Tribute to Emily Spain
Floor Speech
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Mr. LEE. Madam President, as if in legislative session, I ask unanimous consent that the Committee on HELP be discharged from further consideration of S. 2843 and the Senate proceed to its immediate consideration.
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Mr. LEE. Madam President, immunizations are nothing new. To a degree, immunization requirements might not be new, but sweeping immunization mandates issued by a single individual within the Federal Government-- that is, the President of the United States--are entirely new, entirely unprecedented, entirely unfounded, and dangerous to our constitutional order, to say nothing of its tendency to discourage those who have been reluctant to get the vaccine from getting one.
So I have returned to the Senate floor today, for the third time this week, to express my profound objections to that sweeping mandate--to President Biden's sweeping, promised, and still inchoate vaccine mandate--and to offer legislation that this body could have passed right now; that it could have passed in order to protect countless Americans from this Federal intrusion.
Now, look, the Federal Government has no legitimate role mandating COVID-19 vaccination for all Americans. In fact, the President of the United States has acknowledged that. It doesn't have that role. It doesn't belong to this government. Yes, there have been vaccine mandates in the past. They have never been from the Federal Government, directed at the entire country.
During a really difficult time, economically and otherwise, in which inflation and the jobs market are causing a whole lot of businesses around the country to have to close their doors, President Biden has announced that he is going to enforce this mandate with a really hefty fine. Each incidence of a business not fulfilling the mandate could cost a business $14,000. President Biden, under the threat of massive punishment, is co-opting businesses to enforce his mandate. They will have to police their workforce's personal medical decisions and order the receipt of a vaccination or, alternatively, be forced into bankruptcy.
Now, some on the other side of the aisle think that the President's punishment doesn't go far enough. In fact, in the reconciliation bill draft currently being circulated on the other end of the Capitol in the House of Representatives, Democrats are pushing to increase the fine to $70,000 per violation.
Look, unvaccinated Americans are not the enemy; they are not the virus; and they are certainly not the enemy. Some are frontline doctors and nurses and other healthcare professionals who worked overtime throughout the pandemic, throughout the darkest of the dark hours of the pandemic, treating patients and saving lives.
Others are workers whose industries were deemed essential and who showed up to work to ensure Americans kept having access to food and electricity and other essential items and services. Others still are simply neighbors, family members, and other loved ones who have supported friends, families, and entire communities as Americans as a whole struggled through quarantines, shutdowns, financial difficulties, and social isolation.
Let me reiterate, as I have said many times before and I will continue to repeat: I believe the vaccine's development is nothing short of a miracle. It is an answered prayer. I have been fully vaccinated, as has every member of my family, with my encouragement. But we certainly should not be forcing employers, through the Federal Government, without congressional authorization or constitutional authority, putting employers in a position where they have to fire some of their most valuable and now increasingly hard-to-find workers.
We shouldn't be threatening business owners with closure simply because they don't have any desire to police their workforce's personal medical decisions. That is not who we are as a country. I don't care whether you are a Democrat or a Republican or an Independent or a Libertarian; Americans, as a whole, don't believe that that is who we are. We are not into that kind of draconian micromanagement associated with a nanny state, nor are we into the excessive accumulation of power in the hands of a few or, even worse, in the hands of one person. Many simply cannot incur the cost of this enforcement--certainly not in this economy.
Additionally, this fine really amounts to a tax. It is government revenue collected from the American people, and the Constitution has a thing or two to say about how revenue bills must be enacted. The Constitution does not vest any taxing or, for that matter, any other revenue raising or fining authorities in the President alone--no. This is a power that is reserved to the people's representatives in Congress who are charged with precisely that responsibility. We have exclusively that authority, and that authority is not to be exercised by the President of the United States.
It is no accident that the Founding Fathers, through the Constitution, put this power in the hands of those people occupying positions in the branch of government most accountable to the people at the most regular intervals and in no one else within our government.
President Biden's mandate would impose really significant costs on Americans and on American businesses and on our Nation's economy that is already in some really rough times.
Look, it is unconstitutional. It hasn't been passed by Congress. It is wrong for America. And that is why, today, as I did yesterday and the day before, I came here to offer a proposal that, if enacted, as we could have enacted it today, it would protect Americans from some of the most disastrous effects of the mandate.
While I believe the mandate will, I am quite certain, eventually be invalidated in court, it is going to take some time for us to get there because right now we don't even have the mandate itself; we just have the threat of the mandate. And it is the imminent apprehension of the mandate's eventual issuance that is causing HR departments and general counsel's offices in corporate America throughout this country today to scurry to try to get ahead of the curve, develop their own policy, so that they are in compliance as of day one when the mandate hits.
But, in the meantime, there is nothing to sue. There is no one to sue because there is no final Agency action. There is no order in place. There is just the threat of it.
This, I fear, is a feature, not a bug, because by the time we actually have something on which to sue and by the time lawsuits are brought, by the time that litigation works its way to its natural conclusion--which, I believe, inevitably, culminates in a finding that it is invalid; it is unconstitutional; it is not warranted by law-- months, if not years, will have elapsed, and a lot of the damage will be done.
So, until that day--until that day I consider inevitable when a court rules that this is unlawful--these bills like the one that I have offered today can provide businesses and the American people with the certainty that they need to make their own decisions.
My bill that I have offered up today, the No Taxation Without Congressional Consent Act, would prohibit OSHA and other executive branch Agencies in the Federal Government from imposing fines, fees, or taxes with respect to these mandates. It would protect our constitutional order by requiring that revenue measures be voted on by Congress, the branch of government most accountable to the people and the only branch of government empowered to enact such policies. The other two branches cannot.
As I mentioned yesterday, the people concerned about this mandate are everyday Americans. I have now heard from 158 Utahns who are at risk of losing their jobs due to the mandate, and that number continues to grow every day. They are not our enemies; they are our neighbors. Many of them have been advised by board-certified doctors that they ought to not receive the vaccine. We shouldn't be punishing them or forcing them into second-class status.
So today we have a choice. I hope that, at some point, my colleagues on the other side of the aisle will allow us to provide this certainty and peace of mind to those individuals and businesses at risk of suffering under the mandate.
We can defend Congress's role as the branch of government that determines how and from whom revenue is to be raised. Not only can we do that, but we have an obligation to do that. We have all sworn an oath to uphold and protect and defend the Constitution of the United States, and that document doesn't give the President this power. In fact, that document precludes, it prohibits the President from exercising this power in the absence of congressional authorization, which we have not provided.
So this bill, one of a dozen that I have submitted, could have passed this body today. I wish, for the sake of millions of concerned Americans, that it had, but regardless of this result today and of the objection that precluded it from passing the Senate today, I am going to continue to fight. I will keep coming back for as long as it takes in order to end this egregious and legally baseless and unconstitutional mandate.
I find it interesting that my friend and colleague, the distinguished Senator from the State of Washington, referred to this as ``outrageous,'' as outrageous that we would be attempting to put in place protections for those Americans who are going to be victimized by the vaccine, who are going to have to choose between, on the one hand, receiving a medical procedure that they don't want and, on the other hand, being fired. Nobody should have to choose between submission and financial ruin. They especially shouldn't have to do that under the direction of an invalid, unconstitutional directive by the Federal Government.
She also referred to what she described as ``our efforts,'' ``our efforts to end this pandemic.'' This isn't about whether we want to end the pandemic. There is not a single person--Democrat, Republican, Independent--in this Chamber or in the other Chamber--I am not sure I know a single American anywhere who wouldn't want to end this pandemic. This is not the pandemic. This is not going to end the pandemic. If anything, this will cause more people to be more reluctant to get the very vaccine that they are wanting to encourage others to provide.
This is not about that. The minute we lose control of the government that is supposed to work for us, the minute we start to erode, willfully, even for those who might be convinced that it is good policy--and I would disagree with them on that. The minute we decide to give this power to the President of the United States and stand silently as he usurps authority that under article I, section 7, and article I, section 8, plainly belongs only to Congress, to the extent we have any business operating in this area to begin with as a Federal Government, which we do not--then we have simultaneously undermined both the vertical protection that we call federalism and the horizontal protection we call separation of powers.
Now, lest anyone might be left with the impression that this would be an esoteric or academic exercise or that that is not something that affects their freedom--there are those who would make that suggestion-- they are sorely mistaken. You see, because anyone, anywhere can have a Bill of Rights.
In fact, as the late Justice Antonin Scalia used to point out, any ``tin horn dictator'' around the world can have a Bill of Rights. And most of them do. Many of those Bills of Rights are scintillating documents; they are glowing in terms of their expression of individuality and the right of each human to exist and flourish. They will articulate a list of rights that is, in some cases, comparable to, if not even more protective of, individual liberty than our own Bill of Rights.
Yet, as Justice Scalia continued, whether or not that Bill of Rights or any Bill of Rights is worth more than the paper that it is printed on ultimately rests on whether there are protections in place that guard against the dangerous accumulation of power in the hands of the few. That is what makes that difference.
So if we allow a President today to adopt whether you want to call it a tax or a fine or whatever revenue-raising tool that you choose to identify this as being, the President doesn't have the power to impose that. That is a legislative function.
Article 1, section 7 is very clear: You cannot enact legislation, including any legislation collecting revenue from the citizenry without passage in the House, passage in the Senate, and presentment to the President of the United States. He can't do it alone.
That is what this is about. This is about so much more than just this vaccine mandate. But this vaccine mandate in and of itself is wrong. It is unconstitutional. It is harmful, and it has a tendency to undermine the very interest the President purports to be advancing.
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