[Congressional Record Volume 163, Number 23 (Thursday, February 9, 2017)]
[Senate]
[Pages S981-S984]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Neil Gorsuch

  Mr. FLAKE. Mr. President, as I did last week, I rise again to support 
the nomination of Judge Neil Gorsuch to serve on the Supreme Court. As 
we know, he is an accomplished, mainstream jurist, and he is a worthy 
successor to Justice Antonin Scalia. I look forward to seeing him 
receive an up-or-down vote on the Senate floor. I truly hope that 
happens.
  After meeting with Judge Gorsuch and learning more about his judicial 
philosophy, I continue to be impressed by his humble respect for the 
law and his commitment to service. Before the hearings in the Judiciary 
Committee, I wanted to take the opportunity to highlight one aspect of 
his jurisprudence that I find particularly important: the separation of 
powers.
  To hear some of our friends on the other side of the aisle, Judge 
Gorsuch represents two equal yet opposing dangers to the country. 
First, they warn that he will lack any independence of thought or 
commitment to the Constitution. They allege that he would serve merely 
as a rubberstamp for President Trump and his agenda.
  In the same breath, though, they claim he would engage in 
unprecedented judicial oversight of the Federal executive agencies. In 
other words, our colleagues on the other side of the aisle assert that 
Judge Gorsuch would be both too deferential to Federal agencies and not 
deferential enough.
  The truth is, these warnings and accusations are entirely unfounded, 
and they appear to be grounded more in political calculations than in 
honest concern. For my part, I am excited about the prospect of 
confirming a Justice who not only represents the separation of powers 
but reveres it as one of the central principles of the Constitution.
  A commitment to our constitutional separation of powers could not 
come at a more crucial time, as executive branch agencies have 
increasingly accumulated power and autonomy over the years. Both the 
Congress and the Federal judiciary bear responsibility for this.
  Legislatively, Congress simply cedes too much of its own lawmaking 
power to the executive branch. We have been doing that for years. These 
agencies have been legislating through Federal regulation. In turn, 
Congress has allowed unelected bureaucrats to create law and determine 
how that law should be implemented.
  We have to stop this erosion of our article I power. Congress needs 
to take ownership of its lawmaking authority and reverse this dangerous 
trend toward governance by executive fiat. That is only part of the 
equation. The Federal judiciary needs to use its constitutional 
prerogative to rein in the executive branch.
  Ever since the 1980s, Federal courts have grown far too deferential 
to executive agencies. Under a doctrine known as Chevron deference, the 
courts defer to agency decisions if it makes ``reasonable'' regulations 
based on ``vague'' statutes.
  In fact, this means that when the Federal courts consider an agency 
decision, the judges have a new catchphrase: ``The agency is always 
right.'' This should concern my colleagues on the other side of the 
aisle who voiced strong concerns about rubberstamping.
  I don't think the Founders ever intended for two constitutional 
branches of our Federal Government to voluntarily cede the power to the 
third. Importantly, neither does Judge Gorsuch. Judge Gorsuch has 
written extensively both about delegation and deference in his role as 
judge on the Tenth Circuit Court of Appeals.
  He addressed the issue of delegation in a recent case called Caring 
Hearts Personal Home Services, Inc. v. Burwell. In it, he noted:

       Executive agencies today are permitted not only to enforce 
     legislation, but to revise

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     and reshape it through exercise of so-called ``delegated'' 
     legislative authority.

  He continued:

       The number of formal rules these agencies have issued, 
     thanks to their delegated legislative authority, has grown so 
     exuberantly, it's hard to keep up. The Code of Federal 
     Regulations now clocks in at over 175,000 pages.

  He noted that delegation presents both separation of powers problems 
and due process problems. The reason is simple. The executive is doing 
the work of the legislature.
  In terms of due process, Judge Gorsuch wondered ``whether and how 
people can be fairly expected to keep pace with and conform their 
conduct to all this churning and changing `law.' ''
  He further questioned: ``What happens if we reach the point where 
even these legitimate legislating agencies don't know what their own 
`law' is?''
  Judge Gorsuch could not be more correct. With tens of thousands of 
pages published in the Federal Register every year, it is fair to 
wonder how any agency can be certain of the legal effect of its own 
rules. If the agencies that write these laws can't keep track of them, 
how can a small business owner in Arizona be expected to comply with 
the litany of ever-changing rules written by unelected bureaucrats?
  Judge Gorsuch has also discussed the problem of deference and 
explained the proper relationship between Federal agencies and the 
judiciary. In his concurring opinion, in Gutierrez-Brizuela v. Lynch, 
Judge Gorsuch explained:

       In enlightenment theory and hard won experience under a 
     tyrannical king, the founders found proof of the wisdom of a 
     government of separated powers.

  He continued:

       The founders considered the separation of powers a vital 
     guard against governmental encroachment on the people's 
     liberties, including all those later enumerated in the Bill 
     of Rights.

  Judge Gorsuch found Chevron deference inconsistent with this 
constitutional framework, which he called ``no less than a judge-made 
doctrine for the abdication of the judicial duty.''
  He concluded:

       We managed to live with the administrative state before 
     Chevron. We could do it again. Put simply, it seems to me 
     that in a world without Chevron, very little would change--
     except perhaps the most important things.

  The separation of powers is the most important feature of our 
constitutional system of government. When each branch of government 
serves as a check on the other, it fosters a more deliberative, 
judicious, and limited form of governance. As someone who embraces 
limited government, it is a privilege to support and confirm a judge 
like Neil Gorsuch who supports this philosophy.
  As I have said before, and I will say again, Judge Gorsuch deserves 
fair consideration by those who serve in this body, and he deserves an 
up-or-down vote on the Senate floor. When he receives that vote, he 
will be confirmed overwhelmingly.
  I yield back the remainder of my time.
  The PRESIDING OFFICER (Mr. Sullivan). The Senator from Illinois.
  Mr. DURBIN. Mr. President, those following the proceedings of the 
Senate may be wondering what we are doing. Technically, we are 
considering the nomination of Congressman Tom Price of Georgia to serve 
as Secretary of Health and Human Services--a position he has been 
nominated for by President Trump. Other Members have come to the floor 
and discussed other nominees, as the junior Senator from Arizona just 
discussed the Supreme Court nominee, but I wanted to make sure I came 
to the floor for a few minutes to put my thoughts on the record about 
the nomination of Congressman Tom Price to be Secretary of Health and 
Human Services.
  It almost seems like a natural fit. He is an orthopedic surgeon. This 
man obviously is gifted and talented and educated and skilled when it 
comes to the healing arts, and he made a living before his election to 
Congress dealing with complex surgeries. On that alone, he needs to 
have honest consideration from all Members of the Senate as we advise 
and consent to his nomination to Secretary of Health and Human 
Services. But he will not be entering surgery when he goes to the 
Health and Human Services Department, at least not the kind of surgery 
experience he has had in the past; he is going to be in charge of the 
most important health care programs in the United States of America. 
They are programs that literally tens of millions of Americans count 
on; 50 or 60 million Americans count on Medicare.
  Medicare is that program created in the 1970s under President Lyndon 
Johnson that said: You don't have to reach a point in life where you 
are so old that you can't work anymore and therefore can't qualify for 
health insurance at your employment. We are going to create a program 
that is available for people who are 65 years of age called Medicare. 
You are going to be able to have health insurance coverage at age 65.
  It was a dramatic change in the way we looked at health care in 
America, and it was controversial. The medical professions opposed 
Medicare. They argued that creating this health insurance plan for 
senior citizens--and later it was expanded to the disabled--meant 
socialized medicine, which meant that the government was going to make 
the decision about your health care--no longer you and your doctor; it 
would be the government making these critical decisions. So the 
American Medical Association and many others opposed the creation of 
Medicare.
  Despite that opposition, the bill went forward and passed and became 
law. I would go out on a limb today as a politician and say it may be 
the most popular single political program, perhaps only second to 
Social Security, in the history of the United States. Overnight, it 
changed the treatment of our parents and grandparents. There was a 
time--and there aren't many left who can remember it--when it reached 
the point where Grandma had to come and live with you because there was 
no place for her to go. She perhaps worked in life and perhaps hadn't. 
She had a limited amount of retirement. She had very modest, if any, 
Social Security. She was in and out of the doctor's office and 
hospital. And she was in the spare bedroom. I can remember that growing 
up as a kid. That was considered somewhat normal at the time.
  In the 1970s, that started to change. It changed, obviously, with 
Social Security but also with Medicare. Now your grandmother had access 
to a doctor and a hospital, and it didn't cost her life savings. What a 
big change it meant. As we learned when Medicare was created, almost 
half of the seniors in America had no health insurance. Now that number 
is 1 or 2 percent.
  Medicare has worked, and it has worked to give people longer lives. 
That is the real proof. I can brag about it all I care to, but the 
bottom line is that senior citizens, starting with the creation of 
Medicare, started living longer, more independent lives. Isn't that 
what every senior wants--decent, good health and independence in the 
way they live? Medicare has been the key to that.
  It is hard to imagine that here in 2017 we are going to initiate 
another debate about whether America should have Medicare. Fifty years 
later, we are going to go through this debate all over again? 
Apparently so, because the nominee of President Donald Trump to be the 
head of the Health and Human Services Department, Congressman Tom Price 
of Georgia, has said some troubling things about Medicare.
  In Politico, he said: ``Nothing has had a greater negative effect on 
the delivery of health care than the Federal government's intrusion 
into medicine through Medicare.'' What was he thinking? He obviously 
never looked at it from the perspective of someone of limited means who 
finally had a chance for the protection of health insurance at age 65. 
I met those people. One of them is a friend of mine. Her name is Judy. 
Judy lives in Southern Illinois. I met her because she is a sweet lady 
who is head of hospitality at a motel where I stay in Southern 
Illinois. She is a happy person with a big smile, and I have gotten to 
know her over the years. We became friends.

  I came to learn one day that Judy has spent most of her life in jobs 
just like that. She is not a lazy person at all, but she is lucky to 
get part-time jobs. And when I met her at age 63, Judy told me, 
whispered to me once, ``Senator, I have never had health insurance in 
my life.'' That is a heartbreaking statement when you think about it, 
isn't it? This lady lived 63 years never once having health insurance. 
Then a couple of things happened. She asked me about the Affordable 
Care Act, ObamaCare. Was it good

[[Page S983]]

for her or not? I told her that because her income was at a certain 
level, she was going to qualify for health insurance under the 
Affordable Care Act with no premium. She was brought into the Medicare 
Program at age 63. For the first time in her life, she had health 
insurance through the Affordable Care Act--a low-income wage earner, 
eligible for Medicaid at no expense to her.
  And it didn't come a moment too soon. On one of my next trips down 
South, I saw Judy. She didn't look as healthy as she once looked. Turns 
out she had been diagnosed with diabetes. And at age 64, she was in 
need--desperate need of ongoing medical care or complications were 
likely to set in. It was shortly after that she qualified for Medicare. 
So Judy has coverage. Judy has a doctor. Judy has people who care about 
her in her life.
  That is why I wonder what Congressman Price, who wants to be 
Secretary of Health and Human Services, is thinking. What is he 
thinking about people just like her?
  Let's take a look at what we have before us with his nomination. This 
Department touches the lives of virtually every American, Health and 
Human Services. I talked about Medicare and Medicaid, but this is the 
Department that is responsible for medical research too--the National 
Institutes of Health, for example. This is the Department that oversees 
the Centers for Disease Control, and that is the agency which had to 
fight the outbreak of Ebola in West Africa. This is the Department that 
is in charge of promoting healthy births of babies in America and, of 
course, caring for our seniors I have spoken about.
  On many of these issues I have just outlined, Congressman Tom Price 
of Georgia has made his views very clear. His legislative record and 
his core values as a Republican Congressman from Georgia are in 
contrast with the missions of the very Department President Trump has 
asked him to lead. Let's take a look.
  New York Times said Congressman Price's views on the role of 
government in health care can ``be summed up in one word: Less.''
  Congressman Price has spent his political career opposing many of the 
basic Federal health programs he is now being asked for permission to 
oversee. He has repeatedly voted against the Children's Health 
Insurance Program, which is a program that provides health insurance to 
8 million kids in America. Even before passing the Affordable Care Act, 
we decided we were going to extend health insurance coverage to 
children, making a real commitment at the Federal level on a bipartisan 
basis to do it. Eight million kids are covered nationwide, 300,000 in 
Illinois.
  Congressman Price has spent the last 6 years in a desperate attempt 
to repeal the Affordable Care Act, ObamaCare. If he were successful in 
that effort, it would eliminate health insurance for 30 million 
Americans and lead to dramatic premium increases for those with health 
insurance. Last year, it was Congressman Price of Georgia who authored 
the repeal and retreat reconciliation bill that, thank goodness, was 
vetoed by President Obama. Bound and determined Congressman Price was 
to eliminate ObamaCare. And for 6 years, Republicans have never had a 
replacement. That is why they are changing their rhetoric. It went from 
repeal, to repeal and replace, and now it is repair. I can't keep up 
with them. But I will tell you, starting with repeal is inviting a 
disaster in health care in America and calling into question the health 
insurance coverage of 30 million people in our country. So if 
Congressman Price had his way, it would mean less funding, fewer 
services, and fewer people covered.
  In addition to wanting to repeal our health care law, Congressman 
Price wants to fundamentally and negatively change Medicare and 
Medicaid. Those two programs together serve about one-third of the 
people living in America, 120 million. He wants to eliminate the 
Affordable Care Act's expansion of Medicaid.
  Remember Judy? Her income was too low. She couldn't pay any health 
insurance premiums. But because her income was so low, she qualified to 
be brought into the rolls of Medicaid in Illinois. Over 600,000 people 
just like her were brought into protection of health insurance for the 
first time in their lives. This is one of our best tools for primary 
care for people who are in low-income situations--Medicaid.
  Because we included in the Affordable Care Act a guarantee that 
health insurance would cover mental illness and substance abuse 
treatment, in some parts of my State where opioid addiction and heroin 
deaths are so prevalent, people with health insurance have access to 
substance abuse treatment. Congressman Price, who would repeal 
ObamaCare, would eliminate that guarantee in health insurance.
  Repealing the Medicaid expansion that I mentioned earlier would put 
650,000 Illinoisans out of insurance, and our State would lose $37 
billion in Federal funding over the next decade.
  What impact does it have if a person shows up at an emergency room 
sick, with no insurance? In America, that person still receives care, 
but who pays for it? Everybody else. People with health insurance end 
up paying for those who receive care and don't pay for it. Medicaid 
makes sure that hospital receives a payment. So when Congressman Price 
wants to eliminate the coverage of Medicaid under the Affordable Care 
Act, it means less money coming into the hospitals across America. Some 
hospitals are big and prosperous, and they can take it; others cannot. 
In downstate Illinois, where I hail from, smalltown America, hospitals 
in those communities losing Medicaid, which Congressman Price would 
eliminate, are going to have a tough time staying open.
  The Illinois Hospital Association tells us we will lose 90,000 jobs 
if Congressman Price's plan to repeal the Affordable Care Act goes 
forward--90,000 in Illinois. I need not tell you they are the best 
paying jobs in downstate communities. So it is a job-killer, and sadly 
it endangers the health of the people who count on these hospitals.
  What is he thinking? He is a doctor. He should be thinking in terms 
of what it means when you don't protect people with basic health 
insurance. Right now, if you qualify for Medicaid, you are guaranteed 
to get health care. Under Congressman Price's plan--the man who wants 
to be head of Health and Human Services--the guarantee is gone. 
Illinois would have lost $14 billion in Medicaid funding if Congressman 
Price had his way.
  Faced with far less Federal funding, the States would have to be 
forced to find ways to save money, even worse than what we currently 
have in our State. They might start Medicaid waiting lists or work 
requirements or cut benefits. Think about it. A person nominated to 
lead the Nation's premier health agency supports proposals that would 
take health care away from people.
  It gets worse. Congressman Price wants to privatize Medicare. Be 
careful when you hear a politician stand up and say: I want to 
guarantee your access to health insurance. Well, I have access to a lot 
of things. I can walk onto the showroom floor of people who are selling 
$85,000, $95,000 cars. I mean, I have access to those showrooms. Can I 
buy one of them? No. I can't afford it. Most people couldn't. But I 
have access to it. So when they say you have access to health 
insurance, the obvious next question is, What kind of health insurance? 
And how am I going to pay for it? Watch out for that word ``access.'' 
It is a loaded political word.

  Just the other night my colleague Bernie Sanders was debating Senator 
Ted Cruz of Texas, and darned if Senator Cruz didn't come up with that 
word, saying we have to make sure every American has access to health 
insurance. No, we have to make sure every American has health 
insurance. How about that? Health insurance they can afford that is 
worth buying.
  Congressman Price wants to privatize Medicare. So instead of having a 
government-run program for tens of millions of Americans, he wants to 
put seniors and the disabled in America back in the loving arms of 
health insurance companies. How about that? Do you remember a time when 
you or your family was on the phone with somebody, begging them for 
health insurance coverage, waiting and waiting and waiting for your 
turn? That is what he thinks is access, and that is what he believes is 
good health insurance. I don't. Ending the guarantee of Medicare for 
hardworking American seniors and handing them a voucher

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and wishing them good luck on finding their own insurance--that may be 
access, but it is not protection.
  The point of voucherizing Medicare is to save the government money by 
forcing seniors to pay more out of their own pockets. That is 
Congressman Price's approach, and now he wants to head up the agency in 
charge of Medicare. Don't take my word for it. He said: ``Nothing has 
had a greater negative effect on the delivery of health care than the 
federal government's intrusion into medicine through Medicare.''
  Since 1965, when we created Medicare, listen to what has happened. 
Before Medicare, 51 percent of Americans 65 or older had health care 
coverage and nearly 30 percent lived in poverty. That is before 1965. 
Today, 98 percent of seniors have health care coverage, primarily 
because of Medicare. Fewer than 10 percent live below the poverty line. 
It has made a dramatic difference in their quality of life, the length 
of their lives, and the independence they enjoy in their lives.
  In addition, by ensuring access to care for more people, Medicare has 
contributed to life expectancy--5 years higher today than it was in 
1965. So Medicare has helped ensure more seniors have health insurance, 
fewer seniors are living in poverty, and people are living longer. Is 
that what Congressman Price considers a ``negative effect on the 
delivery of health care''?
  There are so many different issues where Congressman Price has taken 
what I consider to be radical and extreme views, particularly when it 
comes to health care. I won't go through the long list, but I will say 
this. We debated the future of Medicare when I was a member of the 
Simpson-Bowles Commission. We were looking at the deficit situation 
facing our country and looking, as we should, at entitlements. Many of 
us said at the time: Be careful about raising the eligibility age for 
Medicare. For a Congressman or a Senator, a couple more years at a desk 
before you qualify for Medicare is not a big ask. But if you happen to 
be a waitress on her feet every day, suffering from arthritis or some 
other issues, 2 more years in the workplace literally are backbreakers. 
If you happen to be driving a truck, making deliveries, changing the 
Medicare eligibility age from 65 to 67 or 70 is where you are going to 
get in trouble. That is where people actually are going to face a 
hardship.
  Sadly, Congressman Tom Price of Georgia doesn't get it. He doesn't 
understand that part of it. Because he doesn't, I am going to be 
opposing his nomination and watching carefully and closely.
  There is going to be a battle royal on the floor of the House and the 
Senate about funding important programs in America. The Department of 
Defense, as important as it is for America's security, wants all the 
money it can get its hands on, and I want to make sure we always spend 
enough to keep us safe. But the battle is going to be between defense 
and nondefense. Nondefense includes health care. Nondefense includes 
medical research. Nondefense includes education.
  Now we are going to have someone here at the Department of Health and 
Human Services who, sadly, is not committed to the basics of Medicare 
and Medicaid. That is not good news for seniors and disabled people 
across the America. That is why I am going to oppose Congressman Price.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. COONS. Mr. President, I rise to agree, briefly, with the remarks 
of my friend, the senior Senator from Illinois, and to comment that the 
nomination of Congressman Tom Price of Georgia to be Secretary of 
Health and Human Services is concerning, even alarming, to all of us 
who have reviewed his record--his record, his public statements, his 
work--that threatens to privatize Social Security, that threatens to 
restructure and fundamentally change the promise of Medicare, and that 
offers the promise of repealing the Affordable Care Act without any 
plan to replace.
  I could not agree more with the words of the Senator from Illinois 
that we should all be cautious about being promised access without any 
pathway toward the ability to actually afford quality health care.
  Mr. President, I yield the remainder of my postcloture debate time to 
Senator Wyden.
  The PRESIDING OFFICER. The Senator has that right.
  The majority whip.