way below what it was projected to be at this time. They were predicting 3.5 or 4 percent growth. We are not likely to add 2 percent growth this year.

The only people who seem to be gaining in this economic plan is the political class who came up with it and those with enough lobbyists to profit from it. What does the President say? What does Senator Reid say? How about our friends on the other side of the aisle, what do they say? Spend more money. That is what they say we need to do. But it is a budget that spends another $1 trillion, and we have to go to conference on that budget, they say. It is rather odd that after 4 years of not even producing one at all, now they are anxious to take one to conference that adds $1 trillion to the debt.

Put more people on government aid. Energy prices too high? Oh, mail people another check. They are hurting; let's send out government checks. Factory closed? Mail another check out to people who didn't get a job. Your school is failing? Send them more money. Families falling apart? Mail another check. Then there is this one: Too many Americans unemployed? Bring in foreign workers to do the job.

Madam President, do we have a 10-minute limit?

I ask unanimous consent to speak for 2 additional minutes.

I thank the Chair.

By what definition can we call what we have been seeing for the last 5 years a success? It is just not. That is the problem. We have taxed more, we have spent more, we have regulated more, we have borrowed more, we have stimulated more, and it hasn't produced solid growth. We have had the slowest recovery from a recession since the Great Depression.

So this is the plan. Reduce wages that results in an increase in unemployment, more part-time jobs, more regulations, and higher energy costs. And we make that up how? Well, the government will just borrow money and subsidize people in need.

That is not the kind of compassion I think we need. I think we need to be asking ourselves, what is really happening that is hurting Americans, and why can't we create a government that is leaner, more productive, that allows growth and prosperity to occur, and not tax, regulate, and borrow our country into debt. This is the fundamental choice the Nation is going to have to be dealing with.

Indeed, my colleagues fundamentally are saying this: Well, we have a problem in Washington. We don't have enough money. We just don't have enough money. We acknowledge we are borrowing too much money, the debt is too high, and we are on an unsustainable course. But, see, the problem is not us. We haven't overspent. We don't have programs that are running out of control. We have no unmanaged agencies and departments. The problem is, American people, you haven't sent enough money. Why don't you send some more money? That is what we need to have in this country. The American people need to understand how smart we are, how good we have managed their money, and if they will just send us more money, we can figure out all of this and the government will take care of it. It is your fault, America. You are hardheaded. You won't send us more money. Send more money, and we will fix the problems in America.

I reject that idea. We have to get our house under control and make our government leaner, focused on productivity, and serving the interests of people who are hurting right now. They are not doing well, and this economy is not doing well.

I see other Senators are here, Madam President. I thank the Chair for the opportunity to share these thoughts.

I yield the floor.

The vote yesterday was to raise the debt ceiling without altering by one penny the spending and debt path we are on.

It was demanded by Senator Reid and the majority that we raise the debt ceiling, give the President another $1 trillion or so in borrowing, and no commitment to make any changes in how we got here. That was not what we did in August 2011. Then, we agreed to reduce the growth of spending over 10 years by $2.1 trillion in exchange for raising the debt ceiling $2.1 trillion. Of course, we have already spent all of that.

We have already borrowed $2.1 trillion more. Senator Reid and the majority are demanding a clean debt ceiling bill, where we raise the debt ceiling but don't bother to ask us to change our spending habits, not one penny.

They say we can't negotiate on the debt ceiling. That is wrong.

I think it is perfectly appropriate. The House is prepared to do this, but they want some changes in how we are spending the taxpayers' money. The American people are tired of it. By a huge majority, they say we should not raise the debt ceiling unless we change our spending habits. Actually, almost a quarter of the American people say we should live within our income. We shouldn't raise the debt ceiling at all.

The idea that the President of the United States would not pay the bond holders of the United States, the debt holders of our country, if the debt ceiling were not raised, is unthinkable. Of course he will. He has to under the Constitution.

If we did not raise the debt ceiling, we would be bringing in $240 billion a month. The interest on our debt is $20 billion a month. That should be the first thing that is paid--and I am sure it would be if that were to happen.

I agree, the shutdown needs to end and the debt ceiling impasse needs to be dealt with. It is not good for America. But we cannot just say we are not going to do anything, we are not going to make any changes in our habits around here. That is what is at stake.

I will take a few minutes to walk through our situation about how we arrived at this point, especially with discretionary spending. I hope this will be helpful to our colleagues. It is a product of our work on the Budget Committee, where I am ranking member.

Many will remember in the summer of 2011 that Congress and the President engaged in a vigorous debate, tough negotiations, about how best to address runaway annual deficits of $1 trillion a year. As a matter of fact, over 5 years we have added $6 trillion to the debt of the United States of America.

Our discussions were ultimately resolved with the passage of the Budget Control Act. The BCA, as it is called, had at its heart three agreements. First it required a vote in each House of Congress on a balanced budget. Of course, the Senate voted that down. A majority, I believe, voted for it, but it didn't get the supermajority for a constitutional amendment.

Second, it allowed the President to increase the debt limit by $2.1 trillion subject to a congressional vote. That occurred.

Third, it provided spending controls of at least $2.1 trillion over or equal to the debt limit increase over 10 years.

The debt ceiling has already been reached in 2 years, a little over, and we still have not honored the commitment to reduce the growth of spending by $2.1 trillion over 10 years.

To rein in government spending the BCA did two things. It placed statutory caps or limits on discretionary spending. Those are the general programs of our government, which totaled $915 billion over 10 years. It was enforced by sequestration. It also called for an additional $1.2 trillion of future savings from any combination of entitlements and revenues agreed to by the so-called supercommittee that the legislation formed to try to reach some agreement on long-term improvements in our financial condition. This supercommittee was given the challenge to do this.

If they failed, then additional reductions of $1.2 trillion would be enforced through a future sequester mechanism.

The sequester was very clear, very real. The legislation mandated $2.1 trillion in reduced spending, but it allowed the committee to look for ways to do it. If the committee didn't reach agreement, there would be some automatic cuts. Nearly $1 trillion of savings were booked initially. The supercommittee went to work, but unfortunately they failed to make recommendations to Congress to find the other savings required under the act.

I commend the members of the committee. I do believe they tried their best, but they didn't reach agreement.

With that failure, the BCA outlined the path forward: $1.2 trillion in spending reductions, including interest savings, in both defense and nondefense operations spread out evenly over the 9 years left between the fiscal years 2013 and 2021.

Due to a variety of other laws passed over the years, primarily the 1990 deficit deal and the 2010 so-called pay-as-you-go act, which was passed on a debt limit increase also, the reductions do not apply to all Federal spending programs but only to those that are not exempt from enforcement. Many social programs are actually exempt. The food stamp program does not get a dime in reductions. Medicaid does not get a dime in reductions, for example. These cuts were to begin in January 2013, but were delayed until March of this year 2013, inside of that fiscal cliff agreement bill we reached, the American Taxpayer Relief Act, in January.

When the sequester took effect on March 1, it covered both discretionary and some mandatory spending, but less on mandatory. Discretionary spending was reduced a total of $68 billion for this fiscal year; $43 billion of that will fall on defense, and $26 billion on nondefense spending. They each represent about half of the Federal Government expenditures for discretionary accounts.

Additionally, $17 billion in identified mandatory spending was sequestered, of which $11 billion came from Medicare.

Total reductions were $85 billion. It is not a whole lot when we are spending $3.5 trillion, but $85 billion was at least progress downward in spending a little bit, at least from the growth in spending.

Looking ahead, colleagues have asked me what happens next under the Budget Control Act? In 2014, spending will be restrained on both the mandatory and discretionary side of the ledger at the approximate rates I mentioned. A sequester began on October 1 for mandatory spending--and this is mainly Medicare--totaling $18.8 million. Medicare spending will be reduced by a little over $11 billion, and the rest of the mandatory savings will come from reductions in defense and other mandatory spending.

There are some programs in the Defense Department that are mandatory also. Most of the Defense Department is discretionary. So the minor mandatory spending reductions hit defense and certain administrative expenses for Federal benefit programs and so forth.

For discretionary spending, the direction is down. Under the BCA, total regular discretionary spending is planned to be at $967 billion this upcoming fiscal year, split between $498 billion for defense, $469 billion for nondefense, although nondefense got less of a cut than defense.

This year's nondefense number is the same as last year; it is frozen. The nondefense discretionary spending did not take another cut this year. It is flat. Defense will be taking an additional $20 billion reduction this year under the BCA.

A so-called clean continuing resolution would come in at an annual rate of $986 billion, due to the fact that it keeps nondefense spending below the BCA caps while reflecting the current run rate.

I thank the Chair. I have a number of other comments about where we are financially.

I would ask unanimous consent to have 1 additional minute.

I would say, colleagues, that the defense cuts do not count the war reduction costs. Those were entirely separate and not part ever this.

The defense budget is getting hammered, but we ought to smooth some of these reductions out in a more fair way. Fundamentally, though we must remain committed to the requirements of the BCA.

I know it would be hard for my Democratic colleagues because the budget they produced would spend $1 trillion over the BCA limits. The President proposes to spend $1 trillion above those limits that we agreed to in August 2011.

As part of this deal, it would be wrong for us to breach the promise we made to the American people that if they let us raise the debt ceiling to $2.1 trillion, we would reduce spending over 10 years by $2.1 trillion. That reduction is really a reduction in the growth of spending because we would be growing spending $8 trillion over 10 years rather than $10 trillion over 10 years.

I thank the Chair and I yield the floor.

Madam President, the Republican Senators met with President Obama earlier today and discussed many of the financial issues facing America and the difficulties we are having in achieving an agreement that puts us on a sound financial path. There surely are actions we can take together to improve our situation. I believe there was some progress made, and there are some avenues for progress that could be opened in the hours to come. I hope we can do that.

But now it is well to recognize that our Medicare and Medicaid programs are surging in costs, and--as the President rightly noted to us at our meeting earlier today and has done so for a number of years-- that government health care costs are the biggest drivers of our debt. In other words, it is increasing at a faster rate than other programs, and we project it will continue to increase at those rates.

I think that is true. It is true. We have a huge challenge there. But importantly to this whole discussion, I recall during a formal address to a joint session of Congress in September 2009, the President promoted his Affordable Care Act and stated that he would help fix this problem of growing costs of health care and then flatly and unequivocally promised, ``I will not sign a plan that adds one dime to our deficits either now or any time in the future, period.'' That is astoundingly inaccurate, and we have to know this. We are voting and wrestling on what to do about our health care bill and other spending programs. But one thing that has been overlooked is this promise that the health care bill--the Affordable Care Act, ObamaCare--is not paid for as it was promised, and it is astoundingly over budget.

Let me talk for a few minutes about this issue and its importance. As we work together to try to reach a compromise, we have to understand that fact. As we work to deal with some of our long-term financial challenges, we need to focus on that matter.

Indeed, it appears, according to the Government Accountability Office, that over the long-term accounting period used to evaluate the unfunded liabilities of the United States, that the Affordable Care Act will add $6.2 trillion to the unfunded liabilities of America. That does not count the interest on that over this long period of time which may well double that figure. It puts it almost equal to the liability of Social Security--and maybe even more. So this is a big deal.

I want to share with my colleagues some thoughts as good faith negotiations are going on by Members. Republicans and Democrats are talking, the White House staff people are talking, and House Members and the Speaker are talking. There are some principles they need to be aware of as we go forward. I have a budget warning, and will make this point: Trust fund improvements--Social Security and Medicare primarily--are produced by savings or increased revenues in these programs. A number of ideas have been floated that could do that, and they need to be done. But those savings through revenue or new cutting of expenses cannot be used to justify or pay for breaking Budget Control Act caps, and that is very important.

It is essential in these hours of financial debate that all Members of Congress and the American people understand that the savings gained from much-needed reforms of our financially unsound Social Security and Medicare trust funds can only be used to strengthen those funds and not be used simultaneously to support spending for a new program, such as the Affordable Care Act. We can't use the money twice.

Our vital Social Security and Medicare programs are not solvent at this time. We know they are going into deficit right now. Our revenues will increase for those programs or costs to those programs will be brought down--as many ideas are being floated, and indeed, a number of them are in the President's budget and have some merit--and the resulting funds can only be spent once. The Budget Control Act restricts discretionary spending. It says: We are not going to increase spending over a certain rate. We are going to reduce the rate of increase in government spending.

The Budget Control Act is in the law. It was negotiated by the President, Senator Reid--the majority leader here--the Speaker, and Senator McConnell, and they agreed on certain limits on spending over the next 10 years. At that time we were projected to increase spending over 10 years by $10 trillion. If it was flat spending, we would spend $37 trillion; under projected growth it would go to $47 trillion.

Under the Budget Control Act we said: OK, we are going to cut spending. It really wasn't a cut in spending. But we would reduce the growth of spending from $10 trillion to $8 trillion, and that is why we are hearing so much today.

In the 2 years-plus since that agreement, Congress--except for a few budget gimmicks that my staff members bring up--has largely stuck to those limits. The President and the Democratic Senate have openly and directly opposed those limits. The President--6 months after signing the Budget Control Act--submitted a budget to this Senate that would increase spending $1 trillion over the limits agreed to in the Budget Control Act. Can you imagine that? There was a bipartisan meeting. As we worked on the debt ceiling to raise the debt ceiling $2 trillion, we agreed that over 10 years we would cut spending by $2.1 trillion.

Six months later, the President submits a budget to the Senate and to the House that calls for spending $1 trillion over that amount. So I think that was a breach--a serious act of the President to move away from the promises he had made and the act he signed into law.

To be more specific about it, one of the proposals in the President's budget that received a lot of discussion is an alteration of the way we calculate the inflation index for Social Security. It has been referred to as chained CPI. It is projected to save a certain amount of money-- maybe $128 billion or maybe more. Let's just say it is going to save $100 billion--chained CPI--and it would, in fact, increase the revenue into Social Security, and it would reduce the amount of money that is paid out of Social Security. It would save, let's say, $100 billion. So this would strengthen Social Security, there is no doubt about that. It would strengthen Social Security because the Social Security liabilities are going down and the revenue is going up.

What I wish to say to our colleagues as they wrestle with how to bring our numbers into better balance is that those savings cannot benefit Social Security and simultaneously justify increased Treasury spending over the Budget Control Act levels.

We can't use the money twice. This is so basic. We are talking about hundreds of billions of dollars.

CBO, our Congressional Budget Office, has analyzed this kind of maneuver, and they have clearly affirmed that even though the budget score over 10 years, using the unified budget accounting methods, would suggest otherwise, we cannot spend the money in both places.

So if we know how to ask a question of CBO, over the 10-year budget window, it can give the appearance that we have this money because it creates more money coming into the government that we can spend over here. But the money is dedicated to Social Security. It is Social Security money. It can't be spent twice. If it is going to strengthen Social Security, it can't be spent over here.

Madam President, I ask unanimous consent for 5 additional minutes.

I thank the Presiding Officer most graciously.

CBO has flatly called this in a letter, at my request, double- counting. Can

my colleagues imagine the Congressional Budget Office saying that the U.S. Congress is double-counting? Actually, in that case, in dealing with the Affordable Care Act, $500 billion of money extracted out of Medicare was being used to claim it would pay for the Affordable Care Act when it was Medicare's money.

So I am talking at this point and just sharing an example from Social Security and the chained CPI, but the principles are the same because both are trust funds. So it is double-counting.

In fact, any Social Security or Medicare trust fund savings so produced are legally assets of the trust fund, and debt instruments of the U.S. Treasury are issued and interest paid from the U.S. Treasury to Social Security and to the Medicare trust funds on the monies that are borrowed in that way. If the savings, as is likely, do not result in a trust fund surplus, then there is really no surplus that they can borrow. It simply tends to show more income to the U.S. Treasury-- falsely showing that because, again, the money is committed off-budget to Social Security.

The critical fact is that all of those moneys are already obligated to Social Security and Medicare and will be needed by those programs, and more money, actually, is going to be needed by those programs to meet the future obligations of those trust funds, which are insolvent. They don't have enough money coming in to pay the obligations they will be required to pay in the years to come.

So the scope of this abuse of our accounting system is truly enormous and threatens our Nation's very financial future. For example, it has allowed the President to falsely assert that the Affordable Care Act would not add one dime to the debt when, absent double-counting, the act would increase our debt by over $500 billion over the next 10 years--$500 billion. It is going to adversely impact the financial condition of America.

The same accounting manipulations enabled many supporters of the Gang of 8 immigration bill to assert that their legislation was paid for. They were going to spend all of this money and they were going to make us safe from illegal immigration and it was all paid for--every dime of it--and wouldn't add to the debt. Do my colleagues know how they did that? Well, they were going to give Social Security cards to millions-- 11 million or however many would come forward--and they would pay Social Security, and they would have more Social Security money coming into the U.S. Treasury, and therefore that would pay for the extra border patrol and other expenses they said they have to spend money on.

But I ask my colleagues to think about it. The money paid by the people who have been given legal status, the Social Security they have paid for is their money. It is their money. They are going to draw out every penny of it when they get older. We can't say it is available to pay another expense today. If we do, it is not going to be there, to pay for their Social Security when they retire. How simple is this? This was the message here on the floor. They steadfastly insisted that the bill was paid for, double-counting Social Security money.

So we have to get straight about this, I have to say. Legislation must be adopted to stop this double-counting. It is open to abuse and manipulation and has been done, really, by both parties in the past but not as much as we have seen lately. It is enabling the Nation's dangerous financial trajectory.

Finally, as we work to end the Nation's financial impasse, another warning is needed. All should understand that consent to passage of a continuing resolution or debt ceiling bill cannot be achieved until we have sufficient time to have a complete CBO score of it so we know what kind of maneuvers are being used in the bill. So I am going to object. We are not going to wake up one day and say we have to run to the floor and pass a bill with 30 minutes' notice or 3 hours' notice. That would be a mistake.

Madam President, I thank the Chair and yield the floor.