[Congressional Record Volume 155, Number 96 (Wednesday, June 24, 2009)]
[Senate]
[Pages S6966-S6968]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                      Health Care Week IV, Day III

  Mr. President, when it comes to reforming health care, Republicans 
believe that both political parties should work together to make it 
less expensive and easier to obtain, while preserving what people like 
about our current system.
  That is why Republicans have put forward ideas that should be easy 
for everyone to support, such as reforming medical malpractice laws to 
get rid of junk lawsuits; encouraging wellness and prevention programs 
that have already been shown to cut costs; and addressing the needs of 
small businesses without imposing taxes that will kill jobs.
  Unfortunately, Democrats on Capitol Hill have opted against many of 
these commonsense proposals, moving instead in the direction of a 
government-run system that denies, delays, and rations care.
  So it is my hope that the President uses his prime time question and 
answer session at the White House tonight to clearly express where he 
himself comes down on a number of crucial questions.
  One question relates to whether Americans would be able to keep the 
care they have if the Democrat plan is enacted. The President and 
Democrats in Congress have repeatedly promised Americans they could 
keep their health insurance. Yet the independent Congressional Budget 
Office says that just one section of the Democrat bill being rushed 
through Congress at the moment would cause 10 million people with 
employer-based insurance to lose the coverage they have.
  Another independent study of a full proposal that includes a 
government-run plan estimates that 119 million Americans, or 
approximately 70 percent of those covered under private health 
insurance, could lose the health insurance they have as a consequence 
of a government plan. America's doctors have also warned that a 
government plan threatens to drive private insurers out of business. 
And yesterday, the President himself acknowledged that under a 
government plan, some people might be shifted off of their current 
insurance.
  So the first question is this: Will the President veto any 
legislation that causes Americans to lose their private insurance?
  The President also said that health care reform cannot add to the 
already staggering national debt. Yet once again, the Congressional 
Budget Office has said that just one section of the Democrats' HELP 
bill would spend $1.3 trillion, while others estimate the whole thing 
could end up spending more than $2 trillion. And here is how the CBO 
put it: ``the substantial costs of many current proposals to expand 
Federal subsidies for health insurance would be much more likely to 
worsen the long-run budget outlook than to improve it.''
  Let me repeat that, Mr. President. The Congressional Budget Office 
says that some of the proposals in the Democrats' bill would be much 
more likely to worsen the long-run budget outlook than to improve it.
  So the second question is this: Will the President veto a bill that 
adds to the Nation's already staggering deficit?
  The President has said that no middle-class Americans would see their 
taxes raised a penny. Yet Democrats on Capitol Hill are considering 
proposals, such as a plan to limit tax deductions for medical costs, 
that would not only raise taxes on middle class families, but that 
would hit these families the hardest.
  So the third question is this: Will the President veto any 
legislation that raises taxes on the middle class?
  The President has said he supports wellness and prevention programs 
that have proven to cut costs and improve care by encouraging people to 
make healthy choices, like quitting smoking and fighting obesity. One 
such program is the so-called Safeway plan, which has dramatically cut 
that company's costs and employee premiums. Yet the bill Democrats are 
rushing through the Senate would actually ban the key provisions of the 
Safeway program from being implemented by other companies.
  So the fourth question is this: Does the President support the HELP 
Committee bill, which bans providing incentives for healthy behavior, 
and will he veto legislation that bans these kinds of programs?
  Finally, the President has said that government should not dictate 
the kind of care Americans receive. On this issue, the President has no 
stronger supporters than Republicans. But Democrats on the HELP 
Committee rejected a Republican amendment that would have prohibited a 
Democrat-proposed government board from rationing care or denying 
lifesaving treatments because they are too expensive.
  So the fifth question is this: Does the President support the 
Republican amendment to prohibit the rationing of care, and will he 
veto legislation that allows the government to deny, delay, and ration 
care?
  Five questions: Will the President use his veto pen to make sure 
Americans are not kicked off their current health plans? Will he oppose 
any legislation that increases the nation's deficit? Will he oppose any 
bill that raises taxes on middle-class families? Will he reject any 
bill that excludes commonsense wellness and prevention programs that 
have been proven to cut costs and improve care? And will he disavow 
legislation that denies, delays, and rations care?
  The American people want Republicans and Democrats to work together 
to enact health care reform, but they want the right kind of reform not 
a massive government takeover that forces them off of their current 
insurance and denies, delays, and rations care. Americans are right to 
be concerned about what they are hearing from Democrats. It's my hope 
that the President addresses those concerns tonight once and for all.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. KYL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, the nomination of Harold Koh concerns me for 
a number of reasons. Primarily, his view that international law should 
guide U.S. law and his criticism of our first amendment right to 
freedom of speech and his opposition to the Solomon amendment, which 
conditions Federal funding to educational institutions on allowing 
military recruiting on campus.
  The State Department Legal Adviser helps formulate and implement U.S. 
foreign policy, advises the Justice Department on cases with 
international implications, influences U.S. positions on issues 
considered by international bodies, and represents the United States at 
treaty negotiations and international conferences.
  In short, this position requires the utmost deference to the 
Constitution of the United States. Mr. Koh is a proponent of 
transnationalism, the belief that Americans should use foreign law and 
the views of international organizations to interpret our Constitution 
and to determine our policies.
  Mr. Koh has gone so far as to refer to the United States as part of 
an ``axis of disobedience'' in reference to America's alleged 
violations of international law.
  During his 2003 speech at the University of California at Berkeley, 
Mr. Koh said:

       When I came to government, the first conclusion I reached 
     was that the rule of law should be on the U.S. side.
       That's a system of law--

  He is speaking now of international law--

     that we helped to create. So that's why we support various 
     systems of international adjudication. That's why we support 
     the UN system. We need these institutions, even if they cut 
     our own sovereignty a little bit.

  Mr. Koh's views on the first amendment again portray a desire to make

[[Page S6967]]

American law subservient to international law. In his Stanford Law 
Review article--the title of which was ``On American Exceptionalism''--
Koh stated that our first amendment gives ``protections for speech and 
religion . . . far greater emphasis and judicial protection in America 
than in Europe or Asia,'' and he opined that America's ``exceptional 
free speech tradition can cause problems abroad.'' Furthermore, he 
stated that the way for the ``Supreme Court [to] moderate these 
conflicts'' is ``by applying more consistently the transnationalist 
approach to judicial interpretation.''
  This is breathtaking. Is it even consistent with an oath to protect 
and defend the Constitution? Should we now begin to dismantle a 
founding principle of our democracy in order to appease the so-called 
international community, as Mr. Koh advocates? If the Founding Fathers 
had followed this advice, this country would not be the leading example 
of freedom in the world it is today and a leader in getting others to 
protect free speech and assembly and other freedoms--such as are being 
asserted in Iran today. Conforming our views to the norm, which Mr. Koh 
acknowledges provides less protection than our Constitution would, 
therefore, would adversely affect the very international community 
which Mr. Koh seeks to emulate.
  Let me put it another way. People in Iran today are taking to the 
streets to try to exercise some degree of free speech and assembly and 
petition their government. Mr. Koh acknowledges that in our 
Constitution we provide much more protection for those rights than 
anywhere else, or, I think as he put it, than the mainstream of 
international law provides. That is true.
  I think that is something we should not only adhere to for our own 
benefit but for the benefit that it provides to others around the world 
as an example of what they should seek to achieve and because of the 
moral status it gives the United States to be able to say to the 
leaders of a country such as Iran: You need to provide free speech and 
assembly and the right to petition their government, and the fact that 
you are not doing it is wrong because if we believe we are all created 
equal, by our Creator, that means we have moral equality as 
individuals. Everybody in Iran, we believe, would have the same right 
as anyone else to exercise these God-given rights. And if that is true, 
it makes no sense to diminish those rights as they have been 
interpreted by our courts in the United States, interpreting our U.S. 
Constitution, in order for us to conform to an international norm.
  Rather, it makes sense for us to continue to adhere to those high 
standards and to try to bring other countries along with us. In fact, I 
would postulate that because of our high standard of rights and the 
example that our Constitution provides, many countries of the world 
have actually advanced the cause of free speech and assembly and 
petitioning their government more than they otherwise would have 
because they have the example of the United States to look at.
  If I think of countries, the revolutions, the Orange Revolution, and 
the changes in governments in places such as Poland, back when it broke 
from the Soviet Union, and Ukraine and Georgia and all of the other 
places in the world where people finally broke free from the shackles 
of a government that would not permit free speech, what were they 
seeking to do? To exercise free speech in order to petition their 
government for individual freedom.
  So the United States should jealously guard those rights in our 
Constitution rather than, as Mr. Koh says, have the United States 
interpret its Constitution more in line with the mainstream of thinking 
in the rest of the world.
  If you sort of try to apply a mathematical formula, and you average 
what the rest of the world thinks about free speech, the right of 
religion, the right to assemble, the right to petition the government, 
the average is far below what we provide. We are pretty much at the top 
of the pile in terms of what we protect.
  But if we were to follow Mr. Koh's advice, in order to be more 
accepted in the world, we would draw our standards of protection of 
individual rights down to the leveled area of the mainstream around the 
world. If you look around the world today, there are so many 
dictatorships, totalitarian systems, autocracies--even a country such 
as China--which provide very little in the way of freedom for their 
people. If you just took the average based on the population of the 
world, I know what the mainstream would be. It would not be very much 
in the way of individual rights.
  So we should jealously protect what we have in the United States, 
which is a constitution that at least thus far has been interpreted to 
protect those rights jealously, not just for our benefit--though that 
should be, I submit, the sole purpose of a Supreme Court Judge, for 
example, deciding Supreme Court cases; what does the Constitution say 
for the people of America?--but if one is going to consider the 
international implications, I think it would be exactly the opposite of 
what Mr. Koh is saying; namely, that we should be concerned that any 
diminishment of the interpretation of our rights would negatively 
affect other people around the world.
  I do not care if the average is a lower standard. I wish those 
countries would bring their standards up to ours. But I certainly do 
not want to conform to some idea of international acceptance or 
international popularity by bringing ourselves down to their level. 
This is not what ``American Exceptionalism'' is all about--the title of 
the piece Mr. Koh wrote.
  He has argued in other contexts as well that unique American 
constitutional provisions should conform to the international view of 
things. I have been speaking of free speech and assembly, the right to 
petition your government, to practice religion. We think those are 
absolutely basic. But there are some other rights in our Constitution. 
One of them is the second amendment. It is controversial.
  Other countries do not have a protection such as the second amendment 
to the U.S. Constitution. If we want to amend the Constitution, we can 
do that. But as it stands right now, the second amendment has been 
upheld by the Supreme Court to apply to every individual in the United 
States, free from Federal undue interference with respect to the 
ownership of guns.
  But if we adopt Mr. Koh's argument about conforming to international 
norms, including stricter gun control, it may bring us more in line 
with some other countries, but it certainly would not be in keeping 
with the interpretation of the U.S. Supreme Court with respect to that 
second amendment.
  In an April 2002 speech at the Fordham University School of Law, Mr. 
Koh advocated a U.N.-governed regime to force the United States ``to 
submit information about their small arms production.'' He believes the 
United States should ``establish a national firearms control system and 
a register of manufacturers, traders, importers and exporters'' of guns 
to comply with international obligations. This would allow U.N. members 
such as Cuba and Venezuela and North Korea and Iran to have a say in 
what type of gun regulations are imposed on American citizens.
  As the dean of Yale Law School, Mr. Koh was a leader in another 
effort I think is troublesome. It was an effort to deprive students of 
the freedom to listen to military recruiters who wanted to explain on 
campus the benefits of a career in our military services. We all--every 
one of us in this body--frequently express our gratitude to the people 
in the U.S. military services who protect us, who put themselves in 
danger in order to protect the very freedoms we are talking about. Yet 
as dean of the law school, he would not allow the recruiters for these 
military institutions to come on campus. Yet he would protect students' 
freedom to listen to antiwar speakers on campus. But Yale closed its 
doors to military recruiters primarily because it disagreed with the 
military's policies on gays, which, by the way, is a policy of the 
President and the Congress, not just the military.

  In court, Mr. Koh and others in Yale's administration challenged the 
constitutionality of the Solomon amendment. The Solomon amendment is a 
statute that denies Federal funds to educational institutions that 
block military recruiters. The Supreme Court unanimously ruled against 
Mr. Koh's position.
  Mr. Koh also led a lawsuit against Department of Justice lawyer John

[[Page S6968]]

Yoo for doing what any government lawyer is expected to do: provide his 
legal opinions to the people he worked for, the policymakers of the 
U.S. Government.
  The Supreme Court has said, in no uncertain terms, that government 
lawyers need immunity from suit in order to avoid ``the deterrence of 
able citizens from acceptance of public office'' and the ``danger that 
fear of being sued will dampen the ardor of . . . public officials in 
the unflinching discharge of their duties.''
  In other words, by encouraging this lawsuit, Mr. Koh was effectively 
deterring his students from doing precisely what Yale otherwise 
recommends that they do: enter public service.
  Elections have consequences. I understand and generally support the 
prerogative of the President to nominate individuals for his 
administration he deems appropriate as long as they are within the 
spectrum of responsible views. However, because of the importance of 
his position in representing the United States in the international 
community with respect to treaties and other agreements, his own words 
and actions demonstrate to me he is far outside the mainstream in such 
a way that his appointment as State Department Legal Adviser could 
damage U.S. sovereignty.
  So I oppose his nomination. I urge my colleagues--all of us who take 
an oath to support and defend the Constitution and who appreciate there 
are always challenges to America's sovereignty--to closely examine Mr. 
Koh's record and determine whether he would be a representative not 
only whom they could be proud of but whom they could rely upon in 
representing the American public interest.
  At the end of the day, our sovereignty depends upon the American 
people. We govern with the consent of the governed. Our government does 
not start with rights. We had a group of people in America who gave 
their government certain limited rights in order for their common good. 
So the American people are our bosses. They pay our salary. We need to 
listen to them.
  When I talk to my constituents--at least in recent months--I notice a 
theme that is recurring, and it is troublesome to me first of all 
because it is the kind of thing that sometimes is influenced by people 
who have less character than those of us in this body and others who 
may disagree with each other but seriously approach these issues. It is 
the idea that little by little the people are losing sovereignty, and 
that the country of America is giving up its sovereignty to others. Who 
are the others?
  I am not a conspiratorial person. That is why I say some of the 
people who promote this idea do not do so for the right reasons, and I 
do not like to see them paid attention to by our constituents. But 
every time we adhere to a U.N. resolution or sign a treaty with another 
country or agree to abide by the terms of a trade agreement, or 
something of that sort, to some extent we are giving up a little bit of 
our sovereignty. As long as we do all of those things with the consent 
of the governed and as long as we do it through the representative 
process where we pass a law or we confirm a treaty, ratify a treaty, it 
is done in the right way. We may make a mistake, we may go too far 
sometimes, but that is the decision we make. We have the right to make 
mistakes too. But when we go outside the legal framework of the country 
to cede a little bit of our sovereignty, as Mr. Koh says is OK, then we 
have abused the confidence the American people have placed in us and we 
have gone beyond our legal ability as representatives of the people to 
give up this little degree of sovereignty.

  What I am concerned about, because of his position, which is the 
direct link between the United States and all of these international 
organizations and countries which our country necessarily deals with, 
is that he cares less about the protection of American sovereignty than 
the vast majority of the American citizens. In fact, he has a point of 
view which regards that as less important than conforming to 
international norms and even being in line with popular opinion 
internationally. As I said before, it is nice to be liked, but at the 
end of the day, the United States should not be about popular opinion.
  We could probably be more popular with 100 countries in the United 
Nations if we stopped harping on things such as clean elections and 
free speech and the right to assembly and so on because my guess is 
there are probably 50 to 100 countries in the United Nations that don't 
respect their citizens' rights nearly as much as we do. In fact, the 
number is probably larger than that. They are uncomfortable with the 
example of a country such as the United States which sets on such a 
high pedestal our American citizens' rights, that we not only protect 
those rights for our citizens, but we hold them out to the rest of the 
world as something that would be beneficial for their citizens as well. 
This makes them uncomfortable, and rightly so, because sometimes, as we 
are seeing in Iran today, people decide that it is a good thing to 
decide to exercise those rights and they feel the denial of that 
ability by their governments is wrong. They are even willing to risk 
their lives, as our forefathers did, to assert those rights. That is 
how important they are.
  How odd it is, therefore, to come across such an intelligent--and he 
certainly is intelligent--man such as Mr. Koh who has a very different 
point of view about these important American rights, who believes it is 
more important for us to be in the mainstream of international thinking 
even though that mainstream represents a view of rights far less than 
the United States views our rights; it is far more important for us to 
be well viewed in the international community than it is to strictly 
adhere to those rights that are embodied in our Constitution. That is 
extraordinarily troubling to me. Some of his views are breathtaking as 
they have been asserted.
  I know he has met with some of our colleagues, that he is apparently, 
in addition to being very intelligent, very charming, and that his 
essential position is: Well, that is what I said in a speech, but I 
will recognize my obligations as a member of the administration.
  I think we are all informed by our views, and if we care enough about 
them to speak out in a way that he has, as frequently and as forcefully 
as Mr. Koh has, it is difficult to believe that all of a sudden, in a 
moment of his confirmation, he will forget about everything he said and 
what he believes and conform his representation of the American people 
to what is a far more mainstream point of view; namely, that we should 
defend our Constitution to the absolute maximum extent we can, 
irrespective of the views of other countries around the world. That is 
why, at the end of the day, as I said, I hope my colleagues will review 
his record very carefully and will judge and eventually base their vote 
on his confirmation on what he has said--because he is an intelligent 
man who knows very well what he has said--and what, therefore, could 
flow from his words as actions as our representative in the State 
Department as its Legal Adviser.
  Mr. President, I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CARDIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Begich). Without objection, it is so 
ordered.
  Mr. CARDIN. Mr. President, I ask unanimous consent to speak as in 
morning business for up to 20 minutes, with the time counting toward 
the postcloture debate time.
  The PRESIDING OFFICER. Without objection, it is so ordered.