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Patrick T.
Republican PA

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  • Executive Session

    by Senator Patrick J. Toomey

    Posted on 2013-12-11

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    TOOMEY. Mr. President, I rise to speak on the topic of the nomination of Cornelia Pillard to the DC Circuit.

    Before I go to that specific topic, I wish to address a broader topic, which is how we got in these circumstances in the first place and why we are here tonight, why we are having this discussion, and how this nuclear option, as it has been described, has come about.

    Most immediately was November 21, 2013, just a few weeks ago, when the majority party in the Senate unilaterally decided to break the rules of the Senate, violate the rules and rewrite the rules themselves. Despite the fact the rules clearly say it takes a two- thirds majority of the Senate to do that, they decided to disregard that and change the rules themselves. So they did that on November 21, 2013.

    What they specifically did, the specific rule change they imposed unilaterally on the Senate, was to completely eliminate the opportunity for the minority party to have any ability to be a check or a balance to the process of selecting and confirming the nominees of a given President to the judiciary of the United States of America, the Federal judiciary, or to the executive branch.

    It is a little bit sweeping, but that is exactly what has been done. This is contrary to the entire history of the Republic, where this has never been done before, and it applies to lifetime appointees. Of course, Federal judges, as we all know, once they are confirmed, they hold that office until they decide they are done--at whatever age that might be. It is a lifetime appointment. Unless they commit an impeachable offense, there is nothing anybody can do about it.

    One of the things that is interesting about this decision by our Democratic colleagues is they decided to eliminate the rights the minority party has had in the Senate for centuries. They decided to do that despite the fact that 20 of them warned vehemently against engaging in this very activity just a few years ago. As a matter of fact, none other than the Senate majority leader who personally led this effort, Senator Reid, said in 2009: The right to extend the debate is never more important than when one party controls the Congress and the White House. In these cases, a filibuster serves as a check on power and preserves our limited government.

    In 2009 the senior Senator from New York said: The checks and balances which have been at the core of this Republic will be evaporated by the nuclear option. The checks and balances say that if you get 51 percent of the vote, you don't get your way 100 percent of the time.

    That is what our friends, the leadership of the majority party, the Democratic party, said very recently.

    So you have to ask yourself, why would they do a complete reversal? Why would they do a 180-degree switch? Why would they go from a position of absolute vehement opposition to the nuclear option that denies the minority party any say whatsoever in the confirmation of Federal nominees--why would they go from that to where they were just a couple weeks ago when they executed their plan and unilaterally broke the rules so they could change the rules to inflict that very policy on the current minority party, the Republican Party? We can look at what the majority leader said at the time. One of the things he said on November 21, 2013, the day on which the majority leader made this change: There has been unbelievable, unprecedented obstruction. For the first time in the history of our Republic, Republicans have routinely used the filibuster to prevent President Obama from appointing his executive team or confirming judges.

    That is what Senator Reid has asserted as his justification for this unilateral, unprecedented deprivation of minority party rights. In fact, just this evening Senator Reid was back on the Senate floor, and he used the word ``obstructionism'' about a dozen times. So I think it is worth considering what has actually happened. What does the record show? Let's go back to March 2011 because that is an interesting moment in this discussion about how and whether and when and under what circumstances to confirm nominees.

    In March 2011, Republicans decided that, you know what, it probably would be a good idea for the President--President Obama at this time, obviously--to be able to get a very large number of nominees appointed and confirmed without even having to go through the Senate process. The legislation is called the Presidential Appointment Efficiency and Streamlining Act of 2011. Under this act, thousands of appointees from the executive branch were simply no longer subject to Senate confirmation.

    So what Republicans did in March 2011--far from obstructing anything--was to say: Mr. President, here is a huge category of Federal nominees, and we won't even require a vote. We won't even require Senate consideration. You get these, all of them. You nominate them, they are done, period.

    Does that sound like obstruction? Not to me. It was passed by a Republican-controlled House, supported by Republicans in the Senate, and signed into law.

    So today the law of the land, as a result of Republican cooperation, is that this President enjoys a luxury no previous President has had-- this huge category of nominees who are solely, exclusively at his discretion. It doesn't matter if a single Senator or every Senator strongly objects. It doesn't matter. It is totally irrelevant.

    So I think we ought to consider that legislation in the context of this discussion. But let's take a look at those nominees who remain subject to and who prior to this legislation have been subject to Senate confirmation.

    One category is Federal judges. We have many district courts around the country. So far, the President has nominated 174 candidates to Federal district courts around the country. Of the 174 the President has nominated, I wonder if you could guess how many have been confirmed. I will tell you how many have been confirmed--174. There have been 174 confirmed and zero rejected. At the circuit court level, prior to the recent episode, the President had nominated 41 candidates to the circuit court. Of the 41, 39 had been confirmed. So the total of judicial nominees President Obama has sent to us in the Senate is 217, and 215 have been confirmed and 2 have been objected to. By my math, that is something like 1 percent objected to, 99 percent confirmed. This doesn't strike me as unreasonable obstruction.

    But judges aren't the whole story. There are also the nonjudicial nominees, and we ought to consider those as well. So far, at least as of when we compiled this data, the President has nominated 1,488 individuals to various Federal spots throughout the executive branch-- the agencies, his departments, and so on. Of the 1,488, 1,486 have been confirmed and 2 have been blocked by Republicans. That would include 100 percent of the President's Cabinet [[Page S8657]] nominees and 100 percent of virtually every other category but not every last one. If we add those together, the total of the President's nominees, both judicial and nonjudicial, 1,707 confirmed, 4 rejected. So that works out to something like the Senate has confirmed with Republican support--because prior to the rule change, it couldn't happen without Republican support--the Senate has confirmed 99.9 percent of President Obama's nominees to judgeships and to nonjudgeships. You have to ask yourself, could that possibly constitute outrageous obstruction, unprecedented obstruction, as Senator Reid has said, preventing President Obama from appointing his executive team or confirming judges? How can this possibly be? The majority leader came down to the Senate floor on the date on which he decided to unilaterally change the rules by breaking the rules and he cited as an example the outrageous case of Chuck Hagel, who had served in this body. Chuck Hagel. Whatever became of Chuck Hagel? Oh, that is right, he was confirmed to be Secretary of Defense, as has virtually every single other nominee the President has proposed.

    The leader seemed to think it was completely unreasonable that Republican Senators would demand some information from former-Senator Hagel along the way. It seems to me the fact that he is a former Senator should not change his obligation to provide the information the Senate requests, and when he provided that information, he was confirmed easily.

    So it seems pretty clear to me, it seems pretty indisputable that this really never was about obstructionism. A 99.9-percent confirmation rate? It just can't be about obstruction. It is clearly not.

    So we have to ask ourselves, if it is not the case that Republicans have been obstructing the President's team--and it is clearly not--then why did the majority in this body decide to unilaterally change the rules and deny the minority the opportunity to have any say whatsoever on the confirmation process? Fortunately, some of our colleagues on the other side have explained this for us. They have told us why they made this change. But let me put it in a little bit of context.

    We are in a situation here where we have a divided government. It is true that the American people elected President Obama to a second term, and elections have consequences. But on the very same day, the American people reelected Republicans to be the majority party in the House. And all elections have consequences, not just Presidential elections.

    So the reality is that the very liberal agenda President Obama would like to pursue is very difficult. He can't get most of the liberal things he wants to do, whether it is some kind of cap and trade or card check or his war on coal. This is well outside of the mainstream of where the American public is, and it is not where the consensus is in the House of Representatives. So his legislative agenda isn't going anywhere in the House. The administration understands that very well, the President understands that very well, and so do the members of the majority party here in the Senate.

    What do you do if you have an agenda that is out of step with the American people and can't pass in a duly-elected House of Representatives? Well, some people think the thing to do is do an end run around the legislative body, bypass the legislation, and use an undemocratic--I would argue unconstitutional--process and have unelected, unaccountable bureaucrats impose by fiat and through regulation that which you cannot achieve through legislation.

    Of course, that is completely inconsistent with our Constitution, with the way our Federal Government is intended to operate, and with the principle of the separation of powers. It would require pursuing an agenda that is out of step with the American people and without the consent of Congress, which, of course, is supposed to be a partner with any executive branch, with any President in pursuing any agenda.

    Of course, our Founders foresaw the danger of an Executive who would try this sort of thing and would do an end run around the legislature and try to use the enormous power at the disposal of the Executive, who has massive staff and huge agencies and all kinds of resources, and understood that it is quite possible that you could have an Executive who would try, for instance, selective enforcement of laws, maybe unilateral suspension of laws, as we have seen this administration do, writing rules and regulations that are inconsistent with the laws. These are all behaviors we could anticipate.

    Our Founders did. They did. They anticipated this could happen. So what they did is they built a system that would have some checks and balances, that would provide some limitations. Among the other ways they did it--there were many ways this was done, but one of them was the separation of powers and specifically the creation of a judiciary which would be a referee on whether, for instance, a given agency, a given regulator, was in fact complying with the laws or whether they had gone rogue, whether they had gone overboard, whether they were overreaching, whether they were pursuing some agenda for which they did not have authority.

    These courts play an absolutely vital and I would say completely indispensable role in giving individual Americans their last hope in seeking to preserve their liberty against an unfair, arbitrary, and even unconstitutional executive overreach. That is what the courts do.

    As it happens, there is one particular court that plays a disproportionate role in this process of adjudicating and officiating over Federal regulations. It just so happens that by virtue of its location, a big majority of cases in which an American citizen challenges a regulation because that citizen believes this is a regulation that is unfair, unconstitutional, illegal or otherwise not consistent with our laws--the venue where this ends up finally getting adjudicated is very often the DC Circuit Court of Appeals.

    This has become a bit of a problem for the administration and some of our friends in the Senate because the DC Circuit Court of Appeals has become a bit of an obstacle to some of the ambitions they would like to impose. One example, for instance, is last year the DC Circuit Court of Appeals struck down for the second time in 4 years the EPA's regulations on cross-State air pollution. This is a complicated story. We do not have to get into all the details but, bottom line, these are regulations that would among other things have a devastating impact on States such as Pennsylvania that have a big coal industry and that have a big utility industry that uses coal to fire generators. The court found that the EPA had gone beyond its legal authority. The statute clearly says what the EPA may do and may not do. They were going beyond what they are permitted to do and the DC Circuit Court of Appeals said so.

    That is not the only case in which the DC Circuit Court of Appeals has ruled in ways that are problematic to some of our friends here. Another was a decision they made regarding recess appointments. You may remember this. A while back, the President made a very extraordinary decision. The President decided for the first time in the history of the Republic that it was up to him to determine when the Senate was in recess and when it was not; that was his unilateral decision to make. No other President ever took it upon himself to decide it was his power to determine when a different branch of government was in recess, but this President did. He said that is his decision. So I guess by his logic he could decide when we are out on lunch, that is a recess; out on the weekend, that is a recess; that is up to him by his standard. So he created an opportunity for himself to make appointments that he knew would not be confirmed in the Senate or were unlikely to be confirmed.

    There was bipartisan, in some cases, concern about some of these folks. He went ahead and made the appointments. The DC Circuit Court of Appeals said actually, no, the Constitution is pretty clear. You do not have that authority.

    These are just a couple of examples where a nonpartisan, completely competent, and very highly respected appellate court made decisions about Executive behavior. This has not sat so well with some of our colleagues.

    Why do I bring this all up? Because this is what this is truly all about. This [[Page S8658]] is not about Republican obstructionism. What this is about is our Democratic friends want to pursue a very liberal agenda. They cannot do it through legislation so they intend to do it through regulation. As they overreach and go beyond the legal authority, which they have already done and intend to continue to do, the victims, American citizens who are victims of this overreach, are going to challenge these rules and regulations in court. When they do, they are going to end up in the DC Circuit Court of Appeals.

    Some of our friends want to do whatever it takes to make sure they can win those decisions. Those are not just my words. The senior Senator from New York complained about the DC Circuit. He was on record claiming the DC Circuit ``overturned the EPA's ability to regulate existing coal plants.'' OK. He further went on to say, ``The SEC cannot pass rulings unless they do what is called a cost-benefit analysis.'' That was another complaint the senior Senator from New York made about the DC Circuit.

    So he told a group of supporters that in order to reverse this, Democrats will ``fill up the DC Circuit one way or another.'' I think this is about as clear as it could be. There are people who do not like the decisions coming out of the court and so their intention is to pack the court with people who share their political views and will therefore sustain decisions about the advancement of their liberal agenda.

    But it was not only the senior Senator from New York who made these comments. The majority leader himself explained this as well. Referring to the DC Circuit Court he said: They're the ones that said . . . the president can't have recess appointments. . . . They've done a lot of bad things, so we're focusing a very intently on the D.C. Circuit. We need at least one more. There's three vacancies, we need at least one more and that will switch the majority.

    Could there be a more direct, straightforward statement about what their real intent is? Their intent is to pack the court with partisan people who will give them the decisions they need so they can advance the agenda they want when it is blocked through the ordinary legal and constitutional legislative process. That is what is going on here. That is why we are here tonight. That is what is taking place.

    When Republicans decided that we do not think it is a good idea to manipulate courts this way, to populate them with partisans, to try court stacking for the purpose of advancing an agenda, that is when our Democratic friends decided to go nuclear. The pity of this is our Founders had enormous foresight. They were absolutely brilliant. They constructed an incredible document, a series of documents that have guided this Republic for centuries now. They anticipated a lot. I do not think they anticipated that the leader of the majority party in the Senate would just turn it over to the control of the executive branch and make this institution just a rubberstamp for what the President wants to do. But that is where we are.

    What is the practical consequence of all this? Why is it that this is such a terrible idea? Let me touch on a few of the reasons. There are a lot of reasons I think this is a disastrous policy, but let me touch on a few of them. One result of this is undoubtedly a further polarization, in fact a radicalization of the Federal Government.

    The second is that as a direct result of this unilateral decision and the ability now of our Democratic friends to simply steamroll nominees through without any consideration by the minority party, we will have to expect fluctuations, volatility in administrative and regulatory rulings.

    Then last and probably most disturbingly, I think there is a real danger that a justice system that has been the envy of the world and is recognized for its impartial and nonpartisan integrity may very well be increasingly viewed as a partisan and biased one.

    Let me explain this a little bit, the idea that we have a more radicalized Federal Government. For 200 years, a President has always known that in order to nominate and to get confirmed one of his nominees he would need broad support in the Senate. It would not fly if he selected someone who was only appealing to a few or even a very small majority. So what does this do? That forces any President, whether it is a Republican or a Democrat, to nominate people who would have that broader bipartisan appeal. Frankly, Presidents of both parties are always under pressure from their respective bases to pick the most extreme people. That is what pleases the base of either party. It has always served the Republic well that a President can say I have to get that person confirmed through the Senate and if I pick the most extreme people that is going to be a problem. The fact that a President has needed that bipartisan support has essentially required that a President look for people who represent a broad consensus across America.

    In this postnuclear Senate, that moderating influence is gone. There is no such influence anymore, and I think it is a safe bet that we can expect more extreme nominees. We have already seen some evidence of it. The Hill ran a story recently. It reported that now that the nuclear option has been detonated, far left interest groups are ``pressing President Obama to select left-wing nominees for key regulatory and judicial posts, nominees who could never have been confirmable before.'' That is no surprise. That is exactly the kind of consequence we should expect.

    The second consideration is stability in rules and regulations that are promulgated by the various regulators and agencies. I hear every day across Pennsylvania one of the grave concerns of business that is hampering our ability to have a stronger economy, to have the kind of growth we would like to have, is uncertainty about regulations.

    It is true and it is important. Guess what. It is likely to get worse because, first of all, this huge administrative, bureaucratic State that we have devolved into recently touches on virtually every aspect of our life and there are hundreds of agencies, boards, and commissions that the administration controls. What is likely to happen now is that if the White House and control of the Senate changes parties, we are likely to see big swings in the ideology and the partisanship of these folks because they were not consensus candidates in the first place, right. Given that now we have a situation where a majority party just steamrolls their way through whomever they want and has every incentive to go to the extremes, when they lose an election what are we going to have? We are going to have the exact opposite swing. So for businesses trying to make a decision about whether to invest in America to grow their company, to hire more workers, they are going to worry and wonder: What will the regulatory regime look like in just a few years, depending on how the election goes? It is much less predictability, less stability, and the direct result of that is going to be less investment and fewer jobs. This is not good news for our economy at all.

    Finally, my concern is that for similar reasons we are going to see a diminishing of the judiciary, of the status of the judiciary among the American people, of the credibility, of the respect the American people have had.

    A moment ago I said I think one of the great strengths of the American Federal Government throughout our history has been, generally speaking, that--and there have been exceptions, and there will always be some exceptions--by and large at all levels the American people have had a pretty high respect for the judiciary. They respect the fact that our judges are capable and competent and tend not to be partisan hacks. They tend not to be polarizing political figures who are trying to advance an agenda. They have tended to be men and women of ability and integrity who were calling balls and strikes the way they see fit. They realize they are the umps and referees; they are not the players on the field. They are not there to advance an agenda; they are there to officiate based on the law and the Constitution. That has been the case.

    The reason our judiciary has been so respected is because it is nonpartisan. It is independent of the other branches of government, and it has behaved that way. The American people have the confidence that they can go before a Federal judge and receive a fair and unbiased hearing whether the judge is a Democrat, Republican, liberal, or conservative. The fact is that most Americans don't worry and say: Wait a minute. Is that judge a Republican? It [[Page S8659]] doesn't occur to most people to ask that question, nor should it because it doesn't matter in most cases.

    This respect for the judiciary that the American people have is extremely important. In Federalist 78, Alexander Hamilton talked about the importance of this deep respect for the judiciary. He said: The judiciary is beyond comparison the weakest of the three departments of power.

    Whereas the executive branch has the military and Congress has the power of the purse, the judiciary cannot enforce its own decisions. It relies on Americans' respect for it and willingness to enforce its rulings as essential.

    The fact is that the deep respect the American people have had for the judiciary has allowed our courts, including the Supreme Court of the United States, to issue decisions that have profoundly affected our lives, profoundly changed our society, and so many times so much for the better. A famous example would be Brown v. the Board of Education, which reversed the separate-but-equal doctrine. It ended the southern government laws that banned White and Black persons from associating with each other. This created a certain upheaval at the time, but it stuck, and part of the reason it stuck was because the public saw that this was a decision by a nonpartisan court that was acting as an arbiter of our Constitution. The respect the American people had for our courts was a big part of why a contentious decision quickly became accepted and became part of our fabric.

    Alexander Hamilton explained that the judiciary's integrity and independence are absolutely critical; otherwise, Americans' ``confidence'' in the courts will be replaced by what he described as ``universal distrust and distress.'' He said: The benefits of the integrity and moderation of the judiciary . . . must have commanded the esteem and applause of all the virtuous and disinterested.

    Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day.

    The inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

    When a President, with the cooperation of a legislature, rubberstamps judicial nominees for the purpose of ratifying a political agenda--when this happens, the American people's trust in the judiciary will be badly damaged, and we are at the threshold of that moment now. Of course, it also completely undermines our whole system of separation of powers. The fact is that when judges are seen as being at the beck and call of a legislature, a President, or a party, our individual liberty is simply not secure.

    Again, to quote Hamilton: The general liberty of the people can never be endangered from [the courts] . . . so long as the judiciary remains truly distinct from both the legislature and the Executive.

    He goes on to say: Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.

    When you have one party ruling and completely controlling this process--and controlling it for the purpose of advancing a partisan agenda--that strikes me as exactly the danger Hamilton warned us of.

    So where does that leave us in this regard? I don't think we are doomed, but I do think it is very important that the American people rise and make their objection to this clearly heard. It is important that the American people contact their Members of Congress. They need to exercise their ultimate control of this process at the ballot box and urge the Senate majority to give up its plan to use the courts to achieve a legislative agenda that they cannot get through a duly- elected Congress that represents the American people.

    By the way, there is another big incentive for our friends to want to pack this DC Circuit Court, and that is because the front-burner and most prominent policy and political issue of the day is largely going to be litigated right there very soon. The DC Circuit is going to hear a very important case that goes to heart of ObamaCare. The DC Circuit is hearing a case about how the IRS has chosen to implement some rules. The law is very clear. The law unambiguously states that the subsidies ObamaCare has designed for many people who buy health insurance through their exchange--those subsidies will only be available through the State exchanges.

    As the Presiding Officer knows, ObamaCare contemplates two different categories of exchanges through which people are forced to buy the mandated insurance. There are State exchanges, and in those States that don't operate an exchange, there are Federal exchanges. Well, the law says that the subsidies are available only for the people who purchase their health insurance through the State exchanges. What the administration is attempting to do is to completely disregard the law and make the subsidies available to people who buy through either the State exchange or the Federal exchange. That is not what the law says. I understand that this administration routinely disregards the law, but that is why we have an independent judiciary--to impose a check when they do this.

    There is a legal scholar by the name of Mike Garvin who is following this case closely. He has explained what is going on. He said: Congress knew that the federal government cannot require the states to establish or operate Exchanges, so it offered subsidized insurance premiums for residents of states with State-operated exchanges to entice states to undertake this responsibility. Instead, fully 33 states--from Texas to Ohio to President Obama's and Vice President Biden's home states of Illinois and Delaware--have said ``thanks, but no thanks.'' Instead, these states have chosen to shield their businesses and residents from the worst of the potential ``train wreck.'' That creates a bit of a problem for the administration because with so many States choosing not to participate in this disaster and having only a Federal exchange, if they actually comply with the law they signed, then there would be a lot of people who would not be eligible for the subsidy. If the DC Circuit Court of Appeals were to simply follow and impose the law, then that would create a huge problem, which strikes me as yet another incentive for why perhaps we have gone through what we have gone through over the last couple of weeks-- because it is so important for our friends on the other side to get the decisions they want out of this court.

    All of this brings me to what we really ought to be working on. By the way, all of these nominees who are before us and tying us up this week are all entirely at the choosing of the majority leader. None of these are essential, none of these are urgent, and none of these are emergencies. We could be passing legislation, such as our Defense authorization legislation. We have a budget deal that could be on the floor. We have a farm bill that is overdue. We have a lot of things we could be doing. We could be trying to deal with the enormous problems caused by ObamaCare, but we are not. We are dealing with nominees instead.

    I think we ought to focus on the problems that ObamaCare is causing, and I will admit that sometimes it is hard to know where to begin because these problems are so huge. I will start with the taxes ObamaCare has been imposing on us and continues to impose on us. It is a pretty extraordinary list. As best we could tabulate, there are something like 20 different taxes that were created as part of ObamaCare. There is over $1 trillion worth of taxes to burden this economy and diminish our opportunities to grow and invest and create the jobs we need at a time when our economy is weak and needs an opportunity to recover. Instead, we saddle it with all of these taxes.

    For instance, we have an excise tax on charitable hospitals.

    We have a tax in the form of the codification of the economic substance doctrine. It is a tax hike of $4.5 billion that allows the IRS to completely disallow legal tax deductions.

    We have the black liquor tax hike, which is a tax increase on a type of biofuel.

    We have a tax on innovator drug companies.

    We have a $2.3 billion annual tax on the industry. We have a Blue Cross Blue Shield tax hike, which is a special tax deduction in current law that would only be allowed if 85 percent or more of the premiums are spent on clinical services. That is a tax increase which went into effect in 2010.

    [[Page S8660]] We have a tax on indoor tanning services.

    We have taxes that took effect in 2011. There is the medicine cabinet tax. Americans are no longer able to use health savings accounts or flexible savings accounts or health reimbursement pretax dollars to purchase nonprescription over-the-counter medicine. So the inability to use these taxpayer accounts for legitimate medical needs is a tax increase.

    We have the HSA withdrawal tax hike.

    Going into effect in 2012, we have the employer reporting of insurance on W-2.

    In 2013 we have a surtax on investment income. We have a whole new 3.8-percent surtax on investment incomes, and this can only have the effect of diminishing investment in our economy. It diminishes the return on investment, diminishes the incentive to take a risk and start a new business, provide capital to a new business, grow a business, which is all due to ObamaCare.

    We have the hike in the Medicare payroll tax.

    One of the most egregious of them all--we have the tax on medical device manufacturers. This one is particularly egregious because it is so badly designed on top of being ill-conceived. This is a 2.3-percent tax on the sale of medical devices. Irrespective of whether a company has any income whatsoever or makes any money from this, we are imposing a tax on the sale of these products. The average medical device company has a profit margin of less than 5 percent. A 2.3-percent tax is about half of all their income that now goes to a new sales tax. By the way, they still have to pay income taxes, all the ordinary income taxes.

    This is absolutely devastating, because what these companies are then forced to do is, if virtually the entire bottom line goes for taxes, they don't have the money to reinvest in their business. The medical device industry is one of the best industries we have in this country. It is so dynamic. It is so creative.

    I wish my colleagues would come with me to parts of Pennsylvania where this industry is just thriving--or was thriving but not so much anymore. It was thriving because of the creativity, the innovation, the devices, and inventions that people are making, improving the quality of life and extending life. It is amazing, the marriage of technology and creative minds and experts in health care, what they are creating.

    But, unfortunately, for a lot of these products, it takes a long time before they are actually profitable for the company that sells them, long after they have begun sales. This tax imposes the burden before they have ever become profitable. What is the effect of that? It is that it makes this whole industry less appealing to invest in, less attractive to entrepreneurs, to investors. Whether it is venture capital or private equity or wherever the source might be, less is going to medical devices, an industry that is saving lives and improving the quality of lives. It is a big manufacturing industry. Most of these companies manufacture their products in the United States and many in Pennsylvania. We sell a lot of them overseas. We have a big trade surplus in medical devices because we lead the world.

    What does ObamaCare do? It slaps a new tax on the sales. It is a terrible policy.

    We have a high medical bills tax. Currently, those people who face high medical bills are allowed a deduction for medical expenses to the extent that those expenses exceed 7.5 percent of adjusted gross income. The new provision, which took effect just earlier this year, raises that threshold before a person can take that deduction. That is just a complicated, convoluted tax increase on people who have high medical bills.

    There is the flexible spending account cap. There is the elimination of the tax deduction for employer-provided retirement drug coverage in coordination with Medicare Part D. There is the individual mandate excise tax. There is the employer mandate tax. There is the tax on health insurers. There is an excise tax on comprehensive health insurance plans.

    There are 20 different taxes, the combined effect of which is, without a doubt, to significantly weaken our economy.

    But that is not the only way ObamaCare weakens our economy. The mandate ObamaCare imposes on employers kicks in on employers who have 50 or more employees. I have spoken with a number of Pennsylvania employers who have 45 or 47 or 48 employees. They are not subject to the hugely expensive mandates of ObamaCare, and do my colleagues know what they tell me? They are not going to be subject to it. They will go to great lengths to avoid hiring the fiftieth employee. They will hire temps. They will pursue automation. They will do all kinds of things they wouldn't otherwise do because this government makes it too expensive for them to hire a fiftieth employee. At a time when our workforce participation rate is at a record low because so many people have given up even trying to find work, ObamaCare makes it too expensive for employers to hire new workers.

    It has a similar effect on hours worked, because this 50-employee count applies to anybody who works 30 hours or more, so one of the ways a business can avoid these crippling costs is to cut back on the number of hours for their workers. That doesn't work out so well for somebody who needs those hours to pay their bills to support their family. It is happening all across the country.

    Another aspect that is really outrageous is this mandate in ObamaCare that employers must--regardless of whether the employees want it or not--provide contraceptive and abortifacient coverage. One of the problems with this is that these services run completely contrary to deeply held religious views for a lot of people, faith-based institutions, and others. So the administration decided they will offer an accommodation for faith-based institutions. The accommodation they offer is pure sophistry. What they offered was to say you won't have to--you, the faith-based institution--you won't have to actually pay for those services which you find objectionable based on your faith. You won't have to pay for them, but you have to buy an insurance plan that has them and the insurance company will just have to give you that for free.

    This is the most ridiculous thing in the world. Private companies aren't in the business of offering their services for free. If there is an aspect of it that they supposedly have to give away, then they will pass on the costs for the services they provide. Nobody is fooled by this. This is yet another of the details of ObamaCare.

    But, really, some of the biggest problems I have saved for the end, and that is the series of broken promises that ObamaCare constitutes. One of the most glaring is this promise we have all heard. I don't know how many times we have heard it, but we all have. We heard the President and so many of our Democratic colleagues who support this bill say: If you like your health plan, you can keep your health plan. Let's be very clear. Everybody who supported this bill who is familiar with it--and that would certainly include the President of the United States and my friends here--they knew from the beginning that was not possible. They knew that because the legislation was designed to prevent many people from keeping their health insurance. It was written for that purpose, in part, because they had to. The whole point, or a big part of the point of ObamaCare was to establish standards that the government determined were appropriate, regardless of whether an individual American thinks that a given plan is adequate or not or suitable for herself or her family. It was up to the government to make this decision, not the individual, and they would establish criteria, and if your plan didn't meet the criteria, your plan was going to be canceled. That is in the legislation. That is codified. It always was. It is at the heart of this legislation.

    So for anybody to go around the country saying, If you like your health plan, you can keep your health plan, they were knowingly stating something that was completely untrue, was always untrue, and was necessarily untrue. The examples abound.

    I have emails from constituents. I have too many. I won't have a chance to run through them all this evening. I may have to come back on another occasion. But I will share a few with my [[Page S8661]] colleagues. This is from a small business owner from Lancaster County, PA. I got this just--I think I got this earlier today. I will just quote from this email from my constituent, addressed to me. It says: As my Congressional representative, you need to know how ObamaCare is harming my life and health care.

    I work for a small construction company. My cost for family health care was already over $11,000 per year. We received notification that our policy was being canceled since it did not comply with the requirements of the Affordable Care Act.

    Our company looked for the best rates they could find for comparable coverage which did comply. They chose a new insurance company. We just recently were given the costs for next year. My costs to cover myself and my family will be over $17,500, a 59-percent increase. Even with that, the deductibles and out-of-pocket maximums are higher. This is not ``Affordable Care''. This would eat up a major part of my income.

    I attempted to log onto the healthcare.gov website several times, but always get kicked out. I do not hold much hope that I will get any better rates, because I don't qualify for a credit.

    We were already struggling to live on my take home pay. We cannot afford to have it reduced by over $6,500.00. We may have to drop coverage for my wife or kids, and pay the penalty.

    I suspect that this law will result in many more people losing more health care, at the expense of a few getting free or reduced cost healthcare.

    I got this just a week ago from a man from Cumberland County, PA. He said: My wife Barb and I have been trying for almost three weeks now to get signed up. . . . all income and health info and private information is on the unsecured web site and the application is accepted . . . but we have not been able to get on to pick the plan or get our price . . . so nobody has been paid. Thus our canceled insurance ends on Dec. 31st and we look to be out.

    A BIG mistake by the folks who voted for this . . . I've had cancer a couple times, my wife has had cancer and we both see our doctors when needed. This ACA will ruin many families if we can't get onto an insurance plan.

    A woman from Lebanon County, PA, sent me this email a week ago. She said: We had our healthcare discontinued, and after an appeal we were able to get it reinstated, but only for this year. Currently we have a health care savings plan with a deductible of $3,000 a year. . . . In the new plan, our deductible would increase to $12,000 . . . and our premiums would increase to $9,000 a year. How is a middle class married family supposed to pay for that? This is absolutely ridiculous, and this is our situation. I hope every government worker has to purchase their plan through this plan.

    Here is another. A man from Delaware County in southeastern Pennsylvania: I am 66 and I am on Medicare. My wife is 63. Her insurance company canceled her ``longstanding'' policy due to the requirements of the ACA. Her ``new'' policy costs $350 more per month. We are on a strict budget. . . . We are the hard working middle class. Who stands for us? There was another promise we frequently heard, and that promise we frequently heard was that if you like your doctor, you will be able to keep your doctor. This too was known to be impossible. Since the law was designed to discontinue health insurance plans and force people on to alternative plans, not all plans cover the same doctors. Certainly, some were going to lose their coverage. Let me give an example of an email I got from Westmoreland County just last week. She writes: I have been self-employed for 13 years and have never been without health insurance. 3 years ago I was diagnosed with multiple sclerosis. Having an expensive preexisting condition was not a problem for me as I had never let my insurance lapse. My medications cost (without insurance) $4,000+ per month. I received notice several weeks ago that they would now cancel my plan and would do so as of Jan 1, and I had to sign up for new coverage through the health insurance exchange.

    My staff reached out to this woman and tried to help and, after several attempts, she was able to access the exchange. Do my colleagues know what she learned? She learned that in her region there were two options available to her. One covers her doctors who have been treating her for her MS for years. The other covers her prescription drugs. Neither one covers both.

    These are the kinds of decisions people are being forced to make all over America. They are the kinds of decisions people are being forced to make every day. It is the direct result of the loss of personal freedom that this legislation imposes on people, and this is the topic that we ought to be addressing in this body so we can pursue the only solution, which is to repeal this bill and move health care in a completely different direction.

    I believe my time has expired, so I will yield the floor.

    The PRESIDING OFFICER. The Senator from New York.

    Fallen Firefighters Assistance Tax Clarification Act Mr. SCHUMER. Mr. President, I rise to speak about a particular incident that occurred in Webster, NY, a beautiful town near the City of Rochester.

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