Making Continuing Appropriations for Fiscal Year 2014--Motion to Proceed--Continued

Floor Speech

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Mr. LEE. As I listened to the Senator's remarks, I am reminded of many events throughout our Nation's history. It is a storied history involving a lot of comebacks. There were a lot of instances in which the American people were up against a brick wall of sorts, in which a small group of Americans, often not just a minority but sometimes a minority within a minority, faced a substantial obstacle.

The founding of our Republic, at the moment of our independence, involved a battle against what was then the world's greatest superpower. Even within our own continent we did not have unanimous support. Even among our own people, at times it was a minority within an a minority who believed that the cause of independence was worthwhile, that it was worthy of the great effort that declaring independence and fighting a war for it would inevitably require.

Yet we persevered, we rallied together as a people, believing fundamentally that our cause was just. And it worked. We followed that formula many times when it has mattered and we have not backed away from fights when those fights were necessary. This may be one of those moments where even though those who are willing to fight against this law, those who are willing to take this effort are not in the majority, are in the minority--in this case in a sense we are a minority within the minority--it is still worth fighting.

I commend my colleague, the junior Senator from Texas, for his dedication, his commitment, his leadership on this issue. Senator Cruz has never shrunk from this. He has been willing to fight hard for it. He has been willing to speak his mind even at moments when it was difficult, even at moments when many were suggesting it could not be done or should not be done. It reminds me of other examples we have seen over the years, of Senators who were willing to speak at great length.

I see our pages who are here tonight, pages who serve us well and who are willing to stay late at night, working hard. I am reminded that 27 years ago I was a page much like these who are serving us here today. I remember a young Senator then in his first term. His name was Harry Reid. I remember watching him speak at great length for 10, 12--I don't know, maybe 13 hours at a time. I am not certain what the issue was at the time, but I know it was important to him. I know it was an issue on which he was somewhat outnumbered. I know that I saw his colleagues approaching him. Some of them were quite critical of the effort in which he was engaged. Yet he stood by his message, he did not shrink from it, because he had an inner commitment to the people he represented and I respected that about him. I could tell he had that kind of tenacity.

I watched, as I was a Republican page at the time--I watched my Democratic page colleagues as they brought him a lot of water, hoping perhaps that eventually he would drink enough water that he would decide it was no longer in his best interests to continue speaking on the floor. Yet somehow he managed to stay speaking for, I don't know, 10, 12, 13, 14 hours at a time, and I have a great deal of respect for what he did at that moment. I hope there is some aspect of Senator Reid that is able to sympathize with what Senator Cruz is going through, that is able to respect the great level of commitment it takes to stand here, hour after hour, and engage in this discussion, a discussion that is important for the American people to have.

We all continue to hear from our constituents about some of the things ObamaCare might do, some of the things ObamaCare might do to the people rather than for them. I received this one from James in Utah. James writes:

Sir, as a retired U.S. Marine Corps gunny, I would like to express my view and ask that you vote to defund ObamaCare. I am part of the security team here at--

And I have deleted the name of his employer.

--and our new contract has a massive increase in the cost for health coverage. I fought for the people of this country. Now I ask the same from you. Please help us.

Gunnery Sergeant Charlie Jones, U.S. Marine Corps, retired.

From Utah.

Then I hear comments such as this from constituent after constituent, from people who will write in from throughout my State and from throughout the country. Steven from Minnesota writes:

Dear Senator Lee. Please do all you can to stop the implementation of ObamaCare. My work insurance went up 8.1 percent in January in anticipation of ObamaCare. I make about $40,000 a year. We do not have any extra money after bills. I would like to see health care available to everyone. We've gone without health care insurance at times but I believe that ObamaCare is not the solution and will result in poorer quality health care overall, and hurt our economy.

Thank you for considering a Minnesota resident's concerns.

Steven, I am happy to consider your concerns and I am happy to share those with my constituents. This next one comes from Kevin from Massachusetts.

Dear Senator. I strongly urge you to approve and vote yes on the House resolution bill passed by the House and is now before the Senate that fully funds the Government and protects the full credit of the United States but defunds the Affordable Care Act as provided for in the bill and continuing resolution sponsored by Congressman Graves. It is unfair to exempt everyone with political connections from ObamaCare and not to exempt the rest of us. You must understand that ObamaCare is undermining American workers and selling out hard for union benefits. It is not fair for businesses to reduce workers' hours to survive. It is time to defund the Affordable Care Act until such time when it can be repealed and things can be straightened out and workers protected.

I urge you please to delay funding for ObamaCare now.

That is Kevin, from Massachusetts.

When we look at these examples and we read other similar examples like them from people writing from throughout my State of Utah, people writing from throughout the country, we see a consistent pattern. Americans are justifiably, understandably fearful of losing their jobs, of having their wages cut, of having their hours cut, in some instances losing access to health care--sometimes through a health plan upon which they and their families have relied on for many years. This is a difficult situation for them because health care is an especially unusually personal thing.

Access to health care is something people do not necessarily want to entrust entirely to their government. Yet that seems to be the direction in which ObamaCare inevitably takes us. It puts more and more of our health care into the control of the Federal Government and, as has been suggested on the floor tonight, as some of my colleagues, some of my Democratic colleagues from within the Senate have acknowledged, this is but a step in the direction of what they hope will be a single-payer, government-funded, government-run health care system, funded, operated, and administered entirely from Washington, DC.

There are some things government can do in the sense that there are some things that government is rather uniquely empowered to do. Providing, for example, for our national defense, that is something we do from Washington. That is a power that is entrusted to us by article I, section 8, of the Constitution with roughly one-third of the provisions of article I, section 8, being dedicated in one way or another to our national defense. That is something Washington can do. It is something Washington must do and that Washington is rather uniquely empowered to do under our constitutional system.

Health care is of course important, undeniably important. In many respects it is as important as national defense. The fact that it is important doesn't necessarily make it a responsibility of the Federal Government nor does it necessarily qualify the Federal Government as a practical matter, setting aside the constitutional question. It doesn't necessarily qualify the Federal Government as an effective health care provider. Many people fear the day when our Federal Government becomes much more empowered over the very personal decisions of our lives, particularly those affecting our access to health care.

Many people are also suspect of the new taxes imposed by this law, the new permutations this law will introduce into the lives of the American people. We have discussed several times today the manner in which this law was enacted, the manner in which it was introduced as a bill, brought to the floor of the House of Representatives after then-Speaker of the House Nancy Pelosi informed her Members that they needed to pass their bill and then they could find out what is in it.

One of the things we have not discussed as much is the fact that even after that was passed, without Members of Congress having adequate opportunity to review this legislation--even after that happened, setting aside the 20,000 pages of regulations that have been added to this corpus of Federal law up until this point, we have had two significant revisions of the law, revisions that were brought about not legislatively but by the judicial branch of government, revisions the judicial branch of government had no authority to impose.

I would like to talk about both of those. When the Affordable Care Act was challenged as to its constitutionality, there were two primary constitutional challenges brought to the attention of the Federal court system that ultimately made their way to the Supreme Court of the United States. One of those challenges involved a constitutional attack on Congress's authority to enact the individual mandate. The provision compelled individuals to buy health insurance--and not just any kind of health insurance but the kind of health insurance the Federal Government in its infinite wisdom deemed appropriate, necessary, essential, and indispensable to every American everywhere.

The argument presented in those constitutional challenges culminating at the Supreme Court of the United States was that Congress had acted pursuant to its authority under the commerce clause, article I, section 8, clause 3 of the Constitution, which empowers Congress to regulate commerce among the several States, Indian tribes, and foreign nations. The argument said that Congress does have the power to regulate interstate commerce, and the Supreme Court has interpreted that power rather broadly since 1937.

Yet, even under that extraordinarily broad interpretation of the commerce clause, the argument was that Congress doesn't have the power to regulate an activity. The failure to purchase health insurance is not an interstate commercial transaction. In fact, it is not a transaction at all. It is a failure to act.

The Supreme Court of the United States accepted that argument and concluded that even under the extraordinarily broad deferential standard of review used by the Supreme Court since 1937, this could not pass muster as a valid, legitimate exercise of Congress's commerce clause authority. The Supreme Court Justices rejected that argument by a vote of 5 to 4. Oddly, however, the Supreme Court went on to conclude that the individual mandate was nevertheless constitutional--not under the commerce power but under Congress's power to tax. In essence, what they had was five Justices of the Supreme Court--led by the Chief Justice of the United States, the Honorable John Roberts--who, as I see it, effectively rewrote the individual mandate provision as a tax. They saved it only by recasting it as a tax or as a valid exercise of Congress's power to impose taxes.

There were a couple of problems with that interpretation. First and foremost, Congress could have imposed a tax as an enforcement mechanism to bring about compliance with the individual mandate provision. Yet it decidedly did not. It used language that--under at least a century's worth of jurisprudence--was clearly and unequivocally a penalty and not a tax. There is a long line of cases that help courts decide whether something is a penalty or tax. Under a century or more of jurisprudence, this was a penalty and not a tax.

It is also important to note that the House of Representatives initially considered language that would have attempted to enforce compliance with the individual mandate provision by means of a tax and using language that under a century's worth of jurisprudence would have been regarded as a tax. Yet, interestingly enough and not surprisingly, that language was rejected. That proposal did not carry the day. That proposal could not carry the day. Why? Well, most Americans understandably are reluctant to raise taxes on middle-class Americans. It was soundly rejected. It could not carry enough votes even in the Congress that was in place during the first 2 years of President Obama's administration. It could not carry the day in a Congress that was overwhelmingly Democratic in both the House of Representatives and in the Senate.

The Constitution requires that revenue bills originate in the House of Representatives. If this was a new tax, it would have to originate in the House. In a very significant sense, one could argue that the bill that ultimately became the Affordable Care Act, ObamaCare, did originate in the House. It came over here to the Senate and had its provisions stripped out and replaced by Senate language, but many people still consider that a House bill.

The problem here has a lot to do with the fact that the tax language did not originate in the House or in the Senate. Instead, it originated across the street with five lawyers wearing black robes whom we call Justices. Those five lawyers wearing black robes whom we call Justices are no more empowered than the Queen of England to impose a tax on the American people. Yet they imposed a tax on the American people. This is not OK. This is not acceptable. This was a lawless act. This is something we should be ashamed of as Americans. It was a sad, shameful moment when the Supreme Court of the United States took upon itself the mantle of a superlegislative body, which it is not.

Unable to bring about a massive tax increase on the middle class, Congress adopted what it could. What it did adopt the Supreme Court found to be unconstitutional on its own terms as it was written. The Supreme Court--apparently unwilling to do its job and all too eager to do the job of the legislative branch rather than acknowledging the unconstitutionality of that provision--simply resurrected it by rewriting it as something that it is not, was not, and never could be.

Interestingly, this was not the only insult to the Constitution in connection with that case. In the same dispute in which the Supreme Court rewrote ObamaCare in order to save it, in the same case in which the Supreme Court of the United States rewrote the individual mandate provision as a tax when in fact it was a penalty, they did something else: A separate and even larger majority--a 7-to-2 majority--concluded that another aspect of the Affordable Care Act as written could not withstand constitutional muster.

The Medicaid expansion provisions left the States with no option, no alternative, and no choice other than to accept a significantly expanded Medicaid Program, which is a program that is administered by the States. It is partially funded by the Federal Government but ultimately administered by the States.

The Supreme Court of the United States, citing longstanding precedence, said: This is not OK. Congress doesn't have the power to commandeer the State's legislative and administrative machinery for the purpose of implementing a Federal policy. Congress may not do that.

It is not within our power. Yet a large majority of the Supreme Court concluded that is exactly what Congress did in the Affordable Care Act. So faced with yet another constitutional problem, the Supreme Court adopted another rewrite that the Supreme Court of the United States was not constitutionally empowered to bring about. What the Supreme Court did in that circumstance was to just read in or write in an opt-out for the States so as to make it constitutional.

Some have tried to defend this by saying: Well, that is what courts do. When courts find that something is unconstitutional, they have to look a second time to see whether they can read into it a different interpretation that might be fairly plausible--a fairly plausible interpretation that could allow them to save it. But in this case there was nothing there. There was nothing that could allow them to do this.

The Court's job at that moment was to figure out whether the unconstitutional provision could be severed from the rest of the statute, whether it could be excised, sort of like a cancerous tumor, allowing the healthy tissue to remain with the cancerous tissue gone forever. There are rules and standards the Supreme Court is supposed to follow when engaging in this exercise, and whenever it does this, it follows decades-old severability jurisprudence. Well, that standard, I believe, if followed, would have inevitably culminated in the Supreme Court of the United States finding that the Medicaid expansion provisions could not be severed from the rest of the statute--the other provisions in the Affordable Care Act. I suspect that may well be why the Supreme Court did not engage in severability analysis. Instead, it rewrote the law.

So the Supreme Court of the United States rewrote ObamaCare not just once but twice in order to save it. This is not OK. This is not constitutional. This is not America.

The next response the defenders of this law usually bring up is, well, it is, after all, the Supreme Court's job to decide what is constitutional and what is not constitutional. So if they say it is constitutional, then it must be constitutional, and who is anyone else to second guess their judgment as to constitutionality?

OK. Well, I understand that argument. That argument is fine, perhaps, as far as it goes. You can't read too much into that statement. It is not fair to say that the Supreme Court is the sole expositor of constitutional meaning. It is true, of course, that within our Federal system the Supreme Court has the last word in deciding questions of Federal statutory and constitutional interpretation for the purpose of deciding discrete cases and controversies properly before the Court's jurisdiction. However, that does not excuse the rest of us from independently exercising our own judgment, nor is it the case that every constitutional infraction and every constitutional indiscretion is necessarily within the competence of the Federal courts to resolve.

In fact, there are countless circumstances in which, either because the courts might lack jurisdiction or because no plaintiff can be brought forward with article III standing necessary to challenge the Federal action in question or because the courts have recognized that there is a nonjusticiable political question at stake--for whatever reason, courts might not be competent to address a particular issue. In other circumstances, a case for whatever reason simply is not brought. In many circumstances the courts don't have occasion to address a constitutional infraction.

Regardless, we are never excused. We, as Senators of the United States, having taken an oath under article VI of the Constitution to uphold the Constitution of the United States, are never excused from our responsibility to look out for, protect, and defend the Constitution of the United States. When we see an unconstitutional action, we need to call it out as such, and we need to do whatever we can to stop the Constitution from being violated.

The Constitution was violated, the Constitution was distorted, and the Constitution was manipulated. It was defiled not once but twice by the Supreme Court of the United States when the Court rewrote the Affordable Care Act twice in this decision that was rendered at the end of June 2012.

This is one of many reasons why I think it is important for us to have this debate and discussion about whether we fully fund the implementation and enforcement of this law--a law that was never read by those who enacted it, a law that has become less popular rather than more popular subsequent to its enactment, a law that has now spawned some 20,000 pages and counting of new regulatory text.

This same law was rewritten not just once but twice by a supreme court of the United States that openly flouted the Constitution of the United States. They thumbed their noses at their own constitutional responsibilities. We are now being asked whether we should continue funding the implementation and enforcement of that act, and I think not.

In addition to the unconstitutional rewriting by the Supreme Court of the United States, we now have several instances in which the President of the United States himself has attempted to rewrite the Patient Protection and Affordable Care Act. The President of the United States has said that although enforcement of the employer mandate provision is set to begin on January 1, 2014, the President's administration will not implement and enforce that provision effective January 1, 2014.

Although the President lacks any constitutional or statutory authority to make this decision, although the President has neither sought nor obtained a legislative modification from the legislative branch of government--Congress--the President is treating the law as if it contained that modification already.

There was another modification that took place with respect to the implementation of the out-of-pocket spending limits, the spending caps. This, too, was done without any legislative or any constitutional authority. There is another modification the President made with respect to proof of eligibility for subsidies on the exchange network set up by the Affordable Care Act. All three of these modifications were made by the President without any statutory authority, and they were, therefore, extra constitutional modifications.

As I understand it, a few weeks ago somebody asked the President of the United States why this was appropriate. Somebody challenged the President of the United States with regard to his authority on these modifications. His response was something similar to this: Under ordinary circumstances, under more ideal circumstances, perhaps I might have gone to Congress to get Congress to modify the statutory provisions in question, but these are not ordinary or ideal circumstances.

I am not sure exactly what he meant, but it sounds to me as though what he was saying was, I am in a tough spot so I have to do what I can do, what I can get away with, because I have a Congress that is now less cooperative, less inclined to cooperate with me, less inclined to do what I as President of the United States want Congress to do, than the Congress that was in place in 2010 when the Patient Protection and Affordable Care Act was enacted into law.

That is interesting. It is interesting on a number of levels because, No. 1, one of the reasons Congress is now less inclined to be cooperative with the President, one of the reasons the Congress is no longer as inclined to do the President's bidding is, interestingly enough, because of the Patient Protection and Affordable Care Act, because of the widespread public outcry that came from across this country as a direct result of the enactment of this statute.

It is not at all unusual to have a divided Congress. It is not at all unusual for one or both Houses of Congress to be under the control of a party other than the President's own political party. Yet it has never been the case and can never be the case if there is somehow an exception to the Constitution, if there is somehow an exception to article I's provision that all legislative powers granted by the Constitution shall be vested in a Congress consisting of a Senate and of a House of Representatives.

The fact that the President finds political dissent within the Congress irritating does not make him a king. The fact that Congress will not always do the President's bidding does not vest him with the powers of a despot. When someone holding the office of President of the United States purports to wield legislative power, when the President of the United States purports to make law by the stroke of the executive pen, we have exited the territorial confines of constitutional government.

These are some of the reasons we have focused this debate back on ObamaCare. People are frequently bringing up the argument: This is law. This is settled law. Because it is settled law, you must fund it. First of all, I am aware of no constitutional command that says that simply because a law has been adopted, Congress must fund any and every provision authorized under that law. In fact, quite to the contrary. Because Congress holds the power of the purse, Congress may--Congress must--continue to have the authority to decide which programs to fund and which programs not to fund. Were it otherwise, we would have a straining set of circumstances in which one Congress could bind another Congress simply by passing a piece of legislation and not by a constitutional amendment.

That is not the case. It never has been the case. It never could be, should be or will be the case under our constitutional system today.

What we see is the fact that this is not simply a partisan political debate. Many are casting it as that. Many are pointing to the fact that we have some Republicans agreeing with some Democrats, but for the most part we see widespread disagreement between Republicans and Democrats. But that dramatically oversimplifies the matter. This is no longer simply a dispute between Republicans and Democrats. In many respects, this represents a dispute between the political ruling establishment in Washington, DC, on the one hand and the American people on the other hand.

One of the things we are often told we have to face is that we have to choose to keep everything funded or we have to choose to fund nothing. It is a frequent source of frustration to many who serve in this body. It certainly has been a frequent source of frustration to me and to the 3 million people I represent in the State of Utah. It is odd that we find ourselves in a position to vote on a continuing resolution that funds everything in government or nothing in government. It is a frustrating exercise we have to go through. Because of the fact that we have chosen to appropriate this way year after year, we basically have one opportunity to decide what we are going to fund in government and what we are not going to fund in government. I wish what we could do is, at a minimum, a bare minimum--it should be a lot more than this--but at a bare minimum, to have two different debates, two different discussions, both starting with the presupposition that we fund nothing but culminating in funding or not funding something; one that would deal with funding for ObamaCare and another one that would deal with funding for everything else in government. It would be nice if ObamaCare funding had to stand or fall on its own merits. If we were starting from zero when it came to providing ObamaCare funding and we had to justify it, we had to make the case for it, and we had to say, let's prove to the American people why we ought to be funding the enforcement of this law--this law that will make health care less affordable rather than more and this law that is being implemented in a fundamentally unfair manner, I think that would prove a very different debate and discussion. But very often the way things work in Washington, the way continuing resolutions work, is we are faced with a set of circumstances that don't accurately reflect the way we make decisions in any other aspect of our lives.

I sometimes am inclined to analogize this kind of continuing resolution spending default. This is a vast oversimplification, but suppose someone lived in a very remote area. Suppose the closest town to where they lived was at least 100 miles away, but there was one market, one grocery store just 1 mile from their home. It was the only grocery store within at least 150 miles, let's just say. One day the person's spouse calls them on their way home from work and says: Stop at the store. We need bread, milk, and eggs. The person goes to the grocery store and finds the bread, puts it in the cart, finds the milk and eggs, puts them in the cart, and goes to the checkout counter. The cashier checks out those things and then the cashier says: Wait a second. You can't just buy these things. You cannot just buy bread, milk, and eggs.

You say: Why on Earth can I not buy just these three items? This is all I need.

This is a different kind of grocery store. This is a grocery store patterned after the U.S. Congress. In order to buy bread, milk, and eggs, we are also going to require you to buy a bucket of nails, a half ton of iron ore, and you can use our wheelbarrow to take it out to your car, a book about cowboy poetry, and a Barry Manilow album.

You say: I don't want any of those things. And the cashier says: That is fine. Then you don't get your bread, your milk, and your eggs.

At that point, the shopper, not wanting to come home to a very disappointed spouse, is likely to say: Fine, even though I don't want the nails or the iron ore or the cowboy poetry book, and I definitely don't want the Barry Manilow album, I am going to buy those things because I can't buy the things I need unless I also buy those things.

That is how we spend in the Congress. Whether we like it or not--and most of us don't like it--that is what we are stuck with. So that is one of the reasons we are having this debate now, one of the reasons I think it is appropriate for us to have this debate in connection with this. It is unfortunate in many respects that we tie something so fundamental to who we are as a country, something so essential to our ongoing existence as a nation as national defense. It seems absurd that we should tie that to funding for ObamaCare. Yet that is where we find ourselves because of the fact that we have been operating under a continuous string of back-to-back continuing resolutions for the last 4 or 5 years.

It is time for us to start breaking away from those false and ultimately ridiculous choices. It is time for us to demand more as a people from our Congress. It is time for us as a people to start to demand independent debate and discussion, debate and discussion that far more closely reflects the will of the American people and their ongoing needs.

If the Senate must choose between standing with the longstanding interests, the entrenched interests of the political governing class in Washington on the one hand or, on the other hand, standing with the American people, I hope--I expect--that we will stand with the American people. If we ask any Member how constituents are feeling about the Affordable Care Act, how constituents are feeling about ObamaCare and its coming implementation and enforcement, the response we will get is that, at best, constituents are mixed. In many cases, they are apprehensive, they are uncertain. But overwhelmingly, we will find a lot of opposition from people who are seeing those all around them facing job losses, wage cuts, cuts to their hours, and cuts to their health care benefits.

How long are we going to have to continue to hear these things before we act? Are we as a Congress willing to just look at these things and say: Yes, well, bad things happen. Let's just allow them to happen. Are we willing to do that? Those who are Democrats, are they willing to do that saying, yes,

I know this law is not perfect, but it is a speed dump that we have to cross over on our way to a single-payer system run by the health care system? As Republicans, are we willing to endure that, saying, yes, it is a train wreck, but the good news is it might inure to our political benefit if it gets in? I hope we are not willing to do that. I hope we have not descended to such a shameful, cynical low that we would be willing to allow those political interests to trump the needs of the American people who are calling out, crying out for help and for relief.

Ultimately, as we think about our responsibilities as Senators, as we think about our responsibilities as citizens, I hope we will reflect from time to time on the fact that we have all taken an oath to uphold this document, this 226-year-old document, a document that I believe was written by the hands of wise men raised up by their Creator for that very purpose, to help foster and promote what will become--what has become--the greatest civilization the world has ever known.

To the extent that we respect and honor this document, to the extent that we follow it, to the extent that we defend it, we uphold it at every turn, to the extent that we consider it not just a responsibility of the judiciary but also of the political branches of government, including our own branch, we have prospered as a country. And to the extent that we will return to those practices, we will benefit directly as a result.

So I have to ask Senator Cruz, as a constitutional lawyer, as one of our Nation's preeminent appellate litigators, as one who has argued many times before the U.S. Supreme Court, and as one who clerked for the late Chief Justice William Rehnquist and now as a U.S. Senator, how does the Senator see this role, the role of what some describe as coordinate branch construction of the Constitution? What role does it play in this body? What role does the Constitution play in the Senate? Does it have a place or is that something that is supposed to be left to the nine men and women wearing black robes across the street who are lawyers and hold a different constitutional office than we do?

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Mr. LEE. I wish to ask the Senator from Texas his reaction to a couple of stories that I think relate well to what the Senator from Texas is saying to us about the fact that Congress has adopted a law that has brought about a series of nightmares for the American people, only these are real. This is not some dream we are going to wake up from and discover that this is a figment of our subconscious mind that is causing us torment. It is real.

Sometimes we react as a lawmaking body to situations in such a way that we don't necessarily improve upon the status quo. We identify a problem, and we try to act. Sometimes the results aren't necessarily what we intend them to be. Sometimes the results can be quite the opposite of what was intended at the outset. I think this may well have been the case with the Patient Protection and Affordable Care Act which at the end of the day neither protects patients nor makes health care more affordable.

It reminds me a little bit of a story, something I experienced a few years ago when I was working at the Supreme Court. I shared an office with three other law clerks at the time.

We discovered something very interesting about our office space. During the summer months, when we started our clerkships, our office was almost unbearably cold, something that was unusual for me because I like an office or a home to be relatively cool, but this was unusually cold. It was so cold we were tempted to wear gloves in the middle of the summer indoors because our office was so cold. It was so cold that sometimes we would open our windows to our office, even though it was hot outside, and it would let in this hot, humid air. Sometimes we were tempted to build fires in the fireplace in our small office in the middle of the summer, because it was so cold in the office that our hands would get numb and we could barely write. That is a significant portion of a law clerk's job is to write, write a lot of material.

We would walk over to the thermostat thinking that might solve the problem. It was too cold, so we turned the thermostat up thinking that would make it a little bit warmer and, therefore, more tolerable in our office. First we would move it up a little. It didn't do any good. Then we would move it up a lot and it still didn't do any good. It was still freezing cold in our office in the middle of the summer in Washington.

When it came to be wintertime, we had a similar problem but at the opposite end of the thermometer. In the wintertime we found that our office was intolerably hot. It was hot all the time. It was so hot that we were sweating. It is hardly appropriate, when working as a law clerk at the Supreme Court of the United States, to wear shorts to work, especially in January, so we didn't do that. Because it was so hot we frequently found ourselves tempted to open the windows again, letting in very cold air from the outside. Because we were so hot we had to do something to balance out the temperature. Again, we went to the thermostat to no avail. It was intolerably hot so we, of course, turned the thermostat down, first a little, and it didn't do any good, and then a lot, and it still didn't do any good.

After a while we called the maintenance people of the building. In fact, we called several of the maintenance people in the building. It was an old building, finished in 1935. It was undergoing renovation at the time. The renovation went on for many years. We ultimately got to the top maintenance and management supervisor in the Supreme Court. He ended up spending a fair amount of time trying to find out what was wrong with our heating and air conditioning system, trying to figure out why on Earth it was so intolerably cold in our office in the summer and why it was so intolerably hot in the wintertime.

His conclusion was relatively simple, and it was not what we expected. He came to us and he said, OK, I have dismantled your entire system and I found the problem. Your thermostat was installed backward. When you turned the thermostat up, trying to make it warmer, it had the opposite effect. It was only making it colder. When you turned the thermostat down, trying to make it cooler, it was only making it hotter in your office, hence your problem.

As he said this, I looked out the window across the street at the Capitol, and I thought I wonder if there is something Congress can learn from this. Sometimes Congress, out of an abundant, legitimate, well-intentioned desire to achieve good in society will do something. Sometimes that something is the only thing Congress knows how to do at the moment. Why? Because Congress legislates. It is what we do.

As I have said before, sometimes when you are holding a hammer, everything starts to look like a nail. Sometimes when Congress acts, even with the best of intentions, it gets it wrong. The risk of this is especially high when Congress acts in 2,700-page increments that no one has read prior to passing those increments into law. I believe that is what happened here.

But the proper response to a broken thermostat, or a thermostat that is installed backward, is not to continue using the same thermostat. The solution has to be to fix the thermostat, to replace it. We have got a broken thermostat with this law and it needs to be replaced entirely.

I am also reminded of another story, a story that is somewhat related that helps us understand some similar points.

One night when I was a teenager, I think I was about 14 years old, I was out with my family. I grew up in a large family, seven children, but in Utah that is sort of a medium-sized family, but that is a discussion for a different day. We were out somewhere with the family. I think we had gone out for dinner, and we were headed home. As we were almost to our home, one of my younger sisters suggested to my dad that we go out for ice cream as a family. We were almost home, and recognizing that we were almost home, I all of a sudden realized I didn't want to go out for ice cream because I had homework. I asked my dad to keep driving home, drop me off at the house. The rest of the family could continue on and go and get ice cream together. That way I could stay home, get my homework done, and I wouldn't have to be up too late.

It all worked well. I had all my siblings in the car. That is a lot of kids in the car, but my dad pulled up in front of our house to let me out. I was in the back seat of the car. I opened the car door, and I put one foot out of the car, starting to get out. I wish to tell you something a little bit about my father--my late father, may he rest in peace; he died 17 years ago. He was a very good man, a wise man, a smart man. He was one of my greatest heroes in this life. He had many talents, but he was also very absentminded. Sometimes he wasn't paying attention, and this was one of those moments.

As I stepped one foot out of our Oldsmobile, my dad started to drive off with half of my body still in the car. Somehow the Oldsmobile ended up on top of my foot turned around backwards. That is a little bit hard to describe. The Oldsmobile, with a whole bunch of kids in it, weighs a lot. All of a sudden the Oldsmobile was on top of my foot as it was turned around backwards. I was trying to explain to my dad we had a problem, but all that came out were grunts and groans. I couldn't quite find the words to tell him that we had a problem, because I was in so much pain.

He realized at that point I was still in the car, but it still didn't occur to him that the car was on top of my foot. Finally I mustered the presence of mind to get out one word, one word that I knew I could pronounce, one word that would send the message unequivocally to my father: Get the Oldsmobile off of my foot. But I couldn't utter that many words, so I spit out one word. The word was ``reverse.'' Dad, reverse. Well, he got that message. He put the car in reverse, and he got the Oldsmobile off my foot.

But for my ability to utter that one word in a relatively short period of time that seemed like an eternity under the circumstances, my foot may well have been broken, my siblings probably would have found that mildly amusing under the circumstances, and I probably wouldn't have gotten my homework done that night. As it turned out, I was able to avoid that and it was because I was able to utter that one word, reverse.

Sometimes when you are doing something that hurts someone, you have to reverse. You have to turn off that which has been turned on which has been harming people. This law, turned on 3 1/2 years ago, is harming people. It is going to do a lot more if it remains in the on position. We need to put this car into reverse. We need, at a minimum, to halt the operation of this law.

The best way, I believe the only way at this point, to achieve that, short of repeal, is by defunding. Say: Look, at a minimum, let's halt the spending on further implementation and enforcement of this law while we get certain things sorted out as a country, while we figure out what else we can do.

The objections to this are many. Some say this can't ever happen. You don't have the political will to do that, and you don't have the political muscle to do that. It can't happen. We know one thing for certain. It is never going to happen if we don't try.

We also know a number of other can't-win battles have been fought and ultimately won. A few months ago, Americans were being told we are going to have significant gun control legislation, significant legislation that could eat away in a meaningful way through your privacy and your right to own a gun in this country. We are going to have some form of gun registration system. We were told this is happening, just accept it, just deal with it, there is nothing you can do about it. A few people in Congress disagreed with that conclusion. A few people in Congress resisted, and we stopped it.

Only a few weeks ago it was regarded as an indisputable truth that we were going to get involved in some kind of military strife in Syria. A swelling group of lawmakers from both Houses in both political parties started expressing reservations with that idea. Before long people stopped saying resisting that effort was impossible. After a while, they stopped saying it was improbable, and after a while movement to resist getting the United States involved in military action in Syria became absolutely unstoppable.

In one way or another, I believe the effort to stop ObamaCare might bear some resemblance to this. It might operate under a somewhat different timeframe. Initially, people said the effort to stop this law was one that was impossible.

I think we are reaching the point at which it is being described by many as improbable. In time, as more and more Americans join this cause, as more and more Americans reach out to their Senators and their Congressmen, this effort will become absolutely unstoppable.

Because the American people love freedom, the American people were born to live free. The sons and daughters of America have freedom as their birthright, and they don't take particularly well to micromanagement from a large, distant, national government--one that is slow to respond to the needs of the people, one that often approaches the people with something that does not exactly resemble deep sympathy or compassion, because this is not what large national governments are all about.

A large national government can do certain things well. It can do certain things no one else can do well. But it can't be all things to all people, least of all physician and general caretaker to all. When we try to do all things, we often cause far more problems than we resolve.

So in this circumstance, we have to remember the lesson we learned from the thermostat, the lesson I learned while working at the Supreme Court; that sometimes if you have a broken thermostat, what you do might actually be having the opposite effect of what you are trying to do. What you are trying to do might actually make matters worse if your thermostat's broken, if it is installed backward.

We also have to remember that sometimes when you get into a position where you are causing harm or you could cause more harm unless you change direction, that you sometimes just have to reverse. This, I believe, is one of those times.

To reframe all of this, we are here at nearly 2 in the morning on an otherwise perfectly good Tuesday night. I guess now it is Wednesday morning. We are here because we feel strongly about how best to proceed with a funding mechanism passed by the House of Representatives. The House of Representatives last week responded to a call from the American people--a call to do something very important, a call to keep the Federal Government funded and operating but to do so while defunding ObamaCare. Once that was passed by the House, once that started making its way over to the Senate, we in the Senate were faced with several alternatives.

I believe there are two very good alternatives to addressing that. One is to vote on the House-passed continuing resolution that funds government but defunds ObamaCare on an up-or-down basis, either pass it or don't pass it, but pass it or don't pass it in as-is condition based on how it was passed by the House.

That is one good option. Another option would be to subject that same House-passed continuing resolution that funds government but defunds ObamaCare to an open amendment process, a process by which Senators, both Republicans and Democrats, may propose alterations to that continuing resolution as they deem fit. This would require us to debate, discuss, and vote on a number of amendments.

Either of these alternatives would be equally acceptable. I can see arguments for either one of them. But what is not acceptable is for the Senate majority leader to do as he is expected to do by many, which is to say we will have one amendment and one amendment only to the House-passed continuing resolution and that amendment will be one to gut the continuing resolution of a provision that was the ``without which not'' measure of the entire bill to gut the defunding language.

At the same time, the majority leader is expected widely to fill the tree, meaning to say no other amendments will be allowed. This is it. There is no more. If he is going to do that, he is not going to have my help doing it, and because he is not going to have my help doing it, that means I must vote no on cloture on the bill.

In other words, Harry Reid is expected to ask his Members, and is expected to be followed by the 53 other Members in his caucus, for a total of 54 Democrats who will vote yes when it comes to cloture on this bill, who will vote yes knowing full well Harry Reid and the 53 Democrats who follow him, for a combined total of 54, will vote on cloture on this bill. This doesn't mean they are in support of the House-passed resolution as adopted by the House, funding government but defunding ObamaCare. Quite to the contrary, this means they are in favor of gutting it, of severing, of cutting out its most important single provision.

If Harry Reid and the 53 Democrats who follow him want to do that, that is their prerogative. As a Republican who was elected to combat ObamaCare, to try to stop it, I will not be voting for cloture on the bill for that very reason. That could change, of course, if Harry Reid decides to bring up this continuing resolution for a vote as is, on its own merits, as it was written or, alternatively, if Harry Reid decides to bring up the House-passed continuing resolution under an open amendment process, allowing Senators to propose, debate, discuss and, ultimately, vote on amendments.

But what is not acceptable is for him to allow one and only one amendment, one gutting the continuing resolution of its most important provision. With him doing that, the Democrats can oppose this if they want. I will not be joining them, and I don't believe they need Republican help if that is what they want to do. If they do want Republicans to vote with them, I will not be among them. My job is not to make it easier for them to gut the House-passed resolution.

I stand with the House of Representatives. I stand behind Speaker Boehner and the Republicans who assisted him in getting this passed. I want to get this passed. I would like to pass it as is. If we can't pass it as is, on a single as-is vote, I want to see us with an open amendment process. The Senate majority leader is proposing neither.

So I ask Senator Cruz: How does the Senator see this, how could one possibly see a ``yes'' vote on cloture on the bill, under the circumstances I have described, as a vote in favor of the House-passed continuing resolution that funds government while defunding ObamaCare?

BREAK IN TRANSCRIPT

Mr. LEE. I have two sons and a daughter. My two sons are twins. They are teenagers. They are good boys. They are both 4.0 students, and I couldn't be more pleased with them. They work hard.

I had an experience with them about 1 1/2 years ago that comes to mind. I was driving down the street with them in my car one day. We were listening to the radio, as I often do with them. We were listening to a popular song familiar to all three of us, a song we had heard on many, many occasions.

On this particular occasion I started noticing the lyrics more than I had on previous occasions in the past. All of a sudden, for whatever reason, I noticed that these were not good lyrics. These were not wholesome lyrics. These were not lyrics that any God-fearing father of teenaged boys would necessarily want his sons listening to. All of a sudden I pointed out to my twin sons, turning down the radio, These were terrible lyrics, and I asked them: Have you ever really listened to the words of this song? Do we like the message that is in this song?

My son John didn't miss a beat. Without hesitating, without batting an eye, John looked right at me and said, Dad, it is not bad if you don't think about it. I immediately thought it was funny that was his response. This was teenage reasoning at its very best. It is not just teenage reasoning. It is the way a lot of us think about things by saying certain things aren't bad if you don't think about them.

In many respects, that is reflective of what we face in our country today. A $17 trillion debt growing at a rate approaching $1 trillion a year isn't bad if you don't think about it.

Having a 2,700-page health care law with 20,000 pages of implementing legislation isn't bad if you don't think about it; having between $1.75 trillion and $2 trillion a year in existing Federal regulatory compliance costs is not bad, if you don't think about it; having the world's highest corporate tax rate, at least the highest corporate tax rate in the developed world, isn't bad if you don't think about it. A lot of these problems we face are not bad, but only if you don't think about them.

The problem is in the Senate it is our job to think about these problems. It is our job to think about the fact that we have on the books a law called the Patient Protection and Affordable Care Act that will make a lot of things worse for a lot of people, a law that will have an effect not consistent with the lofty sounding title of that law, an effect that will actually result, in many instances, in health care that is both unfair and less affordable.

We have to think about what our responsibilities are. We have to think every single day about how this is going to affect the American people. We have to be willing to say we are not going to allow certain things to persist, things that would harm the American people, and that means we have to listen to the American people when they cry out for help.

They have cried out for help in recent weeks as they have asked Congress again and again to defund ObamaCare, as they have asked Congress to keep government funded. They don't want a shutdown. We don't want a shutdown. I know I don't want a shutdown. I don't think Senator Cruz wants a shutdown. In fact, I don't think I know any Member of Congress of either House or either political party representing any of our country's 50 States who wants a shutdown.

What we want is to keep government funded. What the American people want is for us to fund government while defunding ObamaCare. That is precisely what the House of Representatives has done. I salute the House of Representatives. The House of Representatives, the Republican leadership, has been thinking about it. They have been thinking about this law and the many problems it threatens to create for our Nation's 300 million-plus people.

We have to think about the fact that every time we make a law we are expanding the reach of this government. We have to think about the fact that we became an independent nation, a nation that flies its own flag rather than the Union Jack, a nation that pays tribute to the sovereignty of the people rather than to the supposed sovereignty of a monarch. A couple of centuries ago this was not just an act of rejection of the idea of having a monarch, this was not just a rejection of the Union Jack, this was not just a statement to the effect that we did not want to sing ``God Save the King'' or ``God Save the Queen.'' We became our own Republic at least in part because we were subject then to a large distant national government, a large distant national government that was so far from the people that it was sometimes slow to respond to the needs of the people, and that national government based not in Washington, DC, because Washington, DC, did not exist then. What is now Washington DC was then part of the colony of Maryland.

Our national capital, based in London, taxed the people too much. It regulated the people too aggressively, too oppressively. When the people called out for help, that government was slow to respond to their needs--in part because it was so far from them, so distant from them. It was not just distant from them in terms of measurement, in terms of geography, but also distant from them in that its interests were somewhat detached from those of the American people.

Ultimately we became our own country. Ultimately we declared our independence, we fought for it, we won our independence. Instinctively, reflexively, quite understandably we established a national government because we knew we would need one. We knew that each of these Thirteen Colonies could not exist independently as a freestanding Republic. We knew we would need a national government to provide for those basic things that a national government generally must provide.

We knew that national governments, at least our national government in this circumstance, would need to be in charge of a few basic things such as national defense. Yet we feared what national governments could do because we know that when governments become big there is a greater risk toward tyranny--even if it is a type of tyranny that exists only by degrees. We knew that the risk of this kind of tyranny--some might call it soft or incremental tyranny--exists even in republics, even when democratic forces are at play. We knew this type of risk of soft tyranny, as some would describe it, is greatest within national governments.

The bigger the nation, the more powerful the government and the fewer the restrictions on that government, the greater the risk that the rights of the people will be undermined; the greater the risk the people of that great nation will become subjects rather than sovereigns--which of course they should always be.

So for that very purpose we put in place a very limited-purpose national government, originally under the Articles of Confederation. We put together a weak national government. It was so weak in fact it was ineffective. It was not able to do the things our basic national government needed to do. Congress, under the Articles of Confederation, had some powers but they proved to be not enough. It had no power of raising revenue independently of the States. It had no power of regulating commerce or trade between the States and with foreign countries. So after a period of just a few years under the Articles of Confederation, our Founding Fathers came together in that hot, fateful summer of 1787 in Philadelphia and they put together a compromise document. They said we need a national government that is at once strong enough to be able to do what a National Government must be able to do in order to protect us so we can be a nation. Yet we also need those powers to be sufficiently limited that the risk of tyranny, even incremental tyranny or tyranny by degrees, will be kept to a minimum.

So our Founding Fathers wisely came up with a list, a list of powers that we knew the national government would need powers that we knew needed to be exercised at the national level. Those powers, the vast majority of which are found in one part of the Constitution--often overlooked but perhaps the single most important portion of the Constitution, at least for our purposes here--the part of the Constitution we have to look to more frequently here, article I, section 8.

Article I, section 8, has 18 clauses and goes through the basic powers of Congress. Congress, of course, has the power to tax and the power to spend within the powers authorized by the Constitution. Congress has the power to regulate trade--referred to in the Constitution as commerce--among the States, with foreign nations and among the Indian tribes. Congress has the power to coin money and regulate the value thereof; develop the uniform set of laws governing naturalization or what we would today call immigration; the power to provide for our national defense; to declare war; the power to come up with a system of laws dealing with bankruptcy; to establish a uniform system of weights and measures; to establish postal roads. There are a few other powers, but this is the basic gist of them.

Then there is my favorite power, the power to grant Letters of Marque and Reprisal, a power that we too often fail to recognize, a power I wish we would get to debate and discuss longer and more frequently in the Senate. A Letter of Marque and Reprisal was effectively a hall pass issued by the U.S. Congress in the name of the U.S. Government that entitles the bearer of that hall pass to be a pirate on the high seas. Regardless of how long I might serve in the Senate, I hope one day to be granted a Letter of Marque and Reprisal so I can become a pirate as I longed to be as a child. You are all invited to join me when I get that Letter of Marque and Reprisal.

The point is the powers of Congress are limited. These are powers that James Madison cited in defending the Constitution against people who questioned him, against those who feared this Constitution might give rise to a general purpose national government, one empowered with so many powers that it could become a tyrant. He tried to set at ease the concerns of the people in Federalist 45 when he said:

The powers that would be granted to the newly established federal government upon ratification of the Constitution are few and defined while those reserved to the States are numerous and indefinite.

He was right and he was persuasive. Upon the advice of James Madison and others, the States ratified the Constitution. They did so with that very understanding, that this body, the legislative body created by the Constitution, the U.S. Congress, consisting of a Senate and a House of Representatives, would possess legislative powers that were not so broad as to encompass all the day-to-day interactions of human beings. We would not possess what people refer to as general police powers. We do not have the power to make whatever law we think is a good idea. A good idea is not nearly enough. We have to find something in the Constitution that puts us in charge of legislating within that area to promote that good idea. We have to find something in the Constitution that gives us the power to do it.

During the first 100, maybe 150 years of our Republic as it operated under the Constitution, we followed pretty closely this document, what some describe as the enumerated powers doctrine. Sure, there were arguments from time to time over this or that legislative proposal. There were arguments that arose, for example, over whether we should have a national bank.

You had debates among and between the political branches of government, meaning Congress and the Presidency, that often centered on the principles of the Constitution. It was very common to have constitutional concerns brought up on the floor of this body or on the floor of the House of Representatives as a basis for halting serious consideration of a legislative proposal on grounds that it simply was not within Congress's power to enact.

It was not necessarily considered acceptable to say let's let another branch of government think about it. Let's let the Supreme Court iron it out. Let's let the Supreme Court decide whether it is constitutional. Within the political branches of government, frequently proposals were stopped on grounds that they were unconstitutional.

Fast forward 130, 140, 150 years, and things started to change. The Supreme Court, early in the administration of President Franklin D. Roosevelt, pushed back on a lot of FDR's more aggressive attempts to expand the reach, the size, the scope, the cost of the Federal Government.

It resisted those and said: Look, regardless of what the policy merits might be of this Federal program or that one, we still have a limited purpose as the Federal Government and not an all-purpose national government. That limited purpose--the national government--has to find something in the Constitution each time it legislates. If it fails to do that, then no matter how good of an idea it is, it can't fly.

By the end of F.D.R.'s Presidency, the Court changed course. There are a number of reasons for this, but the prevailing theory is that the Supreme Court got scared. It got scared as a result of F.D.R.'s Court-packing plan.

In 1935, the Supreme Court moved into its new building across the street, the shining marble palace we see just outside the door to the Senate. The Justices liked their new white marble palace. They enjoyed it. They didn't want F.D.R., or any other President, raining on their parade by packing the Court and fundamentally altering the nature of the Court's composition. So for that reason, many theorized, the Court changed its position. The Court stopped resisting F.D.R.'s attempts at expanding the Federal Government's power.

People trace the change in jurisprudence to a number of different moments. I think one of the pivotal moments occurred in 1937 when the Supreme Court of the United States decided a case called the NLRB v. Jones & Laughlin Steel Company. In that case, the Supreme Court adopted an early version of what has become its modern common clause jurisprudence. The Supreme Court started concluding that where there is an activity that is commercial or economic in nature, Congress may regulate that activity so long as there is a substantial connection between that activity and interstate commerce. It was in that case that the Supreme Court, for the first time, smiled upon Federal regulation of what were previous to that time considered local activities, such as labor, manufacturing, agriculture, and mining.

That is not to say those things should not be regulated by any government anywhere. It is not to say the Supreme Court--prior to NLRB v. Jones & Laughlin Steel--ever suggested otherwise, but it is to suggest that prior to that case regulation of local activities, such as labor, manufacturing, agriculture, and mining were considered more appropriate for State and local governments and not for our national government. Within the next 5 years, the Supreme Court solidified its position on the commerce clause, and in many respects it allowed its power to reach a high watermark in the 1942 case of Wickard v. Filburn.

Let's talk about that case for just a minute because I think it bears on what we are talking about. That case involved a farmer by the name of Roscoe Filburn. He got in trouble with the law. You might be asking yourselves: What did farmer Roscoe Filburn do? What did he do to get in trouble with the Feds? Was he a bank robber? No, he didn't rob a bank. Was he a drug dealer? No, he didn't do that. Was he a murderer or a kidnapper? No. You want to know what Roscoe Filburn did? He committed a grave offense against the United States. He grew too much wheat. Yes, scary but true. Roscoe Filburn grew more wheat than Congress, in its infinite wisdom, saw fit for any American to grow in any 1 single year.

By then Congress decided it needed to regulate every aspect of human existence, if possible. It even had the wisdom and foresight necessary to direct the entire economy right down to how much wheat a particular farmer could legally grow. Roscoe Filburn was fined many thousands of dollars for growing too much wheat. That was a lot of money in those days.

Fortunately, Mr. Filburn had a good lawyer. Mr. Filburn was determined not to allow his life to be micromanaged by Federal officials in Washington, DC. Mr. Filburn challenged the enforcement of this law against him with a theory. He said: Look, the statute I have been accused of violating was enacted pursuant to the commerce clause of the U.S. Constitution, article I, section 8, clause 3. The commerce clause applies to interstate commerce or commerce for trade occurring between the States and not intrastate commerce--commerce within a State. Commerce which is within a particular State is not subject to Congress's authority and the commerce clause.

Roscoe Filburn argued--through his lawyer--that the wheat he grew in excess of the national wheat production limit never entered interstate commerce because it never entered commerce at all. Roscoe Filburn used that wheat entirely on his farm. He used some of it to feed his animals, some of it to feed his own family, and he reserved the balance of that grain to use as seed for the following season.

So on that basis, he said: Look, you can get after me for any reason you want. You can get after me, if you want, for violating this wheat production limit, but the fact is this law can have no application here because this wheat never entered interstate commerce or any other form of commerce. It never left my farm.

Interestingly enough, the Supreme Court of the United States saw it differently. The Supreme Court of the United States found that even that wheat that never left Roscoe Filburn's farm was subject to the long arm of Congress and the long arm of the Federal Government. It was subject to that same Federal power that James Madison once described as few and defined. All of a sudden the supposedly few and defined powers were broad enough somehow to extend to Roscoe Filburn's pernicious wheat.

The Supreme Court said, in essence, that this wheat, because it was grown and used on Roscoe Filburn's farm in excess of the grain production limit imposed by Federal law, it was grain that Roscoe Filburn would have otherwise purchased but did not have to purchase on the open market, a market that was distinctively interstate.

Because he grew it and used it on the farm and did not buy it somewhere else, thus by growing too much wheat, Roscoe Filburn shamefully distorted and undermined the interstate market and wheat. He undermined it in the sense that it drove the price in a different direction than Congress, in its infinite judgment, saw fit to direct the economy. So the Supreme Court of the United States upheld the fine that was assessed against Roscoe Filburn. The

reasoning of the Supreme Court employed in Wickard v. Filburn is a fascinating study in legal and verbal gymnastics. It is a fascinating study in the idea that everything affects everything else. They basically said that the wheat Roscoe Filburn grew on his farm affects the interstate wheat market in much the same way that butterflies flapping their wings in Brazil can affect weather patterns in North America.

We are somehow asked to have faith that this does, in fact, happen. I am told that climatologists can prove there is an impact by the butterflies in South America on weather patterns in North America. I don't know how, but you have to make a lot of inferences before you get there. But as many inferences as has to be made with the butterflies, I think there are even more inferences that have to be drawn with respect to Roscoe Filburn's wheat.

I remember studying this case in my high school history class. I remember arguing with my history teacher about this. I remember my history teacher eventually telling me: Get over it, Mr. Lee. The Federal Government is big and powerful, and that is just the way things are. Yet I think we have a certain responsibility to look back through our history and to question from time to time the judgments of the Supreme Court of the United States, especially when those judgments enable the Congress to extend its power far beyond what Madison described as few and defined powers.

In a sense, what we have done ever since Wickard v. Filburn is we continued to expand Federal authority beyond that. We have never fully retreated from that high watermark. What we have seen is a perpetually expanding national government, one that is capable of imposing an estimated $2 trillion in Federal regulatory compliance costs alone, a Federal Government that imposes a couple of more trillion dollars in taxes a year from the American people, and manages to spend between $3.5 and $4 trillion every single year. That is a very big government.

Since Wickard v. Filburn, there are only two instances in which the Supreme Court of the United States has invalidated an act of Congress as being beyond the scope of Congress's power under the commerce clause. Sometimes I almost add a third, but then I remember the Supreme Court stopped short on that third.

The first two involved a case called the United States v. Lopez, which is a case from 1995 where the Supreme Court invalidated the Gun-Free School Zones Act prohibiting the bare possession of a handgun within a school zone. The Supreme Court concluded that the bare possession of a gun was not commercial activity at all. It was not interstate commercial activity. It was not interstate commerce, and they couldn't get to the point where they could conclude that this was a valid subject of Congress's commerce clause authority.

The second case was decided in 2000. It was a case called the United States v. Morrison in which the Supreme Court invalidated provisions of the Violence Against Women Act, including that those provisions attempted to regulate acts of violence, however reprehensible, were themselves neither interstate or commercial.

Then, of course, in 2012 the Supreme Court sort of invalidated the penalty provisions attached to the individual mandate in the Patient Protection and Affordable Care Act. I say they sort of invalidated that provision because the Supreme Court of the United States concluded that provision, though enacted pursuant to the commerce clause, could not be defended as a valid exercise of Congress's power under the commerce clause. To that extent, they concluded it was unconstitutional.

But then the Supreme Court went on somehow to conclude that this was a valid exercise of Congress's power to impose taxes even though Congress had attempted unsuccessfully to pass this as a tax, even though new taxes have to be introduced in the House of Representatives and passed into law by both Houses of Congress and signed into law by the President, even though the Supreme Court of the United States has no authority to levy taxes, impose taxes or create taxes.

The Supreme Court of the United States created out of whole cloth a new tax which it imposed on the American people. They imposed a middle-class tax hike, which the Court has no power to impose. It has no power to levy taxes. Yet the Court did it anyway.

When I tell that story, I get asked all the time: How then did the Court do it? If the Court has no power to do it, how did it do it? It just did. It just declared it to be so and the rest of us were expected to accept that and get over it and move on, just as I was told by my high school history teacher to accept, get over, and move on from Wickard v. Filburn because the Federal Government is big and powerful and we can live with it.

Well, we all just have to live with it but only as long as the American people put up with it, only as long as the American people are willing to accept it.

The American people have never been enthusiastic about ObamaCare--not from the beginning. Their satisfaction with this law has not improved over time, and it has not been enhanced. The American people don't deserve to have to live under a law that imposes a massive middle-class tax hike on the American people, one that was not imposed by the people's elected representatives in Congress but instead was imposed by five of nine lawyers who wear black robes and sit in big fancy chairs in the building just across the street from us.

The American people deserve to live under a system where the laws are written by men and women of their own choosing, who serve in increments of 2 years in the case of Members of the House of Representatives and in increments of 6 years in the case of U.S. Senators.

Supreme Court Justices, of course, are smart men and women--every one of them. They are very intelligent, well-trained individuals. I am convinced that each and every one of them loves this country and wants to serve it well. Yet the members of the Supreme Court of the United States are not elected. They are not subject to election at regular intervals, and that is one of the many reasons we don't trust them with the power to write law. It is one of the many reasons we don't trust them with the power to impose taxes. They are there to decide cases and controversies based on the law and the facts before them.

In the case of the Patient Protection and Affordable Care Act, they rewrote the law not just once but twice--once by transforming what was enacted as a penalty into a tax in order to save that law from an otherwise certain doom, a doom necessitated by important constitutional limitations; the second time when the Court concluded by an even wider margin--7 to 2--that Congress had violated the Constitution by imposing on the States a mandate to expand their Medicaid Programs without giving them any reasonable alternative, any available alternative. The Supreme Court, again by a 5-to-4 margin, after 7 to 2--after the Justices, by a margin of 7 to 2, had found that this was unconstitutional, five of them--by a margin of 5 to 4--saved the provisions simply by rewriting the law, by inserting into the law an exception in the law that the law did not provide.

I believe it may have been Shakespeare who originally penned the words ``he will cheat without scruple who can without fear.'' I have also heard it attributed to Benjamin Franklin. I am not sure which of them was the originator of that quote, but I have heard it attributed to both. Regardless, there has to be a legal corollary to that. When Supreme Court Justices are able to make law, when Supreme Court Justices are able to impose taxes and no one calls them out on it, that is when the people have to live with that. That is when they get away with it. That is when they are allowed to cheat the American people out of their right to have their laws made by men and women of their own choosing, to have their taxes increased, if at all, only by men and women of their own choosing. This was wrong. This was a dastardly, cowardly act, one we can't simply ignore.

One of the things I found so offensive, so appalling, so disturbing, so distressing was the fact that in the wake of this decision, so many people--many of them from my own political party--praised Chief Justice Roberts for his participation in this dastardly, inexcusable act of rewriting the Affordable Care Act not just once but twice in order to save it. They praised him. Some of them said that this showed he was willing to cross the aisle at the Supreme Court. Well, that is a problem. There is no aisle in the Supreme Court of the United States. They sit along a bench. At the center of the bench is the Chief Justice. There isn't an aisle. In fact, particularly once they have been appointed by the President and confirmed by the Senate, Supreme Court Justices operate in a world in which partisan political affiliation has no meaning. This wasn't reaching across the aisle.

Some suggested that this was somehow a statesman-like act by the Chief Justice, an act that revealed that he was willing to sort of balance various interests, an act that some Republicans even were convinced was carefully and wisely engineered to procure a Republican partisan victory in the 2012 election cycle. That is absolutely nonsense, first of all. As a political matter, we saw that it turned out not to work at all. I don't necessarily think there is any validity to the theory that that is what the Chief Justice was trying to bring about. If it was, that would amount to an utter betrayal of his judicial oath. It would also reveal him to be a really bad political tactician, but that is not the

Chief Justice's job. It is not the job of any justice or any jurist. The job of any jurist is to decide each case before the court based on the law and the facts of the particular case.

Some have suggested that this was designed to protect the enumerated powers doctrine or at least the idea that there is some limit to Congress's power under the commerce clause. I believe that is utter nonsense. This didn't do that. In fact, I think it blew a hole a mile wide in the enumerated powers doctrine because what this suggested is that, OK, the Supreme Court is going to pay at least lipservice to the idea that the power of Congress is, in fact, limited. But if Congress colors outside the lines, if Congress doesn't utter the magic words, if Congress really does something quite wrong in drafting such that its power can no longer be appropriately assigned, its power can no longer be appropriately justified under the commerce clause, then all of a sudden the Supreme Court of the United States will find some other basis in the Constitution upon which to rest this authority.

This is really disturbing because if the Supreme Court can do that and if the Supreme Court can do that even to raise taxes, then Congress can pass all kinds of laws in theory purporting to be simply exercises of its regulatory power under the commerce clause and then rely on the Supreme Court of the United States to say: Yes, OK, this may not be a valid exercise of Congress's power under the commerce clause, but we will rewrite it as a tax. We will rewrite it as a tax and thereby uphold it, thereby stand behind it.

So we get back to the question--a question I get asked all the time by people around my State, by people across the country when they hear about this decision. They ask: How can the Supreme Court of the United States do this? How can the Supreme Court of the United States get away with it?

Well, they can do it because they wear the black robes. They can do it because they have the printing press that prints out those decisions with the fancy wording of the Supreme Court behind it. They can do it because the people still regard the decisions, the rulings of the Supreme Court of the United States as legitimate.

I do have to point out another aspect of this ruling. In the same ruling in which the Supreme Court of the United States concluded that the Patient Protection and Affordable Care Act's individual mandate provision was a valid exercise of the taxing power, the Supreme Court of the United States also said--with, by the way, the concurrence of Chief Justice Roberts, who was the author of the majority opinion upholding it as a valid exercise of the taxing power--that same opinion authored by the same Chief Justice concluded that this same provision was not a tax for purposes of a law called the Anti-Injunction Act. Had the Supreme Court of the United States not reached that conclusion, had it reached the same conclusion under the Anti-Injunction Act that it reached under the constitutional aspect of the challenge, and had the Court concluded that this was, in fact, a tax and not a penalty, as it did under the constitutional analysis, then the Supreme Court of the United States would have been without jurisdiction to hear the case because the Anti-Injunction Act said: If it is a tax, you can't review the statute being challenged until after it has been enforced, which meant that no legal, no judicial challenge could have been properly brought, could have been countenanced by an article III court of the United States until, at the earliest, sometime in 2014, after enforcement of the individual mandate began.

So it was very odd that the Court, led by the same Chief Justice, concluded at once that this was a tax for purposes of constitutional analysis but that it was not a tax for purposes of the Anti-Injunction Act. Here again, how does the Court get away with that? It gets away with it because we recognize the validity, the legitimacy of the decision.

But the more people learn about this, the more they read about it, the more they become upset. I have yet to explain this to a constituent who isn't deeply disturbed by it. I have yet to explain this to anyone who can really defend it on its own merits.

So we see that this was a law that was put in place quite improperly. It was a law that was put in place not by an elected legislative body but instead by a judiciary that, at least for purposes of this case, transformed itself into a judicial oligarchy of sorts, a judicial legislative body--one of the many reasons we need to defund the implementation of this law. It was unconstitutional as written in two respects and would have been invalidated but for the Supreme Court of the United States rewriting it not just once but twice.

We have to ask ourselves these questions from time to time: Where do we go with this? What do we do with it? That is where we get back to where we are now, where the House of Representatives boldly stood behind the American people and decided to keep funding the government, funding the operations of government while defunding ObamaCare. That bill, that continuing resolution is now moving over here. That continuing resolution is now before us.

Sometimes we have to ask ourselves these questions of what is it that we are funding, why is it that we are funding it, and why is it that we should continue to stand behind a law that is causing so much harm to the American people--a law that was improperly brought into being in the first place, a law that was improperly upheld and sustained, ultimately rewritten by the Court, improperly, unconstitutionally rewritten by the President of the United States.

So I wish to ask Senator Cruz, does the Senator know how long the Hundred Years War lasted?

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Mr. LEE. Can the Senator tell me, where do Chinese gooseberries come from?

Mr. CRUZ. I yield for this question. Most would say China. But think again. Chinese gooseberries actually come from New Zealand.

The way things are labeled are not always, in fact, what they are.

Mr. LEE. If the Senator will yield for another question.

Mr. CRUZ. I will yield for a question without yielding the floor.

Mr. LEE. Commercial airplanes, as far as I know, all airplanes in the United States, have within them something called a black box--a black box that records the events of the cockpit. It also records critical operating data from the airplane so that in the event of an accident, the data and the voice recordings can be reviewed to try to figure out what happened.

Does the Senator know what color the black box is?

Mr. CRUZ. I say to Senator Lee, I do. A lot of people would say it must be black. If we were dealing with ordinary English language, it would be black. But perhaps airplane manufacturers think like Congress because the black box on an airplane is orange.

Mr. LEE. There is something called a Panama hat. Can the Senator tell me what part of the world the Panama hat comes from?

Mr. CRUZ. I will yield for that question and note it could possibly be Panama. You might think if you call it a Panama hat it would make sense that it would be Panama. But, no, think again. Ecuador. Ecuador makes Panama hats. I do not know that anyone makes Ecuador hats.

Mr. LEE. The device known as a camel's hair brush, does the Senator know what it is made of?

Mr. CRUZ. I yield for that question. Curiously enough, I do. You might think a camel's hair brush must be made of camel's hair. There are lots of camels. They have hair. Surely you can make a brush. Well, maybe you can. I do not know if you can. But a camel's hair brush is made of squirrel fur. It makes you wonder. The squirrels apparently have a very bad marketing department if they give their fur that gets credited to the camels.

Mr. LEE. What color is a purple finch?

Mr. CRUZ. Again, I will yield for the purpose of that question to note a purple finch--listen, similar to most husbands, I have a color palate of about six colors. I remember once my wife asked me, with regard to a tile--we were redoing our bathroom. It was a white tile. She was long distance. She said: What shade of white? I will note that was a question I was utterly incapable of responding to. I was not aware there were shades of white, and my vocabulary does not cover such things. I finally dropped it in a FedEx envelope and simply sent it to her. I was like: It is a white tile. I know nothing beyond that.

But yet your question: What color is a purple finch? I would tend to think it would be purple, but I would think wrong if that were the case because a purple finch is crimson red.

Mr. LEE. There is a chain of islands off the coast of Spain, a chain of islands known as the Canary Islands. Can the Senator tell me after what animal were these islands named?

Mr. CRUZ. I will yield for the purpose of that question as well. Indeed, I can tell you that. Now, you would think, if you call a chain of islands the Canary Islands, it must be a bird, maybe a bird in a coal mine but some sort of bird. Think again. The Canary Islands are named after a dog. I would note, the Canary Islands are a chain of islands I have some real connection to because my grandfather, my father's father, was born in the Canary Islands. Indeed, he moved to Cuba when he was 1, was raised in Cuba. My father was born in Cuba, was raised in Cuba.

The lesson from all of these is striking. Labels do not always mean what they say. Some might wonder, what does this chain of insightful questions from my friend, the junior Senator from Utah--how does it relate to the issue of ObamaCare?

If we look at Senator Lee's tremendous discourse of the Constitution--and I would note, by the way, there is not another Senator in the Senate who could give that constitutional lecture that my friend Senator Lee did, sharing with this body. I wish all 100 of us had been here to hear that because a lot of Senators--all Senators would be well served by learning or relearning those basic constitutional principles.

Mr. LEE. But the question is, Would any of them be willing to listen to it or interested in it or would most of them consider it a form of torture?

Mr. CRUZ. I yield for the purpose of that question as well--and they might well.

One of the striking things--and although under the rules of the Senate I am not allowed to ask Senator Lee a question, I can pose a rhetorical question to the body, and should Senator Lee have thoughts on that rhetorical question, he can choose to ask me a question that might contain his thoughts on that rhetorical question posed to the body.

So given that sort of convoluted reasoning, which may explain why we are in the Senate with the odd and precarious procedures that govern this body, I am going to ask this rhetorical question to the body, which is, Senator Lee explained that the Supreme Court of the United States upheld ObamaCare, after concluding it exceeded the commerce clause authority of Congress, by concluding that it was a tax. By calling it a tax, it was able to force it into a different line of jurisprudence and uphold it under the taxing clause, the taxing power of Congress.

I would ask rhetorically of this body, was it an accident that the ObamaCare statute did not call the individual mandate a tax? Maybe it was a scribe's error. Maybe it was they meant to call it a tax, they thought it was a tax, and a clerk writing just wrote the wrong word. So instead of ``tax,'' the word ``penalty.'' Surely that is not consequential. It must purely have been an accident. As a related component of that, was it an accident that the President of the United States went on national television and told the people of America, while this was under

consideration, this is not a tax.

He affirmatively said this is not a tax.

Mind you, the argument that the U.S. Department of Justice made, the Obama administration made to the Supreme Court was this is a tax, although the statute did not say it. The argument the Supreme Court ultimately found persuasive was: This is a tax, although the statute said it was a penalty and not a tax.

The question I would rhetorically pose is: Was it an accident or is there perhaps another reason why elected politicians would not call something a tax?

Mr. LEE. Will the Senator yield for question?

Mr. CRUZ. I will be happy to yield for the purpose of a question.

Mr. LEE. Hearing the Senator from Texas, I started humming the theme to ``Jeopardy,'' while stating lots of these things in the form of a question. It does occur to me it is absolutely certain there was a reason why this was not called a tax when it was presented to the Congress. The reason is tax hikes are unpopular. Tax hikes are especially unpopular when they are directed at the American middle class. Tax hikes are especially unpopular when they are directed at the American middle class, when they are presented by a President who ran specifically on a campaign of not raising taxes on the American middle class, which, of course, nearly all candidates for President will promise and in this case did promise.

So, no, it is not by any means an accident that this happened--the fact that language, consistent with 100 years' worth of jurisprudence, language that was used in this law, created a penalty. There is a very clear distinction between a penalty under Federal law and a tax under Federal law. A tax under Federal law is something that is an obligation, a generalized obligation to fund government; whereas, a penalty is something that involves both a requirement under Federal law and a provision exacting a payment as something that occurs in response to noncompliance with that requirement. So no, this was not an accident at all.

So I would ask Senator Cruz whether this aspect of the Affordable Care Act--and also the fact that ObamaCare is called the Patient Protection and Affordable Care Act--doesn't it strike the Senator that this, in so many ways, is a misnomer in much the same way that the Hundred Years' War did not last 100 years, Chinese gooseberries come not from China but from New Zealand, that the black box is orange, that Panama hats come from Ecuador, that camel hair brushes are made of squirrel fur--by the way, I do not ever want to try one of those; it does not sound pleasant--that the purple finch is actually red and that the Canary Islands are named after a dog? So, too, the Patient Protection and Affordable Care Act is a name that does not accurately describe the finished product because this is a law that will make health care less affordable rather than more, and it is a law that subjects patients to a lot of harm rather than protecting them.

Does that mean we should think again about ObamaCare in the same way that we need to think again in the answers to some of these questions?

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Mr. LEE. It occurs to me, as I think of this question that I am about to ask the Senator, that, inevitably, one constitutional violation facilitates another. It cannot be that you violate one aspect of the Constitution, in this circumstance, especially, where you are tinkering with the lawmaking power in ways that impact both federalism--the relative power of States and localities, on the one hand, vis-a-vis the Federal Government on the other hand--and also when you manipulate the power to legislate, the power to impose taxes.

Anytime you distort the operation of the legislative power, anytime you allow the judicial branch to commandeer the legislative machinery from Congress, you are also distorting the accountability you describe. In other words, you have in the Patient Protection and Affordable Care Act a massive intrusion by the Federal Government into the sovereign authority that is retained by the States and by the people.

The bigger the legislative package, the bigger the intrusion, and the greater the potential threat to federalism. The more removed that legislative package is from the people's elected representatives in the House and in the Senate, the greater the potential distortion that is at play in the constitutional system.

What we have at the end of the day is a new tax. Nobody knows who to blame. When the people are upset that they are going to be paying this tax, who do they blame? They go to their Members of Congress. You ask any Member of Congress who is still here who was here when this was enacted, any Member of Congress who voted for the Patient Protection and Affordable Care Act, and I can pretty well guarantee you they are going to say: Oh, no, I did not vote for a middle-class tax hike. I did not vote to impose a new tax on middle-class Americans. No. No. I voted for this, but I did not vote for that because this imposed a penalty and not a tax.

I know that because even in the wake of the Supreme Court's ruling in 2012, people who supported this legislation in the House and in the Senate and in the White House continued to insist: No, this is not a tax, this is a penalty. This notwithstanding the fact that the Supreme Court of the United States concluded it could not be upheld as a penalty, that it can be upheld only as an exercise of Congress's authority to tax, an authority which Congress decidedly did not exercise. So the accountability is thrown off severely.

This is what prompted me to introduce a piece of legislation, S. 560. S. 560, which stands in rather stark contrast to the Patient Protection and Affordable Care Act with its 2,700 pages and 20,000 pages of implementing regulations--S. 560, 1 page.

Here is what it says, to paraphrase: Section 1501 of the Patient Protection and Affordable Care Act, the individual mandates provision, is hereby amended as follows: Nothing in this provision shall be interpreted as a tax or as a valid exercise of Congress's power to tax pursuant to article I, Section 8, clause 1, or the 16th Amendment.

You see, the part of S. 560 is that it gives those who voted for ObamaCare, those in Congress who still defend ObamaCare, something other than a tax on the middle class, an opportunity to register that belief, to register that belief by a vote, a vote that would say yes, I do not believe this is a tax, and it should not be considered as a tax by the courts, and it should not be upheld by the courts as a tax. It should not be construed under any circumstance as a tax, because we do not regard it as that.

The interesting thing, of course, is that that is naturally the way people who are the law's biggest defenders would like to vote in some respects, because they want to tell the American public, and they are still telling the American public: It is not a tax, it is a penalty. But if, in fact, they actually put their vote in that direction, if they put their money where their mouth is and they pass that into law, guess what happens to the Supreme Court's ruling. What would happen to the Supreme Court's ruling in that circumstance, if we were to pass S. 560 into law? Let's assume that somehow magically it passed the House and the Senate and President Obama signed it. Perhaps it united both parties behind this concept that this is not a tax. What then would become of the Supreme Court's ruling upholding the Patient Protection and Affordable Care Act on that basis?

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Mr. LEE. It certainly is important that we call something by an appropriate name. It was important back then that the Congress properly name what it was doing. It was appropriate back then for the Congress to say: We are enforcing the individual mandate through a penalty and not through a tax. In fact, it was so important that but for Congress's decision to make this a penalty and not a tax, it would never have passed in the first place.

What you call something and what you make of it can mean all the difference between passage and failure of a particular legislative proposal. When you dress something up in different language, something might appear to be more palatable than it actually is. Certainly, it could be argued that if there are people among us--if there are Republicans among us who are saying that if you support the House-passed continuing resolution, then you must vote for cloture on the bill, cloture on the House-passed resolution, that would not be accurate, in my opinion. I would respectfully but strongly disagree with someone who would make that claim. I certainly do not believe it is accurate to say that if you support the House-passed continuing resolution, the one that keeps government funding but defunds ObamaCare at the same time, I think it would be inaccurate to say you must vote yes on cloture on the bill in this circumstance.

It is not to say that in every circumstance you would have to vote no. In fact, it seems counterintuitive when you first approach it, say why would you vote no on cloture on a bill that you liked. There is one circumstance where I can see where you would want to do that. It is a circumstance in which the continuing resolution you want to support moves over from the House of Representatives, and there are three alternatives the Senate could consider, but the Senate chooses only the third, three doors the majority leader could choose to open. He chooses only the third.

The first door is one in which he says: Okay, we are going to vote on this. We are going to vote on it up or down on its merits as is. We are going to vote on it as it was passed by the House of Representatives.

Behind door two is another option. We are going to allow amendments. We are going to allow individual Members, Democrats and Republicans, to submit amendments as they deem fit. We will debate and discuss those amendments. We will consider them. We will vote on them. Some of them may pass, some of them may not pass. But we will get to amendments. Door one is okay. Door two is okay. They are both appropriate. I would be okay with either one. I would vote yes on cloture on the bill if we were going to go through either of those first two doors.

But door three is the one the majority leader appears likely to open. And behind door three is a very different alternative, one where the majority leader says: I do not want to vote on it as is. But I also do not want to allow an open amendment process. In fact, I am going to allow one and only one amendment. That amendment will gut the continuing resolution passed by the House of the single most important provision relative to its ability to pass the House, the provision defunding ObamaCare.

Door 3 is unacceptable. Door 3 is unacceptable because it allows the majority leader to gut the House-passed continuing resolution funding government but defunding ObamaCare.

I find door 3 unacceptable. Because I find door 3 unacceptable, I am not going to help the majority leader get there. If he wants to get there with the help of himself, his own vote, and the 53 Democrats who follow him in his conference, that is fine. Let them do that. If he wants to try to convince some Republicans to join him in that effort to make it easier for him to gut the House-passed continuing resolution, to strip out the language defunding ObamaCare, then that is the prerogative of anyone who may go along with him. I choose not to do that because I was elected to fight this law, not to facilitate its implementation.

I don't want to facilitate its implementation. I therefore don't want to facilitate the demise of what I regard as the single most important provision of the House-passed continuing resolution. I will therefore vote against cloture on the bill.

I ask Senator Cruz, how does he view the upcoming cloture vote? I am speaking here not on cloture on the motion to proceed but on the cloture on the bill, on the House-passed bill, the continuing resolution.

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Mr. LEE. First, by way of clarification, it was not a Buick but an Oldsmobile.

Those were not rocks I was purchasing in my hypothetical; it was instead a half ton of iron ore. I am not sure it is critical to the merits of the story, but I did think that deserved some clarification. I am not certain that I would, in fact, do that. I wish to be very clear. I did engage in a transaction like that.

It does remind me of how we are often asked to vote here. We tie together program after program. Things are funded not on their own merits but on the merits of other programs. When you tie every single piece of government spending together, then all of a sudden it becomes a must-pass piece of legislation. Everybody sinks or swims together, and it becomes a practice of collusive spending in which Congress funds things not because each program deserves to be funded but because nobody wants to have his ox gored, and that does become a problem.

I appreciate the Senator's comments about my late father. He has been dead for the last 17 years. We miss him. We have missed him every day since then.

The Journal of the American Bar Association once referred to him as ``Huck Finn in a morning suit,'' referring to the ceremonial dress worn by the U.S. Solicitor General. They regard him as sort of the Huckleberry Finn character. It was not typical that a boy from the Rocky Mountains, as he used to describe himself, ends up in that position, but he loved that position and loved it very much.

It is worth noting that I have met the father of the junior Senator from Texas. He is an inspiring speaker. He is a true patriot. Even though he was not born or raised in this country, the Senator's father has a great love of the United States of America that is unparalleled, certainly unexceeded by almost anyone I have ever met. He is one who certainly can understand the angst the American people feel about laws like ObamaCare. He is someone who I think can understand that in many respects the very best kinds of jobs program the Senate could enact, as my friend Jared Stone from Danville, CA, recently told me, would be legislation defunding ObamaCare. As my friend Jared Stone pointed out to me, ObamaCare presents a sort of double whammy for the American people. At once, it imposes a massive new tax on the middle class and at the same time kills job opportunities for the middle class. Most people who work in real jobs or want to have a good job understand this. That is why the overwhelming majority of Americans want the Senate to defund ObamaCare.

This is a principle that I think the father of the junior Senator from Texas understands very well. The father of the junior Senator from Texas came here as a young man, initially working at a restaurant waiting tables, as I recall. This was a young man who had escaped tyranny in various forms, originally the form of tyranny Cuba saw under Castro's predecessor, Fulgencio Batista.

The Senator's father had quite an experience coming to this country. I was wondering if the junior Senator from Texas would be willing to share a little bit more about his father's story, the story of Rafael Cruz, how he came to this country, and how the Senator's father might look upon ObamaCare based upon his rather unique experience coming to this country.

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Mr. LEE. My question relates to the nature of our government and the nature of our system which is a system of laws. One of the reasons America has been attractive to so many people over the last few centuries and one of the reasons people have wanted to move here from all over the world is that this has always been a land of opportunity. It has been a place where you can be born into one station in life and die in a much better station. We worry that land of opportunity might cease to be. We worry about the fact that people are being trapped at the bottom rungs of the economic ladder and finding it increasingly difficult to move up along that ladder.

One of the reasons this is the case is because the distinction between what is properly within the domain of government and what is properly within the domain of people is sometimes blurred. In other instances, that which is properly within the domain of the Federal Government and properly within the domain of the State and local governments in this country is blurred.

On other occasions, it is because what is properly within the domain of the legislative branch is usurped by the executive branch or the judicial branch or a combination of the two. The more our legal system becomes deteriorated, the less faithful it becomes to the blueprint that was created for our government some 226 years ago, and the more we struggle in this country.

I quoted James Madison earlier. I referred to something he said in Federalist No. 62. I have the actual text of the language, which I largely paraphrased earlier, and I wish to expand on it a little more and explain some of what he was saying.

He writes:

It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed? Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.

In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.

But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.

We see in this an age-old warning, a warning about what happens when governments do certain things which tend toward voluminous legislation, excessive regulation, and deliberate manipulation by those who have access to the power lovers of government, whereby they may commandeer the economic machinery of an entire civilization--commandeer it to their advantage, and thereby secure a position at the top end of the economic spectrum of that society. When people do this, they very frequently use really long, really complex laws. They necessarily rely on extensive regulation, the kind of regulation that can be found in a 2,700-page law passed by Members of Congress who have not read it, who pass it after being told they have to pass it in order to find out what is in it, who do so only to discover later that this 2,700-page piece of legislation has become 20,000 pages of regulation.

As we stand this evening, or this morning, or whatever we call this time of day as we move forward together on this path toward standing with the American people, I invite my colleagues to join me on a journey back to a place and time not unlike our own. It was a turbulent time of deep division within our young Republic. George Washington recorded the events of March 4, 1797--his last day as President of the United States. Washington wrote:

It was with a heavy heart that I left my room today thinking not so much of myself as of our country .....

Walking out onto Chestnut Street in Philadelphia, Washington continued:

I was plain George Washington now, neither general nor President. Suddenly I realized I was not alone. People were following me, at first only a few, then a swelling crowd.

For a long moment, I stood face to face with them--the young cobbler, the carpenter, the storekeeper, the laborer. All of them stood facing me. They said not a word. I realized that providence was showing me a vision of America, of what it will become. I could feel assured that, come what may, whether it be political bickering ..... or any other evil in government, ..... our country rests in good hands, in the hands of its people .....

A similar crowd we might say gathers every time people converge at a townhall meeting. It is not necessarily a crowd consisting of carpenters, storekeepers, laborers, and cobblers. It might well consist of a crowd including schoolteachers, Web designers, business consultants, mothers and fathers and friends.

Every time I hold townhall meetings, as I look around the crowd and I see groups of people represented from those groups I described, I think about the fact that today, as in Washington's time, the hands of our great Nation rest in good hands. It rests in the hands of its people.

So hand in hand and acting on the instincts of our better angels and connected in the principle of civil society and in the principles that allow our country to be great, we know that we the people and not we the government will form a more perfect union and help ensure that the vision of George Washington becomes the destiny of the Nation.

Our discussions tonight have been about keeping the country in the hands of the people and making sure the government serves the people and not the other way around, making sure the people are in charge of their own government; that whenever the things that government does become destructive of the ability of the people to achieve happiness and secure their own lives and their liberty and their pursuit of happiness, it is important that the people restore to themselves the power which is rightfully theirs.

Throughout the history of the world, in many civilizations, people have called that idea radical. They have called it crazy. They have called it insane. Here we call it a very American ideal.

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Here, tonight, we have been talking a lot about this law. We have been talking a lot about our ability to defund this law which we believe has become destructive of the people. We have been told by some of our colleagues--some from within our own party--that this effort is futile, that we shouldn't fight it because, as we are told over and over, we don't have the votes. Those things can change and they do change when the people speak to their elected representatives and they ask their elected representatives to do that which they were sent to our Nation's capital to do.

There is a man named William Morris, a man whose political philosophy I don't share in many respects, but a man who occasionally said things that were profound and reflect broader truths.

William Morris once wrote:

One man with an idea in his head is in danger of being considered a madman; two men with the same idea in common may be foolish, but can hardly be mad; ten men sharing an idea begin to act, a hundred draw attention as fanatics, a thousand and society begins to tremble; a hundred thousand ..... and the cause has victories tangible and real; and why only a hundred thousand? Why not a hundred million and more ..... ? You and I who agree together, it is we who have to answer that question.

So when we find ourselves with an idea in our head, when we find ourselves listening to people, people who might begin with a chorus of one calling out for Congress to do something to protect the American people, we might be inclined to dismiss that one idea coming from that one person as the product of madness. When two people join together, when 10, when 100, 1,000, 10,000, and so forth--with each order of magnitude, we find that the idea acquires more potency, the idea acquires more lasting power, the idea moves more and more people.

The idea to defund ObamaCare is not new. It has been discussed since 2010, since shortly after the law's enactment, since about the time when many people were predicting that the Republican Party might gain control of at least one House of Congress. That is when it began in earnest.

We hoped, we expected, that once the Republican majority took hold, once Republicans took control of the House of Representatives in January 2011, in the wake of the 2010 election cycle, that the defunding of ObamaCare would be imminent. In fact, H.R. 1, the continuing resolution, as I recall, was filed at the beginning of the last Congress and originally was written to defund ObamaCare. I am not quite sure why that didn't move forward, but many expected it would happen. It didn't happen. We have continued to pass continuing resolution after continuing resolution since January of 2011 to keep the government funded and we have done so without defunding ObamaCare. There have been reasons for that. There were many who expected the Supreme Court would invalidate ObamaCare, thus obviating the need for Congress to go through the process of defunding it and later repealing it. That didn't happen.

There were those who expected that a Republican would be elected to President of the United States in the 2012 election cycle, thereby making it possible for ObamaCare to be repealed or perhaps at least stalled out with the assistance of the President and with the assistance of an Executive order suspending many of its major provisions. That, of course, didn't happen. We are now at the point when we are being asked to fund the operations of government potentially for the last time between now and the time when the law's major operative provisions will take effect.

This will not be the end of the debate, assuming this effort either does or doesn't succeed. I have no doubt this debate will continue for some time. If we do not succeed in defunding ObamaCare at this point, it doesn't mean the cause is lost forever. It may nonetheless mean it becomes far more difficult to stop this law.

Once a law such as this takes effect, it is frequently suggested it will be much harder to stop, much harder to defund, and much harder to repeal down the road. So before we take this step, I think it is appropriate that we consider very seriously defunding this law's implementation and enforcement, especially in light of taking into account the potentially devastating impact this law will have, could have, and is already having on our Nation's workers, the impact it is having with regard to wages, to employment opportunities, to access to health care, and to the cost of health care.

We have to take that very seriously, as the House of Representatives has done in passing this continuing resolution.

As we take that up, we have to remember the fate of this Nation lies in good hands. It lies in the hands of the American people--the people who were represented well by the House of Representatives when it passed the continuing resolution funding the operations of government, while defunding ObamaCare.

I ask Senator Cruz the question: What can we do as citizens, what can we do as Senators, to make sure the hands of our government will, indeed, remain in good hands, in the hands of its people, rather than in the hands of a perpetual oligarchy, albeit an elected oligarchy, a bipartisan political establishment that might limit the freedom of the American people?

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Mr. LEE. As the Senator was mentioning, the fact that it is time for people to stand for their own rights and it is time for the people's elected representatives in Washington to stand for them reminds me of the fact that sometimes people do take this challenge, and sometimes they don't. Sometimes people will square their shoulders heading into a challenge, and other times people will simply engage in shoulder-shrugging and ignore problems all together.

A few years ago I was traveling through southern Utah with my family, and we went to a restaurant. It was sort of a fast food restaurant that had a salad bar. For some strange reason, instead of ordering a cheeseburger, I ordered a salad. I don't know why, but I got the salad bar. I went through the salad bar with my plate, and I was putting all of these horribly healthy foods on my plate--lettuce, vegetables. Then I saw at the end of the salad bar something that I didn't expect, a little bonus. There was a little tub of chocolate pudding, and I thought, this is fantastic. I can feel like I am eating a healthy meal because I am eating a salad, but I get chocolate pudding in with salad, so I put a bunch of that on my salad plate.

I sat down a few minutes later, and, of course, rather than eating the salad, I went right for the pudding. There was only one problem: The pudding was disgusting. It was spoiled rotten. It tasted as if it had been left out overnight unrefrigerated for 3 nights in a row, which is not a good thing.

I immediately thought, I have to find somebody who works here. I have to tell someone that the pudding is bad so that they don't have to deal with any other customers eating rotten pudding. I found the nearest employee of the restaurant. I said to her in a sort of hushed tone of voice: Hey, the pudding is bad. You need to do something about it. You need to replace it. It is rancid. It is spoiled rotten. Please do something about it.

She looked at me with a sort of blank stare. She couldn't have been older than maybe 17 years old, and she just said: I am not on salad. Then she walked away. My response to that was, I am not suggesting that you are on salad.

I all of a sudden wondered whether I had stumbled across some rift among the employees of this particular fast food establishment. Maybe she didn't like the implication that she was one of the salad bar attendants. Maybe that was a bad thing. I don't know. All I know is that it was kind of strange because she worked for the same employer who ran the salad bar. I would have thought she would have cared about that. Instead, she said: I am not on salad, shrugged her shoulders, and walked away.

I wonder if that is sometimes what we have too much of here in Washington: I am not on salad. I am not on ObamaCare. I am not on excessive regulation. I am not on dealing with a law that is going to result in a lot of Americans losing their jobs, having their hours cut, their wages cut, or losing access to their health care benefits.

Well, our problems are acute. Our problems are, in fact, chronic. We have to do more than shrug our shoulders. What we need right now is more shoulder-squaring than shoulder-shrugging. We have to have people who will follow the admonition of Ronald Reagan, who declared more than 30 years ago that it is morning in America again.

As it is now morning in Washington again, it is an appropriate time of day for us to bring this up. To paraphrase the words of Ronald Reagan, as spoken in his speech at the Republican National Convention in July 1980, and to apply those same words today, let me just say as follows:

Our problems are both acute and chronic, yet all we hear from those in positions of leadership are the same tired proposals for more government tinkering, more meddling and more control, all of which led us to this state in the first place. Can anyone look at the record of this administration and say: Well done? Can anyone compare the state of our economy when this administration took office with where we are today and say: Keep up the good work? Can anyone look at our reduced stand in the world today and say: Let's have more of this?

We must have the clarity of vision to see the difference between what is essential and what is merely desirable, and then the courage to use this insight to bring our government back under control and make it acceptable to the people. It has long been said that freedom is the condition in which the government fears the people and tyranny is the condition in which the people fear the government.

Throughout the duration of our history as a republic, we have enjoyed liberty, we have enjoyed freedom, and we have had a notable absence of tyranny. Sure, there have been excesses from time to time. We have kept those under control because the government has always been in good hands--in the hands of its people. When the people weigh in from time to time and decide they have had too much of something, it ends up having a benefit for everyone. Everyone benefits when the people speak and are heard. Everyone benefits when the people's elected representatives are willing to square their shoulders and stand up to a challenge rather than shrug their shoulders and walk away saying, as it were, I am not on salad.

Today, we are all on ObamaCare. We are all on it in the sense we can't walk away from it. We are all on it in the sense that we have no choice but to confront the many challenges facing our people. There is not widespread agreement as to what we can or should or must or might do.

In the absence of consensus, and understanding the widespread disruption to our economy this will create once it is fully implemented, some have suggested that a good compromise position might be to delay its impact. And the best way to fully delay it is to defund it--defund it for at least 1 year. The President himself has acknowledged the law is not ready to be implemented as written. The American people are reluctant to confront the many economic challenges this law presents.

It is, therefore, appropriate that we do this, and it is appropriate the House of Representatives passed a continuing resolution to keep government funded while defunding ObamaCare.

It is for that position we have been speaking, and it is for that position that we continue to insist that as we approach the cloture vote this week, that I and Senator Cruz and a few others will be voting no on cloture on the bill because we support the House-passed continuing resolution--H.J. Res. 59. We support that, and because we support it, we cannot support a process that would enable Senator Reid, the Senate majority leader, to strip out, to gut the most important provision within that resolution--the ObamaCare defunding legislation--by a simple majority vote without allowing any other votes on any other amendments, without allowing for an open amendment process, without ever allowing Members of this body to have an up-or-down vote on the legislation as a whole, as it was enacted, as is.

That is what we are fighting for. Is this difficult? Yes, absolutely it is. Do we have consensus within our own political party? Of course we don't. That is one of the reasons we are standing here today, to persuade our colleagues and to persuade more of the American people to join in with us. No one Senator can do this alone. Not one of us, certainly by means of our persuasive abilities, will be able to do this. But with the American people, we can do a lot of things.

It wasn't very long ago, it wasn't even 2 weeks ago when people were still saying it would not be possible to pass a continuing resolution such as H.J. Res. 59--one that keeps government funded while defunding ObamaCare. Yet when the people weighed in strongly in support of this measure, it became possible. I hope and I expect the same can be true in the Senate.

So I would ask Senator Cruz: What is the best way the American people, in confronting this challenge and others similar to it, but in particular this challenge confronting ObamaCare, can square their shoulders and avoid the kind of shoulder shrugging that has resulted in so much expansion of government almost as if by default?

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Mr. LEE. From day 1, there have been those in the Washington establishment who have been working against this, and it was the American people who stood up in strong support of us. It was the American people who served as the heroes of this story who spoke overwhelmingly to the Congress and spoke overwhelmingly to the House of Representatives and convinced the House of Representatives to pass this great continuing resolution--one that keeps government funded and allows it to avoid a shutdown while defunding ObamaCare. That is what this effort has been all about. It has been all about the people we are trying to protect from this horrible law.

Across the country Americans stayed up with us overnight forging this argument, helping us distribute this argument, choosing to forego sleep and to show their support of this effort, and we greatly appreciate that. I want to take a moment to reflect on how all of us who have been up all night feel right now--with dry eyes, with a certain amount of grogginess, and yet ultimately this is an exhilarating moment. It is exhilarating because we are inspired by the American people who have informed this message and who have expressed their views so well and so forcefully, and I am grateful to have been part of this effort.

I ask the Senator from Texas: As we come to the end of this uphill climb we have experienced over the past 24 hours, give or take, we see the cards are somewhat stacked against us. Today, although Washington may appear to have the upper hand, in our hearts don't we know the American people are with us, and don't we know the American people will have the final word, and that as George Washington predicted a couple of centuries ago, this country will always remain in good hands--in the hands of its people?

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