[Congressional Record Volume 167, Number 199 (Tuesday, November 16, 2021)]
[Senate]
[Pages S8229-S8231]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Vaccines
Mr. LEE. Mr. President, last week, the U.S. Court of Appeals for the
Fifth Circuit issued an emergency stay on President Biden's sweeping
vaccine mandate. The court granted the stay, citing ``grave statutory
and constitutional issues'' with the mandate. The 22-page order is
persuasive and compelling in explaining the grave effects the mandate
will have on businesses and individuals alike throughout the United
States.
The order also explains that the limited nature of the Federal
Government under the Constitution simply doesn't allow for sweeping
mandates of this nature, generally, but it certainly doesn't allow for
sweeping mandates like this one without an act of Congress. You see,
our powers within the Federal Government are carefully circumscribed;
they are carefully constrained. The Constitution brings about a
balancing, a limitation on powers that operate along two axes. The
vertical constraint is called federalism, and the horizontal constraint
is something we refer to as the separation of powers.
The Federal Government's powers are, as James Madison described them
in Federalist No. 45, ``few and defined,'' while those reserved to the
States are ``numerous and indefinite.'' Likewise, within the three
branches, we have these protections in place to make sure that no one
person can exercise what power the Federal Government does have
exclusively; you can't accumulate too much power. So the President of
the United States, under our constitutional system, isn't a King and
may not rule by decree. He is not free to just do things because he
thinks they are a good idea.
The judges also, refreshingly, asserted the commerce clause of the
Constitution and brought up the commerce clause as the source of the
claimed authority for Federal action under this circumstance, noting
that, even under broad interpretations of the commerce clause that we
have seen from the Federal court system since 1937, the commerce clause
is not unlimited in the scope of the authority that it provides to the
Federal Government, and in this case, it certainly doesn't authorize
the Occupational Safety and Health Administration to issue a sweeping
vaccine mandate on all companies with more than 99 employees nor does
the commerce clause even authorize Congress to undertake such an
action, which, of course, Congress has not undertaken.
We have erred dangerously, over many decades, from the true
application of the Constitution's limits. In many respects, we have
lost sight even of the fact that this is a government of limited
powers, and now that lack of those limits--the lack of respect for
those limits within those who operate the Federal Government--is
placing millions of Americans at risk of not only becoming unemployed
but, in many cases, unemployable. Some in Congress are, today, taking
it even further in asking the President of the United States to impose
a vaccine or a test mandate as a condition precedent for interstate
travel.
Now, I have heard from hundreds of Utahns who are at risk of losing
their jobs because of this now, thankfully, halted mandate. These are
not bad people. To the contrary, they are good people. They are our
neighbors and our friends. They are everyday Americans who are all too
often just trying to get by to provide for their families. They are not
our enemies, and it is troubling to think that the President of the
United States said--on national television no less--that he is ``losing
[his] patience'' with them. What does that even mean? In fact, recent
polling numbers show that, if anything, it appears to be the other way
around. We are losing patience with him and with his broad assertions
of authority that he doesn't even have.
I have come to the Senate floor about 15 times now to oppose this
vaccine mandate. I have offered a dozen bills to limit, clarify, or
otherwise counteract the vaccine mandate. Each time, one or another of
my colleagues from the other side of the aisle has objected to what
should be uncontroversial bills. Let's review each of these that we
have gone through so far.
Now, this started back on September 28 with S. 2850. This bill, S.
2850, would have provided exemptions for those with religious or moral
objections to the vaccine mandate. President Biden, significantly, had
promised these exemptions would be in the mandate, but for some
reason--for some reason that I struggle to understand--Senate
Democrats, nonetheless, objected to the passage of that bill.
So then I came back, and I offered up S. 2840, the Don't Jab Me Act,
a bill that would require that the Federal Government make those who
suffer from the vaccine mandate financially whole. The Democrats
rejected that bill too.
Next, I offered S. 2843, the No Taxation Without Congressional
Consent Act, a bill that would require congressional authorization
before the fines associated with the mandate could be charged
to businesses. Notwithstanding the fact that the Constitution is very
clear about where taxes need to originate within our system of
government, the Democrats objected to that bill as well.
So then I came back with another bill. This time it was S. 2848, the
Your Health Comes First Act. This is a bill that would offer exemptions
from the mandate to those who have preexisting medical or other health
concerns about the vaccine. This is also another exemption that
President Biden himself promised in his speech when first announcing
the vaccine mandate, but it is an exemption that the Senate Democrats,
apparently, didn't feel worthy of codifying with legislation, and so
they objected to that one too. This one was particularly surprising
because if, in fact, President Biden himself felt comfortable with
those exemptions, one would think that there wouldn't be discomfort
with codifying what he himself said should be the law.
So then, in response to that, I returned to this Chamber on another
day, and I offered up S. 2846, the Natural Immunity is Real Act. This
bill would require that the Federal vaccine mandate recognize natural
immunity. Countries across the world recognize this immunity for the
powerful protection that it, in fact, provides, a protection that,
according to some studies, may be as much as 27 times stronger than
that offered by the vaccine alone. Unfortunately, President Biden's
mandate wasn't so generous on that point.
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This bill, too, was rejected by the Democrats, disregarding science's
showing the very real impact of natural immunity.
So I came back, and I offered up S. 2847, the Let Me Travel America
Act. Now, this bill would prohibit the requirement of vaccination
before citizens could travel between the States. Apparently, the
Democrats want to leave that option open because they objected to that
one too. Well, that one is not in the vaccine mandate. It is feared, as
I mentioned a few minutes ago, that that might be on the table.
Apparently, it still is because people were unwilling to codify what
should be a natural conclusion for most Americans to reach, which is
that our right to travel from one State to another without permission
from the Federal Government ought not be interfered with and that it is
fundamental that we shouldn't mess with it. That is why it was
unfortunate that this one, too, drew an objection.
So I returned. I hoped that this body could give some assurance and
some respect to the brave men and women of our military who are at risk
of losing benefits and losing the right to serve over this vaccine
mandate. So my bill that I offered that day, S. 2842, the Respecting
Our Servicemembers Act, would protect servicemembers from losing their
livelihoods and their benefits--that they have accrued and earned
through their valiant service--as a result of the mandate. The
Democrats objected to this one too. That is particularly sad. These are
heroes. These are people on whom we rely to keep us safe. We ought to
give them more trust than that. We ought to not put them in a position
in which many of them are facing a difficult decision.
So I offered another bill. I returned to this body, and I offered a
bill that should be one of the least controversial measures that we
have ever considered, not just about the vaccine mandate but about
anything. That bill, the Parental Consent for Vaccination Act, would
have simply required that parental consent be provided before COVID-19
vaccines were given to children. The Democrats objected to that as
well.
So I came back, and I offered the Transparency in COVID-19
Vaccination Act. This bill would have provided information regarding
vaccine side effects to the public. It would have just made sure that
the American people had access to that information. I thought
information would build confidence in the vaccines. The Democrats
disagreed, and they objected. Apparently, that was too much. I don't
know why people wouldn't want more information. I actually think that
would have built confidence in the vaccine, but, apparently, they
didn't see it that way or maybe they just didn't want people to have
access to the information. I don't know. I can't speak for them. I just
know they objected.
So I came back for the 10th time. I offered up the Transparency in
COVID-19 Research Act. This bill would have provided research and
information drawn from that research--that the American taxpayers are
paying for--to the public, that should be available to the public. We
pay for that research. We ought to know what the findings are. The
government shouldn't have anything to hide and wouldn't have anything
to hide here, but the Democrats disagreed, and they objected to that
one as well.
So I tried again. I came back, and I offered up S. 2851, the
Transparency in COVID-19 Expenditures Act. This bill is just a good
housekeeping measure. It is a commonsense measure. It is not something
that should have been either liberal or conservative or thought of as
Republican or Democratic. It is just a good housekeeping matter. You
know, I think it is strange that it would be controversial, given the
simplicity of what it would do. It would simply call for an audit
regarding how our COVID-19 funds have been spent. I thought the
information would be helpful to us as we make policy moving forward,
and yet the Democrats objected to that one.
So I tried again. I offered a 12th bill that would simply end the
mandate. The No Forced Vaccination for COVID-19 Act would clarify that
Federal law does not authorize OSHA or any other Federal Agency to
implement a general vaccine mandate, but the Democrats objected to that
one too.
Twelve times--twelve bills. Some were simpler than others. Some
should have involved no controversy whatsoever. Some just inserted good
principles of lawmaking or constitutionalism generally or federalism in
particular. Each one was rejected, one right after the other after the
other, repeated 12 times.
Thankfully, while some in this body have floundered, judges on the
Fifth Circuit fulfilled their duty to the American people and their
oaths to the Constitution. That does not mean, however, that this fight
is anywhere near over. It will continue in the courts, where the States
and the Biden administration will each be able to make their case. But
I am also going to continue this fight here. I will stand for those
Utahns and those Americans who are at risk specifically because of this
mandate.
It is also important for us to remember that separate and apart from
what the courts might do, we have an independent obligation, having
each taken an oath to uphold and protect and defend the Constitution of
the United States in the fulfillment of our duties. We need to make
sure that before authority is exercised--especially authority operating
in such a personal manner on such a personal issue as this--that power
isn't being taken from those to whom it belongs. The power in our
system of government belongs to the people, and in the absence of a
delegation of power to the Federal Government, that power is retained
by the States respectively or by the people.
So we ought to be looking at this carefully and closely, analyzing it
on our own. We can't assume that the Federal courts will save us from
our own unconstitutional actions.
I have been critical of Presidents of both political parties when
they have taken actions that exceed the scope of their authority as
President of the United States or of actions enacted by the legislative
branch under the direction of either political party that exceed the
power of the Federal Government. This is an issue that is not
Republican or Democratic. It is not liberal. It is not conservative. It
is simply an American issue. It is a constitutional issue. We ought to
be debating it, discussing these things here, and not waiting for the
courts to act.
One of the profound frustrations that I have encountered over the
years is that sometimes people will conflate the issue of
constitutionality with litigation. They will assume that constitutional
issues are those that have to be addressed in the courts and only in
the courts.
Fortunately, we have the courts to adjudicate disputes and the
meaning of statutes and provisions of the Constitution, but that
doesn't excuse us of our responsibility to provide an independent check
and balance to make sure that authority isn't being exercised where it
should not. It is especially important where, as here, we are dealing
with a fundamentally misguided and, I believe, immoral proposition;
that is, that individual Americans, hard-working moms and dads
throughout this country, ought ever to be put into a position by their
government to choose between, on the one hand, receiving a medical
procedure that they may not want or to which they may have religious or
other moral objections or which they might have a specific health
concern, for example--they ought not ever be put in a position where
they have to choose between that unwanted medical procedure on the one
hand and on the other hand, the ability to put bread on the table for
their children. That is not right. The American people know it, and
deep down, they know something is terribly wrong whenever one person
can, with the stroke of the Executive pen, issue so broad, so deep, and
so immoral a mandate.
I am not going to stand for this. I will be back. I will be back
tomorrow. I will be back the next day. I will be back as often as it
takes, as long as it takes. I am not going to stop until we win this
fight.
Thank you.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. CORNYN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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