[Congressional Record Volume 167, Number 170 (Wednesday, September 29, 2021)]
[Senate]
[Pages S6762-S6763]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Unanimous Consent Request--S. 2840

  Mr. LEE. Madam President, I rise again today to express my objection 
to President Biden's sweeping vaccine mandate and to offer legislation 
that would protect Americans from this Federal intrusion.
  As I said yesterday, the Federal Government has no business mandating 
COVID-19 vaccination for all Americans. Unfortunately, at least some of 
my colleagues disagree. The President of the United States said, while 
announcing the mandate, ``This isn't about freedom or personal 
choice.''
  ``This isn't about freedom or personal choice.'' It stuns me to think 
that a sweeping Federal mandate could be about anything other than 
freedom or personal choice. It is like robbing a bank and then saying 
it is not about the money.
  Our Constitution was designed to protect the liberties of the people 
of the United States. But now, the government is being used by the 
Executive to force Americans to be vaccinated or to be terminated.
  Yesterday, I came to the floor to speak about those Americans with 
sincerely held beliefs, whether religious or otherwise. My bill 
yesterday would have simply required that any mandate of this sort 
contain an exemption for those individuals.
  Now, I don't believe that such an exception would be sufficient to 
resolve the constitutional and the policy problems with such a mandate. 
But there are millions of Americans who would be able to live according 
to their beliefs if, in fact, such an exemption were included by law, 
which it should be.
  Lamentably, my colleague the senior Senator from Washington objected. 
So I pledged to come back again today and tomorrow, for as long as it 
takes, to win the fight against this egregious mandate.
  Today, I am providing another opportunity for this body to protect 
Americans.
  This mandate poses a real threat to the well-being of millions. Those 
who choose not to be vaccinated are at risk of losing their jobs. My 
office has been in contact with 144 Utahns who are concerned about this 
very issue. I shared some of their stories yesterday.
  Despite what many on the other side of this debate would have you 
believe, these are, in fact, everyday Americans: people with 
preexisting medical conditions, like autoimmune disorders. These are 
people who are just wanting to provide for their families and not to be 
able to expect that. These are pregnant mothers who are concerned about 
the safety of their own health and that of their unborn children.
  Some of these people are the heroes of yesterday. They are first 
responders; they are medical professionals and essential workers who 
sacrificed to carry our Nation through the hardest days of this 
pandemic. And they are still heroes today. These Americans are not the 
enemy.
  President Biden and those who support this effort are grasping for 
solutions they believe can bolster their political position and shift 
blame on the status of the pandemic. Those paying the price are the 
people back home, including many of the people I just described.
  So today, I offer another proposal. This bill would provide those 
Americans harmed by this mandate with a means of recourse. Under this 
bill, those who lose employment or lose their livelihoods due to this 
mandate may sue the United States for relief. The bill would make these 
very Americans whole after the President of the United States made 
working impossible for them.
  This bill is only one of many that I have introduced to combat this 
unconstitutional, unwarranted, indefensible mandate. While I believe 
this mandate will eventually be invalidated in court--I am quite 
confident that it will--until that day comes, these bills can provide 
businesses and the American people with the certainty that they need to 
make their own decisions. We will be protecting their God-given and 
constitutionally protected right to make medical decisions for 
themselves.
  So, Madam President, I am here today and I will be back tomorrow and 
fighting against this mandate for as long as it takes.
  Madam President, as if in legislative session, I ask unanimous 
consent that the Judiciary Committee be discharged from further 
consideration of S. 2840, and that the Senate proceed to its immediate 
consideration. Further, I ask unanimous consent that the bill be 
considered read a third time and passed, and that the motion to 
reconsider be considered made and laid upon the table.
  The PRESIDING OFFICER. Is there an objection?
  Mr. DURBIN. Reserving the right to object.
  The PRESIDING OFFICER. The majority whip.
  Mr. DURBIN. Madam President, more than 680,000 Americans have died 
from COVID. The majority of these deaths occurred before we had viable, 
effective, and safe vaccines. Doctors were begging for these vaccines 
to save lives, and now we have three safe, effective, widely available 
vaccines in America. All three have been proven successful and safe.
  However, one in four adults in America still refuses to get the 
vaccine. According to the CDC, these unvaccinated individuals--listen 
to this--are 10 times more likely to be hospitalized from COVID, 10 
times more likely to die from COVID than those who got the shot. And as 
long as large numbers of Americans remain unvaccinated, this virus is 
going to continue to spread and raise the risk of mutation and more 
deadly variants.
  We have tried approaches to incentivize people. What more can we do? 
We created a lottery in Illinois and said: If you are vaccinated, you 
are automatically buying a lottery ticket; you don't even have to pay 
for it.
  The head of the Federal Bureau of Prisons union for employees, with 
only 50 percent of those working in Federal prisons vaccinated, said 
they were going to set up a popcorn machine at the prisons in the break 
room in the

[[Page S6763]]

hopes of getting people to be vaccinated--trying everything to get 
people to try the vaccine.
  We have tried every approach to incentivize them, but the vaccine 
numbers are not where they need to be. So, facing this reality, the 
President accepted responsibility to try harder. He has directed 
Federal Agencies and OSHA to mandate vaccination for Federal employees 
and certain private workers. These directives were issued under the 
OSHA Act and other established legal authorities; and, listen, they 
have been welcomed by the Business Roundtable and other employers who 
were waiting for a signal from the White House that we were serious, 
and they are supported by a majority of the American people.
  I recognize that some of my colleagues disagree with that action, and 
that has prompted this bill from my friend and fellow Senator from 
Utah. His bill, the Don't Jab Me Act, would create a private right of 
action for any ``aggrieved individual'' to sue the Federal Government 
``for injuries sustained as a result of a COVID-19 vaccination 
mandate.''
  I know that the Senator is careful in his words. I would ask him to 
look carefully at that word ``injuries.'' It is misleading.
  COVID-19 vaccines are safe and effective. They were evaluated in tens 
of thousands of clinical trials. They meet the FDA's rigorous 
scientific standards for safety, effectiveness, and quality. They have 
undergone and will continue to undergo the most extensive, intensive 
safety monitoring in history.
  In an extremely rare case that an individual suffers an injury, a 
harm, from a COVID-19 vaccine, there is a system in place to provide 
compensation. Under the Countermeasures Injury Compensation Program, a 
person can already seek to recover damages for physical injuries 
suffered because of COVID-19 vaccines.
  The Senator from Utah's bill appears to go beyond compensating 
individuals for physical injuries caused by the vaccine. It lets people 
sue the government for ``injuries sustained as the result of a COVID-19 
vaccine mandate.''
  Now, what kind of injuries might there be?
  Well, we surely don't know. The bill does not define the type of 
injuries that a person could sue for. The entire bill is two and a half 
pages of very vague language.
  What we do know is that the bill, if enacted, would authorize a flood 
of lawsuits by individuals claiming that a vaccine mandate injured them 
in some physical, maybe nonphysical way. We don't know.
  It is ironic. For more than a year, my Republican colleagues claimed 
the pandemic would create a tsunami of COVID lawsuits. Remember all of 
the times Senator McConnell went to the floor and said: Hang on tight. 
The trial lawyers are just going to be hell-bent now, filing lawsuits 
all across America. There will be a tsunami of lawsuits.
  Well, it never happened. Despite that fact, the Senator from Utah is 
apparently urging a new set of lawsuits to be filed.
  I am a former trial lawyer. I made a living at it. When people have 
been harmed, I support their day in court, but liabilities laws need to 
be carefully calibrated to promote the right behavior and incentives. 
This short, vague bill does not even try to strike a balance between 
health and safety. It is a shot across the bow to entities that are 
using vaccine mandates.
  Remember, courts have long rejected challenges to vaccine 
requirements imposed by public entities. And the Senator might take a 
look at his home State. In Senator Lee's home State of Utah, there are 
public actors, like Salt Lake Community College, the University of 
Utah, and Utah State University, that are using COVID vaccine mandates 
to promote health and safety.
  And I want to show the Senate this chart because it tells an amazing 
story.
  Remember the report about all the attorneys general who were going to 
file lawsuits, in keeping with the Senator's message, against Joe Biden 
for these mandates for these employees?
  Well, we took a look at their State.
  Twenty-four States threatened lawsuits against Joe Biden for the very 
reason stated by the Senator from Utah.
  How are they doing compared to all the other States, the 26 States 
that didn't file a lawsuit?
  Well, it turns out the infection rate for COVID-19 over the past 3 
months is more than twice in those States as it is in the States not 
filing these lawsuits. Since mid-June, the death rate is almost three 
times the rate of those States that didn't file the lawsuit, and the 
vaccination rates are significantly lower.
  So for those who have an idea about guiding the State to the right 
outcome, shouldn't public health and safety be important?
  I am sure we all understand the issue of liberty and how important it 
is to America, but there was a word before liberty that the Founding 
Fathers used: life. Life.
  These vaccine mandates are about saving lives in America, and it is 
for that reason that I object.
  The PRESIDING OFFICER. The objection is heard.
  Mr. LEE. Madam President, I appreciate the insight provided by my 
friend and distinguished colleague, the senior Senator from Illinois 
and the assistant majority leader.
  I respectfully submit that this is about allowing people to obtain 
redress for, among other things, the awful Hobson's choice people are 
facing and are increasingly going to be facing as this mandate kicks 
in. It hasn't been issued yet. We still don't know what is in it. We 
still don't know his precise basis for the authority. We assume that he 
would have told us his precise basis for the authority if, in fact, it 
existed.
  I have scoured the U.S. Code looking for authority for the President 
of the United States to implement this unilaterally, and I have found 
none. So it is very significant, therefore, that when you are going to 
put this kind of a Hobson's choice in front of the people, you ought to 
be able to at least have the decency to tell them what your source of 
authority is. He still hasn't done it.
  If we assume that he is going to come up with one and that he is 
going to issue a mandate, that mandate is going to put a whole lot of 
people in a terrible position, forcing them to choose between getting a 
vaccine that, for whatever reason, they don't want and termination--
between submission and poverty. That is unfair.
  Now, look, I get the fact that a lot of us were and are enthusiastic 
and grateful for the vaccine. I have received the vaccine, as has every 
member of my family. I think the vaccine is a good thing. I also 
understand that there are people who feel differently. In some cases, 
there are people who have been advised by board-certified medical 
doctors not to get the vaccine based on the existence of one or more 
autoimmune diseases, past personal or family history, and their 
idiosyncratic reactions to other vaccines or to this vaccine. There are 
other people who might have religious or other sincerely held personal 
beliefs that might make this choice a really unfair one for the Federal 
Government to force upon them.
  So, yeah, I am glad we have got the vaccine. I think the vaccine is 
good. I think the vaccine is helping a lot of people. But to tell every 
American that he or she must get this under penalty of losing a job, 
and then for the President, after acknowledging that he doesn't have 
authority, to mandate this for every American turns America's 
employers--all those with more than 99 employees--into the COVID-19 
vaccine police for the entire country.
  It is unjustifiable, even at a policy level, before we get to the 
obvious constitutional defects and the lack of any semblance of any 
statutory authority. So I am disappointed that we can't pass this one 
today. I will be back again tomorrow. I will continue to come back for 
weeks to come because the American people deserve better than this. 
They deserve not to have people in Washington, DC, purporting to make 
very personal healthcare decisions for them and conditioning their own 
private-sector employment on compliance with the dictate of one man in 
Washington, DC.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. BARRASSO. Madam President, I ask unanimous consent that Senator 
Peters and I be allowed to continue to complete our remarks before the 
rollcall vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.