Congressional Record, Volume 172 Issue 71 (Wednesday, April 22, 2026)

[Congressional Record Volume 172, Number 71 (Wednesday, April 22, 2026)]
[Senate]
[Pages S1890-S1902]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

DIRECTING THE REMOVAL OF UNITED STATES ARMED FORCES FROM HOSTILITIES
WITHIN OR AGAINST THE ISLAMIC REPUBLIC OF IRAN THAT HAVE NOT BEEN
AUTHORIZED BY CONGRESS--Motion to Discharge

Ms. BALDWIN. Pursuant to section 601(b) of the International Security
Assistance and Arms Export Control Act, I move to discharge the
Committee on Foreign Relations from further consideration of S.J. Res.
114 to direct removal of U.S. Armed Forces from hostilities within or
against the Islamic Republic of Iran that have not been authorized by
Congress.
The PRESIDING OFFICER. The clerk will report.
The senior assistant legislative clerk read as follows:

Motion to discharge, S.J. Res. 114, to direct the removal
of United States Armed Forces from hostilities within or
against the Islamic Republic of Iran that have not been
authorized by Congress.

The PRESIDING OFFICER. The Senator from Wisconsin.
Ms. BALDWIN. I know of no further debate.
The PRESIDING OFFICER. Is there further debate?

Vote on Motion to Discharge

The question is on agreeing to the motion to discharge.
Ms. BALDWIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
Mr. BARRASSO. The following Senators are necessarily absent: the
Senator from Iowa (Mr. Grassley), and the Senator from Pennsylvania
(Mr. McCormick).
Mr. DURBIN. I announce that the Senator from Virginia (Mr. Warner) is
necessarily absent.
The result was announced--yeas 46, nays 51, as follows:

[Rollcall Vote No. 88 Leg.]

YEAS--46

Alsobrooks
Baldwin
Bennet
Blumenthal
Blunt Rochester
Booker
Cantwell
Coons
Cortez Masto
Duckworth
Durbin
Gallego
Gillibrand
Hassan
Heinrich
Hickenlooper
Hirono
Kaine
Kelly
Kim
King
Klobuchar
Lujan
Markey
Merkley
Murphy
Murray
Ossoff
Padilla
Paul
Peters
Reed
Rosen
Sanders
Schatz
Schiff
Schumer
Shaheen
Slotkin
Smith
Van Hollen
Warnock
Warren
Welch
Whitehouse
Wyden

NAYS--51

Armstrong
Banks
Barrasso
Blackburn
Boozman
Britt
Budd
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Curtis
Daines
Ernst
Fetterman
Fischer
Graham
Hagerty
Hawley
Hoeven
Husted
Hyde-Smith
Johnson
Justice
Kennedy
Lankford
Lee
Lummis
Marshall
McConnell
Moody
Moran
Moreno
Murkowski
Ricketts
Risch
Rounds
Schmitt
Scott (FL)
Scott (SC)
Sheehy
Sullivan
Thune
Tillis
Tuberville
Wicker
Young

NOT VOTING--3

Grassley
McCormick
Warner
The motion was rejected.
The PRESIDING OFFICER (Mr. Moreno). The Senator from Louisiana.

Tribute to Tony Hanagan

Mr. KENNEDY. Mr. President, I am going to give you a name: Tony
Hanagan.
As we all know--not necessarily everybody outside this Chamber--Tony
is a senior floor assistant. I will come back to what that means in a
second.
Tony is leaving us for the private sector. Under the ethics rules, he
can't tell us where he is going. I think it is a startup, but I am not
sure. I think part of his job responsibilities--not exclusive because I
don't know because he can't talk about it--will be ``congressional
relations.'' I have strongly encouraged him to ask the startup to
define very carefully what they mean by ``congressional relations'' in
light of what has been going on around here.
Though we kid him a lot--I will come back to that too--Tony is very
smart. He is a graduate of William & Mary. I am sure there are some
dummies at William & Mary, but I have never met one coming out of
there. It is a great school. He has also spent time at the Wharton
School, studying their model budget project.
He has worked his way up as a member--as basically a Senate advisor.
And let me explain a little bit of what Tony and his colleagues do.
You see these two doors back here, this one and this one. This one
leads to what we call the Democratic cloakroom. This door leads to what
we call the Republican cloakroom. Now, that is where Senators go to
cuss and to tell each other lies, but it is not the only purpose of
those. Supposedly, we can go back there and relax and when someone
isn't around--and sometimes when they are around--and make fun of
people.
But there are members of our staff who have desks back there, and not
every member of our staff has a desk back there. Some are close by.
What do they do? They make this place run. For one thing, they
understand the rules or claim to. No living human being, at least not
in the U.S. Senate with a beating heart, understands the Senate rules.
I am not saying no one understands them. I am just saying nobody in the
Senate does. They say they do. They lie like fish swim because to
understand--you don't only have to understand the rules; you have got
to understand all the precedents.
The first 6 months I got here, I said: You know, I am going to learn
the rules. I read about Lyndon Johnson who supposedly sat here and
learned all

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the rules and outsmarted all his colleagues. I don't believe that. But
anyway, he probably knew more than I did. God rest his soul.

But after 6 months, here is my conclusion: I don't know if I can
learn the rules and all the precedents, and by the time I do, they will
have changed. And someday, I am going to die, and I don't want on my
tombstone ``Kennedy understood the Senate rules.'' So I gave up. I
quit. No mas. And so now, when I want to understand the rules, I talk
to a member of our staff, like Tony, or some of my colleagues, and so
do most of my Senate colleagues on the Democratic side and on the
Republican side. Now, our staff could be lying to us because we don't
know any better. They could make this stuff up, but I don't think they
do. I have never seen Tony make it up. A couple of times, I thought I
had caught him, but he turned out to be right, and that is important.
But it is more than just an understanding of the rules. It is more
than Tony's job and my colleagues' job who are our advisers--it is more
than just learning the rules because the rules look like they were
designed by a heroin addict with a socket wrench.
We don't know how to get things done, so we go to our advisers and
say: Tell me how to do this.
And they are really good at that. Tony is really good at that. I know
sometimes the questions are so esoteric and so bizarre, I can tell from
their eyes that they want to look at you and say: You are not the
stupidest person I have ever met, but you had better hope the stupidest
person I have ever met doesn't die.
But they never do that. They always say: OK. You know, you can try it
that way, but here is the downside of it, and with all due respect,
there is a better way of doing it, and you might consider this.
Frankly, I mean, our Parliamentarian--I see her here. She does
understand the rules, and she is pretty good at helping you too. She
has got lines she can't cross because she doesn't work for Senate
Republicans or Democrats.
But this is what Tony does and the other staff members, and they make
this place run. They are not responsible for the fact that the Senate
only works when everybody isn't crazy at the same time, and they are
not responsible for the fact that sometimes it takes us weeks, months,
even years, to get nothing done. Doing nothing--it can be frustrating.
Doing nothing is very hard because you never know when you are
finished. But they make this place run, and we are going to miss Tony.
Now, we make fun of Tony. It is all in good fun. There is a big
mirror back in the cloakroom. I think it is an antique mirror. That is
what they tell us. Sometimes we will--I have done it, but others, I
think, have too. Sometimes we will write little notes to the majority
leader--we used to do it with Mitch, and now we do it sometimes with
Thune--and sign it ``Tony,'' and, of course, they all have a heart
attack.
Tony keeps a couple of pairs of shoes under his desk, and probably
about once a week, some of us take at least one of the shoes and hide
it, and he is ready to go home at whatever--11 o'clock, 12 midnight--
and he can't find his shoe. Max, who works with him back there--his job
is to eventually, after he spends an inordinate amount of time and he
gets really close to the point that he has no more firetrucks to give
and is going to start telling everybody what he thinks--Max will tell
him where the shoe is.
I have got some other stories about Tony, but I just can't tell them
because there are probably some children listening.
But anyway, you will read about Tony someday in the Wall Street
Journal, and it won't be because he went ``Eric Swalwell''; it will be
because of his financial success. And we are going to miss him, but I
can't blame him. He is already picking out the color of his new
Mercedes.
The Presiding Officer knows the Mercedes-Benz. If you have any advice
for him, like the best one that deflects heat, you might want to talk
to him. He may want to just buy two, OK?
But anyway, we are going to miss Tony, and I wanted to say that, and
I am sorry I can't tell you all of the ``Tony'' stories. They are
legendary.
But, Tony, you have just been awesome, you and all of your
colleagues, and we never talk about them enough. I just want to say
thank you.
And my final words: Peace out.
(Applause.)
The PRESIDING OFFICER. The Senator from Connecticut.

Major Richard Star Act

Mr. BLUMENTHAL. Mr. President, we are at a critical moment. It is a
crossroads for the American people.
The President is waging a war of choice. It is really a war of
impulse, a war of whim and illusion without the support of the American
people and without approval from the U.S. Congress, representing the
American people. Meanwhile, the costs of food and fuel--gasoline at the
pump and produce at the grocery store--all have soared. Healthcare is
unaffordable. Gas prices are going to continue to skyrocket.
The Secretary of Energy told us just last weekend that prices will
not come down appreciably before the end of the year. Of course, since
then, he has contradicted himself. His chain was yanked by the
President. But the reality is--and we need to stay in touch with
reality--that the costs of living for the everyday American are
skyrocketing out of sight.
Instead of doing something to lower those costs, Senate Republicans
just introduced a budget resolution to give $140 billion to ICE and the
CBP without any reform and without any changes in practices or policies
that will make them legal and humane. In fact, Senate Republicans are
willing to work overtime to deliver huge tax breaks to billionaires and
siphon hundreds of millions--in fact, billions--to ICE with no strings
attached.
When it comes to lowering costs for Americans, helping working
families, or making good on our promises to veterans, Republicans say:
We can't afford it. In fact, Senate Republican leadership has
continuously refused to advance bipartisan legislation to deliver for
combat-injured veterans that I have advocated for repeatedly and twice
asked for unanimous consent on the floor of this body to pass. Why?
They claim we can't afford those benefits.
Let's be very clear. The Major Richard Star Act will cost $1 billion
a year for the next 10 years. We are spending $2 billion a day on the
Iran war, and that figure probably is lowballed. The benefits equate to
1/14th of the money Republicans want to send to ICE. The same
Republicans who say we can't afford the time or the $13 billion to
ensure our combat-injured veterans receive their full earned benefits
will keep us here all night to spend $140 billion on ICE and CBP.
My legislation, the Major Richard Star Act, would finally deliver to
some 50,000 combat-injured veterans their full military benefits.
Currently, they are receiving a dollar-for-dollar reduction of their VA
retirement pay for every dollar of compensation for disability. That is
just plain wrong. They have earned both retirement pay and disability
benefits. One should not be docked dollar for dollar for the other. In
fact, it shouldn't be reduced at all. Most of this body--79 of my
Democratic and Republican colleagues--agree. They joined the
legislation. But the bill is still blocked from a simple floor vote by
Senate Republican leadership--the same leadership that is willing to
bend over backward to pass another partisan law to fund ICE.
Meanwhile, the President continues to send more servicemembers into
harm's way. Thousands more are heading to the Middle East right now.
But it falls on deaf ears for Republicans that claim veterans
initiatives like the Major Richard Star Act are too expensive while
they push hundreds of billions into Trump's rogue Agency or a war of
choice.
It seems to me Republicans can always find more money for tax cuts.
They can always find more money for benefits that go to the
billionaires, but not so much when we are talking about working
families or veterans.
The simple fact is--and remember this point if you remember nothing
else of what I say here--the cost of our taking care of veterans is the
cost of war. It is one that always must be paid. When we send a
servicemember into war, we are incurring an obligation. We have made a
promise. Those injuries result in disability benefits that should not
be reduced, nor should retirement pay, just because they are injured.
In

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fact, they should not be punished for being injured. The President may
think veterans are suckers, but that is not what the American people
think.
As Memorial Day approaches, prove to veterans and Americans that you
really do appreciate their service. And remember that words, without
actions, are meaningless--totally meaningless.
And that is why I have introduced an amendment to strike the
reconciliation instruction and focus on providing for our combat-
injured veterans who were forced to retire because of their injuries.
Give them the benefits they earned, the benefits they deserve, the
benefits they were promised.
Today, we have an opportunity to act and to do something meaningful
for the thousands of combat-injured veterans who have sacrificed on our
behalf. I urge my colleagues to make the right decision and support
this amendment to advance the Major Richard Star Act.
It isn't lost on me that while I am speaking here, urging for the
passage of an amendment that would help our veterans, the Trump
administration is actively harming them. Over the past year, the Trump
administration has begun deporting procedures for 34 former members of
the military and 248 relatives of former military members. This number
doesn't include the countless former military members that have been
swept up into detention by roving patrols and lawless arrests.
These individuals are real people. They are veterans who chose to
wear the uniform. They are not abstract entities. They are not numbers
or statistics. They are people who raised their right hand, willing to
give their lives for our country, veterans who served and sacrificed so
that we could celebrate Memorial Day, so that we could stand here and
speak as we wish and worship as we would like in the days ahead.
Take William Vermie, for example. He is an Army veteran, a Purple
Heart recipient, who served as a combat solder in Iraq. On January 13,
2026, he was on a public sidewalk, observing ICE arrest two young men
in his neighborhood. He was tackled. He was arrested. He was driven to
detention. He was held in a cell for 8 hours.
Or George Retes, a disabled Iraq War veteran who was detained for 3
days and 3 nights after being arrested on his way to work--on his way
to work. He has a job. He is a citizen. He is a veteran. He was
arrested and detained.
Family members of U.S. servicemembers and veterans have fared no
better. U.S. SSG Matthew Blank recently married his wife Annie and
brought her to his base, Fort Polk, LA, to begin their lives together.
Within hours, ICE entered his base and detained Annie, who was brought
to the United States as a toddler and has applied for DACA status.
Annie was released only after public outcry shamed the administration.
Last June, Narcisco Barranco, the father of three marines, was
clearing his weeds when immigration agents attacked him from behind and
placed him in deportation proceedings. Mr. Barranco has no criminal
record. He has been in the United States for 3 decades.
And just this week, Sergeant First Class Serrano's wife, Deisy Rivera
Ortega, was arrested by ICE during her appointment at an immigration
office in Texas.
None of these people sought to hide or conceal themselves or run.
They were there. And she was at an appointment at an immigration office
in Texas. She had been in the United States for over a decade and has
legal protection that prohibits her deportation to El Salvador and
allows her to legally work. She was at the immigration office,
interviewing, as part of an application for parole in place, a program
specifically designated to offer protections to military spouses and
their parents.
This stuff is just unbelievably cruel. It is illegal. It is inhumane.
But it is also savagely mean and wrong. To encourage the men and women
of our armed services to apply for protection for their spouses or
their parents, only to have those applications entrap their loved ones,
spirit them away to detention, and wreak havoc in their lives--is that
the America that we want?
It is not the America I recognize as my country, nor would most
Americans.
These servicemembers, veterans, and their family members were not
convicted of any crime. They were not committing any crime. They were
doing the right thing--in the offices of the U.S. Government, some of
them--when they were tackled, arrested, and detained by the same
government that gave them so much to serve.
Marine Corps cadets could not even enjoy their graduation this year
without fear after the Marine Corps issued a warning that ICE agents
would be conducting ``enhanced screening and lawful immigration status
inquiries'' outside the Parris Island base, prior to graduation events.
What did that mean? Marine Corps privates, graduating from Parris
Island--and I have been there--had to fear that their relatives coming
to watch their graduation on that drill field could be arrested and
detained.
Some cadets were forced to forgo celebrating because they feared for
their loved ones. That is not how we honor courage and sacrifice. That
is not how we plan to commend the individuals who choose to serve. Such
efforts will not help us to recruit the next generation of brave and
bright men and women for our military. It only demonstrates how little
the Trump administration values people who put their lives on the line.
As Republicans propose sending another $140 billion to ICE and CBP,
let's ask them whether they share the same disregard for our troops and
veterans. I hope they will join me in saying: Enough is enough.
The absence of reform, in connection with this huge amount of
funding--$140 billion--is absolutely reprehensible and unacceptable. It
is unconscionable to shovel more money--$140 billion--without
fundamental changes that will stop the abuses and many others of the
kind I have just described.
I ask my colleagues on the other side of the aisle to join me in
saying: America is still the land of the free and the home of the brave
because of the brave who protect the free. And let us cherish those
freedoms and make them real, not just in rhetoric but in the reforms we
demand of the U.S. Government when it is engaged in lawless and
reckless conduct.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Justice). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Rhode Island.

Climate Change

Mr. WHITEHOUSE. Mr. President, people following the Senate floor will
know that hundreds of times I have come to the floor with my trusty,
increasingly beat up ``Time to Wake Up'' poster to describe the various
manners in which the fossil fuel industry has corruptly obstructed our
ability to solve the problem of climate change that is caused by fossil
fuel emissions.
They might also remember that I have come to the floor dozens of
times to give my ``Scheme'' series of speeches about the corrupt manner
in which the Supreme Court has been captured and put into the service
of a gang of rightwing billionaires who tend to be fossil fuel
billionaires.
In this speech, the ``Time to Wake Up'' series and the ``Scheme''
series converge. I don't know quite how to describe it, but maybe it is
``Time to Scheme Up'' because, for sure, that is what has been done in
this country by the fossil fuel industry to blockade our efforts to
solve the pollution hazard that they have created for our people--a
pollution hazard that is now real and immediate in our economy.
Look no further than the State of Florida, where climate risk has
thrashed the home insurance markets to the point where the home
insurance market collapse has cascaded into mortgage markets, which
has, in turn, cascaded into real estate values--property values.
Last year, Florida led the country in lost property values. This
year, there was an article in Newsweek just a few days ago about how 6
to 8 percent losses are predicted in Florida real estate values because
of that cascade. Property is very hard to sell if you can't get a
mortgage on it, and it is impossible to get a mortgage on it if you
can't get insurance on it. And even if

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you can get insurance, if the insurance costs $14- or $15- or $20- or
$30,000 a year, you add all that up, and it comes off the value of the
home, which is why you are seeing people unsuccessfully trying to sell
homes in Florida for hundreds of thousands of dollars or more less than
they paid for it.
So this is on its way. It is coming right now. I am just going to
continue to dig into how it is that we got here because how we got here
involves a lot of mischief, a lot of real problems. One of those
problems came to light just recently in the form of a number of memos
from within the Supreme Court from the Justices to each other that were
released or leaked--somehow came to the New York Times--that describe
how it was that the captured Court put an end to the Clean Power Plan
of the Obama administration before it even came to life.
Before even a court decision had been made about the merits of the
rule, five Republican-appointed Supreme Court Justices stepped in and
killed that rule in the crib before it could have any real effect.
Charles Pierce has written a pretty good summary of that New York
Times article. He said:

The New York Times published a trove of personal memos from
the members of the Supreme Court outlining the court's
promiscuous use of the so-called shadow docket. It has become
the carefully constructed conservative majority's favorite
work-around to kill policies it doesn't like and support
causes that it and its corporate patrons do.

What appears to have happened here is that the shadow docket was born
in the crib-killing of the Clean Power Plan.
This is quoting the New York Times story:

By a 5 to 4 vote along partisan lines, the order halted
President Barack Obama's Clean Power Plan, his signature
environmental policy. They acted before any other court had
addressed the plan's lawfulness.

Not a Court of final impression, a Court of first impression--the
first one to look at it. That is not the way it ordinarily works.

The decision consisted of only legal boilerplate, without a
word of reasoning.

That is similar to the way the shadow docket has been working--before
briefing, before argument--a decision without legal reasoning provided.
It continues about the Chief Justice:

Chief Justice John G. Roberts, Jr., has cultivated a
reputation for care and caution. [These] papers reveal a
different side of him. At a critical moment for the country
and the court, the papers show, he acted as a bulldozer in
pushing to stop Mr. Obama's plan to address the global
climate crisis.

I will get into this a little bit further as I continue through my
remarks, but the basic summary is that the Court concluded that without
stopping the EPA's rule before it went into effect, before any court
had actually considered it, that would cause irreparable harm to the
fossil fuel industry--specifically, mentioning that private industry
will suffer irreparable harm--this, at a stage in the proceedings,
where the question of whether that harm even existed had still not been
properly litigated.
So I go back a ways on this. In 2015, in one of my ``Time to Wake
Up'' speeches, I said:

The Supreme Court has handed the polluters a heavy cudgel
with its misguided Citizens United decision, allowing big
corporations to spend--or more important, threaten to spend--
unlimited amounts of undisclosed money in our elections. More
than anyone, polluters use that leverage to demand obedience
to their denial script.

Another one, 2017:

The Supreme Court's Republican appointees got in the habit
of doing what they were told by the forces that appointed
them (which include the fossil fuel industry, which asked for
the Citizens United decision), and in a fateful combination
of obedience and political ignorance, they wrecked our
politics.

A year later, I described how:

Republican strategists are expanding their grip to the
Supreme Court, building there a reliable Republican majority.

I warned that we mustn't try to replicate that apparatus. We must
expose it. And when we expose one part of the apparatus, we expose all
because it is the same crew behind packing the courts and denying
climate change and running the dark money machine.
In January of 2010, I said:

The five Republicans on the Supreme Court gave the fossil
fuel industry the Citizens United decision.
I said:

In January 2010, the five Republicans on the Supreme Court
gave the fossil fuel industry the Citizens United decision;
the industry instantly turned its new political weaponry on
the Republican Party; and bipartisanship on climate change
was stamped out by fossil-fuel threats.

This integration between the fossil fuel industry and the Supreme
Court and the dark money power that the fossil fuel industry has used
to crush climate action in Congress is something that has been apparent
for some time.
In 2020, I added:

Citizens United unleashed toxic doses of money, and
unprecedented doses of virulent dark money, into our
political atmosphere. [Once] democracy is poisoned, stunned
by secret fossil fuel money and threats, [it fails] to listen
to plain warnings.

In 2022, I called this ``the Court that dark money built.''
In 2022, I said:

[I]t is probably more accurate to say that we now have the
Court that dark fossil fuel money built.

So it comes as little surprise that these memos from within the Court
should reveal that linkage between the Republican-appointed Justices
and the fossil fuel industry. And, of course, it should come as no
surprise that the roots of this shadow docket that has been used so
politically by the Republican majority on the Court--the roots are
found in an act of service to the fossil fuel industry billionaires who
captured the Court.
If you look at the scheme to maintain the fossil fuel industry's
free-to-pollute business model where they get away with polluting as
much as they like with no cost or consequence, you have to look at the
Supreme Court facilitating this.
Citizens United, of course, signaled the end of climate legislation
because the unlimited dark money that the fossil fuel industry could
use to shut down climate action in this body was successful. Unlimited
fossil fuel dark money was brought to bear on Congress, and our ability
to solve this problem collapsed.
Look before the Citizens United decision. Look back to 2007, 2008,
2009. My first years here, there was robust negotiation on major
climate legislation--four different strategies here in the Senate;
three major bills, bipartisan bills; and a Presidential candidate in
John McCain who ran on a perfectly legitimate climate platform. All of
that dead--dead--the day the Citizens United decision came down and the
fossil fuel industry pounced with its new dark money power.
But it is not enough to stop legislation. If you want to protect your
free-to-pollute business model, you also have to stop regulation, and
that is where this Clean Power Plan decision came in. That is where the
subsequent major questions doctrine came in. That work by the Supreme
Court signaled the end of climate regulation as the Supreme Court
intruded into a decades-long regulatory process and rebooted it to
protect against regulation that would limit the free-to-pollute
business model of the fossil fuel industry.
As I have said in other speeches, that major questions doctrine did
not pop from the heads of the Supreme Court Justices in that decision.
It was cooked up in fossil fuel-funded doctrine factories, massaged,
maneuvered into conferences, propagated by the Federalist Society,
called up at conferences. It was groomed and grown so that the Supreme
Court could pick it up in a decision, which, of course, they did.
So if you shut down climate legislation and you shut down climate
regulation, what is left is climate litigation--that people harmed by
all this damage, by all this pollution, usually have a right to bring a
lawsuit. And sure enough, lawsuits are emerging. So the next project of
the Court is to attack climate litigation, and sure enough, the fossil
fuel industry is all over that Court, asking for it to shut down the
prospect of climate litigation.
And guess what. That little rascal Leonard Leo, who was the fixer,
the implementer of the Court capture scheme, who worked with Trump's
counsel, McGahn, to get the three Supreme Court Justices Trump
supposedly appointed--separate argument: I think they were actually
selected by the Koch brothers' political operation, and Trump was the
chump at the end of the deal who signed off on it.
But Leonard Leo and his billionaires were the ones who put that whole

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scheme together. They put the whole concept of a Federalist Society
list together and the completely untrustworthy President Trump being
obliged to say publicly that he would pick off that Koch brothers'
list. They called it the Federalist Society list because calling it a
fossil fuel billionaires list wouldn't sell so well. And then they
ended up with these Justices. The guy in the middle of all of that was
this little fixer, Leonard Leo.
Guess what Leonard Leo is doing now. He has an array of maybe 25
front groups that he orchestrates. Some of them are actual corporate
entities. Some of them are what are called fictitious names for his
corporate entities. So you have a front group, which has a fictitious
name, that you operate through. Why you need to do that is a little
hard to say, but if you are up to no good, I suppose you want as much
camouflage as possible.
What Leonard Leo and his front groups are all over right now is
trying to shut down climate litigation, to make it a clean trifecta so
that one industry is free to pollute as much as it wants with no
legislation, no regulation, and no litigation that can stop it.
Again, it goes without saying that pollution is not something that
should be allowed. It is certainly not something that should be allowed
for free. But money will buy you a lot, and the fossil fuel-funded
phony flotillas of front group amici who come into the Court to tell it
what to do--and have, I would say, a 100-percent winning record before
the Court--are starting to gather around shutting down climate
litigation as well as regulation and legislation. In other words, a
captured Court is delivering the goods for the billionaires who
captured it.
So let's go through these different memoranda as they came out. The
first is from Chief Justice John Roberts dated February 5, 2016. He is
responding to emergency applications seeking to have the EPA's Clean
Power Plan stayed.
On the very first page, he communicates to the other Justices:

Absent a stay, the Clean Power Plan will cause (and is
causing) substantial and irreversible reordering of the
domestic power sector.

That is a factfinding. It is a factfinding made without any court
having found that fact. It is a factfinding by a Court that is not
supposed to engage in factfinding in the first place. It is a disputed
fact in the case before the case is even litigated. Yet here is the
Chief Justice of the United States going with the factual argument of
one of the parties even before arguments related to an emergency stay.
He has to admit to his colleagues that ``the rule does not require
emissions reductions until 2022.'' It is dated 2016. Six years later,
it might require emissions reductions. But then, February 5, 2016, he
says that ``its impact is being felt now.''
He is taking the side of one party on a contested fact and saying
that the impact of that contested fact, as he sees it, is actually
being felt now, 6 years ahead of when anything has to happen.
He says that ``the applicants indicate''--again, an assertion by a
party--the applicants untested, unchallenged--``applicants indicate
that they are currently in the process of committing time and resources
to compliance.''
That is the reason to shut down the Clean Power Plan?
He says that ``the impact of the rule will reduce coal production for
power sector use by 2.0 percent.''
Over a 2-percent reduction, he jumps completely out of his lane,
makes factfinding, and shuts down the regulation before it has even
been considered by the lower courts.
Then he says that the ``harm . . . is irreversible.''
Mr. President, I ask unanimous consent to have the Chief Justice
memorandum printed in the Record at the end of my remarks.
That memorandum was responded to rather quickly by Justice Breyer,
who noted:

First, it is unusual for this Court to issue a stay of an
agency's order during the time that the Court of Appeals is
considering its lawfulness.

It is a live legal dispute in the court of appeals, and the Supreme
Court is jumping in to stay it? That was not just unusual; it was
unprecedented. As Justice Breyer points out, ``it is difficult at this
point to say that the absence of a stay will cause irreparable harm.''
Even among the Justices, that is a contested fact, and yet the Chief
Justice is willing to rely on his view of that contested fact even
though it is supposedly not a factfinding body in the first instance.
As I mentioned a moment ago and as Justice Breyer points out, ``the
order does not require any company to take action for six years.'' So
it was hardly an emergency.
Finally, he pointed out that ``all of the applicants'' were ``free to
renew their applications for a stay'' once the DC court of appeals had
done its work and come right back to the Court and get the stay then
rather than to jump ahead of the circuit court of appeals. And it notes
that the circuit court of appeals has agreed to proceed on an expedited
basis.
Well, it didn't take long for the Chief to respond to that. He wrote
right back saying that ``private industry will suffer irreparable harm
from a rule that is--in my view--highly unlikely to survive.''
So now he is not only making factfindings that are contested even
within his Court and that he shouldn't be making in the first place,
but he is also predicting the legal conclusion of how this is going to
end up in his Court.
He says that the ``Court will not issue a decision until 2018 at the
earliest''--still 4 years before that date--``long after the real-world
impacts of the rule would have been felt in the absence of a stay.''
Again, more and more factfinding.
He says there will be ``on-going, cumulative, and irreversible harms
that private parties are incurring each day.''
Again, that is a contested fact, but he is willing to say that as if
it were an actuality and not a point in contention.
Justice Kagan comes back to him to say:

As far as I can tell, it would be unprecedented for us to
second-guess the D.C. Circuit's decision that a stay is not
warranted, without the benefit of full briefing or a prior
judicial decision.

She calls this a ``drastic and unusual remedy'' and points out that
this fact that Chief Justice Roberts has so readily lurched to--the
applicants' assertion--``is both entirely speculative and highly
doubtful.''
So now you have another Justice challenging the fact that the Chief
Justice offers as Gospel.
She says:

It is implausible that such a minor emissions reduction--

Two-percent reduction in coal--

to be achieved six years hence will require substantial and
irrevocable commitments of resources in the coming months.

Then in comes Justice Sotomayor.

I agree with Steve's [Breyer] proposal and Elena's [Kagan]
supplement to that proposal. As Elena notes, it would be
unprecedented for us to grant a stay before any court has
reviewed this complicated and complex case.

She says:

[N]o applicant has identified a single real plant--

An actual, real facility--

as opposed to a hypothetical ``model plant''--that is in
immediate danger of closure absent a stay.

She challenges the costs that have been discussed by the Chief
Justice, and she points out that ``an emergency stay on limited
briefing before the D.C. Circuit will hear argument on this regulation
in just four months.''
Just wait 4 months and get the proper order--circuit court of
appeals, then Supreme Court.
Faced with that, in chimes Justice Alito, brought onto the Court with
Leonard Leo at the White House helping make the selections. He
concludes saying:

A failure to stay this rule threatens to render our ability
to provide meaningful judicial review--and by extension, our
institutional legitimacy--a nullity.
Instead of robust judicial review, our opinion will be a
mere postscript.

Remember, this is a rule that won't have effect for 6 years, where
there will be a proper appellate court decision below in 4 months, and
all of that is intolerable to Justice Alito, a product of the
``billionaires/Leonard Leo'' court-packing operation.
And the closer is Justice Anthony Kennedy, who writes an unusually
brief

[[Page S1895]]

decision, compared to all the others, or a memorandum, compared to the
others, simply concluding: ``[F]airness to the parties counsels that we
should grant [the stay] now,'' and ``I agree with the recommendation of
the Chief.''
That gave the Chief the votes. They granted the stay, and the Clean
Power Plan died.
Mr. President, I ask unanimous consent that the remaining memoranda
that I referred to be printed in the Record at the end of my remarks in
the sequence in which I described them.
Mr. President, what is the backdrop to all of this? The backdrop to
all of this is the massive amount of harm that is caused by fossil fuel
emissions. The pollution is really astounding.
The International Monetary Fund most recently assessed the cost of
fossil fuel pollution and of its free-to-pollute business model in the
United States of America at $770 billion in 1 year--$770 billion in
benefit to the fossil fuel industry, a form of subsidy, from being
allowed to pollute for free and not being obliged to clean up its mess.
They are allowed to cause $770 billion worth of harm to Americans for
zero dollars.
When you are allowed to cause $770 billion worth of harm to ordinary
Americans for zero dollars, you have a massive motive to corrupt. You
have a massive motive to apply political influence. You have a massive
motive to take advantage of the dark money that you pressed the Supreme
Court to allow and authorize, and bring that to bear on Congress to
make sure that your $770 billion annual pollute-for-free subsidy is
protected.
What did you note about my discussion about the Court's conversation
on harm? What you should have noted is that 100 percent of the Court's
conversation on harm was on harm to the polluters. It was the only harm
that the Chief Justice mentioned or considered.
The entire argument about staying the Clean Power Plan hinged on
analysis of harm that only looked at the harm to the polluter. There
was no mention of climate change. There was no mention of the harm of
emissions. There was no discussion of the health damage from climate
change and what it is doing now and could be projected back then to do
to insurance markets; what it was causing in sea level rise; what the
ancillary pollution of fossil fuel that isn't climate change pollution
but is lead, mercury, SOX, NOX, particulate
matters, is doing.
They literally turned a blind eye to fossil fuel pollution measured
at $770 billion worth of harm, most recently--total blind eye to it--
and focused only on the harm that would be done to the fossil fuel
industry from having to comply with clean power rules.
Other studies have shown that the amount of money spent on the
operation to capture the Court--a short word on Court capture, it goes
back to the well-acknowledged notions of Agency capture or regulatory
capture in the bad old days. Mining interests would make sure that all
their friends were appointed to the mining safety commission so they
could know the mining safety commission would always give them the
answer that they wanted.
That is Agency capture.
In the bad old days, railroad barons would make sure that all their
friends and lackeys were appointed to the railroad rates commission so
they could be sure that all the railroad rates that were set were
advantageous to them and that they could make sure that they got the
rates that they wanted. That was called Agency capture.
It is a renowned phenomenon. It is written about constantly in
administrative law. There is a whole field of economics that studies
it.
What happened here is that Agency capture or regulatory capture was
brought to bear on the Supreme Court, and it has now turned into, in
essence, a captive body that does this bidding.
The number that I am referring to is the amount that was spent on
that Court-capture operation. People who do really good research have
dug into this, and at this point--more research will make the number
bigger certainly. But at this point, it looks like about $600 million--
million with an ``m''--was spent on the Court-capture operation.
Now, that is a lot of money. But it is not a lot of money if you are
defending a $770 billion annual subsidy that lets you pollute for free
when you shouldn't be allowed to do that and nobody else is allowed to
do that.
Protecting that $700 billion for $600 million is probably the most
lucrative investment the fossil fuel industry has ever made.
And if you pile up the years since the Clean Power Plan was stopped--
that was in 2016. Now, it is 2026--so 10 years. That subsidy number has
grown over the years as the International Monetary Fund has done a more
and more detailed and better job of figuring out all the added harms,
as harms are piling up.
So if you look at 10 years, it is not $7.7 trillion. It is probably a
number closer to $6 trillion. But think about that. What the Supreme
Court did in this one decision, by breaking all of its own rules and
looking only at the fossil fuel industry's harm, is to set loose $6
trillion worth of harm over the next 10 years that all of us have had
to pay for in health, in harm, in lost property values, in increased
insurance, in a myriad of different ways--$6 trillion, call it, over
those 10 years.
That makes $600 million to capture the Court that made that decision
an amazing payback, but a really, really dangerous payback for the
American public.
I will conclude by saying that whether you look at this as an aspect
of the scheme to capture the Court or whether you look at it as an
aspect of the endless fossil fuel pollution that is causing us to need
to wake up before it is too late--either way you look at it--the rot
runs deep around fossil fuel, and it seems to have infected the Court
right over there.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Supreme Court of the United States, Chambers of the Chief
Justice,
Washington, DC, February 6, 2016.
Re 15A773--West Virginia, et al. v. EPA, et al,; 15A776--
Basin Elec. Power Cooperative, et al. v. EPA, et al.;
15A787--Chamber of Commerce, et al. v. EPA, et al.;
15A778--Murray Energy Corp., et al. v. EPA, et al.;
15A793--North Dakota v. EPA, et al.

Memorandum to the Conference

I continue to believe that an immediate stay, as opposed to
the proposed order, remains the appropriate course of action.
Without a stay of the EPA's rule, both the states and private
industry will suffer irreparable harm from a rule that is--in
my view--highly unlikely to survive. The proposed order
simply recites that the applicants hay renew their
applications in light of changed circumstances, which is
always the case.
At the outset, I note that there are no ``aspects of this
rule that are not challenged here.'' The applicants challenge
the EPA's authority to promulgate the rule, period.
Regarding the specific points raised in support of the
proposed order:
As to the first point, I recognize that the posture of this
stay request is not typical, but review is sought of what has
been described as the most expensive regulation ever imposed
on the power sector--net costs have been estimated to run as
high as $480 billion from 2017-2031 (in present value). And
we have the very recent experience of the Mercury Air Toxics
Standards (MATS) rule, which confirms how EPA overreaching in
the absence of a stay in these unusual circumstances
effectively evades judicial review.
As to the second point, all stays--whenever issued--suggest
a view on the merits of the case. Indeed, a view on the
merits is one of the explicitly enumerated stay factors. See
Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsberg,
J., in chambers). There is nothing unique in that regard
about issuing a stay here. True, we do not have the Court of
Appeals' view on the matter. But while a reasoned decision
from a Court of Appeals is generally helpful in evaluating
the merits of a stay application, in this well-lawyered set
of applications the merits of the legal positions taken by
both sides seem clear. In my view, it is highly doubtful that
this Court will bless the EPA's expansive definition of the
phrase ``system of emission reduction.'' While the Solicitor
General argues that the word `` `system' is expansive,
encompassing a `set of connected things or parts forming a
complex whole' or a `set of principles or procedures
according to which something is done,' '' SG Response at 35
(quoting Oxford Dictionaries), that definition provides no
limiting principle at all. In any event, the applicable
standard for a stay is simply a ``fair prospect'' of success
on the merits. Conkright, 556 U.S., at 1402 (Ginsburg, J., in
chambers).
As to the third point, the proposed order is insufficient
to avoid irreparable harm. While the D.C. Circuit has
expedited briefing in this case, the court has not ``agreed
to issue

[[Page S1896]]

its decision on an expedited basis.'' It remains highly
likely that this Court will not issue a decision until 2018
at the earliest, long after the real-world impacts of the
rule would have been felt in the absence of a stay.
The proposed order forces each state to engage its
regulatory apparatus and expend resources well before that
date, and does nothing to limit the on-going, cumulative, and
irreversible harms that private parties are incurring each
day under the rule. For example, the EPA's models show that
the rule will cause shifts in the nation's power generation
now--a fact supported by the applicants' declarations. See,
e.g., No. 15A778, at 172A.
It does not assuage my concerns to note that if the
applicants lose in the Court of Appeals they ``remain free to
renew their application for a stay'' at that point. I have
little doubt that if the applicants renew their stay request
following the panel's decision, the opposing parties will ask
that we refrain from acting until the conclusion of any en
banc proceedings. And then again while we consider a petition
for certiorari, and then again while we decide the merits of
the case. While each of those discrete periods may only be
``several months,'' each passing day sees the rule further
entrenched--de facto if not de jure.
The comments of the EPA Administrator herself indicate that
without immediate action from this Court, this rule will
become functionally irreversible--like the ill-fated MATS
rule--before this Court can test its legality. When a BBC
interviewer asked Administrator McCarthy whether the
Administration's climate change policies would persist if a
new President adopted a different view, she responded:
``[O]n issues like the Clean Power Plan, we are, we are
baking that into the system. This is not a policy debate,
this is now a rule that's finalized, and it's [going] be
solid no matter what Congress wants to send. But more
importantly, every state is actively submitting, going to be
submitting their plans. They're working on them now.''
Interview of EPA Administrator Gina McCarthy by BBC World
News America (Dec. 7, 2015).
I am of the mind that a rule designed to transform a
substantial swath of the nation's economy should be tested by
this Court before it is presented as a fait accompli. But it
seems that the EPA is sufficiently confident of this rule's
immediate implications that not even the combined efforts of
Congress and the President could reverse its effects. The
agency, it would seem, has made a compelling case for the
applicants' claims of irreparable harm.
Sincerely,
John Roberts,
Chief Justice.
____

Supreme Court of the United States, Chambers of Justice
Stephen Breyer,
Washington, DC, February 5, 2016.

Re 15A773--West Virginia, et al. v. EPA, et al.; 15A776--
Basin Elec. Power Cooperative, et al. v. EPA, et al.;
15A787--Chamber of Commerce, et al. v. EPA, et al.;
15A778--Murray Energy Corp., et al. v. EPA, et al.;
15A793--North Dakota v. EPA, et al.

Memorandum to the Conference

I would issue an order in these applications along the
following lines:
Applications for stays having been submitted to The Chief
Justice and by him referred to the Court, the Court denies
the applications with the following qualification: Any State
that, after submitting a request for an extension consistent
with that described on page 59 of the Solicitor General's
Memorandum, does not receive such an extension may renew its
application for a stay with this Court. Any party may renew
its application for stay after the Court of Appeals for the
D.C. Circuit has issued its decision.
I prefer this temporizing order to a grant of these stays
for several reasons.
First, it is unusual for this Court to issue a stay of an
agency's order during the time that the Court of Appeals is
considering its lawfulness.
Second, issuance of the order now may prematurely suggest a
view on the merits of questions that now seem difficult. We
do not yet have the Court of Appeals' view of the matter.
Third, it is difficult at this point to say that the
absence of a stay will cause irreparable harm. With respect
to the private applicants, the order does not require any
company to take action for six years (until 2022). If they
lose in the Court of Appeals, they may ask us for a stay
then. While I concede that advance planning may be necessary,
I do not see how a few extra months will make a significant
difference. With respect to the States, the Solicitor General
points out that, to receive from the EPA a two-year extension
of the current September 2016 deadline (until September
2018), a State need only identify the approaches (if any)
under consideration, describe opportunities (if any) for
public input, and explain why the State requires additional
time. Allowing the EPA to entertain such requests in the
first instance has the virtue of allowing the agency to
proceed with those aspects of the rule that are not
challenged here, as well as giving the EPA the opportunity to
respond to requests for an extended deadline in the first
instance. If the EPA grants the requests, we will have more
than enough time to hear and decide the matter. If the EPA
denies the applicants' requests, they can quickly return to
us.
Moreover, all of the applicants remain free to renew their
applications for a stay when the D.C. Circuit issues its
decision, which it has agreed to do on an expedited basis.
Yours sincerely,
Stephen Breyer.
____

Supreme Court of the United States, Chamber of the Chief
Justice,
Washington, DC, February 5, 2016.

Memorandum to the Conference

I have received five emergency applications seeking a stay
of the EPA's Carbon Pollution Emission Guidelines for
Existing Stationary Sources: Electric Generating Units, 80
Fed. Reg. 64,662 (Oct. 23, 2015), also known as the ``Clean
Power Plan.'' Nationwide, by 2030, the rule ``will achieve
CO2 emission reductions from the utility power
sector of approximately 32 percent from CO2
emission levels in 2005.'' Id., at 64,665.
Within two weeks of the rule's publication, 27 states and
several labor unions, businesses and trade associations filed
petitions for review and applications for an immediate stay
from the D.C. Circuit. The D.C. Circuit denied the stay on
January 21, 2016, and the above-captioned applications renew
the request in this Court. On January 27, I requested a
response to No. 15A773, an application filed by 26 states. We
received a response from the Solicitor General yesterday. I
refer the applications to the Conference with my vote to
grant the stay, in order to preserve the status quo pending
judicial review. Absent a stay, the Clean Power Plan will
cause (and is causing) substantial and irreversible
reordering of the domestic power sector before this Court has
an opportunity to review its legality.
A stay is appropriate if there is (1) a ``reasonable
probability'' that four Justices will grant certiorari, (2) a
``fair prospect'' that a majority of the Court will reverse,
and (3) a likelihood of irreparable harm. Conkright v.
Frommert, 556 U.S. 1401, 1402 (2009) ((Ginsburg, J., in
chambers). In a close case, it may be appropriate to
``balance the equities.'' Id. See also Nken v. Holder, 556
U.S. 418, 429-430, and n. 1 (2009) (relief hom administrative
action evaluated under stay factors).
I have little doubt that whatever the outcome of the
proceedings in the D.C. Circuit, there will be a petition for
cert. I find it very likely that four members of this Court
will vote to grant the petition, again regardless of the
outcome below.
I also believe that there is a fair prospect for reversal.
The EPA promulgated the rule under Section 111(d) of the
Clean Air Act, which requires ``standards of performance''
for existing utility plants. See 42 U.S.C. Sec. 7411(d)(1)-
(2). The statute defines a ``standard of performance'' as ``a
standard for emissions of air pollutants which reflects the
degree of emission limitation achievable through the
application of the best system of emission reduction.''
Sec. 7411(a)(1). The EPA argues that the ``application of the
best system of emission reduction'' to a coal-fired utility
includes having that utility retire its coal-fired plants and
open (or invest in) natural gas or renewable energy
production.
That interpretation of Sec. 7411 represents a new approach
to the statute. Past rules under Sec. 7411(d) have
contemplated that utilities could comply with the articulated
``best system of emission reduction'' solely through
installation of control technologies (e.g., scrubbers)--which
seem to fit more comfortably within the statutory phrase. As
we noted two terms ago, agencies will face high hurdles when
they seek to use novel interpretations of a ``long-extant
statute'' to ``bring about an enormous and transformative
expansion in [their] regulatory authority without clear
congressional authorization.'' Utility Air Regulatory Group
v. EPA, 134 S. Ct. 2427, 2444 (2014). The applicants also
raise a strong argument that regulation of power plants under
Sec. 7412 precludes the EPA's promulgation of this rule under
Sec. 7411(d).
The applicants also meet the third criterion for a stay,
irreparable harm. The D.C. Circuit will hold oral argument on
June 2, 2016, so a cert petition is not likely to be
considered by this Court until this winter. Depending on the
timing of the D.C. Circuit's decision--and taking into
account the potential for en banc review--it is possible that
this Court will not rule on the merits until OT2017. Though
the rule does not require emissions reductions until 2022,
its impact is being felt now.
First, under the rule, states have the option to develop
their own suite of state regulations (subject to EPA
approval) to meet the rule's targets. If a state does not
submit a plan or seek a two-year extension by September,
2016, the EPA will impose a federal plan on the state's power
sector. The EPA represents that ``[t]he submission required
by September 2016 to obtain the extension is not
burdensome,'' SG Response at 59, and that extensions are
``readily obtained,'' id., at 54 but the applicants indicate
that they are currently in the process of committing time and
resources to compliance as the first deadline rapidly
approaches, see No. 15A773, at 41-42.
Second, and more disruptively, the EPA's own models show
that the rule will cause immediate shifts in power
generation, as the

[[Page S1897]]

industry must make changes to business plans today to meet
the 2022 requirements. The agency's models show that the
impact of the rule will reduce coal production for power
sector use by 2.0 percent in 2016 and 2017, and by 4.3
percent in 2018. See No. 15A776, at 764A-765A.
That harm, once incurred, is irreversible. Given the long
lead times and high capital expenditures required for the
construction of new plants, once a utility takes steps to
comply with the rule its actions are not likely to be undone.
As the EPA Administrator has stated, the Clean Power Plan is
being ``bak[ed] . . . into the system'' right now. Interview
of EPA Admin. Gina McCarthy by BBC World News America (Dec.
7, 2015). Solar plants are not built in a day.
Past experience makes the case for irreparable harm: On
June 29, 2015, we ruled that the EPA's Mercury and Air Toxics
Standards violated the Clean Air Act. See Michigan v. EPA,
135 S. Ct. 2699. One day later, the EPA announced that it was
``confident [it was] still on track to reduce'' the targeted
pollutants in part because ``the majority of power plants are
already in compliance or well on their way to compliance.''
Janet McCabe, Acting Asst Admin. for Office of Air and
Radiation, In Perspective: the Supreme Court's Mercury and
Air Toxics Rule Decision. In other words, the absence of a
stay allowed the agency to effectively implement an important
program we held to be contrary to law.
I recommend granting the stay.
Sincerely,
John Roberts,
Chief Justice.
____

Supreme Court of the United States, Chambers of Justice
Elena Kagan,

Washington, DC, February 7, 2016.

Memorandum to the Conference

I agree with Steve that we should direct the States to seek
an extension from the EPA before asking this Court to
intervene. We could also include, at the end of such an
order, language along the lines of the following, to
encourage the D.C. Circuit to act expeditiously in its
resolution of this matter: ``In light of that court's
agreement to consider this case on an expedited schedule, we
are confident that it will [or even: we urge it to] render a
decision with appropriate dispatch.'' See Doe. v. Gonzales,
546 U.S. 1301, 1308 (2005) (Ginsburg, J., in chambers); Kemp
v. Smith, 463 U.S. 1344, 1345 (1983) (Powell, J., in
chambers); Holtzman v. Schlesinger, 414 U.S. 1304, 1305, n. 2
(1973) (Marshall, J., in chambers).
The unique nature of the relief sought in these
applications gives me real pause. The applicants ask us to
enjoin a regulation pending initial review in the court of
appeals. As we often say, ``we are a court of review, not of
first view.'' See Cutter v. Wilkinson, 544 U.S. 709, 718 n. 7
(2005); cf. Doe, 546 U.S., at 1308 (``Respect for the
assessment of the Court of Appeals is especially warranted
when that court is proceeding to adjudication on the merits
with due expedition.''). As far as I can tell, it would be
unprecedented for us to second-guess the D.C. Circuit's
decision that a stay is not warranted, without the benefit of
full briefing or a prior judicial decision.
On the merits, this is a difficult case involving a complex
statutory and regulatory regime. Although the parties'
abbreviated discussion of the issues at stake here makes it
difficult for me to determine with any confidence which side
is likely to ultimately prevail, it seems to me that at this
stage the government has the better of the arguments. The
Chief's memo focuses on the applicants' argument that the
``best system of emission reduction'' refers ``solely [to]
installation of control technologies (e.g., scrubbers).'' 2/5
Memo, at 2. The ordinary meaning of ``system'' is in fact
quite broad, appearing to encompass what EPA has done here.
Of course, we would want to consider this term in the larger
context of the Clean Air Act's regulation of stationary
source emissions, and we might well decide to place some
limiting principle on that term. But I think the government
raises strong arguments that the regulation here falls within
a proper construction. Applicants' other statutory challenge,
not discussed in the Chiefs memos, requires us to reconcile
what appear to be two simultaneous and contradictory
amendments to the game statutory provision of a bill.
Applicants' limited submissions at this stage suggest that
the answer to that question will turn on a careful study of
the bill's history and Congress's procedures for codifying
session laws. See No. 15A778, at 13-23. Although those
questions are not easily resolved at this stage, I do note
that the applicants' reading produces a real anomaly: Power
plants producing only nonhazardous emissions would be
regulated under Section 111(d), but if a class of plants
produced any hazardous emissions regulated under Section 112,
that class's emissions of unhazardous emissions would be
wholly unregulable. I find it hard to believe that Congress
intended that outcome.
Further, I agree with Steve that the applicants have failed
to demonstrate the requisite likelihood of irreparable harm.
The State applicants' claim of irreparable harm is based on
their assertion that, absent relief, they will be required to
design and enact regulations to meet the Plan's emissions
targets. As Steve observes, though, a State can obviate those
harms by asking the EPA for a two-year extension of the
September 2016 deadline to submit its plan. I think it wise
to direct the applicants to first seek relief through that
more ordinary route before granting the drastic and unusual
remedy the States seek.
The two-year extension for the States is also likely to
obviate the industry applicants' claims of irreparable harm.
The rule itself imposes no obligations on any regulated
entity--rather, it is the regulations promulgated by the
States that do so. If the States secure extensions until
September 2018, then no State regulations are likely to be
promulgated before that date and, accordingly, no action will
be legally required of the industry applicants.
Moreover, the applicants' assertion that, absent relief,
they will have to begin preparing for those regulations by
taking coal plants out of service or beginning construction
on new, renewable energy plants in the limited time between
now and the issuance of the D.C. Circuit's opinion is both
entirely speculative and highly doubtful. The rule imposes no
requirement that any plant, or class of plant, be shut down.
Nor does it require that any particular type of plant be
constructed. Rather, it requires only that States meet an
overall emissions target--a goal it gives the States
significant discretion to pursue by adopting whatever means
they think best, including the adoption of more effective
scrubber technology, carbon sequestration techniques, or a
cap-and-trade system. I cannot imagine that a regulated
entity would take such extremes measures as shutting down a
coal plant in anticipation of State regulations that, when
promulgated, may not require anything of the sort.
That is especially true because the rule phases in its
requirements over an eight-year period. 80 Fed. Reg. 64786-
64786. While applicants' claims of harm seem to assume that
total compliance is required by 2022, the rule in fact
contemplates only a one percent emissions reduction in that
year. App. to U.S. Memorandum in Opposition 11a. It is
implausible that such a minor emissions reduction to be
achieved six years hence will require substantial and
irrevocable commitments of resources in the coming months. In
any event, under even the most generous reading of the
applications, the applicants' claims of irreparable harm
involve disputed issues of fact ill-suited for resolution by
this Court at this stage.
Sincerely,
Elena Kagan.
____

February 6, 2016.

Re 15A773--West Virginia, et al. v. EPA, et al.; 15A776--
Basin Elec. Power Cooperative, et al. v. EPA, et al.;
15A787--Chambers of Commerce, et al. v. EPA, et al.;
15A778--Murray Energy Corp., et al. v. EPA, et al.;
15A793--North Dakota v. EPA, et al.

Memorandum to the Conference

I agree with Steve's proposal and Elena's supplement to
that proposal. As Elena notes, it would be unprecedented for
us to grant a stay before any court has reviewed this
complicated and complex case. The statutory questions turn on
the interplay of several provisions of the Clean Air Act. I
agree with Elena that at first glance the government appears
to have the better argument. I do not think that the
Applicants' likelihood of success on the merits is so high as
to justify granting this extraordinary relief. More
importantly, I think our resolution of these issues will be
greatly enhanced by the views of the D.C. Circuit, full
briefing, and our considered, unhurried attention.
Moreover, the factual basis for the Applicants' claim of
irreparable harm seems hotly contested by the Government and
in tension with at least my cursory review of the record. For
example, the Chief's memos note that ``the EPA's own models
show that the rule will cause immediate shifts in power
generation, as the industry must make changes to business
plans today to meet 2022 requirements. The agency's models
show that the impact of the rule will reduce coal production
for power sector use by 2.0 percent in 2016 and 2017, and by
4.3 percent in 2018.'' 2/5 Memo, at 3.
The Government, however, has cautioned that the EPA model
is not intended to predict any immediate changes in power
generation, and that drawing any short-term inferences from
its highly stylized model is fraught with danger. According
to the Government, ``The simplifications and constraints
built into the Model mean that it is not designed to reliably
forecast the Rule's impacts on specific power plants,
particularly in the near-term period at issue here (i.e.,
during the pendency of this litigation).'' SG Br., at 66
(emphasis added). In a declaration an EPA official further
cautions, ``[b]ecause of the inclusion of simplified modeling
assumptions that do not capture all the implementation
flexibilities available to states, near term impacts on the
power sector in the policy case will be overstated.'' SG App.
49a (emphasis added). Indeed, during the notice and comment
period, industry commenters criticized the model for making
predictions about closures in 2016 and 2017 that were
overstated and empirically false. SG Br., at 67-68. To the
contrary, as the SG notes, no applicant has identified a
single real plant--as opposed to a hypothetical ``model
plant''--that is in immediate danger of closure absent a
stay. Id., at 65.

[[Page S1898]]

The Government takes the position that, in the short-term,
any plant closures are likely driven by long-term economic
trends towards gas-fired and renewable generation. Id., at
64. Similarly, the EPA noted in the preamble to the final
rule that its expected impact of the rule ``is fully
consistent with the recent changes and current trends in
electricity generation, and as a result it would by no means
entail fundamental redirection of the energy sector.'' 80
Fed. Reg. at 64,785
Similarly, the Chief's memo notes that the rule ``has been
described as the most expensive regulation ever imposed on
the power sector--net costs have been estimated to run as
high as $480 billion from 2017-2031.'' 2/6 Memo, at 1. That
is one view--a likely biased view, as the Chief's memo
recognizes.
The EPA's analysis of the economic costs, however, is
significantly lower. According to the EPA's Regulatory Impact
Analysis, which is specifically ``designed to assess the
overall impacts of the Rule on the energy sector and the
economy,'' the rule is estimated to reach an annual cost of
between $1-3 billion in 2025, and $5.1-8.4 billion in 2030.
SG App. 35a-37a. The cost ranges will firm up depending on
which plans states use--which, of course, underscores the
uncertainty of the impact of the rule on any particular
entity. Notably, the EPA takes the position that ``these
costs are in line with, and in some cases less than, the
costs of other CAA rules for power plants.'' App. 36a-37a
(emphasis added) (comparing with various programs).
Given these--and many other--unresolved factual disputes
and uncertainties, I fail to see how the Applicants have
shown an immediate risk of irreparable harm that justifies an
emergency stay on limited briefing before the D.C. Circuit
will hear argument on this regulation in just four months. I
think our review will be greatly aided by the views of that
court. As Steve notes, if states do not receive the two-year
extensions the Government represents they can easily obtain,
this Court would still be in a position to grant any
appropriate relief six years before any legal requirement
will be imposed on a regulated entity. I vote to deny the
applications for a stay.
Sincerely,
Sonia Sotomayor.
____

Supreme Court of the United States, Chambers of Justice
Samuel A. Alito, Jr.,
Washington, DC, February 7, 2016.

Memorandum to the Conference

I agree entirely with the Chief's most recent memorandum
and continue to believe strongly that a stay is warranted. In
my view, the applicants are very likely to succeed on the
merits of their claim.
I also agree with the Chief that the irreparable harm the
applicants face is immediate and significant. Any suggestion
to the contrary is inconsistent with the EPA's own Integrated
Planning Model (the economic model underlying the EPA's
Regulatory Impact Analysis of the rule), which explicitly
anticipates the rule will begin to reorder the domestic power
industry in 2016 (not 2022). The IPM model projects that the
country's composition of power generation will change in
2016, including through the closure of coal-fired plants. For
example, the EPA predicts that, in 2016 alone, the CPP will
cause the power sector to lose 5.1% of its coal-fired
generation capacity. See No. 15A776, at 765a (projecting, in
2016, 203 gigawatts of coal-fired capacity with the CPP,
compared with 214 gigawatts absent the CPP).
Sonia and the SG note that the EPA's model includes
simplifying assumptions. Certainly that's true of this model,
as it is of all models. Perhaps the model overstates (as the
SG contends is a possibility) or understates (as the industry
applicants contend) the current impacts of the rule. But it
is indisputable that the Agency's own model tells us to
expect a substantial shift in power generation right now
because of the rule. We should hold the EPA to its own best
analysis of when the ``generation shifting'' its rule
requires will begin. Surely the EPA may not rely on this
model to justify the cost-benefit analysis of its regulation,
but then disavow it as too ``uncertain'' on the question of
harm.
And this harm, once incurred, is by nature irreparable.
Coal plants are not shuttered--nor solar plants purchased--at
the drop of a hat. Of course, the Administrator knows this,
which is why she effectively implied that, if the rule is
allowed to continue in force, judicial review will be beside
the point. That leads me to what is, in my view, the most
pressing reason to grant a stay. A failure to stay this rule
threatens to render our ability to provide meaningful
judicial review--and by extension, our institutional
legitimacy--a nullity. Whether the Clean Air Act gives the
EPA the transformative authority it claims here is an
important question. If we fail to stay the rule and maintain
the status quo, our resolution of the merits will not matter
because the regulated parties will have complied. Instead of
robust judicial review, our opinion will be a mere
postscript.
Sincerely,
Samuel A. Alito, Jr.
____

Supreme Court of the United States, Chambers of Justice
Anthony M. Kennedy,

Washington, DC, February 9, 2016.

Memorandum to the Conference

The memoranda from the Conference have been very helpful.
In my view, a stay would be granted in four to six months in
any event, and fairness to the parties counsels that we
should grant it now. Therefore, I agree with the
recommendation of the Chief that the stay applications be
granted.
Sincerely,
Anthony M. Kennedy.

Mr. WHITEHOUSE. I yield the floor.
The PRESIDING OFFICER. The Senator from California.

S. Con. Res. 33

Mr. SCHIFF. Mr. President, it has been 13 months to the day since the
House first passed Donald Trump's ``One Big Ugly Bill,'' 290 days since
it was signed into law--the largest cut to healthcare in American
history; $1 trillion slashed for families, children, seniors, our most
vulnerable; billions taken away from hungry families; millions of
Americans pushed closer to poverty, closer to financial ruin; rising
costs.
And for what? To pay for tax cuts for the richest Americans, to give
big corporations another leg up, and to give ICE and CBP a budget so
astronomical it rivals the military budget of many industrialized
nations.
For the average American, it has been 290 days of lost opportunities
and less affordable healthcare; of harder conversations at the kitchen
table; of more sleepless nights worrying about how to get by; more
skipped meals; more doctor visits postponed; week upon week of American
families hoping against hope that this President and this Congress
might recognize the difficulty that they are facing, the struggle they
are enduring, the central promise that this President is breaking.
Day one of Donald Trump's final term is long past, but the prices--
much to the contrary of what he has promised--have not dropped. His
first 100 days are now 15 months ago, and still, inflation persists.
Indeed, it is worse.
Two hundred and ninety days into the lifespan of the President's
supposed signature legislative achievement, this ``Big Ugly Bill,'' and
life for so many Americans is not bigger, and it is not more beautiful.
At gas stations across America, the reality of Donald Trump's America
is clear. At grocery stores in California to the Capitol, that reality
is hitting people in their pocketbooks.
And we are not on the right track either--an illegal war in Iran that
has neither a clear goal nor an endgame, that has pushed prices higher,
that has rocked markets on a daily basis and made the summer road trip
that so many families were looking forward to the latest victim of
Trump's economy; a misguided tariff agenda that has been struck down by
the highest Court. But now this administration will only take steps to
return the billions in illegal duties it levied to the corporations
that charged them, not the Americans who paid them.
This body recognizes the immense strain that our constituents are
under. I know it does because people are making their discontent loudly
known at the ballot box and at public fora all over the country in the
red States and the blue States alike.
I can assure each and every one of you watching that Members of
Congress understand the American dream is slipping out of reach. We
know that you are worried about making ends meet. We understand that
you are agonizing over whether you can keep your business afloat or
what opportunities will be there for your kids.
We have heard your stories. We understand the dread you feel as you
near the first of the month, the fear that is all too real when you
open the mailbox, unsure of what surprise bill will arrive and tip your
family into bankruptcy, the terrible math that you must use to decide
which dose of medicine or which meal you can afford to skip just to
keep the lights on. This is the reality for so many Americans, and we
understand that.
It might be--I don't know--worse, if you could just accuse the
Congress of

[[Page S1899]]

being in the dark, if we were somehow blind, rather than a majority of
this body willfully turning a blind eye to the struggles of regular
people.
But as I stand here recounting to you the myriad ways in which the
past year of Trump's America has gotten harder--a reality that you live
every day--Republicans are getting ready to act on their next big
budget resolution, not to help drive down costs, not to address the
healthcare crisis, not to do something to help. No, their grand plan to
address our Nation's challenges is asking the American taxpayer to give
even more money out of their pocket, out of their bank account, to ICE
and Border Patrol agents.
An out-of-control police force that has killed Americans and
terrorized our streets, and they want more money for CBP and ICE
without even a modicum of reform. Now, how is that supposed to help
your life? And the short answer is: It isn't. There is nothing in this
bill to make your healthcare, your energy, or your housing more
affordable. Nothing.
So if there is no money, no billions in this bill to improve the
quality of your life, just what are my colleagues proposing to spend
these billions on? And it is this: on Agencies that have shot and
killed American citizens in our streets, in broad daylight, on video,
for exercising their constitutionally protected right to free speech;
the agents that have broken into homes, refused to show their faces or
their badges, and taken children from their parents; this run-amok
force that has defied court orders, detained citizens and people with
lawful status, denied them basic medical treatment, which has resulted
in an unprecedented number of deaths in immigration custody and denied
their constitutional rights.
ICE and CBP get $140 billion in this bill after getting close to $170
billion less than a year ago, for a whopping total of $340 billion. I
am sorry, but that is an insane amount of money. That is more than we
give to the Marine Corps and the FBI and the DEA and all the other
Federal law enforcement Agencies combined.
So if you take the money from the Marine Corps, one of our incredible
military services, and you add it to the money for law enforcement
Agencies like the FBI and the DEA and the ATF, and you add it all
together, it isn't a fraction of what we are giving to just these two
pieces of immigration enforcement. That is what they get.
That is what these Agencies get: $340 billion. And you? You get
nothing. You get not a dime. After putting more than $3 trillion on the
Nation's credit card to give tax breaks to the rich and to give these
Agencies the funding to arm themselves to the teeth, after taking your
healthcare dollars and plowing them into heavily armed and ill-trained
ICE agents, they want to put even more money into what is becoming
Trump's private army.
A Gallup poll released last month found that about 1 in 3 adults,
U.S. adults, the equivalent of about 82 million people, reported having
made at least 1 daily life trade-off in the past year to pay for
healthcare expenses. That is 39 million Americans stretching a
prescription longer than the doctor recommended; it is 38 million
Americans going into debt to pay a medical bill; it is 28 million
Americans skipping a meal. One in nearly every 10 Americans reporting
the cutback on utilities or on the amount they are driving. And that
was even before gas prices spiked thanks to Trump's Iran war with no
solution in sight.
And we see these impacts playing out across the country in realtime,
month after month, week after week, hospitals are shutting down,
clinics are closing, workers are laid off, services are canceled, and
families are paying more out of pocket and going without the care they
need.
Earlier this year, a hospital in Oakland, CA, announced plans to lay
off 300 medical staff because it is projected to lose more than a
hundred million a year thanks to the ``Big Ugly Bill.'' Another
hospital in Santa Rosa, CA, had to shutter its pediatric unit; Corona,
CA, lost its labor and delivery unit; clinics in Madera and Fresno had
to lay off staff. There are so many of these stories, and thanks to the
trillion-dollar Medicaid cut forced by Republicans in their last
budget.
And where layoffs or service cuts were not enough to balance the
budget, a worse fate awaited these healthcare providers. Clinics in
Compton, Gilroy, Santa Cruz, San Mateo, and South San Francisco all
closed their doors thanks to Donald Trump.
Thousands of Californians, all now without a place to go for medical
care; that is if they can afford care at all.
Our insurance Marketplace in California saw a 30 percent decline in
enrollment as premiums spiked to sometimes double what they were paying
for their healthcare before the ``Big Ugly Bill.''
But healthcare--let's face it--it is not the Republican priority.
This is something they are not willing to fund. This is not something
in this bill.
Instead, we are asked to fund immigration Agencies that have already
seen their budgets explode and their accountability erased by this
administration.
For months, Democrats have sought on behalf of the families and
communities terrorized by ICE to enact basic guardrails, reforms, and
oversight of their conduct; to mandate they wear body cameras and clear
identification, just like any other law enforcement agency; to stop the
use of excessive and deadly force, and to guarantee that when they do
there is accountability in the form of truly independent
investigations; to mandate the use of judicial warrants so that when
they are going to someone's home, as the Constitution requires, they
have a judicial warrant; to stop racial profiling and the targeting of
schools and churches.
All of this for a reason: So we don't have more tragic victims like
Alex Pretti or Renee Good or the people that have died in detention
centers like Luis Beltran Yanez-Cruz or Gabriel Garcia-Aviles, a list
that is already far too long.

Now, bear in mind, these reforms that I have mentioned are all wildly
popular with the American people, and we have worked in good faith to
try to secure these very basic guardrails, saying clearly until these
commonsense measures can be implemented, we would vote not for one more
dime for these Agencies that have taken lawless instructions from the
likes of Stephen Miller and Greg Bovino.
But the administration and my Republican colleagues don't want to
solve the problem of excessive use of force from ICE and CBP; they
don't want the accountability; they don't want the reform. And so they
will use this budget and reconciliation process to bypass the need for
changes to how ICE and CBP operate, to jam more money through without
Democratic support, and to advance a budget that contains literally not
a single dime for healthcare, hospitals, food and groceries, energy
bills, nothing but more money for ICE and CBP.
And the terrible tragedy is that we in this Chamber, we here could
meet this challenging moment in our Nation when people cannot afford
the cost of living.
We could meet that need with a budget that would help people in need.
John F. Kennedy on his first day of office stood on the west steps of
the Capitol and said:

If a free society cannot help the many who are poor, it
cannot save the few who are rich.

For every day of Donald Trump's second term, he has sought only to
save the rich, to help those that already have so much, to line pockets
that are already so deep; and in doing so, he has revealed his campaign
rhetoric to be just that, just words.
My Republican colleagues may see this as a convenient way to avoid
our demands for accountability, but the American people will see this
as a failed opportunity for the GOP as it squanders perhaps the last
chance in the 119th Congress to act meaningfully on making America
affordable again.
The attempt to sell the ``Big Ugly Bill'' has failed. The American
people were not fooled, neither will they be fooled now, because the
billions wasted and the millions hurt will not go unnoticed. There will
be an accounting, if not now, then in November.
And the American people's rejection of this President's agenda will
be big, and in its own way, it will be beautiful. It will certainly be
necessary.
If we are ever to make this economy work for people again, we must
reject more money for lawless agents in favor of more money for
healthcare for the American people.
I yield the floor.
The PRESIDING OFFICER. The Senator from California.

[[Page S1900]]

Mr. PADILLA. Mr. President, if you look anywhere across the country
right now, what you will see more than anything else is working
families, countless Americans struggling just to get by; struggling
with skyrocketing prices at the pump; struggling with rising costs of
healthcare premiums; struggling to afford groceries, their
prescriptions, to pay their rent or their mortgage. Many struggling
just to keep the lights on at home.
You would think that the Republican majority would recognize that and
dedicate time on this floor of the Senate to prioritize a discussion
and proposals to bring down costs for working families; but, no,
instead we are focusing once again on immigration and, specifically,
whether or not to give even more money to ICE and CBP.
So I think it is important for us to lay out to the American people
why we are in this position. Republicans created this mess last year
when they passed their ``One Big Anything But Beautiful'' bill.
But rather than fix that mess through commonsense reforms, as we have
suggested, their solution is to throw even more money at these Agencies
that have been acting for a year now with little regard to the rule of
law, to dump $140 billion in the same out-of-control immigration
Agencies that have created chaos in American communities for the past
year, the very same ICE and CBP that Republicans already gave $140
billion to last year.
That is over seven times ICE's typical annual funding and more than
four times the typical annual appropriations for CBP. That was last
year.
And what did they do with that money? Before we entertain should we
give them even more, let's see what they did. They went on a so-called
Defend the Homeland hiring spree. They brought on unqualified recruits
who were deployed into communities across the country with clearly
insufficient training. Let me lay it out. Let me break it down for us.
In just 6 months, ICE doubled its number of agents from 10,000 to
over 22,000--more than doubled. And the only way to reach those numbers
is to cut a bunch of corners and to lower standards. And so that is
what they did.
They dropped the minimum age for ICE officers to just 18 years old,
and they reduced the required training to 47 days--47 days. Let me put
that figure into context.
To be a DC Metropolitan Police officer here in the streets of our
Nation's Capital, it takes 28 weeks of training. Basic training at the
Federal Law Enforcement Training Center is 12 weeks. The Los Angeles
Police Department, where I am from, that takes 6 months of training
before you are on the job. But to be an ICE officer, just 47 days, and
then you are given a gun and a badge and deployed into the field.
We have seen the records that DHS has rushed applicants through a
very sloppy vetting process. It has led to the hiring of numerous
officers with questionable backgrounds, clearly unfit to do these jobs.
We have also seen reports that about a third of the recruits at the
ICE training academy failed what is considered a relatively easy
physical test. And a number of others were sent home because they
failed a written exam which, by the way, a written exam on which they
could use textbooks and notes, but they still failed.
Here is a quote from an article by the Associated Press that really
shines a light on what is happening with this hiring spree:

Two bankruptcies and six law enforcement jobs in three
years.

This is a description of one officer.
Here is another:

An allegation of lying in a police report to justify a
felony charge against an innocent woman--an incident that led
to a $75,000 settlement and criticism of his integrity.

How is that for a description of an ICE officer?

A third job candidate once failed to graduate from a police
academy, then lasted only three weeks in his only job as a
police officer.
Their common bond: All were hired recently by U.S.
Immigration and Customs Enforcement during an unprecedented
hiring spree . . . after the agency received a $75 billion
windfall from Congress.

Don't take my word for it, colleagues--actual reporting.
So let's, again, assess where we are. Republicans gave ICE and CBP
$140 billion. And the Trump administration used it to hire people with
questionable qualifications, questionable histories, questionable
temperaments, and questionable ability to do the job.
And you are going to tell me you are surprised by the chaos and the
violence that we have witnessed unfolding in the streets across America
this last year? If you are hiring all these unqualified people,
encouraging them to act with impunity, you throw out the rule books and
the training manual and ensure that there is little or no oversight and
accountability, it is entirely predictable that chaos will ensue and
especially when they are led from the top by people who regularly
dehumanize others, whose goal is to inflict pain and cruelty on
immigrants and refugees as deterrents. It is exactly what we are
seeing.
We are seeing agents knocking down doors to homes without a judicial
warrant in violation of the law. We are seeing cars being driven off
the road, their windows smashed in, their occupants literally dragged
out through broken windows, and some, like Marimar Martinez, shot
multiple times.
We are seeing indiscriminate raids sweeping up hard-working people
who are just trying to provide a better life for their family,
including legal immigrants with work authorizations.
We are seeing American citizens hurt simply for exercising their
First Amendment rights, like 21-year-old Kaden Rummler, who permanently
lost his vision in one eye after being shot by agents at close range.
And, of course, we saw--we all saw, the whole country saw, the whole
world saw--two U.S. citizens, Renee Nicole Good and Alex Pretti--killed
by Federal agents on camera in broad daylight.
So, yes, Democrats are demanding commonsense reforms to address this
outrageous behavior. You should be too. And the commonsense reforms we
are talking about are nothing other than policies that State and local
law enforcement officers across the country already have to abide by.
Instead, Republicans continue to refuse, and that is why we are here
today, because as Democrats, we refuse to give a single dollar more to
an out-of-control, unaccountable Agency.
We are demanding oversight. We are demanding these commonsense
reforms, not just to protect people's rights but to protect people's
lives.
Instead, what do our Republican colleagues want to do? They want to
hand over another--another--$140 billion of taxpayer money, even
though, by the way, for the fiscally responsible ones of you, the
Congressional Budget Office says that ICE and CBP still have $103
billion in unspent funds from last year's bill. That is right. ICE is
sitting on $63.2 billion of its funding from last year's bill. That is
84 percent of the funding from last year. And CBP is still sitting on
$40 billion--62 percent of its funding--from last year's bill.
So what are we even doing here? They have a ton of money left over
from last year's bill they haven't even spent--they can't spend it fast
enough--and you want to give them more. You would rather give them more
when they don't need it than negotiate necessary changes to these
Agencies.
That is outrageous, and it comes at a time when President Trump says:
Oh, we don't have enough money to help people with daycare. We don't
have enough money for Medicare and Medicaid. We have to cut those
programs.
But, clearly, he and you all believe we have enough money to give
another $140 billion to these ICE Agencies. By the way, that is on top
of the $1 billion a day that we are spending in this unauthorized war
in Iran.
If we are going to use this budget reconciliation process for
anything right now, we would rather be using it to help working
families afford the basics. Let's use it to help bring down healthcare
costs. Let's help bring down gas prices. Let's bring down the cost of
food and housing and utilities. That would be worthy of our time, not
this sham--not this sham.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.

S. Con. Res. 33

Mr. GRAHAM. Mr. President, we are going to start reconciliation. I
think we all know what that means; that is Latin for ``a long night.''

[[Page S1901]]

But why are we here? We are here to make sure that the Department of
Homeland Security, the ICE division and Border Patrol, are funded.
Now, why are we here? Our Democratic colleagues have refused to
provide funding for the Border Patrol and ICE at a time of great threat
to our country.
So what are we doing? We are trying to use the reconciliation process
to get money to secure the border and not shut down enforcement of our
immigration laws.
Our friends on the other side sat on the sideline and watched the Joe
Biden administration allow 11 to 15 million illegal immigrants to come
into this country in a 4-year period. We have been dealing with that
mess ever since we have been in charge.
ICE--count me in for reforming ICE. We tried to have some reforms,
but you refused. You refused to give a dollar, guys, because, in your
view, ICE is the problem. I think the illegal immigration invasion that
was allowed by Joe Biden and condoned by you is the problem. It is not
the ICE agents that are the problem; it is the millions of people who
came here illegally, and only God knows who they are and exactly where
they are.
So we are not going to stop trying to enforce immigration laws. We
have to. We are trying to clean up a mess, a national security threat.
Let me be really clear. In 2022, 2023, and 2024, we had a tremendous
spike of people that came into the country under Biden on the Terrorist
Watchlist. We don't know where all these people are. It went from,
like, nothing to a bunch. Everybody in the world was told: If you can
get to the American border, you are home free. Good guy, bad guy; good
gal, bad gal--they came. They came by the millions.
One reason they came is because there was a policy called sanctuary
cities. It is really sanctuary States. There are about 15 States that
refuse to enforce Federal immigration law. There are cities that will
not turn over an illegal immigrant to the Federal Government for
deportation when they are eligible to be deported. It is creating
chaos.
There are 10,000 criminals who were released by sanctuary policies
who went on to be arrested for additional crimes and $9 billion in
fraud stolen by Somali immigrants in Minnesota alone. Fifty-nine
percent of illegal immigrant households are on government welfare
programs, costing taxpayers $42 billion a year.
These sanctuary cities create a magnet. People all over the world
believe that if you can get to one of these cities or States, you will
never get deported. Why? Because the people running those cities and
those States refuse to turn illegal immigrants over to the Federal
Government--laws that were established long before Donald Trump became
President of the United States. Some of these people they refuse to
turn over are dangerous--very dangerous.
Abdul Jalloh comes in illegally in 2012; 30 arrests, including rape,
malicious wounding, and assault. ICE submits a formal detainer to
deport Jalloh. The request is blocked by the Virginia attorney for
Fairfax County, a Soros-backed prosecutor and defender of sanctuary
cities who ignored the detainer. In May of 2025, he is arrested one
more time for stabbing an individual in the leg, but he is released
again. In February 2026, Jalloh brutally murders Stephanie Nicole
Minter.
Look at this. If that doesn't disgust you, something is wrong. This
is disgusting. This is what happens when you have sanctuary policies.
This is what happens when people fail to enforce Federal law.
The Virginia attorney for Fairfax County refused to work with the
Federal Government. This guy stayed out. In May, he commits a crime,
stabs a guy in the leg. In February 2026, he brutally murders Stephanie
Minter.
That happens all the time, way too much.
Last week in Spartanburg, SC, two boys were killed by an illegal
immigrant in a drunk-driving car crash. He was a ``got-away.'' He came
across the border, and he literally got away. He was able to take
advantage of lawless open borders to enter the United States
undetected.
The victims were 12-year-old Dereon James Robinson and 9-year-old
Mikhail'Lee Smith--killed by somebody who shouldn't have been here to
begin with, an illegal drunk driver.
In April 2025, a University of South Carolina student was killed in a
hit-and-run crash by an illegal alien. Fernandez-Cruz, a native of El
Salvador, illegally crossed the U.S.-Mexican border on an unknown date
but was arrested by the Border Patrol in Hidalgo, TX, on December 24,
2016. He was released the next day, which I guess was Christmas, and
issued a notice to appear as DHS initiated removal proceedings. The
victim was 21-year-old Nathaniel Baker. They had him and let him go.
In March 2025, a mother of two was murdered in Rock Hill by a group
of six illegal immigrants. This heinous crime was committed by a gang
of six illegal aliens in a random robbery attempt that ended deadly.
The victim was Larisha Sharell Thompson, 40 years old, a mother of two.
On and on and on--I can read you too many of these things.
Laken Riley was a young lady killed in Georgia. The man was detained
at the border--her killer, Jose Ibarra--and was released because they
had no bedspace in 2022. He went to New York, found his way back to
Georgia, and killed this young lady. He was loose because of the lack
of detention space.
All I can tell you is that--what are we trying to do to make sure
this never happens again? It happens over and over and over. So we are
here tonight to do something Democrats won't let us do that must be
done.
Seventy billion dollars will be allocated to fully fund the Border
Patrol and fully fund ICE through the entire term of President Trump's
second term, for 3\1/2\ years--one and done. I wish we could do more,
but we are going to do for 3\1/2\ years. We are going to give DHS--the
Border Patrol and ICE--the money to pay their people and to conduct
operations to make sure what I described never happens again.
Why are we here? We passed everything in the appropriations bill in a
bipartisan manner except this. Our Democratic friends wanted to pick a
fight about this. No money for the Border Patrol. No money for ICE. No
reforms of ICE; just no money.
We are not going to let that stand. We are going to fix that. So
Republicans, starting today and hopefully by the 1st of June, will
create a process so that we can get the money that ICE and the Border
Patrol need to keep your families safe, to enforce illegal immigration
violations--ICE--to have money and people on the border at a time when
terrorism is through the roof.
We are having to do this through reconciliation because the
appropriations process failed only here. These are the two accounts we
couldn't get money for. It says a lot about the state of play where our
Democratic colleagues are. In their world, not paying the Border Patrol
seems to be an acceptable outcome. Really? With terrorism rampant all
over the world, a war with the largest state sponsor of terrorism,
Iran, heated up and fully running? Really?
ICE. We tried to have--we had reforms, but you said no to the
reforms. You said no money at all. Putting these people out of business
really is dangerous when you have millions of people still in this
country illegally.
So, tonight, we are going to start the process to pass a budget
resolution that will instruct two committees--Homeland Security and
Judiciary--to report back to us a reconciliation bill that will be $70
billion in spending. That will allow the Border Patrol and ICE to be
fully funded through the rest of President Trump's term so we can be
safe.
I am sad we are having to do this, but you gave us no choice. The day
that you said no to funding the Border Patrol and the day you wanted to
put ICE out of business is the day that, as the Budget chairman, I and
my colleagues acted. We are not going to let this happen. We can fix
this with Republican votes, and we will.

Every Democrat has opposed money for the Border Patrol and ICE in a
time of great peril and we are going to fix that and it starts tonight.
And in the coming weeks, we are going to get it done.
We are going to make sure that the Federal Government honors its
obligation to protect the American people.

[[Page S1902]]

And there is no bigger responsibility of the Federal Government than to
secure our own border, to enforce our laws that have been on the books
for decades. This is the primary job of the Federal Government. We will
be talking about everything but this over the coming days, tonight, and
into the future.
This needs to be done. And I am not saying other things don't need to
be done. But this has to be done. It will be done. We are going to get
this right. We are going to fully fund for 3\1/2\ years the Border
Patrol so they have money they need to pay their people to protect us,
and we are going to continue to enforce immigration law by fully
funding ICE. We are going to do that, and we are not going to fail. We
cannot fail. The world is too dangerous to fail.
So to my Democratic colleagues, you have taken a path that blows my
mind in this regard. Don't you see the same world we do? Reform makes
sense. We had reforms. You threw them out because, I guess, the hardest
of the hard on your side insists not one dime for the Border Patrol,
not one dime for ICE.
The American people are not where you are at, and I hope the American
people will understand tonight that we, the Republicans, fixed this
problem, and we couldn't find a partner on the other side. Sad but
true.
We are going to succeed. We are going to fix this problem. Working
with the Trump administration, we are going to secure that border. It
is the most secure I have ever seen it in my life. What President Trump
has done is amazing.
We are not going backward. What the Democrats want us to do is not
fund ICE, not fund the Border Patrol, to go back to the policies that
reigned during the Biden years. We are not going back to the Biden
years. We are going forward.
I yield the floor.
The PRESIDING OFFICER (Mr. Schmitt). The Senator from Idaho.

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