[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.

[[Page S8230]]

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.

[[Page S8231]]