[Congressional Record Volume 167, Number 171 (Thursday, September 30, 2021)]
[Senate]
[Pages S6813-S6815]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Unanimous Consent Request--S. 2843

  Mr. LEE. Madam President, as if in legislative session, I ask 
unanimous consent that the Committee on HELP be discharged from further 
consideration of S. 2843 and the Senate proceed to its immediate 
consideration. 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 objection?
  The Senator from Washington.
  Mrs. MURRAY. Madam President, reserving the right to object, this is 
outrageous. On September 27, there were over 80,000 new COVID-19 cases 
and over 1,000 COVID-19 deaths in our country; and yet, the next day, I 
had to come to the Senate floor to explain why undermining our efforts 
to end this pandemic would be reckless. And now, 2 days, with thousands 
more cases and deaths later, I have to do it again. And this is the 
second time today Republicans have tried to do something like this.
  This virus has killed over 685,000 people in our country. And if 
people do not get vaccinated, variants like Delta will continue to 
spread, undermine our economy, and take lives.
  So why in the world, for the second time in a week, do I have to come 
down here and explain to some of my Republican colleagues that 
weakening one of our strongest tools to fight this virus is a dangerous 
and deadly idea?
  Getting people vaccinated is one of the most important things we can 
do to stop COVID-19. And let's be clear, immunization requirements are 
nothing new in this country. So I hope we can stop with this political 
theater and focus on ending this pandemic, rebuilding our economy, and 
keeping people alive.
  I object.
  The PRESIDING OFFICER. The objection is heard.
  The Senator from Utah.
  Mr. LEE. Madam President, immunizations are nothing new. To a degree, 
immunization requirements might not be new, but sweeping immunization 
mandates issued by a single individual within the Federal Government--
that is, the President of the United States--are entirely new, entirely 
unprecedented, entirely unfounded, and dangerous to our constitutional 
order, to say nothing of its tendency to discourage those who have been 
reluctant to get the vaccine from getting one.
  So I have returned to the Senate floor today, for the third time this 
week, to express my profound objections to that sweeping mandate--to 
President Biden's sweeping, promised, and still inchoate vaccine 
mandate--and to offer legislation that this body could have passed 
right now; that it could have passed in order to protect countless 
Americans from this Federal intrusion.
  Now, look, the Federal Government has no legitimate role mandating 
COVID-19 vaccination for all Americans. In fact, the President of the 
United States has acknowledged that. It doesn't have that role. It 
doesn't belong to this government. Yes, there have been vaccine 
mandates in the past. They have never been from the Federal Government, 
directed at the entire country.
  During a really difficult time, economically and otherwise, in which 
inflation and the jobs market are causing a whole lot of businesses 
around the country to have to close their doors, President Biden has 
announced that he is going to enforce this mandate with a really hefty 
fine. Each incidence of a business not fulfilling the mandate could 
cost a business $14,000. President Biden, under the threat of massive 
punishment, is co-opting businesses to enforce his mandate. They will 
have to police their workforce's personal medical decisions and order 
the receipt of a vaccination or, alternatively, be forced into 
bankruptcy.
  Now, some on the other side of the aisle think that the President's 
punishment doesn't go far enough. In fact, in the reconciliation bill 
draft currently being circulated on the other end of the Capitol in the 
House of Representatives, Democrats are pushing to increase the fine to 
$70,000 per violation.
  Look, unvaccinated Americans are not the enemy; they are not the 
virus; and they are certainly not the enemy. Some are frontline doctors 
and nurses and other healthcare professionals who worked overtime 
throughout the pandemic, throughout the darkest of the dark hours of 
the pandemic, treating patients and saving lives.
  Others are workers whose industries were deemed essential and who 
showed up to work to ensure Americans kept having access to food and 
electricity and other essential items and services. Others still are 
simply neighbors, family members, and other loved ones who

[[Page S6814]]

have supported friends, families, and entire communities as Americans 
as a whole struggled through quarantines, shutdowns, financial 
difficulties, and social isolation.
  Let me reiterate, as I have said many times before and I will 
continue to repeat: I believe the vaccine's development is nothing 
short of a miracle. It is an answered prayer. I have been fully 
vaccinated, as has every member of my family, with my encouragement. 
But we certainly should not be forcing employers, through the Federal 
Government, without congressional authorization or constitutional 
authority, putting employers in a position where they have to fire some 
of their most valuable and now increasingly hard-to-find workers.
  We shouldn't be threatening business owners with closure simply 
because they don't have any desire to police their workforce's personal 
medical decisions. That is not who we are as a country. I don't care 
whether you are a Democrat or a Republican or an Independent or a 
Libertarian; Americans, as a whole, don't believe that that is who we 
are. We are not into that kind of draconian micromanagement associated 
with a nanny state, nor are we into the excessive accumulation of power 
in the hands of a few or, even worse, in the hands of one person. Many 
simply cannot incur the cost of this enforcement--certainly not in this 
economy.
  Additionally, this fine really amounts to a tax. It is government 
revenue collected from the American people, and the Constitution has a 
thing or two to say about how revenue bills must be enacted. The 
Constitution does not vest any taxing or, for that matter, any other 
revenue raising or fining authorities in the President alone--no. This 
is a power that is reserved to the people's representatives in Congress 
who are charged with precisely that responsibility. We have exclusively 
that authority, and that authority is not to be exercised by the 
President of the United States.
  It is no accident that the Founding Fathers, through the 
Constitution, put this power in the hands of those people occupying 
positions in the branch of government most accountable to the people at 
the most regular intervals and in no one else within our government.
  President Biden's mandate would impose really significant costs on 
Americans and on American businesses and on our Nation's economy that 
is already in some really rough times.
  Look, it is unconstitutional. It hasn't been passed by Congress. It 
is wrong for America. And that is why, today, as I did yesterday and 
the day before, I came here to offer a proposal that, if enacted, as we 
could have enacted it today, it would protect Americans from some of 
the most disastrous effects of the mandate.
  While I believe the mandate will, I am quite certain, eventually be 
invalidated in court, it is going to take some time for us to get there 
because right now we don't even have the mandate itself; we just have 
the threat of the mandate. And it is the imminent apprehension of the 
mandate's eventual issuance that is causing HR departments and general 
counsel's offices in corporate America throughout this country today to 
scurry to try to get ahead of the curve, develop their own policy, so 
that they are in compliance as of day one when the mandate hits.
  But, in the meantime, there is nothing to sue. There is no one to sue 
because there is no final Agency action. There is no order in place. 
There is just the threat of it.
  This, I fear, is a feature, not a bug, because by the time we 
actually have something on which to sue and by the time lawsuits are 
brought, by the time that litigation works its way to its natural 
conclusion--which, I believe, inevitably, culminates in a finding that 
it is invalid; it is unconstitutional; it is not warranted by law--
months, if not years, will have elapsed, and a lot of the damage will 
be done.
  So, until that day--until that day I consider inevitable when a court 
rules that this is unlawful--these bills like the one that I have 
offered today can provide businesses and the American people with the 
certainty that they need to make their own decisions.

  My bill that I have offered up today, the No Taxation Without 
Congressional Consent Act, would prohibit OSHA and other executive 
branch Agencies in the Federal Government from imposing fines, fees, or 
taxes with respect to these mandates. It would protect our 
constitutional order by requiring that revenue measures be voted on by 
Congress, the branch of government most accountable to the people and 
the only branch of government empowered to enact such policies. The 
other two branches cannot.
  As I mentioned yesterday, the people concerned about this mandate are 
everyday Americans. I have now heard from 158 Utahns who are at risk of 
losing their jobs due to the mandate, and that number continues to grow 
every day. They are not our enemies; they are our neighbors. Many of 
them have been advised by board-certified doctors that they ought to 
not receive the vaccine. We shouldn't be punishing them or forcing them 
into second-class status.
  So today we have a choice. I hope that, at some point, my colleagues 
on the other side of the aisle will allow us to provide this certainty 
and peace of mind to those individuals and businesses at risk of 
suffering under the mandate.
  We can defend Congress's role as the branch of government that 
determines how and from whom revenue is to be raised. Not only can we 
do that, but we have an obligation to do that. We have all sworn an 
oath to uphold and protect and defend the Constitution of the United 
States, and that document doesn't give the President this power. In 
fact, that document precludes, it prohibits the President from 
exercising this power in the absence of congressional authorization, 
which we have not provided.
  So this bill, one of a dozen that I have submitted, could have passed 
this body today. I wish, for the sake of millions of concerned 
Americans, that it had, but regardless of this result today and of the 
objection that precluded it from passing the Senate today, I am going 
to continue to fight. I will keep coming back for as long as it takes 
in order to end this egregious and legally baseless and 
unconstitutional mandate.
  I find it interesting that my friend and colleague, the distinguished 
Senator from the State of Washington, referred to this as 
``outrageous,'' as outrageous that we would be attempting to put in 
place protections for those Americans who are going to be victimized by 
the vaccine, who are going to have to choose between, on the one hand, 
receiving a medical procedure that they don't want and, on the other 
hand, being fired. Nobody should have to choose between submission and 
financial ruin. They especially shouldn't have to do that under the 
direction of an invalid, unconstitutional directive by the Federal 
Government.
  She also referred to what she described as ``our efforts,'' ``our 
efforts to end this pandemic.'' This isn't about whether we want to end 
the pandemic. There is not a single person--Democrat, Republican, 
Independent--in this Chamber or in the other Chamber--I am not sure I 
know a single American anywhere who wouldn't want to end this pandemic. 
This is not the pandemic. This is not going to end the pandemic. If 
anything, this will cause more people to be more reluctant to get the 
very vaccine that they are wanting to encourage others to provide.
  This is not about that. The minute we lose control of the government 
that is supposed to work for us, the minute we start to erode, 
willfully, even for those who might be convinced that it is good 
policy--and I would disagree with them on that. The minute we decide to 
give this power to the President of the United States and stand 
silently as he usurps authority that under article I, section 7, and 
article I, section 8, plainly belongs only to Congress, to the extent 
we have any business operating in this area to begin with as a Federal 
Government, which we do not--then we have simultaneously undermined 
both the vertical protection that we call federalism and the horizontal 
protection we call separation of powers.
  Now, lest anyone might be left with the impression that this would be 
an esoteric or academic exercise or that that is not something that 
affects their freedom--there are those who would make that suggestion--
they are sorely mistaken. You see, because anyone, anywhere can have a 
Bill of Rights.
  In fact, as the late Justice Antonin Scalia used to point out, any 
``tin horn

[[Page S6815]]

dictator'' around the world can have a Bill of Rights. And most of them 
do. Many of those Bills of Rights are scintillating documents; they are 
glowing in terms of their expression of individuality and the right of 
each human to exist and flourish. They will articulate a list of rights 
that is, in some cases, comparable to, if not even more protective of, 
individual liberty than our own Bill of Rights.
  Yet, as Justice Scalia continued, whether or not that Bill of Rights 
or any Bill of Rights is worth more than the paper that it is printed 
on ultimately rests on whether there are protections in place that 
guard against the dangerous accumulation of power in the hands of the 
few. That is what makes that difference.
  So if we allow a President today to adopt whether you want to call it 
a tax or a fine or whatever revenue-raising tool that you choose to 
identify this as being, the President doesn't have the power to impose 
that. That is a legislative function.
  Article 1, section 7 is very clear: You cannot enact legislation, 
including any legislation collecting revenue from the citizenry without 
passage in the House, passage in the Senate, and presentment to the 
President of the United States. He can't do it alone.
  That is what this is about. This is about so much more than just this 
vaccine mandate. But this vaccine mandate in and of itself is wrong. It 
is unconstitutional. It is harmful, and it has a tendency to undermine 
the very interest the President purports to be advancing.
  The PRESIDING OFFICER. The Senator from Wyoming.