Executive Session

Floor Speech

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Mr. CORNYN. Mr. President, now that the so-called nuclear option has been averted and the Senate can now turn its attention to other matters of substance, rather than internal matters of how the Senate operates, I think it is important we evaluate how legislation that has passed this body is working. I wish to focus specifically on the Affordable Care Act, which is better known as ObamaCare.

Amazingly, Senator Reid on Sunday, in one of the talk shows, was quoted as saying: ``ObamaCare has been wonderful for America.'' The House minority leader, former Speaker Pelosi, has said that implementation of the health care law has been fabulous.

This stands in stark contrast to what Senator Max Baucus, chairman of the Senate Finance Committee and one of the principal Senate architects of ObamaCare, has said--what he told Secretary Sebelius, the Secretary of Health and Human Services--that the implementation of ObamaCare is a train wreck in the making.

And then you contrast that with what President Obama himself said about the Affordable Care Act, about ObamaCare, and he said it is ``working the way it is supposed to.'' Well, not all of those things can be true at the same time, and they are not. Indeed, in the real world, unfortunately, it looks as though ObamaCare is a slow-motion disaster in the making.

Notwithstanding the President's comments that it is working the way it is supposed to, the administration seems to be acknowledging by its own actions that it is not working the way it is supposed to. Indeed, the administration has chosen to delay the so-called employers mandate, and they have begun to admit what Americans have been saying since at least 2010 when ObamaCare passed--that it has simply proven to be unworkable.

Rather than accept the reality and support full congressional repeal of the law, the administration is instead refusing to enforce the law and is choosing to apply it selectively. The law clearly states that as of January 2014 all businesses with 50 or more full-time employees have to provide their workers with health insurance or else pay a penalty. To be clear, I didn't support the Affordable Care Act--ObamaCare--but that is what the law says. Our Democratic colleagues, 60 of them in the Senate, and the majority in the then-Democratically controlled House passed the law and President Obama signed it, and that is what it says. But the President has chosen to take unilateral action and to refuse to enforce the law that he himself signed and that congressional Democrats passed without a single Republican vote.

Whether you supported it or you didn't support it, many of us now are forced to acknowledge and I would think the administration itself would be forced to acknowledge, that the law simply is not working as advertised. It is now obvious that the employer mandate has prompted many businesses to reduce the number of hours and transform full-time jobs into part-time jobs in order to avoid the employer mandate. This has contributed to a surge in the number of people working part-time jobs for economic reasons. Last month alone that number was 8.2 million people--8.2 million Americans who would like to have full-time work but simply can't find it, in large part because of the implementation of ObamaCare.

As I said, I voted against ObamaCare 3 years ago. I remember being in this Chamber on Christmas Eve at 7 a.m. in 2009 when our Democratic colleagues passed ObamaCare without a single vote from this side of the aisle. Many of us were voicing concerns about the provisions of ObamaCare, including the employer mandate, long before it became law. The problems with the mandate will, of course, still be there in 2015 notwithstanding the 1-year unilateral delay by the administration, and they reflect broader problems in the Affordable Care Act as a whole.

I believe the most commonsense thing we can do is simply to repeal it and to start over and replace it with patient-centered reforms that actually address the biggest challenges that face most families in America.

The President said: If you like what you have in terms of your health coverage, you can keep it. Millions of Americans are now finding that not to be the case. The President said a family of four will find their premiums reduced, on average, $2,500. Actually, rather than a reduction in cost, they are finding their premiums are going up and will go up even more when ObamaCare is implemented.

My point is that whether or not you voted for ObamaCare, it is important that we now acknowledge the sad reality that it is not working the way even its most vigorous proponents wished it would. Indeed, it seems to be working out in a way most of its critics thought it would.

But what is important now is that we work together to give permanent relief to this public policy train wreck for individual Americans and for small businesses. That is actually how we are supposed to function under our Constitution. Even under uniformly Democratic control, as the Congress and the White House were the first 2 years of this President's term, if things don't work out the way even the most ardent proponents of a piece of legislation wish and hope it will, then our job under the Constitution is to work together to try to provide some relief and solutions for the American people. That is true whether you objected to the law in its first instance or you simply supported it. If it turns out not to work as advertised, it is our job to fix it, and we can do so by replacing it with high-quality care that is more affordable and is much simpler to use. Rather than have the Federal Government dictate to you and your doctor what kind of care you are going to get and under what terms, you can, in consultation with your private doctor, make those decisions in the best interest of yourself and your family.

The bigger problem is that President Obama is simply deciding which aspects of the law to enforce and which not to enforce, and that is becoming somewhat of a trend, based on political convenience and expediency. Time and time again he has made clear that if a law passed by Congress and signed by the President--whether it is him or another President--is unpopular among his political supporters, he will simply ignore it and refuse to enforce it.

Shortly after ObamaCare became law, the administration began issuing waivers from the annual limit requirements, which made it seem as if certain organizations--oftentimes labor unions--would simply be exempted from and would receive preferential treatment based on their political connections. Meanwhile, to help implement ObamaCare, the IRS has announced it will violate the letter of the law and issue health insurance subsidies through Federal exchanges, especially in those places where the States have declined to issue State-based exchanges, even though the law makes clear these subsidies can only be used for State exchanges.

Let me restate that. The law says you can only use taxpayer subsidies for State-based exchanges, but because many States have simply said that this makes no sense for them and are refusing to create State-based insurance exchanges, these individuals will now be in the Federal insurance exchange. And even though the law says taxpayer subsidies are not available for those, the IRS is papering over that provision of the law and simply disregarding it.

Again, we have seen this time and time again. We saw a similar disregard for the rule of law during the government-run Chrysler bankruptcy when the company-secured bondholders received much less for their loans than the United Auto Workers' pension funds. Even though, under the law, these bondholders were entitled to the highest priority in terms of repayment, they were subjugated to the United Auto Workers' pension fund basically in an exercise of political strong-arming.

We saw this again in the Solyndra bankruptcy. Remember that? The Obama administration violated the law by making taxpayers subordinate to private lenders. In other words, they put the taxpayers on the hook rather than the private lenders who helped finance Solyndra.

More recently, the administration--and this is something that is in the news as recently as today--made unconstitutional recess appointments to the National Labor Relations Board and to the Consumer Financial Protection Bureau. The District of Columbia Court of Appeals held that the administration's argument in defense of its so-called ``recess appointment power'' would ``eviscerate the Constitution's separation of powers.'' It now appears, as part of the so-called nuclear option negotiations, that even the White House is now being forced to withdraw these nominees who were unconstitutionally appointed and offer substitute appointees.

We also know that the Obama administration unilaterally chose to waive key requirements of the 1996 welfare reform law and the 2002 law known as No Child Left Behind.

A government run by waiver or by the Federal Government picking winners and losers is the antithesis of equal justice under the law. Look across the street at the Supreme Court of the United States, and above the entry it says: ``Equal justice under law.'' That is the very definition of our form of government, which is designed for a congress comprised of duly-elected representatives of the American people and the President of the United States to write legislation that applies to everybody and not to issue waivers or exemptions or to simply refuse to enforce the law because it has proven to be inconvenient or not politically expedient.

The U.S. Constitution obligates the President to make sure all of our laws are faithfully executed. Yet, with President Obama, the pattern is unmistakable: inconvenient or unpopular legal requirements are repeatedly swept aside by Executive fiat.

If the law is not working the way it is supposed to, the President should come back to Congress and say: We need to amend the law. We need to replace this unworkable law with one that will actually serve the interests of the American people.

But we are not seeing that happen. We are seeing the White House decide on its own that it simply won't enforce a law. Last year, for example, the administration unilaterally announced a moratorium on the enforcement of certain immigration laws. In effect, when Congress failed to pass legislation the President wanted, the President himself simply decided not to enforce the immigration laws. As that example shows, this administration has frequently relied on unelected bureaucrats to override the people's elected representatives.

It is simply improper and unconstitutional under our system for the President to decide unilaterally that he is not going to enforce the law. For example, when Congress refused to enact the so-called card check for labor unions, the administration simply turned to unelected bureaucrats at the National Labor Relations Board. And when Congress refused to extend cap-and-trade energy taxes, the administration turned to unelected bureaucrats at the Environmental Protection Agency to attempt to accomplish the same objectives indirectly that had been prohibited by Congress because it couldn't get a political consensus for doing it directly. Indeed, the President has now authorized the Environmental Protection Agency to regulate virtually every aspect of the American economy without congressional approval and without recourse to the American people.

When Congress makes a mistake, when we do something the American people don't approve of, they get to vote us out of office if they see fit. That is not true with this faceless, nameless bureaucracy, which is rarely held accountable, and particularly when the President delegates to that bureaucracy the authority to regulate in so many areas and avoid congressional accountability and accountability at the White House.

Taken together, all these measures represent a basic contempt for the rule of law and the normal constitutional checks and balances under separated powers. After witnessing the President's record over the past 4 1/2 years, is it any wonder why the American people and, indeed, Members of Congress were skeptical about his promises to enforce our immigration laws under the immigration bill that passed the Senate recently?

Remember all of the extravagant promises that were made for border security, for interior enforcement, for the implementation of a worksite verification system, for a biometric entry-exit system to deter 40 percent of the illegal immigration that comes when people enter the country illegally and simply overstay their visas? If after 17 years the Federal Government still isn't enforcing those laws already on the books, how in the world can the American people have any confidence whatsoever that the President and Congress can be trusted to enforce the laws that it passes?

After witnessing the President's performance, I think the American people are deeply skeptical of his promises of future performance, and his selective enforcement of our existing laws undermines public confidence in the Federal Government.

I believe the executive overreach I have described is corrosive to democratic government.

If a Republican President had ignored these kinds of constitutional checks, had refused to enforce laws he didn't like, refused to defend in court laws he didn't like, and used Federal agencies to flout the will of Congress, you can be sure our friends on the other side of the aisle would be complaining nonstop about the imperial President. Yet they have largely given President Obama a pass.

But whether you agree with the President on health care, immigration, energy policy, card check or other hot-button issues, we can all agree--we should all agree--that government should not be picking winners and losers and that we urgently need to restore the rule of law and faithful execution of those laws to their rightful place in the highest reaches of the Federal Government.

I yield the floor and I suggest the absence of a quorum.

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