Floor Statements

Madam President.

I stand in this moment in opposition to the railroad antitrust amendment offered by my distinguished colleague, Senator Kohl, and I urge my fellow Senators to do likewise.

As the Antitrust Modernization Commission noted in 2007, free market competition is the fundamental economic policy of the United States. In advancing this overarching policy goal, we should be wary of particularized exemptions from our Nation's antitrust laws. I know Senator Kohl shares my view in that regard.

When properly applied, antitrust laws function to help ensure that market forces promote robust competition, spur innovation, and result in the greatest possible benefit to the American consumer. In many respects, Federal and State agencies enforce antitrust laws in order to forestall the need for burdensome and long-lasting government regulation.

If competition thrives and market forces operate properly, there is no need for extensive government intrusion or interference. Likewise, when the antitrust laws do apply, comprehensive economic regulations should not dictate how an industry operates. It, therefore, makes little sense to impose upon a heavily regulated industry an additional layer of government oversight and enforcement through the application of antitrust laws while at the same time leaving in place a comprehensive regime of government oversight through economic regulation. Piling layer upon layer of government interference will not advance the cause of free market competition, innovation, and consumer welfare.

I am concerned that such layering of government regulation is effectively what the Kohl amendment does. I worry that in extending the reach of antitrust laws to the freight rail industry, the amendment does not remove any authority or jurisdiction of the Surface Transportation Board, the regulatory agency currently overseeing the rail industry. As a result, the amendment simply imposes additional government supervision over the rail industry with attendant increased regulatory burdens and costs as well as inevitable conflicts and uncertainties resulting from a second layer of government oversight over the same activities.

Given the highly regulated nature of the freight rail industry, application of antitrust laws would likely require courts to wade into the complex realm of rate setting and other highly technical matters--a task for which judges are particularly ill-equipped. In addition to this fundamental unease over multiplying government regulatory burdens, I am also very concerned with a number of the amendment's provisions that seem to reach beyond simply eliminating antitrust exceptions for the rail industry.

First, I worry that section 4 of the amendment limits what is known as the doctrine of ``primary jurisdiction'' in those antitrust cases that involve railroads. Under this longstanding doctrine, which was established in 1907, a court will normally defer to an expert agency when that agency has jurisdiction over the subject matter of a legal dispute. This doctrine allows courts to balance regulatory requirements with other legal requirements for regulated industries. The primary jurisdiction doctrine is not an antitrust exemption and discouraging the use of this would be a legal and judicial change that reaches far beyond the antitrust laws and its implications.

I would also note that section 4 would give trial lawyers the power to disregard agency action, but only with respect to the railroads. As a result, railroads would be singled out for special treatment, leaving the doctrine of primary jurisdiction available to the courts in cases involving electrical utilities and other regulated industries. I am unaware of any compelling justification for this disparity.

My second concern relates to section 7(a) of the amendment which not only repeals antitrust immunity for rail rate bureaus but also repeals procedural protections that facilitate lawful rail transportation services. Because of their route structures, railroads are often not individually capable of providing rail transportation services to all locations that a customer may request or that regulations may require. As a result, approximately 40 percent of all rail travel is jointly handled by more than one railroad.

While the railroads must work together to provide through service on some routes in order to meet their regulatory obligations and to meet their customers' transportation needs, the railroads compete with one another for freight movements on routes not involved with through service, and they are fully subject to the antitrust laws.

Current law provides that proof of an antitrust violation may not be inferred from discussions among two or more rail carriers relating to interline movements and rates. In the conference report for the Staggers Rail Act of 1980, Congress explained the need for these evidentiary protections as follows:

Because of the requirement that carriers concur in changes

to joint rates, carriers must talk to competitors about

interline movements in which they interchange.

That requirement could falsely lead to conclusions about

rate agreements that were

lawfully discussed. To prevent such a conclusion, the

Conference substitute provides procedural protections about

lawful discussions and resulting rates.

These evidentiary protections are not antitrust exemptions. They are designed to avoid prejudicial inferences from discussions the railroads must have in order to implement joint arrangements. I am unaware of any compelling reason to alter Congress's considered judgment in establishing these procedural protections. Were these protections to be discarded, railroads would be exposed potentially to legal liability for interline discussions, and they may choose simply not to participate, and rail customers would be faced with the burden of having to deal separately with each railroad in a given route in order to work out commercial and service details.

Third, and perhaps most critically, I am concerned that section 8 of the amendment would effectively lead to retroactive application of antitrust laws, allowing a government agency or private plaintiff to bring a case attacking past railroad activities that were expressly immunized from the antitrust laws in that respect.

Section 8(b) would allow antitrust lawsuits for ongoing railroad activity that was previously immunized from the railroad antitrust laws. This would leave open the possibility that conduct in accordance with railroad merger and line sale transactions previously approved by the Interstate Commerce Commission or the Surface Transportation Board as in the public interest, immunized by statute from antitrust laws, and implemented by the railroads, consistent with the agency's approval, could now be challenged as unlawful.

Were this to become law, the impact on the railroad network and its ability to plan and invest to meet our Nation's growing transportation needs would be adversely affected in a significant way.

In summary, if this amendment eliminated regulatory intervention in the marketplace for rail transportation and left the rail industry subject solely to the antitrust laws, I could, perhaps, endorse that effort. However, that is not the case. This amendment increases rather than improves government oversight of the rail industry's activities and, in my view, is inconsistent with the overarching goal of seeking greater competition in the transportation marketplace unfettered by intrusive government regulation.

In addition, the amendment goes beyond simply eliminating antitrust exemptions and instead changes longstanding policies and judicial doctrine that are not antitrust law tenets.

Last year, when the Judiciary Committee favorably reported S. 49, which is the text of Senator Kohl's current amendment, I made clear that my support was contingent upon resolving these and other concerns prior to floor consideration. Regrettably, such a resolution did not occur, and I must now oppose the amendment and ask my colleagues in the Senate to do likewise.

Thank you, Madam President.

Mr. President, today I wish to recognize the career of Assistant Police Chief Marcy Korgenski, who is retiring after 30 years with the Ogden Police Department and was the first female to hold the position in Ogden's history.

A graduate of both Weber State University and the FBI National Academy, Chief Korgenski first joined Ogden's police force in 1982 as a patrol officer.

She helped to found the department's gang unit in 1991, and, rising through the ranks, she became a sergeant in 1995 and a lieutenant in 1999. In 2010, Korgenski was promoted to assistant police chief, a position she had earned with hard work throughout her career.

As assistant chief, Korgenski has been in charge of the department's Investigation Division, training and records operations, and selective enforcement. She has also directed officers assigned to the Weber- Morgan Narcotics Strike Force, established and managed the Ogden Police Apprentice Program, and joined prosecutors in establishing a special investigator for Hispanic victims of domestic violence. Using her experience to teach others, Korgenski trained members of the Volunteers in Policing program in techniques to assist local police in keeping residents safe.

In 2011, Korgenski was awarded the Ogden/Weber Chamber Women in Business Committee's ATHENA award, which recognizes individuals who demonstrate excellence, initiative, and creativity in their profession. When interviewed about the award, Korgenski said that she encourages women to ``dream the impossible dream.''

Korgenski has also received her department's Distinguished Service Award, the Mattie Harris Spirit of the American Woman Award, and the Rotary Club's Outstanding Selfless Dedication and Public Service Award.

Beyond her professional accomplishments, Korgenski is very active in her community. She is involved with the Ogden Area Youth Alliance, the American Cancer Society Relay for Life, the Special Olympics of Utah, and the Domestic Violence Coalition for Weber County. She also serves on the Swanson Foundation Advisory Board, the Ogden Noon Exchange Club Executive Board, Weber Sate's Child and Family Services Advisory Board, and the GOAL Foundation, and is a trustee for Youth Impact, a nonprofit organization dedicated to helping at-risk youths. Her decision to retire was made in part to devote even more time to her volunteering efforts.

I join Ogden Mayor Mike Caldwell in saying that Marcy Korgenski's service to the public will be missed. Her career is a testament to the accomplishments of hardworking women everywhere, and I congratulate her on her many achievements and 30 years of excellence in her field.

Mr. President, I would like to congratulate Roy City, UT for reaching the 75th anniversary of its original incorporation in 1937.

Roy City was first settled in 1873 by William Evans Baker. At the time, the area was seen as dry and desert-like, not a likely place for a town. Baker convinced three brothers-in-law to join him, eventually forming what would come to be affectionately known as ``Cousin Street'' because all of the residents along the road were cousins. The settlers came up with an industrious way to bring much-needed clean water to the area, digging a canal from nearby mountains. With water came a sense of permanence for the town.

Twenty-one years after the first settlement, the area's residents agreed to establish a post office, which required that the town be given an official name. It had been called many things, from Central City to Sandridge to Lakeview. The decision was to be made in the wake of a tragic death, that of Roy Peebles, the young son of Reverend David Peebles. Locals decided that the town should be named after Roy, and on May 24, 1894, Roy had a name and a post office.

Roy remained a quiet, sparsely populated area until the 1940s, when Hill Field was established nearby. Roy City suddenly grew rapidly, forcing an equally rapid expansion of services. For a brief period, overflowing classes for schoolchildren were held in the halls. A semi- permanent solution was found in busing students across Ogden to other solutions, and a permanent solution was finally completed in 1965 in the form of Roy High School. It became the largest high school in Weber County, and has been ranked as one of the top ten high schools in the country.

Thanks to spending by members of the military working at Hill Air Force Base, the Navy Supply Depot, and the Defense Supply Depot, businesses in Roy City expanded quickly during and after WWII. In 1953, the city was granted a charter to establish Utah's first branch bank, paving the way for branch banks to spread throughout Utah.

In recent years, Roy City has been called ``Weber County's Fastest Growing City,'' boasting over 35,000 residents. It has also been regularly lauded as one of Utah's most fiscally well-managed cities. Roy City now offers its citizens a host of modern businesses, conveniences, and services, from biking trails to an aquatic center.

To mark this year's special anniversary, Mayor Joe Ritchie will be presiding over the burial of a time capsule that is to be opened in 25 years, exactly one century after the city's incorporation. May the last quarter of that journey be as productive and successful as the first three.

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

Mr. President, on January 4, 2012, President Obama bypassed the Senate's constitutional right to advise and consent to nominees and, instead, unilaterally made appointments to the Consumer Financial Protection Bureau and to the National Labor Relations Board. He purported to do so under the Constitution's recess appointments clause, even though at the time of the appointments the Senate was holding pro forma sessions roughly every 72 hours.

If allowed to stand, President Obama's unprecedented and unconstitutional recess appointments could result in Presidents of both parties routinely circumventing the Senate's advice-and-consent function and thus depriving the people and the people's representatives of an essential check on the executive branch.

President Obama's actions also violate the Constitution's fundamental system of separation of powers. He has asserted the unilateral power to override Congress's own determination of when it is in session and when it is in recess. At an absolute minimum, the Senate's institutional prerogatives demand that we be allowed to make our own rules. Yet President Obama's actions would deprive our body of even that basic right.

In the past, I have given pretty broad deference to the President's judicial nominees. Both in the Judiciary Committee and on the floor of the Senate, I have voted in favor of the vast majority of President Obama's nominees, including many with whom I have fundamental disagreements on various points.

But I can do so no more. The Founders expected that each branch of the Federal Government would exercise the necessary constitutional means to resist any encroachments by the other branches. Among those constitutional means is the Senate's advice-and-consent function, which I exercised today by voting against a nominee who otherwise might have received my support. Thirty-three other Senators did exactly the same.

The President cannot expect the Senate's full cooperation at the same time he does violence to this body's constitutional prerogatives. The threshold for confirming President Obama's nominees must change accordingly. Simply put, there is a new standard for confirmations as a result of the President's own actions. I find this unfortunate but ultimately necessary.

Both today and in the coming days, I will join with other Senators to act as a check and a balance on the President's unconstitutional conduct by voting against some nominees. I expect that many of my Republican colleagues, and in time some of our Democratic counterparts, will rise in defense of the Constitution and vote against President Obama's nominees until such time as he takes actions to restore the Senate's full constitutional right to advise and consent to his nominations.

Mr. President, I now choose to turn to another topic--a topic that is important to many Americans, a topic that relates to an important anniversary we are recognizing.

Today, we are highlighting the third anniversary of President Obama's failed stimulus package.

The President promised 3 years ago that the stimulus would create what he characterized as millions of jobs. But today, unfortunately, devastatingly, there are nearly 13 million people in America who are still unemployed and many millions more have even given up on looking for jobs.

Three years ago, the White House said that because of the stimulus package, unemployment would not exceed 8 percent. That has not happened. In fact, the unemployment rate has topped 8 percent for 36 straight months now--the longest stretch of high unemployment since the Great Depression. The Congressional Budget Office predicts it is going to go even longer. We will not see sub-8 percent unemployment, according to the CBO, until 2014.

The President sold his stimulus package to the American people by claiming he would make immediate investments in what he characterized as ``shovel-ready'' jobs. But last June, the President acknowledged that ``shovel-ready was not as shovel-ready as we expected.'' Nevertheless, a lot of money has been spent, as we have been waiting for these jobs to materialize--jobs that never quite came about.

In fact, some of it was spent in ways that have nothing to do with stimulating the economy. For example, consider some of the ways in which this stimulus money has been spent. Mr. President, $760,000 was spent on interactive dance software; $1.2 million was spent on a train museum; $2 million was spent to study ant behavior; $762,000 was spent to study improvised music--I am not sure what that is, but I am sure it is lovely, not necessarily deserving of scarce Federal resources-- $300,000 to track weather on other planets--great if one lives on another planet, not so great if one lives on Earth in a country that has accumulated an unprecedented debt exceeding $15 trillion--$153,000 for an indoor water park; and $712,000 to develop a ``machine-generated humor'' system--in other words, a joke machine.

This big joke is on the American taxpayer. Unfortunately, it is no laughing matter.

In the last 3 years, we have added more than $4 trillion to the national debt, we have recorded the three largest annual deficits in our Nation's history, and we are on pace for a fourth straight deficit exceeding $1 trillion.

This week, the President submitted a budget that calls for adding $11 trillion in new debt over the next decade. His own Treasury Secretary calls the level of spending unsustainable, and it is.

Despite the overwhelming evidence that his stimulus package has failed, the President has called for additional increases in spending.

I know the President is a good man. I also know he faced a difficult economy when he took office. But the President is unwilling to tell the truth to the American people about what lies ahead, about some of the challenges we face. I think he needs to do so, and he needs to acknowledge the fact that this stimulus package has failed so we can avoid making similar mistakes in the future.

Today we cannot celebrate the anniversary of the President's stimulus. Rather, we must lament a tremendous lost opportunity by this administration to put this country back on the right track over these last 3 years.

For the sake of future generations, I hope it is not too late to change course.

I suggest the absence of a quorum.

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

Mr. President, I rise in opposition to this nomination. I do so not because of the qualifications of this particular nominee, but instead I do so in defense of the U.S. Constitution.

In opposing President Obama's appointments, I have repeatedly made clear this is a constitutional issue. Each time I have spoken--and I have done so on numerous occasions--I have set forth in detail the reasons why I believe on a legal basis, on a constitutional basis, why President Obama's recent purported recess appointments are unprecedented and unconstitutional. I have also made absolutely clear that my opposition to President Obama's appointments is not partisan and that I will hold a Republican President equally accountable whenever any Republican President makes a similarly unconstitutional claim of power.

This President has enjoyed my cooperation up to this point. I voted for many, if not most, of his nominees. That cooperation cannot continue--not in the same way he has enjoyed it up to this point. In light of the fact he has disrespected our authority within this body, he has disrespected the Constitution.

Unfortunately, many of my colleagues have refused to engage on the real substance of this issue. Instead, they have repeatedly changed the subject to partisan politics, the nominations process, and Richard Cordray's qualifications to head the CFPB. Even worse, and despite my repeatedly making clear I intend to hold any Republican President to the same standard to protect the institutional and constitutional prerogatives of the Senate rather than the interests of any political party--given those are at stake--the Democrats, including the President himself, have accused me of playing politics. I wish to be clear again: This is not the case. I am here to defend the constitutional prerogatives of the Senate and the separation of powers and the system of checks and balances that are at the heart of our constitutional system.

The Senate's advice-and-consent role is grounded in the Constitution's system of checks and balances. In Federalist 51, James Madison wrote:

. . . the great security against a gradual concentration of

the several powers in the same [branch of government],

consists in giving to those who administer each [branch] the

necessary constitutional means and personal motives to resist

encroachments of the others.

Among those constitutional means is the Senate's ability to withhold its consent for a nominee, forcing the President to work with Congress to address that body's concerns.

The key conclusion of the Department of Justice's Office of Legal Counsel memorandum, on which President Obama relied in making these recess appointments, is that the President may unilaterally decide and conclude that the Senate's pro forma sessions somehow do not constitute sessions of the Senate for purposes relevant to the recess appointments clause, in clause 3 of article II, section 2. If allowed to stand, this deeply flawed assertion would upend an important element of the Constitution's separation of powers. Under the procedures set forth by the Constitution, it is for the Senate, not for the President, to determine when the Senate is in session. Indeed, the Constitution expressly grants the Senate that prerogative, the power to ``determine the Rules of its Proceedings.''

Commenting on this very provision in his authoritative constitutional treatise, Joseph Story noted:

[t]he humblest assembly of men is understood to possess

[the power to make its own rules,] and it would be absurd to

deprive the councils of the nation of a like authority.

Yet this is precisely the result of President Obama's attempt to tell the Senate when it is or is not in recess.

I am saddened some of my colleagues in the Senate are not more jealous of this body's rightful constitutional, institutional prerogatives. As they well know, the Constitution's protections do not belong to any one party, and its structural separation of powers is meant to protect against the abuses of present and future Presidents of both parties. Acquiescing to the President in the moment may result in temporary political gain for the President's party, but relinquishing this important piece of the Senate's constitutional role has lasting consequences for Republicans and Democrats alike.

It is on this basis, and because of the oath I have taken to uphold the Constitution of the United States, that I find myself dutybound to oppose this nomination. I strongly urge my colleagues on both sides of the aisle to take seriously their obligation both to the Constitution and to the institutional prerogatives of the Senate and to do the same.

I yield the floor.

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

Mr. President, I rise today to talk about the state of the Nation's economy. Upon taking office, President Obama encountered one of the worst recessions in this country's history. He faced tremendous challenges under any standard. To be sure, it would have been difficult for any President to make the kinds of reforms that would have had an immediate effect on an economy this bad. But at the end of the day we see that although he was handed something that we can fairly characterize as an economic emergency, he, through his actions and through his policies, turned that emergency into a national tragedy.

In his first 2 years, instead of focusing on creating jobs and creating a set of circumstances in which the private sector could bring jobs to fruition, President Obama and his substantial majorities in both Houses of Congress used their tremendous advantage to push for greater government control over America's health care choices, more burdensome and debilitating regulations on businesses, and a failed stimulus package that led to record-setting annual deficits.

Just look at America before President Obama took office and compare it to our economic situation now. For example, unemployment is up 9 percent from when President Obama took office. The price of gasoline is up 83 percent compared to when he took office. Long-term unemployment is up 107 percent. The median value of a single-family home in America is down 14 percent, and the U.S. national debt is up 43 percent. He has added over $4 trillion to our national debt.

Then, last year, President Obama created a standoff with Republicans by refusing to accept a reasonable compromise on spending reforms as a condition for raising the Nation's debt ceiling. He presided over the downgrading of America's credit rating, the first in our country's history, and he has taken every opportunity to block the development of America's energy resources, a source of much-needed revenue and jobs.

Perhaps most troubling, this President has intentionally divided the country by waging vicious class warfare campaigns separating average, hard-working Americans by income and then pitting them against one another. The President's record on this score has been repugnant and damaging.

Instead of working with Congress to address our genuine economic challenges, the President has responded by starting his reelection campaign early. In a series of taxpayer-funded campaign stops, the President sharpened his divisive message and astoundingly blamed Republicans for legislative gridlock--never mind that the President's most recent budget proposal failed to attract even a single vote in the U.S. Senate, and it was, in fact, Senate Democrats who refused to bring the President's own jobs plan to the floor for a vote. Even today, members of the President's own party are lining up against him to oppose his tone-deaf decision on the Keystone XL Pipeline. This project would create 20,000 American jobs, it would inject much needed private sector capital into our economy, and it would increase the country's energy security, but the President has chosen to block the project as an election-year nod to his friends in the extreme leftwing of the environmentalist movement.

President Obama has put the state of our Union in disarray. Certainly he inherited a poor economy, but the decisions he has made and implemented since taking office are making it worse. He was handed an economic emergency, and instead of taking the

challenge head-on, he chose to ignore it, and then he turned it into a national tragedy.

There is a void of leadership in the White House. He must end the divisiveness and start dealing directly and decisively with the needs of the country. The President has very little time left to show the American people that he can be the kind of leader who will put the country before his own personal political interests. For the sake of all Americans, I sincerely hope he uses that time wisely.

Mr. President, I yield the floor.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you, Madam Chair.

Mr. President, today I wish to recognize and congratulate former Utah State Senate President Haven J. Barlow on his recent 90th birthday. He is a true patriot who spent much of his life serving his State and his country, and I thank him for that service.

Haven was born January 4, 1922 in Clearfield, UT to Jesse B. and Issadora Beck Barlow. His mother Issadora was killed in a tragic car/ train accident when he was just 9 months old, causing him to learn his share of responsibility at an early age.

After graduating from Davis High School, Haven earned a degree in business administration at Utah State Agricultural College, now Utah State University. He joined the U.S. Navy and attended officer candidate school at Harvard University. He served as a naval supply and disbursement officer in the Pacific and the Atlantic in World War II, receiving the Philippine Liberation Medal.

Haven and his wife Bonnie Rae Ellison Barlow were married for 58 years before Bonnie Rae passed away at age 79. Haven and Bonnie Rae returned to Davis County after World War II, where they reared their six children in Layton.

In 1949, Haven started the Barlow Realty and Insurance Company, and he still checks in daily at the very successful real estate development office.

In 1952, Haven was elected to the Utah State Legislature, where he served consecutively for 42 years from 1953 to 1994, longer than any other legislator in Utah history. He served as President of the Utah State Senate for 6 years.

While serving as a senator and representative for 42 years in the Utah State Legislature, Haven introduced and sponsored a number of pieces of legislation that formulated the landscape in northern Utah. In the field of education, one of Haven's passions, he supported the establishment of then-Weber State College as a 4-year school, Weber State's transition from college to university, and the securing of funding for the Weber State Davis Campus. Today, Weber State boasts over 24,000 students. Haven also supported the bill that turned Utah State Agricultural College into Utah State University.

Haven backed legislation that created the Davis Applied Technology Center, which is now the Davis Applied Technology College. The vocational school trains students in a variety of technologies and skills that can be directly applied to the workplace. Additionally, Haven supported the Ogden-Weber Applied Technology Center, also now a college, which offers similar services to its students.

In 1981, Haven was a proponent of the Hill Aerospace Museum, which was founded that year and is now home to over 90 aircraft. The museum hosted its millionth visitor in 1996, and now has nearly 200,000 visitors annually.

Even given his many accomplishments, there is perhaps nothing more admirable about Haven than his support for charity. He sponsored legislation that created the Utah Botanical Center, home of a ``giving garden'' which donates all produce to local food banks. He has also donated money and countless hours to the United Way of Salt Lake, and has been known to tell skeptical donors that if they wound up unhappy about their donations, he would pay them back personally. United Way of Salt Lake Regional Director Jim Young has said of Haven, ``[His] irrepressibly positive attitude makes him a joy to be around. He has what a colleague of mine calls `yes, in his heart.' Haven's heart for those around him challenges us to become more involved in our community and make a difference.''

The world is a better place because of Haven Barlow. He is an example for all Americans to follow, and I wish him a very happy 90th birthday.

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

Mr. President, today I rise with a heavy heart to mourn the loss of Ogden police officer Jared Francom.

Earlier this month, on the evening of January 4, 2012, Agent Francom was senselessly gunned down defending his fellow officers as they attempted to serve a search warrant in Ogden, UT. Five other officers-- Sean Grogan, Kasey Burrell, Michael Rounkles, Nate Hutchinson, and Jason Venderwarf--were wounded in the gun battle.

A week later, a crowd of roughly 4,000 family members, friends, and supporters, including more than 1,000 uniformed officers, gathered at a public memorial for Jared to say goodbye to one of America's fallen heroes. The sentiment from all who knew him was the same: Jared was a devoted family man, a dedicated father to his two young daughters, a fun-loving brother and son to his family.

At the funeral, which I attended, I heard Jared's brother Ben say that he ``taught people to care for each other and taught others to change the world like he was doing on the streets of Ogden.'' Commenting on the outpouring of support, Jared's brother Travis said: ``I know my brother would be proud, because we all are his family.''

Achieving a goal he had set for himself as a young boy, Agent Francom became a member of the Ogden police force 7 years ago and was assigned to the Weber-Morgan Narcotics Strike Force.

Jared's sacrifice should be a reminder to us of the incredible risks our brave law enforcement officers all take as they protect the people they serve. I have a deep and unwavering respect for the law enforcement community, and as a former assistant U.S. attorney I have seen up close how these men and women serve with honor, integrity, and dedication. Jared Francom was no exception. He will be remembered for giving his life in service to the people and to the community he loved.

Mr. President, I suggest the absence of a quorum.

Mr. President, I stand today to urge my colleagues to support one of the most important pieces of legislation that has come before this body in decades, Senate Joint Resolution 10, the Hatch-Lee balanced budget amendment proposal.

The reason why I insist this is so important is because of a crisis we are facing today. We have accumulated about $15 trillion in sovereign debt on behalf of the United States--$15 trillion. It works out to about $50,000 for every man, woman, and child in America. This is an amount of money that could represent an expensive car. It could represent a college education. It could represent all kinds of things. But it represents ultimately debt that Congress has incurred, debt that Congress cannot afford to continue to incur at this same rate, which we are doing every day. We are adding to that debt at an unsustainable rate of about $1.5 trillion every single year.

Here is why that is so distressing to me. As the White House itself acknowledged a few months ago, we are now within about a decade, perhaps much less, of owing about $1 trillion a year just in interest on our national debt. Currently we are paying a little over $200 billion a year in interest. By the end of this decade, that number is likely to rise to an astounding $1 trillion a year. We could reach that number much sooner than that. It could happen perhaps in half that amount of time if interest rates suddenly started to climb, as they easily could do, particularly given the fact that we are about 350 basis points below the historic average for yield rates on U.S. Treasury instruments, the means by which our governmental debt is financed.

We have to get this problem under control now, because if we wait until then, until we have to pay $1 trillion a year in interest on our national debt, it will be too late to do anything. By waiting, by postponing the day of our accountability, we will have made a choice, a devastating choice, that will prove to signal the downfall of the greatest economy the world has ever known. We cannot allow that to happen--not now, not on our watch, not when the stakes are this high.

If we have to make up that difference, the difference between the $200 billion a year we are paying now and the trillion a year we will have to be paying in interest on our national debt a few years from now, that money has to come from somewhere. That money is not something we can expect simply to obtain through an increase in taxation.

Over the long haul, we have learned that our tax system is capable of generating a revenue stream equaling a little over 18 percent of all of the revenue that moves through the American economy every single year-- a little over 18 percent of our gross domestic product. As this chart shows, that percentage remains relatively constant. It has remained that way for many decades, going back to at least 1960. It averages out a little over 18 percent of gross domestic product.

That remains true even when we go back 30 years or so when our top marginal income tax rates were approaching 90 percent. The economy finds a way to produce no more than a little over 18\1/2\ percent--a little over 18 percent of GDP. So we cannot just raise taxes at that point in order to generate more revenue, because our income tax system, no matter how we tweak it, no matter how high we raise top marginal rates, is not capable of generating that much revenue. What we do when we simply ratchet up those tax rates, if anything, is we shrink the size of our economy. We chill economic growth to the point where we are actually generating less revenue, not more. So we cannot tax our way out of that problem, nor can we at that point simply borrow our way out of that problem. In other words, we cannot borrow an additional $800 billion a year on top of the present-day $1.5 trillion a year we are borrowing, because if we did that, our interest rates would go up that much more. That would make our decision that much more crippling on our economy.

There are a lot of reasons why this matters. My colleague from Ohio, Mr. Portman, acknowledged a few minutes ago that this chills job growth when we have this much debt. It is also true that this impairs our ability to fund every conceivable government program from defense to entitlements, such that if we wait in order to make the necessary changes to the way we spend money in Washington, we will wait at our own peril. We will wait at the peril of those who have become dependent on those very government programs that will have to have their budgets slashed immediately, abruptly, severely. We cannot afford to do that. Those who have become dependent on Social Security, on Medicare, on Medicaid, on other entitlement programs, on supplemental nutritional assistance, would be devastated if all of a sudden we cut off funding for those programs, we had to slash those budgets by 30, 40, 50 percent overnight. It is these abrupt changes that prove most difficult for our economy to absorb.

I have often said it is something that we can analogize to being on top of a large building. Let's say our $15 trillion debt can be compared to a 15-story building. If you need to get down off of that building, you need to get to the ground floor. If you want to do it quickly, you could decide to jump. If you decide to jump, it is not the fall that will kill you, it is the abrupt halt at the end of that fall. So you need to do something to cushion the fall, to slow it down a little bit so it can be accomplished gradually, so nobody gets hurt. That is where the balanced budgeted amendment comes in. The Hatch-Lee balanced budget amendment, Senate Joint Resolution 10, would bring about severe, significant, systemic changes, but it would do so gradually so that the cuts, while significant over the long haul, are not abrupt, so that the impact is not severe, other than avoiding the severeness of the impact that would otherwise occur.

We have to get down from that 15-story building, from that $15 trillion debt. We do that through a balanced budget amendment, one like Senate Joint Resolution 10, which contains a 5-year delayed implementation clause. That would give us time to work out a phased-in glidepath toward balancing our budget. That is what we need do in order to protect and preserve our economic stability, our jobs market, and our ability within the Federal Government to fund everything from defense to entitlements.

Those who ignore the need for this amendment ignore the fact that our spending continues to escalate. I want to talk about how much we have spent as a country as a percentage of our overall economy, as a percentage of our gross domestic product. Between the early 1790s and the early 1930s, the Federal Government spent, on average, between 2 and 4 percent of gross domestic product every single year with only two notable exceptions, once during the Civil War and the second time during and in the immediate aftermath of World War I. With those two exceptions, Congress's spending was modest, between 2 and 4 percent of

I ask unanimous consent to enter into a colloquy with my Republican colleagues for up to 30 minutes.

Mr. President, I stand today to urge my colleagues to support efforts to bring forward a balanced budget amendment, one that can be passed out of both Houses of Congress and submitted to the States for ratification.

Article V of the Constitution gives us the power to change the Constitution from time to time, to modify our laws, that 224-year-old document that has fostered the development of the greatest civilization the world has ever known.

We have done this 27 times. We have done it at times in order to protect and preserve the Nation our ancestors fought so valiantly to create and later again to defend. We have to modify our government, the manner in which we do business, in order to preserve that system, in order to make it strong, in order to ensure that it will continue to be strong for future generations.

We made it stronger when, for example, we added the Bill of Rights shortly after the ratification of the Constitution. We made it stronger again when, for example, we added the so-called Civil War amendments, amendments XIII, XIV, and XV, ending slavery and the badges and incidents thereof. We made it stronger when we made clear that women must always be given the right to vote. We have made it stronger a number of times. And the time to make it stronger has come yet again.

It is time to modify the Constitution to limit--to restrict-- Congress's current power granted by article I, section 8, clause 2 of the Constitution to borrow money on credit of the United States. The reason we need to do this is because this power has been so severely abused over such a prolonged period of time that it is causing devastating consequences for our economy and for our ability to fund the operations of the government.

We have now accumulated over $15 trillion in debt as a country. That works out to about $50,000 for every man, woman, and child in America. It works out, arguably, to about $120,000 to $150,000 for every taxpayer in America. This is lot of money. It also represents between 90 and 100 percent of our gross domestic product annually, depending on whose statistics you follow. This is troubling, given that there is an abundant amount of research indicating that once a country's sovereign debt-to-GDP ratio crosses the significant 90-percent threshold--which we have now done--economic growth tends to slow, tends to slow to a point that an economy as large as ours can expect to lose as many as 1 million jobs a year. We can't afford to lose jobs, especially when we know one of the major causes is our national debt. It is time we change the way we do business. It is time to change the manner in which Congress acquires new debt.

This is no longer an issue that is either Republican or Democrat, that is either liberal or conservative. It is simply American. I remind my colleagues, whether you are concerned on the one hand about preserving America's leading edge, its ability to fund its national defense program or, on the other hand, if you are most concerned about funding our entitlement programs, you should want a balanced budget amendment because this is what we need to do, this is what we have to do in order to protect our ability to fund both of those things and everything else we do, you see, because by the end of this decade, according to the White House's own numbers, we will be paying close to $1 trillion every year to pay the interest on our national debt. Just the interest alone. We are currently spending a little over $200 billion a year on interest--still a lot of money but about $800 billion lower than what we are likely to be spending by the end of this decade.

Where will that additional $800 billion every single year come from? This isn't a discretionary sum. This is money we have to pay. It is the first thing we have to pay. Where will that $800 billion difference be made up? At that point, we can't expect simply to raise taxes to make up that difference. I am not aware of any tax increase plan that could bring in that much additional revenue every year, without stagnating our economy to the point that we might, within 1 year or 2 years, bring in less revenue rather than more--certainly not $800 billion more. Nor am I aware of any plan whereby we could simply borrow an additional $800 billion to pay that interest, because doing so, of course, would cause our interest rates to skyrocket, grow out of control, and our interest payments would be even more significant at that point, thus further impairing our ability to fund everything from defense to entitlements. So at that point, the only option on the table would be dramatic, severe, abrupt, even Draconian cuts to everything from defense to entitlements and everything in between. We don't want this. There is a better way. And the better way forward consists of a severe permanent structural spending reform that can be achieved only through a balanced budget amendment.

Let me explain what I mean by that. And, more importantly, let me explain what I don't mean by that.

We have to be aware of things that masquerade as balanced budget amendments, things that will actually do the job instead of purporting to do the job, distracting the public's attention away from the need to do this while in effect doing nothing. We need to be aware of what I sometimes call the Trojan horse balanced budget amendment proposal.

There are a few hallmarks of what a real, effective balanced budget amendment would accomplish. First and foremost, it has to apply to all spending in requiring Congress to provide a supermajority vote for any borrowing authority. There are some who have suggested we should have a balanced budget amendment that exempts certain categories of entitlement spending. But, of course, as we all know, it is entitlement spending that continues to

consume a larger and larger share of our national budget each and every year. It is entitlement spending that is anticipated to have shortfalls for sums that will have to be expended for Americans alive today. It could range anywhere from $50- to $60- to $110 trillion in unfunded entitlement liabilities. So simply exempting entire categories of entitlements is one of these hallmarks of a Trojan horse balanced budget amendment. We can't do that. We need it to apply to all Federal outlays, all Federal spending.

Second, an effective balanced budget amendment must cap spending at the average historic level of Federal revenue. Over the last 40 years, our average take, our average income as a percentage of GDP, has been about 18 to 18.5 percent of our gross domestic product. We need to make sure we are not spending more than that; that Congress can't, without a supermajority vote, spend more than 18 percent of GDP in any given year. Otherwise, we run the risk that Congress will find a way through tricky accounting schemes to circumvent the restrictions to make sure it is not spending more than it takes in.

Third, the supermajority requirement must apply to the folks in both Houses of Congress every time Congress wants to spend more than it takes in. Any balanced budget amendment proposal that allows for a simple majority to bring about an exception to these spending limitations is one that Congress can and will use to circumvent the amendment entirely. Let me explain what I mean.

We have had in the past certain statutory legislative limitations on Congress's spending and borrowing power. Some of these have been known as the Graham-Rudman-Hollings legislation, and also the pay-go rules. But because Congress makes those laws and because they haven't been reduced to a constitutional amendment, just as Congress giveth, Congress taketh away, and Congress has seen fit to exempt itself of those rules. A balanced budget amendment, even while enshrined in our Constitution, becomes no more effective than those statutory or internal rules unless every time Congress wants to get around those limitations Congress is required to cast a supermajority vote to justify that excess.

Finally, an effective balanced budget amendment must require that Congress cast a supermajority vote anytime we raise the debt limit. This will give us an additional guarantee that tricky accounting mechanisms will not be used to circumvent some of these most important restrictions. Without these restrictions, Congress will continue to spend out of control, because Members of Congress tend to be rewarded when they spend and they tend to be criticized when they cut, and political pressures are such that I fear this spending will continue out of control in perpetuity until that moment in which we reach our natural mathematical borrowing limit--not our statutory debt limit, our natural mathematical borrowing limit. It is at that point when the most abrupt, the most painful, the most Draconian cuts will have to be made. We can do this in a way that makes sense. We can do this in a way that is sensitive to the needs of the most vulnerable Americans, those who have become the most dependent upon our entitlement State, most dependent for their day-to-day existence on these very programs. Those programs will have to be cut abruptly and in a most painful manner unless we take the necessary steps right now and start moving onto a smooth glidepath toward a balanced budget amendment.

We may not be able to balance our budget overnight, but we can do it over the course of a few years. That is exactly what this would allow us to do.

I have worked closely with a number of my Republican colleagues in supporting S.J. Res. 10, a balanced budget amendment proposal that has the support of all 47 Republicans. One of my close allies in this endeavor has been my friend and colleague, the junior Senator from Kentucky. I would like to ask him to share his perspective on why this is necessary.

So I ask Senator Paul why does he think this is so important for us to have this amendment right now.

If the Congress is consisting of a Senate and House, and the Members of the Senate and House are elected representatives of the people who stand for reelection at regular intervals, and if the American voting public overwhelmingly supports a balanced budget amendment, why haven't we then passed it and given the States an opportunity to ratify such an amendment?

What is my colleague's sense as to how the various State legislatures are likely to respond to a constitutional amendment proposed by both Houses of Congress? Does he think they would likely ratify such an amendment by the necessary three-fourths margin?

So they are paying for Washington's fiscal irresponsibility in the form of job losses and in the form of increased prices for goods and services and in the form of inflation.

It is likewise my experience with my State legislature that they seem to be very supportive of it. In fact, I have a document here signed by the legislative leaders of my State: by Governor Gary Herbert, by Utah house of representatives speaker Rebecca

Lockhart, and by Utah State senate president Michael Waddoups. It concludes essentially as follows:

We urge the United States Senate and House of

Representatives to pass a balanced budget amendment and send

it to the states for ratification. Additionally, we urge

Congress to make Utah's current resolution part of the

Congressional Record.

They also proceed to explain why they feel so strongly about this. They say:

Not only for our own sake, but for future generations as

well, the states must now combine in an unwavering resolve

with convincing action to put the nation's financial house in

order. Passage of your own state's resolution urging the

support for a balanced budget amendment can help make this

happen. Please join with Utah to call upon Congress to

immediately pass a balanced budget amendment. We respectfully

encourage you to urge your congressional delegation to act in

your behalf.

They are calling not only on Congress but also their fellow State legislators throughout the country to urge this same action from Congress. In the same breath, they also adopt it, and they supported wholeheartedly the specific balanced budget amendment proposal that is found in S.J. Res. 10.

I thank them for doing that. I think they reflect the views of so many of our State legislatures which balance their budgets every single year. Most of them do. It is not news when they do it. It is not news because it is what is expected. It is expected because that is what they do.

I look forward to the day and age when it is no longer news when Congress balances its budget.

I would like to ask Senator Paul another question. Why is it that so many are fond of saying, as our President has recently said, ``We don't need a balanced budget amendment; what we need is for Congress to just do its job''? Why isn't that enough to carry the day?

I think most Members of Congress would acknowledge that their constituents want the Federal budget balanced. Why is it not enough for us just to tell Members of Congress: Please balance it. We don't want to have to restrict your authority. We don't want to have to take the keys away from the irresponsible driver. We just want you to be responsible. Why doesn't that work?

Perhaps it is inherent in the institution itself, in the forces at play, that have made Congress uniquely vulnerable to this kind of massive deficit spending. Whatever the reason, we know Congress is not willing, is not able, or at least in recent years has not been inclined except in rare, unusual circumstances to balance its own budget.

That being the case, we cannot assume that Congress will all of a sudden start doing its job, as those who have used this argument have insisted. Part of Congress's job, as Congress has come to perceive it, is to engage in deficit spending. One of Congress's powers, as Members of Congress who read the Constitution will point out, is to borrow money on the credit of the United States. So it is not enough to simply tell Congress to do its job because it has regarded this kind of massive deficit as consistent with that mandate, consistent with that injunction.

Meanwhile, Congress is continuing to occupy a larger and larger share of the American economy. We have to remember that for the first 150 years or so of our Republic's existence, we were spending between 1 percent and 4 percent of gross domestic product at the Federal national level, with only two brief exceptions--once during the Civil War and once during and then the immediate aftermath of World War I. But that all started to change in the 1930s when we broke into double digits for the first time ever during peacetime. We have never really gone back.

Now the Federal Government is spending about 25 percent of GDP annually. Roughly a quarter out of every dollar that moves through the American economy every year is taken out of the real economy by Washington. It is absorbed within the Federal morass that is our government. That is a problem. That needs to change.

I fear, I suspect, I firmly believe that it will not change until we take this power away, until we at least impose severe restrictions on Congress's borrowing power because it has become part of Congress's nature to engage in this kind of out-of-control deficit spending.

I would like to ask Senator Paul another question. How does he think it would impact the lives of Americans, of Kentuckians, on a day-to-day basis, if we were to pass a amendment such as this and have it ratified by the States?

I could not agree more with that assessment. It is important for us to remind our colleagues of that because according to a recent CNN poll, the American people overwhelmingly support this by a margin of about 75 percent. Those who oppose it, those who are Members of this body, those who are Members of our sister body--the House of Representatives--who choose not to support it, will cast their ``no'' vote at their own political peril because the American people are standing and they are demanding more. They understand that, in the words of Benjamin Franklin: ``He'll cheat without scruple who can without fear.''

When Congress is free to spend more than it takes in every single year without political consequence, bad things happen. When Congress starts to manipulate more and more of the economy, that is something the American people understand is hurtful rather than helpful to them, to the people on the ground, to the person who is unemployed and looking for a job, to the person who is underemployed or underpaid for the work he does, to the single mother who is just worried about taking care of her children, to the grandparents who are worried about the future of their grandchildren, worried about the fact that for the first time in American history, Americans fear their posterity will enjoy a lower standard of living than what they have enjoyed.

All this is due to the fact that Congress has no real boundaries to its authority and recognizes no real limits on its ability to spend our hard-earned money. This has real consequences. We can forestall those negative consequences right now if we will act to restrict, on a permanent and structural basis, Congress's ability to engage in deficit spending.

Accept no imitations, beware of the Trojan horse balanced budget amendment, the one that can be circumvented easily by a simple majority vote. Beware of the balanced budget amendment that limits, as a percentage of GDP, Congress's ability to spend money. Look out for these principles. If we get this balanced budget amendment passed, submit it to the States for ratification. They will ratify it, and we will find our best days, as Americans, are yet ahead of us.

I urge my colleagues to cast a vote in favor of S.J. Res. 10.

I thank the Chair.

I yield the floor.