[Congressional Record Volume 159, Number 103 (Thursday, July 18, 2013)]
[Senate]
[Pages S5768-S5771]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                               ObamaCare

  Mr. CORNYN. In a few minutes, President Obama is scheduled to give a 
major speech highlighting what he believes are the achievements of his 
signature health care law, the Affordable Care Act, otherwise known as 
ObamaCare.
  I could understand why he is feeling a little defensive and why he 
feels he needs to frame the discussion because, after all, ObamaCare 
has disappointed some of its most ardent former supporters.
  For example, back in 2009 and 2010, American labor unions were among 
the biggest supporters of the President's health care plan. Along with 
many of my friends across the aisle, they are having second thoughts 
and, in some cases, buyer's remorse.
  Last week, three of the country's most prominent labor leaders, James 
Hoffa, Joseph Hansen, and Donald Taylor, sent a very concerned letter 
to

[[Page S5769]]

Senator Reid and former Speaker Pelosi. Here is part of what they 
wrote:

       When you and the President sought our support for the 
     Affordable Care Act, you pledged that if we liked the health 
     plans we have now, we could keep them. Sadly, that promise is 
     under threat.

  Picking up on this chart, they went on to say:

       Right now, unless you and the Obama Administration enact an 
     equitable fix, the ACA [Affordable Care Act] will shatter not 
     only our hard-earned health benefits, but destroy the 
     foundation of the 40-hour workweek that is the backbone of 
     the American middle class.

  They went on to say:

       The unintended consequences of the ACA [Affordable Care 
     Act] are severe. Perverse incentives are already creating 
     nightmare scenarios. . . . The law, as it stands, will hurt 
     millions of Americans.

  ObamaCare has been controversial since its passage in 2010. Some 
Members of Congress voted for it. Obviously, the Democratic majority 
voted for it. Some people voted against it, people such as myself in 
the Republican minority.
  But whether you supported the law with the hopes and aspirations that 
it would somehow be the panacea or answer to our health care needs in 
this country or whether you were a skeptic such as I, who believed that 
this could not possibly work, the fact seems to be--as these labor 
leaders have said--it has not met expectations and certainly it has 
created many problems that need to be addressed.
  This same letter went on to detail some of the nightmare scenarios 
these labor leaders have concerns about. They pointed out that many 
businesses are cutting full-time employment back to part-time in order 
to avoid the employer mandate.
  As I mentioned yesterday, the number of people working part-time for 
economic reasons has jumped from 7.6 million to 8.2 million, just 
between March and June. In fact, last month alone that number increased 
322,000.
  A new survey reports that in response to ObamaCare, nearly three out 
of every four small businesses are going to reduce hiring, reduce 
worker hours or replace full-time employees with part-time employees.
  We know the President has unilaterally decided to delay the 
imposition of the employer mandate until 2015, but that doesn't change 
a lot. These businesses have to plan for the future and small 
businesses still have the same perverse incentives to limit the hiring 
of full-time workers, as these labor leaders point out.
  The employer mandate is one reason why ObamaCare needs to be repealed 
entirely and replaced with something better. As these leaders say in 
their letter, the law, as it stands, will hurt millions of Americans.
  We have already seen its effect on job creation, not only with the 
employer mandate but also with the medical device tax that has prompted 
many companies, including those in Texas, to simply grow their 
businesses in places such as Costa Rica, where they can avoid that 
medical device tax, rather than in my State or in other States that 
have medical device companies. It has also caused these companies to 
close factories and cancel plans for new ones in the United States.
  We have also seen, as these leaders point out, that ObamaCare will 
disrupt Americans' existing health care arrangements. As they point out 
in their letter, one of the promises the President made was that if you 
liked what you have, you can keep it, but, in fact, that has not proven 
to be true.
  Indeed, my constituents are already getting their letters from health 
care providers informing them that their current policies are no longer 
going to be available because of the implementation of ObamaCare. 
Millions of people will eventually have that same experience, according 
to the Congressional Budget Office.
  Why have we made this huge shift in one-sixth of our economy? What 
was the goal of the proponents of this piece of legislation? What we 
were told is that it was universal coverage. There were too many people 
who didn't have health care coverage. But as for this promise of 
universal coverage, I am afraid that is another broken promise as well.
  According to the Congressional Budget Office, even if ObamaCare is 
fully implemented on schedule, there will still be 31 million people in 
America without health insurance by the year 2023. Even though the 
proponents of ObamaCare said we need to do this, as expensive as it is, 
as disruptive as it is to the existing health care arrangements, we 
need to do this because everybody will be covered, that promise is not 
going to be kept either.
  Let me repeat, 13 years after the passage of ObamaCare, America will 
still have 31 million uninsured. Meanwhile, many of the newly insured 
under ObamaCare will be covered by Medicaid, a dysfunctional program 
that is already failing its intended beneficiaries.
  I, perhaps unwisely, decided during the markup of the Affordable Care 
Act in the Senate Finance Committee to offer an amendment that said 
Members of Congress will henceforth be put on Medicaid. I told my 
colleagues that I knew if Congress was covered by Medicaid we would do 
our dead-level best to fix it because, as it exists now, it is a 
dysfunctional program. It is dysfunctional for this reason: Giving 
people coverage is not the same thing as access. Many Medicaid 
recipients have a very hard time finding doctors who will accept 
Medicaid coverage because the program reimburses providers at such low 
rates. In my State, it is about 50 cents on the dollar as compared to 
private coverage. In my State of Texas, fewer than one-third of 
physicians will accept a new Medicaid patient, and many of them are 
accepting no new Medicaid patients.

  Most Texas physicians believe Medicaid is broken and should not be 
used as a mechanism to expand coverage, certainly if it is not fixed 
and reformed, which it needs to be. By relying on Medicaid as one of 
the primary vehicles for reducing the number of uninsured in America, 
the Affordable Care Act will make the program even more fragile and 
weaker and less effective at securing dependable health care for the 
poor and the disabled, the very people it is designed to protect.
  We also have good reason to fear ObamaCare's Medicaid expansion will 
reduce labor force participation. A new National Bureau of Economic 
Research paper argues ObamaCare ``may cause substantial declines in 
aggregate employment.'' Rather than expand and damage an already broken 
system, the Federal Government should give each State more flexibility 
to manage the Medicare dollars that come from Washington so they can 
provide better value for recipients and taxpayers.
  Right now, State policymakers can't manage Medicaid without first 
going through a complicated waiver process and obtaining Federal 
approval--too many strings attached. Ideally, Washington would give 
each State a lump sum--a block grant, if you will--as well as the 
freedom to devise programs that work best in their States and for the 
population covered.
  Meanwhile, we should adopt health care reforms that would make health 
care more affordable and accessible to everyone--for example, 
equalizing the tax treatment of health insurance for employers and 
individuals; expanding access to tax-free health savings accounts so 
people can save their money, and if they don't use it for health care, 
they can use it for other purposes, such as retirement. We should let 
people and businesses form risk pools in the individual market, 
including across State lines. We should improve price and quality 
transparency.
  One of the most amazing forces in economics is consumer choice and 
transparency and competition. It is called the free enterprise system, 
and we see it at play in the Medicare Part D Program, for example, one 
of the most successful government health care programs devised. We made 
a mistake when we passed Medicare Part D because it was not paid for--
it should have been--but it has actually come in 40 percent under 
projected cost and it enjoys great satisfaction among its 
beneficiaries, seniors who have access to prescription drugs, some of 
them for the first time. But the reason why it has come in 40 percent 
under cost is because companies have to compete for that business, and 
they compete--as they always do in the marketplace--on price and 
quality of service, and we get the benefit of that market discipline.
  We also need to address frivolous medical malpractice lawsuits--
something my State has done at the State level, which has made medical 
malpractice insurance more affordable and

[[Page S5770]]

which has caused many doctors to move to Texas who otherwise might not 
have gone there, providing greater access to health care.
  As I have said, we also need to allow the interstate sale of health 
insurances policies. There is no reason why I shouldn't be able to buy 
a health insurance policy in Virginia if it suits my needs better than 
one available in Texas. Why would we not allow that? Again, why would 
we not want the benefit of that competition and the benefits to the 
consumer in terms of service and price?
  We also need to boost support for State high-risk pools to protect 
Americans with preexisting conditions. This is one of the reasons why 
the President and other proponents of ObamaCare said we have to have 
ObamaCare, because we need to deal with preexisting conditions, and we 
do. But we can do it a lot cheaper and a lot more efficiently by using 
Federal support for existing State preexisting condition high-risk 
pools. We don't have to take the whole 2,700-page piece of legislation 
that cost us several trillion dollars. We can do it much cheaper and 
more efficiently.
  Finally, we need to save Medicare by expanding patient choice and 
provider competition. These policies would allow us to expand quality 
insurance coverage and improve access to quality health care without 
disrupting people's existing health care arrangements, without 
discouraging work and job creation, without raising taxes on medical 
innovation, and without weakening Medicaid and Medicare.
  The chairman of the Senate Finance Committee, one of the principal 
Senate architects for the Affordable Care Act, famously described the 
implementation of ObamaCare as a train wreck. These three leaders of 
American labor would agree, and they have also warned us that unless we 
fix it, it could destroy the very health and well-being of millions of 
hard-working Americans.
  It is time for us to acknowledge the reality that whether you were a 
proponent and voted for ObamaCare or whether you were an opponent and a 
skeptic that it would actually work, we need to deal with the harsh 
reality and the facts that exist. It is time for Democrats, including 
the President, to work with us to replace ObamaCare with better 
alternatives.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Virginia.
  Mr. REID. Mr. President, if my friend from Virginia will yield to me 
for the purpose of doing a unanimous consent request, we have an 
agreement as to when we will proceed with votes.
  Mr. KAINE. I have no objection.
  The ACTING PRESIDENT pro tempore. The majority leader.
  Mr. REID. Mr. President, I ask unanimous consent that the vote on the 
confirmation of the Perez nomination as Secretary of Labor occur at 
12:15 p.m. today; that if the nomination is confirmed, the motion to 
reconsider be considered made and laid upon the table with no 
intervening action or debate; that no further motions be in order; that 
any related statements be printed in the Record; and the President be 
immediately notified of the Senate's action; further, that following 
disposition of the Perez nomination, the time until 2:30 p.m. be 
equally divided in the usual form prior to the cloture vote on the 
McCarthy nomination.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. Mr. President, while I have the floor, I want the Record to 
reflect how fortunate the State of Virginia is for the work done by 
this good man. We have a good situation with our delegation from 
Virginia--two former Governors, and they are both such outstanding 
human beings and wonderful Senators.
  As I have told my friend personally, the person whom I just 
interrupted--and I spread this in the Record here--there is no one I 
know in the Senate who is able to deliver the substance of what he says 
as well as the Senator from Virginia. He does such a good job of 
explaining things. We all have an idea of what we want to say, but 
sometimes we don't explain it very well. He does an excellent job.
  The ACTING PRESIDENT pro tempore. The Senator from Virginia.
  Mr. KAINE. I thank the majority leader for his kind words.


                     War Powers Resolution of 1973

  Mr. President, I rise in order to note an important anniversary. 
Forty years ago this week the Senate passed the War Powers Resolution 
of 1973. The resolution was passed in a time of great controversy--
during the waning days of the Vietnam war. The purpose of the 
resolution was to formalize a regular consultative process between 
Congress and the President on the most momentous decision made by our 
Nation's Government--whether to engage in military action.
  The question of executive and legislative powers regarding war dates 
back to the Constitution of 1787. Article I, section 8 of the 
Constitution provides that ``Congress shall have the power . . . to 
declare war.'' Article II, section 2 of the Constitution provides that 
the President is the ``Commander in Chief'' of the Nation's Armed 
Forces. In the 226 years since the Constitution was adopted, the powers 
of the respective branches in matters of war have been hotly debated. 
In a letter between two Virginians in 1798, James Madison explained the 
following to Thomas Jefferson:

       The Constitution supposes, what the History of all 
     Governments demonstrates, that the Executive is the branch 
     most interested in war, and most prone to it. It has 
     accordingly, with studied care, vested the question of war in 
     the legislature.

  Madison's definitive statement notwithstanding, the intervening 
history has been anything but definitive. Academics and public 
officials have advanced differing interpretations of the constitutional 
division of power. There is no clear historical precedent in which all 
agree the legislative and executive branches have exercised those 
powers in a consistent and accepted way. And the courts have not 
provided clear guidance to settle war powers questions.
  Some facts, however, are very clear. The Congress has only formally 
declared war five times. In many other instances, Congress has taken 
steps to authorize, fund, or support military action. In well over 100 
cases, Presidents have initiated military action without prior approval 
from Congress.
  Congress supposed 40 years ago that the War Powers Resolution of 1973 
would resolve many of these questions and establish a formal process of 
consultation on the decision to initiate military action. But this was 
not the case. President Nixon vetoed the resolution, and while Congress 
overrode the veto, no administration since has accepted the 
constitutionality of the resolution. Most recently, President Obama 
initiated American involvement in a civil war in Libya without 
congressional approval. The House of Representatives rebuked the 
President for that action in 2011. But the censure rang somewhat hollow 
because most legal scholars today accept the 1973 resolution is an 
unconstitutional violation of the separation of powers doctrine.
  So why does this matter? We are in the 12th year of war. The attack 
on our country by terrorists on September 11, 2001, was followed 1 week 
later by the passage of an authorization for use of military force that 
is still in force today. The authorization is broadly worded and both 
the Bush and Obama administrations have given it an even broader 
interpretation.
  In recent hearings before the Senate Armed Services Committee, 
administration officials expressed the opinion the authorization of 
September 18, 2001, might justify military action for another 25 to 30 
years in regions spread across the globe against individuals not yet 
born or organizations not yet formed on 9/11. This was likely not 
contemplated by Congress or the American public in 2001.
  Congress is currently grappling with the status of the authorization 
and whether it should be continued, repealed, or revised. We face 
immediate decisions about the reduction of American troops in 
Afghanistan and the size of a residual presence we will leave in that 
country to support the Afghan National Security Forces. We are 
wrestling with the scope of national security programs that were 
adopted in furtherance of the authorization, and we are engaged in 
serious discussion about new challenges--from the rebellion in Syria to 
growing nuclear threats in Iran and North Korea.
  All of these issues are very hard. I recently returned from a trip to 
the Middle East--a codel sponsored by Senator

[[Page S5771]]

Cornyn. Accompanying us were Senators Cochran, Sessions, Bozeman, 
Fischer, and in Afghanistan, Senators McCain and Graham.
  In Turkey and Jordan we heard about the atrocities committed by the 
Asad regime in Syria and the flood of refugees pouring into those 
neighboring countries. In Afghanistan we met with our troops and heard 
about the slow transition from NATO forces to Afghan security. In the 
United Arab Emirates we discussed the growing threat of Iran throughout 
the region, and we made a meaningful stop at Landstuhl Regional Medical 
Center in Germany to visit recently wounded Americans--and NATO 
partners--who have sacrificed so much in this long war against 
terrorism. In the voices of our troops, our diplomats, our allies, and 
our wounded warriors, we heard over and over again a basic question: 
What will America do?
  Answering this question isn't easy, but I believe finding answers is 
made more difficult because we do not have any agreed-upon consultative 
process between the President and Congress. The American public needs 
to hear a clear dialogue between the two branches justifying decisions 
about the war. When Congress and the President communicate openly and 
reach consensus, the American public is informed and more likely to 
support decisions about military action. But when there is no clear 
process for reaching decision, public opinion with respect to military 
action may be divided, to the detriment of the troops who fight and 
making it less likely that government will responsibly budget for the 
cost of war.
  I believe many more lawmakers, for example, would have thought twice 
about letting sequestration cuts take effect if there had been a clear 
consensus between the President and Congress about our current military 
posture and mission.
  So at this 40th anniversary, I think it is time to admit that the 
1973 resolution is a failure, and we need to begin work to create a 
practical process for consultation between the President and Congress 
regarding military action.
  In 2007 the Miller Center at the University of Virginia impaneled the 
bipartisan National War Powers Commission under the leadership of 
former Secretaries of State James Baker and Warren Christopher. The 
Commission included legislative, administrative, diplomatic, military, 
and academic leadership. The Commission issued a unanimous report to 
the President and Congress urging the repeal of the War Powers 
Resolution and its replacement by a new provision designed to promote 
transparent dialog and decisionmaking. The Commission even proposed a 
draft statute, preserving the constitutional powers of each branch 
while establishing a straightforward consultative process to reach 
decision in a way that would gain support from the American public. The 
House and Senate Foreign Relations Committees held hearings on the 
report in 2008, but the time was not yet right for change.
  I believe the time for change is upon us. We struggle today with 
urgent military decisions that demand better communication between the 
President, Congress, and our citizens. President Obama has discussed 
this very need during his 2013 State of the Union Address and also 
during his recent speech at the National Defense University.
  As we reach the 40th anniversary of the failed War Powers Resolution, 
Senator John McCain has agreed to work with me to form a group of 
Senators committed to finding a better way. Senator McCain and I serve 
together on both the Armed Services and Foreign Relations Committees. I 
have profound admiration for his service to this country, both as a 
military veteran and a veteran Senator. I am a newcomer, but veterans 
and newcomers alike have an interest in finding a more effective 
process for making the most important decision that our government ever 
makes--whether to initiate military action. We can craft a process that 
is practical, constitutional, and effective in protecting our Nation. 
We owe this to those who fight, and we owe this to the American public.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. RUBIO. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. RUBIO. Mr. President, I ask unanimous consent that I be 
recognized to speak for up to 12 minutes as in morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.