Reallocate Ebola Funds to Address Zika Threat

May 13, 2016

With the warm, muggy weather of summer fast approaching and the spread of the Zika virus continuing to ascend northward from South America, many Americans are worried that mosquito-borne transmission of Zika may become a reality in the continental United States. And there is good reason for concern: Puerto Rico, the U.S. Virgin Islands, and American Samoa have already seen cases of Zika transmitted by local mosquitoes, and there have been several travel-associated cases of Zika in the 50 states.

Although the virus has relatively mild symptoms and is rarely fatal, infection during pregnancy may cause severe birth defects and neurological conditions, making Zika a major threat to pregnant women and their unborn children. That’s why several states have called on the federal government to provide emergency funds to help them marshal the public-health resources they need to protect their citizens from the potential spread of Zika.

Next week the Senate will debate these requests and will likely consider several measures, as amendments to an appropriations bill, that take dramatically different approaches to paying for the resources needed to prevent an emerging Zika crisis at home.

Two of the amendments take the discredited “spend now, pay later” approach that the American people have repeatedly rejected. Both Senator Nelson’s amendment and Senators Blunt and Murray’s amendment fail to specify how Congress would pay for the $1.9 billion and $1.1 billion, respectively, that they authorize for Zika-related prevention and treatment. With our national debt quickly approaching $20 trillion, we simply cannot afford to continue to spend money the government doesn’t have.

A more fiscally responsible approach is taken in Senator Cornyn’s amendment, which would use a portion of an Obamacare slush fund, the Prevention and Public Health Fund, to pay for $1.1 billion of Zika funding. While this is a much smarter use of taxpayer dollars, Senate Democrats, who remain committed to defending every last feature of Obamacare, will likely prevent the amendment from receiving the support it needs to pass.

But this doesn’t mean the Senate is out of options. There are other ways to help fight Zika without driving the country further into debt. Indeed, with an annual federal budget of approximately $4 trillion, there are trillions of ways Congress can provide the money we need to prevent an outbreak of Zika without adding a dime to the deficit.

The most obvious place to find the money we need for emergency Zika-response efforts is the account Congress established back in 2014 to combat the Ebola epidemic, which currently has more than $2 billion in unused federal funds – more than enough to cover Zika-related expenses.

Taking money that was authorized to address a foreign threat that no longer exists and bringing it back home to fight a new and emerging mosquito-borne threat that risks harming Americans may be the most logical approach, but that doesn’t mean Senate Democrats won’t find it politically expedient to block any such measure in order to perpetuate their favorite myth that Republicans are heartless obstructionists.

But of course, the Senate is not controlled by the Democratic Party. So the question is: will we let them get away with it?

A Step Forward with Electronic Communication Privacy

April 29, 2016

If a law-enforcement agency suspects that you have committed a crime, it must go before a judge and obtain a warrant in order to have the right to listen to your phone calls.

But thanks to a woefully outdated federal law – the Electronic Communications Protection Act (ECPA) – those same law-enforcement agencies do not need a warrant to read your emails. All they have to do is wait 180 days from when you sent an email and then tell whichever third party handles your account (like Gmail or Yahoo) that the correspondence is relevant to an ongoing criminal investigation. That’s all it takes for the FBI, CIA, NSA, and a host of other law-enforcement agencies to gain access to your email account. And this can occur without you even knowing.

This is an affront to American values and a violation of the Constitution’s Fourth Amendment.

At the time ECPA was created in 1986 – way back when desktop computers weighed more than a desk and floppy disks were actually floppy - electronic communications were still in their infancy. Little, if any data, was ever saved for very long, so it seemed sensible to write the law in a way that gave government agencies warrantless access to “abandoned” digital records.

But the world has changed a lot since 1986. Thanks to low-cost electronic data storage, virtually everything we do online now is recorded forever. And more to the point, to an extent unimaginable in 1986, our personal and professional lives today are conducted through – and therefore captured by – our email correspondence. (Just ask Hillary Clinton.)

So it is long past time to modernize ECPA and ensure that our constitutional protections against warrantless search conform with the technological realities of the 21st century. And that is exactly what would happen under the Electronic Communications Privacy Act, which passed the House of Representatives 419-0 on Wednesday.

Under the Electronic Communications Privacy Act, law-enforcement agencies would still be able to use subpoenas to acquire from electronic-communications firms routing information, customer names, session-time records, and other non-content information that they may need to conduct an investigation. But the private content of our emails and other personal electronic files would be protected.

The Electronic Communications Privacy Act is a commonsense reform that can help prove to the American people that our federal government still works. The Senate should take up this legislation soon.

Moving Toward a Pro-Family, Pro-Growth Tax System

April 22, 2016

The most dreaded day of the year is, once again, behind us. Tax Day is more than a bureaucratic filing deadline, it is an ignominious monument to our dysfunctional tax code – everyone’s annual, visceral reminder that our tax code is too costly and too complex, and that complexity is itself a cost.

Some pay this cost in the form of filing fees to tax-software companies, like Turbo Tax, or accountants. For others, the cost of complexity is measured in time. The Taxpayer Advocate Service estimates that Americans spend more than 6.1 billion hours every year doing their taxes. Six billion hours – that’s more time than the entire federal workforce will spend working this year.

But there are other, even less visible, costs that our tax code imposes on the American people.

Take the corporate tax, for instance. Listening to our political debates, it’s easy to think that taxes on corporations are borne by, well, corporations. Many on the left argue that corporations aren’t paying their “fair share,” while others on the right respond by pointing out that American corporations already pay plenty of taxes under the current corporate rate of 35 percent, the highest in the developed world.

But this misses the point: corporations don’t pay taxes, people pay taxes. As any economist – or business owner – will tell you, when the government taxes a business, that burden translates into lower wages for the firm’s employees (everyone from the CEO to the janitor), higher prices for consumers, or reduced capital for investors (as the business has less money to boost its value by investing in innovation and expansion).

The exact distribution of the corporate-tax burden varies from one firm to the next, but the non-partisan Joint Committee on Taxation estimates that, on average, at least 25 percent of the corporate tax burden falls on workers. That means that reducing the corporate rate would have real, immediate benefits for American workers and families.

So if conservatives want to win a mandate for pro-family, pro-growth tax reform, we must make a concerted effort to explain to the country that lowering the corporate tax rate doesn’t give a tax break to corporations (there’s no such thing!) – it leads to increased wages and expanding job opportunities for American workers.

United States v. Texas

April 15, 2016

Next week the Supreme Court will hear oral arguments in United States v. Texas, the case challenging President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA). This is the program the president created through executive action in 2014 to suspend federal immigration law for more than four million aliens living in the United States illegally, granting them “lawful presence,” work authorization, and access to a host of government benefits.

The questions at the heart of the case are whether DAPA is contrary to federal law – such that the Executive branch used powers it simply does not have under existing law – and whether the process by which President Obama established DAPA failed to abide by the notice-and-comment rulemaking requirements set forth in the Administrative Procedure Act (APA).

The Obama Administration’s lawyers maintain that DAPA is a lawful exercise of the Executive’s statutory authority under the Immigration and Naturalization Act (INA), and is therefore exempt from the procedural requirements of the APA. But this argument rests precariously on a strained reading of federal law and a biased view of history.

There’s no question that DAPA is contrary to federal immigration law. The INA specifically delineates the criteria under which an illegal alien may obtain a lawful immigration status on the basis of his or her child’s immigration status. And it places a strict annual upper limit on the number of individuals who may receive such adjustment of status. With DAPA, President Obama simply rewrote these statutory provisions, loosening the requirements and bypassing altogether any numerical limitations.

The real debate in this case is whether President Obama’s substantial revisions of the law fall within the boundaries of “prosecutorial discretion,” which gives executive-branch agencies limited authority to establish enforcement policies that prioritize the allocation of limited resources. The Obama administration maintains that DAPA is no different from deferred-action programs of the past, but an honest assessment of the historical record proves the opposite to be true.

Whereas former presidents have always reserved deferred action to provide temporary relief to narrowly tailored groups – often no more than one thousand individuals per year – President Obama is trying to use it to grant amnesty to more than four million foreign nationals living in the United States illegally.

While the politics of immigration may be controversial, as a legal matter, the facts of the case are clear and should form the basis of the Supreme Court’s opinion: by adopting the DAPA program, President Obama broke the law, usurped Congress’s authority to regulate immigration, and violated his constitutional duty to “take Care that the Laws be faithfully executed.”

Congress Has Duty to Respond to FCC’s Open Internet Order

April 8, 2016

Many condemned this week’s news that Netflix has reduced the quality of its video stream for certain wireless customers as a violation of the Federal Communications Commission’s year-old Open Internet Order, or what’s commonly called “net neutrality.” However, several FCC commissioners have stated that they have no power to prevent Netflix from doing this, as net neutrality applies only to Internet Service Providers.

Even those who consider themselves net neutrality advocates can appreciate this problem: different standards apply to different companies just because a recently updated New Deal-era law says so. Why can one company be allowed to decrease the quality of its service to consumers while others are prohibited from altering their models to best suit consumer demands?

This situation demonstrates the central problem of the FCC’s net neutrality policy: an unaccountable government agency picks winners and losers, with the ultimate losers being American consumers who miss out on faster speeds and better quality at lower prices.

This onerous regulation has already hindered several money-saving options consumers could utilize. Innovative programs like T-Mobile's "Binge-On" are attacked under the pretense of net-neutrality concerns, even though they give consumers increased access to popular content at no additional cost. Meanwhile, some more restrictive services – like Netflix – are not subject to the same amount of regulatory scrutiny by net-neutrality proponents.

This real-world case proves that unelected bureaucrats should not write regulations that pick winners and losers while ignoring the cost-benefit consequences for consumers. And when regulators do unfairly place the government’s thumb on the scale of a free and open marketplace, Congress has a duty to respond.

That's why I introduced, along with several of my colleagues, the Restoring Internet Freedom Act. This bill will repeal the FCC's net neutrality rules and set the stage for more comprehensive reforms of federal technology policy, allowing for creativity and innovation that drives down costs and improves the lives of all consumers exponentially.

Instead of expanding the scope of an 80-year-old law beyond recognition, we should trust the good judgment and common sense of the American people to decide what works and what doesn't. This has been our nation's way since its inception: the belief that ordinary men and women – not distant, unelected bureaucrats – make their own decisions. The Restoring Internet Freedom Act is an important first step towards increasing competition in the technology marketplace, which will only benefit consumers as innovation intensifies, services improve, and prices drop.

Preventing America’s Looming Fiscal Crisis with a Balanced Budget Amendment

March 18, 2016

Nearly everyone in America understands what it means – and what is required – to live within a budget. Regardless of zip code or economic status, most people can spend only as much as they earn. One person’s paycheck may be twice the size as his neighbor’s, but neither may continually spend beyond their means.

The one glaring exception to this rule is the United States Congress.

The problem isn’t simply that Congress spends more money than it brings in through taxes and other sources of revenue. The problem is that Congress has consistently proven itself to be incapable of exercising fiscal discipline and irresistibly attracted to perpetual deficit spending.

Of course, the Constitution gives Congress the power “[t]o borrow money on the credit of the United States,” in Article I, Section 8. But our staggering levels of debt prove Congress is unable to exercise this power responsibly.

The U.S. national debt clock website helps put the federal government’s spending crisis into perspective. It shows that our national debt isn’t just astronomically large – it’s also constantly increasing, at a rate of thousands of dollars every second!

Currently, the total national debt hovers just above $19 trillion, which means that each American’s per capita share equals nearly $60,000, and a family of five can be said to own a portion of the national debt valued at more than a quarter million dollars.

Saddling future generations with a debt burden of this size is not just fiscally irresponsible – it’s immoral. And yet every recent attempt at spending restraint in Congress has failed. Budget cuts have been repeatedly postponed. Spending caps have been ignored or sidestepped with accounting gimmicks. The so-called debt limit has been raised routinely as a matter of course.

The problem with each of these failed attempts to impose fiscal discipline on Congress is that they are short-term. What we need are permanent structural limits on the government’s power to borrow and spend. Specifically, what we need is a constitutional amendment that requires Congress to balance its budget each year, subject only to limited and difficult-to-invoke exceptions.

A Balanced Budget Amendment was the subject of a hearing this week in the Senate Judiciary Committee entitled, “Preventing America's Looming Fiscal Crisis: The Need for a Balanced Budget Amendment to the Constitution.” As the hearing’s witnesses discussed, adopting a balanced budget amendment would be a difficult, time-consuming endeavor. But it may be the only step still available to fix the underlying problem and permanently end Congress’s addiction to deficit spending.

Obama’s Latest Attempt to Govern by Flat

March 11, 2016

After seven years in office, it is now very clear what President Obama does when Congress refuses to do his bidding: he simply ignores the lawmaking branch and tries to use raw power to change the law by fiat.

He did it on immigration to grant amnesty to millions of illegal immigrants. He did on education to force Common Core on the states. And now he is doing it again to try to rewrite our nation’s privacy laws.

In 1994, Congress passed and President Clinton signed the Communications Assistance for Law Enforcement Act, which determines the requirements facing technology companies when law-enforcement agencies want their help with criminal investigations.

Specifically, the law states that it “does not authorize any law enforcement agency or officer to require any specific design of equipment, features [...] or system configurations to be adopted by any [...] manufacturer of telecommunications equipment.”

In other words, a mobile phone manufacturer, like Apple, can’t be forced to create a backdoor key for law-enforcement agencies to use to access any phone they want.

For years President Obama sought to change this law, but Congress disagreed.

So when one of the San Bernardino terrorists failed to destroy one of his three mobile phones, which was owned by the county for which he worked, President Obama saw his chance to rewrite the law through the courts.

The Federal Bureau of Investigations (FBI) is now claiming in federal court that the All Writs Act, passed in 1789, empowers the law-enforcement agency to compel Apple to create new software that will allow to get FBI agents into the terrorist’s phone.

Earlier this week, in front of the Senate Judiciary Committee, President Obama’s Attorney General, Loretta Lynch, testified that there was no link between the president’s failure to change the law in Congress and the FBI’s decision to use the All Writs Act to achieve the same result through the courts.

But a federal judge in Brooklyn, New York, who received a similar All Writs Act request from the FBI exposed President Obama’s tactics. In a February 29 ruling, Magistrate Judge James Orenstein wrote: “It is also clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts (in proceedings that had always been, at the time it filed the instant Application, shielded from public scrutiny) rather than taking the chance that open legislative debate might produce a result less to its liking.”

“Indeed,” Orenstein continued, “on the very same day that the government filed the ex parte Application in this case [...] it made a public announcement that after months of discussion about the need to update CALEA to provide the kind of authority it seeks here, it would not seek such legislation.”

People of good faith can have honest disagreements about what tech companies should or should not be compelled to do by law enforcement. But the proper place for that debate and policymaking process is Congress, not the courts.

The Obama Amnesty Loophole

March 4, 2016

Speaking from the White House Rose Garden on July 15, 2012, President Obama promised the American people about his new Deferred Action for Childhood Arrivals program, “Now, let’s be clear – this is not amnesty, this is not immunity. This is not a path to citizenship.”

Now, more than ever, this statement has proven to be blatantly false.

Shortly after Obama first announced his DACA program, the Legal Action Center of the American Immigration Council published a “practice advisory” alerting immigration lawyers to a legal loophole that could be exploited to turn an illegal immigrants DACA status into a green card and eventually citizenship.

Here’s how it works: aliens who legally enter the United States but do not have a valid visa, have long been allowed to apply for “advance parole,” an immigration document that allows aliens to re-enter the United States after traveling abroad.

The statute says the federal government can only grant advance parole on a case-by-case basis and only for “urgent humanitarian reasons” or “significant public benefit.” But after Obama announced DACA, the United States Citizenship Services office announced that for DACA recipients “significant public benefit” now included “educational purposes, employment purposes, or humanitarian purposes.”

Later USCIS guidance added that “educational purposes include, but are not limited to, semester abroad programs or academic research.” This means that a DACA recipient who came to the country illegally, could now apply for advance parole, travel home to Mexico for “semester abroad” and then legally re-enter the United States.

Voila. Thanks to DACA and Obama’s advance parole loophole such semester-abroad studying DACA recipients have magically changed from illegal to legal immigrants. They are now on a path to citizenship.

It is unclear how many illegal immigrants have taken advantage of this program so far. According to a 2015 Department of Homeland Security report to the House Judiciary Committee, 4,566 DACA recipients had been granted advance parole status at that time. And word is spreading. California newspapers are reporting that professor across the state are bringing more and more students across the border to Mexico and back, just so they can take advantage of this loophole.

This week, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and I wrote a letter to DHS Secretary Jeh Johnson demanding answers, specifically how many DACA recipients have received advance parole, how many have been paroled back into the United States, and how many have tried to adjust their immigration status after they have re-entered.

We will keep you updated on what we hear back.

Bringing Freedom Back to the Internet

February 26, 2016

A year ago today, five unelected bureaucrats at the Federal Communications Commission (FCC) decided to exploit an 80-year-old law meant for regulating radio, telephone, and telegraph operations, in order to begin regulating the Internet.

As unprecedented a step as this was, it was not the first time FCC bureaucrats attempted a takeover of the Internet.

More than five years ago, the FCC released its Open Internet Order of 2010, a set of new regulations designed to appease so-called "net neutrality" activists who had been fighting for more government control over the Internet.

But Americans fought back — and they won. The Internet service providers challenged the new FCC regulations in federal court, arguing that Title I of the Communications Act of 1934 did not give the FCC the authority to implement net neutrality regulations. And in 2014, the United States Court of Appeals for the D.C. Circuit issued a decision holding that the FCC had exceeded its authority to regulate Internet providers as "information services" under Title I.

Undeterred, and forever striving to expand their powers, the bureaucrats at the FCC did not give up. The next year they released their Open Internet Order of 2015, this time reclassifying Internet service providers as common carrier utilities, which is what AT&T was in 1934 when the federal Communications Act was first passed.

Back in the 1930s, it may have made sense for the FCC to protect consumers from a single company with monopoly control over an emerging communications technology. But we live in the 21st Century, and the Internet today is categorically different from telecommunications technology from the Great Depression era. Today, with numerous providers fighting over multiple platforms to offer consumers the best experience, the FCC's anachronistic approach will only stifle Internet-drive innovation, which will only hurt the consumers it claims to protect.

The reality is that the Internet has already taught us that the best way to protect free speech online is to keep the Internet open and free from cronyist bureaucratic control, allowing permissionless innovation to produce new and dynamic technologies that empower and connect people. That's why Congress should take up and pass the Restoring Internet Freedom Act. This bill will repeal the FCC's net neutrality rules and set the stage for more comprehensive reforms of federal technology policy.

Instead of expanding the scope of an 80-year-old law beyond recognition, we should trust the good judgment and common sense of the American people to decide what works and what doesn't. This has been our nation's way since its inception: the belief that ordinary men and women – not distant, unelected bureaucrats – make their own decisions. The Restoring Internet Freedom Act is an important step in that direction.

Providing Equal Treatment to Home Educators

February 12, 2016

One of America’s most distinctive and exceptional qualities is the spirit of liberty embodied in our people and in our institutions. And there is perhaps no better expression of the American ethos of liberty than the belief that parents have the inalienable right – and indeed the responsibility – to direct the education of their children. Nowhere else in the world will you hear from parents what is widely held as a self-evident truth in households across America: that no one is in a better position to make decisions about a child’s education than his or her parents or guardians.

The premise of the homeschool movement in America is that parents do not forfeit this essential right to educate their own children just because they pay taxes to finance a public school system. It is also the reason liberty-minded policymakers have created various financial tools to ease the burden on parents using their own money to pay for their child’s educational expenses. For instance, Coverdell education savings accounts give parents the option to deposit up to $2000 annually of their pretax income into a special account that grows tax free and can be used to pay for qualified education expenses.

Coverdell accounts were created by the federal government, but they do not constitute a federal education “program” – they are a creature of the tax code. Participation is not mandatory, and it comes with no “strings attached.” It’s just one of many financial tools available to parents designed to preserve and protect their fundamental right to direct the education of their children. But there’s a problem: under the current system, Coverdell accounts aren’t available to all parents. Because of differences in state laws, homeschool parents have the option to sign up for a Coverdell account in only 14 states.

There are essentially two ways to fix this disparity between the states’ homeschooling families: either the states can act, which would require action by each of the 36 states where home educators are currently ineligible for Coverdell accounts, or Congress can amend the law’s eligibility requirements so that homeschool parents can access the savings provided by Coverdell accounts.

As we wait for the states to act, Congress should do what is within its power to ensure that federal law treats home educators fairly and equally, no matter what state they happen to live in.

That’s exactly the purpose of Section 201 of the “Enhancing Educational Opportunities for all Students Act,” which stipulates that, for the purposes of determining Coverdell account eligibility, the term “private school” includes “any home school that meets the requirements of State law applicable to such home schools.”

This is not, as some critics allege, a federal redefinition of home school. Nor does it change any state’s laws. It is a narrowly tailored amendment to federal law that resolves the unequal treatment of home educators under current law. Congress would be wise to pass the Enhancing Educational Opportunities for all Students Act at the earliest opportunity. Doing so would affirm the distinctively American idea that parents have a fundamental, God-given right to direct the education of their children.