EXECUTIVE SESSION
(Senate - September 19, 2017)

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[Congressional Record Volume 163, Number 151 (Tuesday, September 19, 2017)]
[Pages S5825-S5835]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to resume consideration of the 
Francisco nomination, which the clerk will report.
  The senior assistant legislative clerk read the nomination of Noel J. 
Francisco, of the District of Columbia, to be Solicitor General of the 
United States.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 11 a.m. will be equally divided between the two leaders or their 
designees.
  If no one yields time, time will be charged equally to both sides.


                   Recognition of the Majority Leader

  The majority leader is recognized.
  Mr. McCONNELL. Mr. President, later today, the Senate will vote on 
the nomination of Noel Francisco to become our Nation's next Solicitor 
General.
  The Office of Solicitor General is responsible for representing the 
United States in litigation before the Supreme Court. It is a very 
important office, and Mr. Francisco is very well qualified to lead it. 
His private sector resume is impressive, and his public sector service 
is remarkable.
  He clerked for a towering figure on the Supreme Court, the late 
Justice Antonin Scalia. During the administration of President George 
W. Bush, he worked in the White House Counsel's office. He is currently 
serving as a senior advisor in the Justice Department, after having 
served as Acting and Principal Deputy Solicitor General earlier this 
year.
  Mr. Francisco has successfully argued a number of complex cases 
before a number of courts, including, notably, the case of the National 
Labor Relations Board v. Noel Canning before the

[[Page S5826]]

Supreme Court. In that matter, he represented the plaintiff, Noel 
Canning, in its successful challenge to President Obama's unlawful so-
called recess appointments.
  That case is especially important for this body because the Supreme 
Court's unanimous 2014 decision in favor of Noel Canning reaffirmed 
that the Senate, not the President, possesses the clear constitutional 
authority to prescribe the rules of its own proceedings.
  Noel Francisco is a great choice for this tough job, and I urge 
colleagues to join me in supporting him.


                               Tax Reform

  Mr. President, this morning the Senate Finance Committee is hosting 
another of a series of hearings on comprehensive tax reform. The 
President, his team, and many of us here in Congress are in agreement 
that passing tax reform is the single most important action we can take 
today to energize the economy and help families get ahead.
  Our Tax Code is overly complex and has rates that are too high. 
Chairman Hatch and members of the committee are working to improve 
American competitiveness under a simplified Tax Code that works better 
for all of us.
  Last week, the committee's hearing examined how to make the Tax Code 
work better for American individuals and families. Today, the Finance 
Committee is discussing the consequences of our outdated Tax Code for 
American businesses and workers.
  In an increasingly competitive global economy, our Tax Code stands as 
a barrier between American enterprise and economic prosperity. It 
actually incentivizes companies to shift good American jobs overseas. 
That doesn't make any sense at all. What we should be doing is working 
to bring them home. Comprehensive tax reform offers the chance to do 
so.
  This is our once-in-a-lifetime opportunity to fundamentally rethink 
our Tax Code. We want to provide American businesses, small and large, 
with the conditions they need to form, invest, grow, and hire. We want 
to stop American jobs from being shipped overseas. We want to bring 
jobs and investments home so we can spur economic growth and restore 
opportunity for our families.
  After 8 years of a heavyhanded Obama economy, in which it often 
seemed that only the ultrawealthy could get ahead, it is time to help 
working class families and small businesses get ahead. It is time for 
comprehensive tax reform.
  Many of our Democratic colleagues have expressed support for an 
overhaul of the Tax Code. I hope they will choose to work with us in a 
serious way to modernize our increasingly outdated tax system.
  I want to thank Chairman Hatch for his leadership, and I look forward 
to this morning's hearing and more hearings to come, as we continue to 
discuss our tax reform goals.
  I want to thank the President and his team, as well, for their strong 
involvement.
  Comprehensive tax reform is clearly a top priority for this White 
House, just as it is for this Congress. So let's deliver more 
opportunity for the middle class. Let's continue the hard work of tax 
reform to help American families and small businesses get ahead.


                               Healthcare

  Mr. President, the men and women we represent have suffered a lot 
under ObamaCare: skyrocketing costs, plummeting choices, and collapsing 
markets. Many of us thought our constituents deserved better. That is 
why we did as we promised and voted to repeal this failed law so that 
we could replace it with something better.
  The forces of the status quo went all out to defeat our every effort 
to improve healthcare. Thus far, they have succeeded. Thus far, they 
have yet to offer truly serious solutions of their own.
  Last week, our colleague from Vermont rolled out healthcare 
legislation that would quadruple down on the failures of ObamaCare. It 
envisions what is basically a fully government-run, single-payer 
system--the kind of system that would strip so many Americans of their 
health plans and take away so many decisions over their own healthcare, 
that would require almost unimaginably high tax increases, and that 
already collapsed, interestingly enough, in the Senator's home State of 
Vermont when they tried to do it.
  This is a massive expansion of a failed idea, not a serious solution, 
but Democrats are coalescing around it anyway. They apparently think 
this massive expansion of a failed idea is what America's healthcare 
future should look like. You can be sure that they will do everything 
in their power to impose it on our country.
  But we don't have to accept it as our future. That is certainly what 
Senators Graham and Cassidy believe. They rolled out a healthcare 
proposal of their own last week. It would repeal the pillars of 
ObamaCare and replace that failed law's failed approach with a new one, 
allowing States and Governors to actually implement better healthcare 
ideas by taking more decision-making power out of Washington. Governors 
and State legislators of both parties would have both the opportunity 
and the responsibility to help make quality and affordable healthcare 
available to their citizens in a way that works for their own 
particular States.
  It is an intriguing idea and one that has a great deal of support.
  As we continue to discuss that legislation, I want to thank Senator 
Graham and Senator Cassidy for all of their hard work. They know how 
important it is to move beyond the failures of ObamaCare. They know 
that our opportunity to do so may well pass us by if we don't act soon.
  The ACTING PRESIDENT pro tempore. The majority whip.


                             FISA and CFIUS

  Mr. CORNYN. Mr. President, as the subway attack in London last week 
proves all too well, when terrorism goes underground, it doesn't 
disappear. Every day there are individuals operating in the world's 
shadows in places like the Parsons Green station in Fulham. They mean 
to do our allies and us great harm, and they are not going away.
  As President Trump said last week, in this era in which attacks like 
that in London are the new normal, we have to be proactive. We can't 
take our security for granted. We can't naively assume that when it 
comes to threats like that and others even bigger, our country is out 
of the woods. One way to be proactive and to keep our country safe is 
to reauthorize section 702 of the Foreign Intelligence Surveillance 
Act.
  Earlier this month, Attorney General Jeff Sessions and Director of 
National Intelligence Dan Coats sent a letter to congressional 
leadership calling for this reauthorization. It is easy to see why. 
Title VII of the Foreign Intelligence Surveillance Act allows the 
intelligence community to collect vital information about international 
terrorists, cyber actors, and other important foreign intelligence 
targets. Information collected under one particular section--section 
702--produces particularly important foreign intelligence that helps 
prevent terrorist attacks and malign state actors as well. It does so 
by focusing on non-U.S. persons, which is important, because, as it is 
called, it is foreign intelligence surveillance. It focuses on non-U.S. 
persons located outside of the United States who are foreign 
intelligence targets.
  But that is not all. Just as importantly, section 702 also includes a 
comprehensive oversight regime to make sure the privacy of U.S. persons 
is protected under the Constitution. That is done by not only oversight 
here in the Senate and in the House through the intelligence committees 
but also by the Foreign Intelligence Surveillance Court, which monitors 
compliance with the law.
  There has been some criticism of this provision, but I must say that 
the overwhelming support for the section 702 reauthorization is quite 
remarkable in this polarized environment in which we live. Even the 
Privacy and Civil Liberties Oversight Board gave the program a ringing 
endorsement.
  But the criticism that has been made is actually based on very few 
actual facts and often reflects a misunderstanding, both of the purpose 
of FISA and the controls that constrain government action. Just to be 
clear, section 702 does not allow intelligence personnel to evade the 
Fourth Amendment to the U.S. Constitution. It may not be used to 
intentionally target a citizen of the United States. That citizen could 
be in New York or New Delhi. It simply doesn't matter. He or she is off 
limits.

[[Page S5827]]

  Section 702 also does not allow for bulk collection or the unlimited 
dissemination of intelligence that is obtained. Rather, the 
government's capabilities are specifically circumscribed.
  Finally, section 702 does not ignore the possibility that 
intelligence personnel will inadvertently obtain information about U.S. 
persons, but that statute requires intricate procedures to minimize 
this type of incidental collection to make sure that American citizens 
are not swept up in foreign intelligence surveillance targets.
  Because of these safeguards, section 702 achieves a careful balance, 
preserving privacy and civil liberties while giving our intelligence 
personnel the flashlights they need to find terrorists and other 
adversaries operating in the dark.
  This careful balance is why scholars at the U.S. Naval Academy, 
commenting on section 702, summarized that ``there is simply no good 
case for not reauthorizing when it comes up for renewal.''
  I say to my colleagues that the time for renewal is fast approaching. 
That is why today I join the Attorney General and the Director of 
National Intelligence in recommending the speedy enactment of 
legislation reauthorizing title VII before it sunsets later this year.
  Section 702 is only one piece of our dense security puzzle. It 
complements many other pieces of legislation that were designed to 
handle our incredibly diverse array of threats, and I just want to 
mention one other.
  We need to strengthen the Committee on Foreign Investment in the 
United States, also known as CFIUS. Yesterday we passed the National 
Defense Authorization Act which contains an important CFIUS provision. 
I would like to thank the senior Senator from Arizona, the chairman of 
the Armed Services Committee, as well as the ranking member, the senior 
Senator from Rhode Island, for including it in the National Defense 
Authorization Act, which we approved yesterday.
  This provision is critically important, as it could help strengthen 
the process by which we screen investment by foreign companies to 
ensure that our military superiority and our technological edge is not 
whittled away by foreign governments that might use our technology 
against us or to undermine our industrial base here in the United 
States.
  As my colleagues know, many national security threats don't make the 
headlines. Some of them emerge gradually. They develop quietly when 
countries like China begin acquiring American technology in every way 
possible, knowledgeable of our laws, and with a conscious strategy to 
try to evade and circumvent those protections in order to grab our 
technological edge and undermine our industrial base.
  It has been reported that the Chinese Government has already made 
investments in robotics and artificial intelligence, pouring some $30 
billion into early-stage U.S. technologies over a 6-year period.
  When the Chinese are able to get their hands on our cutting-edge 
technology, just imagine the boost for their long-term military 
capabilities.
  But here is the problem. CFIUS needs to be modernized and brought up 
to date in order to plug these holes that currently exist in the 
protective regime. Secretary Mattis, the Secretary of Defense, said 
that CFIUS ``needs to be updated to deal with today's situation.'' I 
agree.
  My provision included in the NDAA would begin that process. It 
requires the Secretary to find and propose ways to make the current 
CFIUS process work more effectively. The NDAA also sets the stage for 
more comprehensive reform that I will be discussing in the coming days 
and weeks.
  I want to thank the senior Senator from Idaho, the chairman of the 
Banking Committee, for taking this important issue up in the Senate 
Banking Committee just this last Thursday. As chairman, his leadership 
on the committee has been indispensable, and CFIUS reform is just the 
latest example.
  The bipartisan legislation I am spearheading is called the Foreign 
Investment Risk Review Modernization Act. It will modernize the CFIUS 
process to prepare our country to meet the 21st century threats, and I 
plan to introduce it soon.
  This bill would ensure, first, that the government scrutinizes 
closely those nations that are the biggest threats to our national 
security; second, that CFIUS obtains more authority to look at 
investment deals that, as of today, don't fall under its purview, just 
as certain joint ventures based overseas and minority-position 
investments in companies do not currently fall within its purview; and, 
third, it would give CFIUS the means to assess rapidly developing 
technologies our export control regime has not yet figured out how to 
handle.
  Colleagues, I hope you will join me in supporting this important 
reform package, and I look forward to further debate on this topic.
  I yield the floor.


                   Recognition of the Minority Leader

  The ACTING PRESIDENT pro tempore. The Democratic leader is 
recognized.


                               Healthcare

  Mr. SCHUMER. Mr. President, there is a possibility that by the end of 
next week, the Senate will have a vote again on a Republican healthcare 
bill assembled in the dark of night by one party, without a full 
account of what the bill would do. It will be a shameful return to the 
same process the majority used to try to ram a bill through in July, 
unsuccessfully.
  To consider a bill like this without a full CBO score is worse than 
negligent; it is grossly irresponsible. We were told yesterday that CBO 
may be able to provide a baseline estimate of the cost of the bill but 
not the coverage numbers or a detailed analysis of how the bill would 
affect Americans' healthcare choices.
  We are talking about one-sixth of the economy; we are talking about 
the healthcare of the Nation; we are talking about the lives, day in 
and day out, of millions of Americans who need healthcare; and we are 
not going to really know what the legislation does.
  Senators will be voting blind. They say justice is blind, but the 
Senators on the other side of the aisle should be walking around here 
with a blindfold over their eyes because they don't know what they are 
voting on. Maybe they don't care. I don't know how any Senator could go 
home to his or her constituents and explain why they voted for a major 
bill with major consequences to so many of their people without having 
specific answers about how it would impact their State.
  What we do know is that this new TrumpCare bill, the Graham-Cassidy 
legislation, is worse in many ways than the previous versions of 
TrumpCare. The new TrumpCare would devastate our healthcare system in 
five specific ways.
  First, it would cause millions to lose coverage.
  Second, it would radically restructure and deeply cut Medicaid, 
ending the program as we know it. It has been the dream of the hard 
right to get rid of Medicaid, which could happen, even though it is a 
program that affects the poor and so many in the middle-class--nursing 
homes, opioid treatment, people who have kids with serious illnesses.
  Third, it brings us back to the days when insurance companies could 
discriminate against people with preexisting conditions. The ban on 
discriminating against people with preexisting conditions would be 
gone. We have had a lot of promises from the other side that they would 
never vote for a bill that didn't protect people with preexisting 
conditions. That seems to be going by the wayside in a headlong rush to 
pass a bill so that they can claim a political victory. What about that 
mom or dad who finds out his or her son or daughter has cancer, and the 
insurance company says: Yes, we will cover you; it will cost you 
$50,000. And they don't have it, so they have to watch their child 
suffer. This was an advance that almost all Americans supported. It was 
an advance most people on the other side of the aisle believe in--gone.
  Fourth, the bill gets rid of the consumer protections that guarantee 
Americans' access to affordable maternity care, substance abuse 
treatment, and prescription drugs. All of those could be out of any 
plan. You can pay a lot for a plan and not get much for it in this 
bill.
  Fifth, it would throw the individual market into chaos immediately, 
increasing out-of-pocket costs for individual market consumers and 
resulting

[[Page S5828]]

in 15 million people losing coverage next year--15 million people.
  On the first point, the new TrumpCare would cause millions to lose 
health insurance in two ways: first by undoing the Affordable Care 
Act's major coverage expansion under Medicaid and premium and cost-
sharing assistance, instead putting that into an inadequate and 
temporary block grant, and, second, by radically restructuring and 
cutting the traditional Medicaid Program through a per capita cap.
  We don't have a CBO score yet, and we may not get one in time. But 
previous CBO scores of similar schemes have shown that 30 million 
Americans could lose coverage under this bill--30 million Americans--10 
percent, approximately, of our population.
  On the second point, the new TrumpCare would end Medicaid as we know 
it by converting Medicaid's current Federal-State financial partnership 
to a per capita cap, which cuts current Medicaid funding levels on an 
annual basis. This is a direct blow to nursing home patients and folks 
in opioid treatment, and CBO has said that 15 million fewer people 
would receive Medicaid under similar proposals.
  On the third point, the new TrumpCare actually brings back the 
ability of insurers to discriminate against folks with preexisting 
conditions, as I mentioned.
  Fourth, the new TrumpCare would no longer guarantee consumers 
affordable access to maternity care, substance abuse, and prescription 
drugs.
  Fifth, like previous repeal and replace, it would immediately 
eliminate the individual mandate, which would raise the number of 
uninsured by 15 million, relative to current law, in 2018 and increase 
market premiums by 20 percent.
  So vote for this bill, and right away 15 million will lose coverage, 
and premiums will go up by 20 percent. People who vote for this bill 
are not going to be happy with its results. Each one of these five 
things represents a major step backward for our healthcare system, 
bringing back discrimination against folks with preexisting conditions 
and ending Medicaid as we know it. These are overwhelmingly popular 
with Democrats, Independents, and Republicans. The hard right doesn't 
like it. The big financiers of the other party don't like entitlements, 
but Americans do. We are going to go backward--backward. We are going 
to go backward and not even know the effects.
  Why is the other side rushing this through? They are ashamed of it. 
They need to have that political scalp: See, we abolished ObamaCare. 
But what they are putting in its place, even for those who don't like 
ObamaCare, is worse. They don't want to know that. The joy they will 
have--misplaced joy, in my opinion--of abolishing ObamaCare will 
evaporate quite soon when their constituents feel the effects of this 
bill and they hear about it from average folks who are so hurt.
  The Washington Post summed up Graham-Cassidy yesterday. They said the 
bill ``would slash health-care spending more deeply and would probably 
cover fewer people than the July bill--which failed because of concerns 
over those details.''
  Republicans couldn't garner the 50 votes for their various healthcare 
plans earlier this year because of how much damage those plans did to 
Medicaid, how they rolled back protections for preexisting conditions, 
and some opposed it because the process was such a sham. Well, all 
three conditions are here again with this bill: cuts to Medicaid, no 
guarantee for preexisting conditions, a sham of a bill.
  There is a better approach. Right now, Chairman Alexander and Ranking 
Member Murray are working in a bipartisan way--holding hearings, 
working through committee, coming back and forth between the parties 
with discussions. Each side is going to have to give; that is how it 
works around here--or should work--in trying to get a proposal that 
will improve things. That is the kind of legislating many Members of 
the Senate have said they want to get back to. That is the kind of 
process worthy of the world's greatest deliberative body.
  After a rancorous and divisive healthcare debate, which took up the 
better part of this year, Democrats and Republicans have been working 
in good faith to come up with a bipartisan agreement on healthcare in 
the HELP Committee. The Republican majority would toss all of that away 
if they pursue Graham-Cassidy next week the way they are pursuing it--
returning to reconciliation, not working in the committees, no CBO 
report, making a mockery of regular order.
  I hope, for their sake and the country's sake, my Republican friends 
will turn back from this new TrumpCare and join us again on the road to 
bipartisanship. We have seen bipartisan sprouts bloom in the last 
month. Graham-Cassidy would snuff them out. Nobody wants that--nobody.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The assistant Democratic leader.
  Mr. DURBIN. Mr. President, what is the business of the Senate this 
morning?
  The ACTING PRESIDENT pro tempore. The Senate is considering the 
Francisco nomination.
  Mr. DURBIN. I ask unanimous consent to speak as in morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. DURBIN. Mr. President, I wish to say that the comments made by 
the Democratic leader, the Senator from New York, really touched me 
because they go to the heart of this institution.
  It was only a few weeks ago, in a dramatic moment, when Senator John 
McCain returned from Arizona to come to the floor of the Senate and 
cast a historic vote to move forward on the debate on healthcare. He 
asked for 15 minutes after that vote to say a few words about his 
experience as a person and his observations as a Senator, and I stayed 
in my chair because I wanted to hear him.
  John McCain came to the House of Representatives the same year I was 
elected. Our careers have at least been close or parallel in some 
respects, though I couldn't hold a candle to him in terms of his 
personal life experience and his experience in the military, as well as 
being a candidate for even higher office.
  I listened carefully as he reminded us of what it takes for the 
Senate to work. What it takes, of course, is the determination of both 
political parties to solve a problem. He reminded us that means sitting 
down in committee, with experts, working through some of these issues, 
particularly the more complex issues--the give-and-take of the 
legislative process.
  He pointed specifically to the effort to repeal ObamaCare as a 
failure by those standards. He used as an example the fact that 
ObamaCare, during the period of Republicans' efforts to repeal, was 
actually gaining popularity in this country--exactly the opposite of 
what the other party might have expected. It was an indication to him 
that we needed to do things better in Senate. Just a few days later, he 
cast a critical vote to stop what was a flawed process on the 
Republican side--to repeal ObamaCare without a good alternative, 
without a good substitute.
  I remember that vote early in the morning, right here in the well of 
the Chamber, and I remember what followed when I saw Senator Lamar 
Alexander and Senator Murray behind me in front of the cloakroom in a 
bit of a huddle after that historic vote. I later learned that they had 
decided it was their turn to step up on a bipartisan basis and find a 
way to strengthen our healthcare system, not what we had just seen but 
a different way--a way that kind of relied on experts at State levels 
to give us advice and experts in Washington to really cull through the 
ideas to find the very best. They invited other Members of the Senate 
to join them, even those of us not on the committee.
  Senator Alexander and Senator Murray have had several meetings, which 
I have attended and which were very productive meetings--bipartisan 
gatherings over coffee and donuts with insurance commissioners from 
States all across the Nation, commissioners from both political 
parties, bipartisan meetings of Governors from States all across the 
United States. They were basically sitting down and saying: What can we 
do now? What can we all agree to do, regardless of party, that will 
reduce the increasing costs of health insurance premiums, provide 
coverage for more people, and provide better healthcare--quality care? 
It was a good-faith effort, and it was encouraging, after 7 wasted 
months of political debate on the floor of the Senate.

[[Page S5829]]

  I went to those meetings and came away feeling very positive. It was 
clear that some very basic ideas were emerging from all over the United 
States. One of the ideas was cost-sharing reduction so that health 
insurance companies that took on sicker, older patients and had worse 
loss experiences would be able to be compensated so they could reduce 
premium costs, bring the cost of health insurance down, and make sure 
more people had it available.
  Another proposal was reinsurance. That is the same basic idea. Let's 
find a way to make the increase in health insurance premiums slow down. 
I remember the commissioner from the State of South Carolina, a 
Republican, who said that his experience was that in the next year, 
health insurance premiums in the individual marketplace were going up 
30 percent.
  He said that, if you bring in the cost-sharing reductions, which the 
Federal Government can do, it would only be 10 percent. Ten percent is 
bad enough. Thirty percent is painful.
  Here is something we can do on a bipartisan basis to reduce the cost 
of health insurance premiums. It struck me as obvious that this is what 
we should be doing as the Senate.
  I applauded Senator Alexander personally and publicly, and Senator 
Murray, as well, for doing what the Senate was supposed to do. Little 
did I know that at the same time they were making this bipartisan 
effort, there was another Republican effort under way to derail them, 
to stop them, to end the bipartisan conversation that was under way in 
the HELP Committee.
  The Cassidy-Graham proposal, which may come to the floor as early as 
next week, is an effort to repeal ObamaCare, but it is a flawed effort.
  Earlier this morning, the Republican leader came to the floor and 
spoke of the debate that we have had over and over about what we are 
going to do in the future, and he talked about the failed ideas of the 
past. I can tell you that the Cassidy-Graham proposal is a return to 
failed ideas--ideas rejected once by the Senate but certainly by the 
American people.
  In this morning's Chicago Tribune, one of the business writers, 
Michael Hiltzik, wrote an article entitled ``The GOP's last-ditch 
ObamaCare repeal bill may be the worst one yet.''
  Mr. President, I ask unanimous consent to have printed in the Record 
this article in its entirety.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Chicago Tribune, Sept. 16, 2017]

  The GOP's Last-Ditch Obamacare Repeal Bill May Be the Worst One Yet

                          (By Michael Hiltzik)

       The Republican effort to repeal the Affordable Care Act is 
     back, a zombie again on the march weeks after it was declared 
     dead. The newest incarnation is Cassidy-Graham, named after 
     chief sponsors Bill Cassidy of Louisiana and Lindsey Graham 
     of South Carolina.
       Compared with its predecessors, the bill would increase the 
     ranks of America's medically uninsured more--by millions of 
     people--cost state governments billions more and pave the way 
     for the elimination of all protection for those with 
     preexisting medical conditions.
       Among the biggest losers of federal funding would be the 
     states that had the foresight to expand Medicaid under the 
     Affordable Care Act and the resolve to reach out to lower-
     income residents to get them coverage; they'd be punished 
     with draconian cuts in healthcare funding. Among the big 
     winners would be states that have done nothing of the kind 
     for their residents--refusing the Medicaid expansion and 
     interfering with outreach efforts. They'd be rewarded for 
     their stupidity and inhumanity with an increase in federal 
     funds.
       Over the last week or so, reviews of the measure have been 
     pouring in from healthcare experts, and they're almost 
     unanimously negative. Major health provider and consumer 
     organizations have turned thumbs down, as have analysts 
     looking at its economic effects.
       Fitch Ratings, which keeps an eagle eye on the fiscal 
     condition of states issuing bonds, judges Cassidy-Graham 
     ``more disruptive for most states than prior Republican 
     efforts.'' Fitch finds that ``states that expanded Medicaid 
     access to the newly eligible population under the Affordable 
     Care Act (ACA) are particularly at risk under this latest 
     bill.''
       The bill surfaced just as the political tide seemed to be 
     shifting away from the GOP campaign to roll back the gains in 
     health coverage experienced by Americans over the last seven 
     years under the Affordable Care Act. Democrats are coalescing 
     around universal health coverage--``single-payer,'' as it's 
     typically termed--teeing up the issue for the 2018 election. 
     It's notable that the rise in public support for this 
     approach, at least in the abstract, has coincided with the 
     GOP's so-far unsuccessful repeal effort. The emergence of the 
     new bill also comes as other Republicans are scheduling 
     hearings and reaching across the partisan aisle to craft a 
     sensible plan to shore up the Affordable Care Act 
     marketplace.
       Despite those drawbacks, Cassidy, Graham and their co-
     sponsors are trying to push the measure through by Sept 30, 
     the last day it could be passed with only 50 votes (plus a 
     tie-breaker cast by Vice President Mike Pence) under Senate 
     reconciliation rules. After that, it would need a filibuster-
     proof count of 60 votes, meaning it could--and presumably 
     would--be blocked by Democrats. The deadline places more 
     pressure on the Congressional Budget Office, which must 
     analyze the bill before it can come to a vote, to move fast.
       In recent days, the sponsors have claimed that their vote 
     count is edging toward 50. But Sen. Rand Paul (R-Ky.) has 
     stated that he's a ``no,'' since the bill isn't conservative 
     enough for his taste. Sen. Susan Collins (R-Maine), whose 
     ``no'' vote helped to scuttle the last repeal effort in July, 
     isn't expected to change her mind on this one. Sen. Lisa 
     Murkowski (R-Alaska), who also voted it down, hasn't been 
     quoted on her position, but there don't seem to be compelling 
     reasons for her to shift to the ``yes'' column now. The 
     position of Sen. John McCain (R-Ariz.), who also voted 
     against the last bill, isn't clear, but he's a close friend 
     and frequent ally of Graham's. In any event, the backers 
     still seem to be a vote or two short.
       Those are the procedural issues. Now let's turn to the 
     text, and the issue of why anyone would think Cassidy-Graham 
     would improve America's healthcare system.
       In broad terms, the measure would terminate the Affordable 
     Care Act's Medicaid expansion, premium and cost-sharing 
     reduction subsidies, tax credits for small businesses, and a 
     host of other pro-consumer provisions by 2020. It would 
     eliminate the act's individual and employer mandates 
     retroactive to Dec. 31, 2015.
       The bill provides for no replacement of these provisions, 
     beyond a capped block grant to states. In effect, it's a 
     repeal-and-no-replace bill. The Congressional Budget Office, 
     as it happens, analyzed that approach in July in connection 
     with a different bill. It found that by 2026 the number of 
     uninsured Americans would increase by 32 million, compared 
     with under current law. That's about 50% more people 
     uninsured than it estimated for other Republican repeal-and-
     replace measures, which the budget office said would cut 
     enrollments by 20 million to 22 million.
       The block grant to states, which Cassidy and Graham portray 
     as one of their bill's chief virtues, is in fact a poisoned 
     chalice any governor would be a fool to accept. The proposal, 
     Cassidy said in unveiling the bill, ``gives states 
     significant latitude over how the dollars are used to best 
     take care of the unique healthcare needs of the patients in 
     each state.'' That papers over its significant drawbacks.
       By their nature, when block grants are proposed to replace 
     existing programs, they're almost always back-door mechanisms 
     to reduce federal spending. That's the case here. The 
     Cassidy-Graham block grants would replace the money now being 
     spent on Medicaid expansion and the premium and cost-sharing 
     subsidies, and a couple of other spending provisions. But the 
     existing spending is pegged to demand--Medicaid funding 
     adjusts automatically to enrollment and the medical needs of 
     the enrollees, and the subsidies are pegged to enrollee 
     incomes and the premiums charged by insurers for benchmark 
     Obamacare plans.
       Block grants would be fixed, changing only according to a 
     complex formula. And that formula would be ``insufficient to 
     maintain coverage levels equivalent to the ACA,'' the Center 
     on Budget and Policy Priorities calculated last week. Between 
     2020 and 2026, the center reckoned, the grant would provide 
     $239 billion less than projected federal spending for the 
     existing Medicaid expansion and subsidies. In 2026 alone, the 
     shortfall in Medicaid and subsidy funds together would total 
     $80 billion.
       What's worse is that the grant would be unable to respond 
     to real-world conditions. Consider how healthcare costs are 
     likely to rise in Texas and Florida in response to this 
     summer's floods, which drove thousands of residents out of 
     their homes and increased the threat of water-borne disease. 
     They'd get no help from the block-grant formula. To provide 
     needed care to their residents under Medicaid or any other 
     state programs, they'd have no choice other than to limit 
     enrollments, cut benefits, charge higher premiums or co-pays, 
     or drain funds from other federally funded programs.
       As set forth in the bill, the formula would ``over time 
     move money away from states, predominantly Democratic, that 
     have expanded Medicaid and aggressively pursued enrolling 
     their lower income populations in Medicaid and exchange 
     coverage,'' observes healthcare expert Timothy S. Jost. 
     ``Money would move toward states, predominantly Republican, 
     that have not expanded Medicaid.''
       Some Medicaid expansion states would lose as much as 60% of 
     what they would be due under current law. According to the 
     numbers crunched by the Center on Budget and Policy 
     Priorities, among the states that went all-in on Obamacare, 
     including expanding Medicaid and mounting aggressive 
     enrollment support

[[Page S5830]]

     for the marketplaces, California would get $27.8 billion less 
     in federal funding in 2026, New York $18.9 billion less, and 
     Massachusetts $5.1 billion less.
       States that shunned the Affordable Care Act would make out 
     like bandits: Texas, which showed absolutely no regard for 
     its ACA-eligible population, would get $8.2 billion more in 
     2026, and Mississippi, another black hole for healthcare 
     reform, would get $1.4 billion more. This is how carrot-and-
     stick approaches to healthcare reform work--in the Bizarro 
     world. (Apologies to Jerry Seinfeld.) In any case, all the 
     federal funding would disappear after 2026, According to 
     Fitch, ``over time even non-expansion states will face 
     budgetary challenges given the proposed changes to Medicaid, 
     which will likely accelerate for all states over time.''
       Another provision of Cassidy-Graham that is significantly 
     worse than its predecessors is the latitude it gives states 
     to eviscerate consumer-protection rules in the Affordable 
     Care Act. The bill would allow states to request waivers from 
     the federal government allowing them to nullify the act's 
     requirement that all policies include 10 essential health 
     benefits, including maternity care, hospitalization, mental 
     health and substance abuse treatment, and prescription 
     coverage. This is an invitation to states to allow insurers 
     to market junk insurance to their residents.
       The states could also request waivers of the act's all-
     important protections for people with preexisting medical 
     conditions. The law forbids insurers to charge anyone more 
     based on their medical condition or history, except for a 
     modest increase in premiums based on age and a surcharge for 
     smokers. Previous GOP repeal bills have substituted a 
     ``continuous coverage'' provision, which protects applicants 
     who haven't let their coverage lapse for a month or two from 
     being surcharged when they renew.
       Cassidy-Graham throws out that protection. It would allow 
     states to request a waiver allowing insurers to charge more 
     ``as a condition of enrollment or continued enrollment . . . 
     on the basis of any health status-related factor.'' 
     Translation: Under such a waiver, insurers could check 
     applicants' health or medical histories before setting 
     premiums--even for renewals.
       Finally, there's that crucial Republican litmus test--
     abortion. The bill bars any insurance policy receiving 
     federal funds--that is, a policy whose enrollees get 
     subsidies or that is subject to payments under the Affordable 
     Care Act's reinsurance rule--from offering coverage for 
     abortions except when the mother's life is in jeopardy or in 
     cases of rape or incest.
       Remarkably, this bill's sponsors are pitching it as a 
     moderate, common-sense alternative to its predecessors. They 
     may also be hoping that opposition fatigue has set in, and 
     that they'll be able to steamroll the measure through while 
     the public is distracted by other issues. As with other 
     repeal efforts, this one is being brought out without a 
     minute of hearings.
       Cassidy asserts that this measure is a blow for equality. 
     The measure ``treats all Americans the same no matter where 
     they live.'' He's right, in a way: It treats all Americans as 
     potential victims of insurance company profiteering.

  Mr. DURBIN. Let me quote a few sentences from this article because I 
think they make the case dramatically about how bad the Cassidy-Graham 
substitute would be. Here is what he said:

       Compared with its predecessors, the bill would increase the 
     ranks of America's medically uninsured more--by millions of 
     people--cost state governments billions more and pave the way 
     for the elimination of all protection for those with 
     preexisting medical conditions.

  He goes on to say:

       Among the biggest losers of federal funding would be the 
     states that had the foresight to expand Medicaid under the 
     Affordable Care Act and the resolve to reach out to lower-
     income residents [and provide health insurance] coverage.

  He goes on to say that, under this Cassidy-Graham bill, ``they'd be 
punished with draconian cuts in healthcare funding.''
  He goes on to write:

       Among the big winners would be the states that have done 
     nothing of the kind for their residents--refusing the 
     Medicaid expansion and interfering with outreach efforts [to 
     bring more people into health insurance coverage].

  They would be rewarded, perversely, for doing the wrong thing.
  He writes:

       Over the last week or so, reviews of the measure have been 
     pouring in from healthcare experts, and they're almost 
     unanimously negative. Major health provider and consumer 
     organizations have turned thumbs down, as have analysts 
     looking at its economic effects.

  He talks about the impact of this bill beyond increasing Federal 
funding for States that did not help their residents and cutting 
Federal funding for States that did. The bill provides no replacements 
for the tax credits available for small businesses and the subsidies 
for health insurance premiums currently in the law beyond a capped 
block grant to States.
  He writes:

       In effect, it's a repeal-and-no-replace bill. The 
     Congressional Budget Office, as it happens, analyzed that 
     approach in July in connection with a different bill. It 
     found that by 2026 the number of uninsured Americans would 
     increase by 32 million, compared with under current law. 
     That's about 50% more people uninsured than it estimated for 
     other Republican repeal-and-replace measures, which the 
     budget office said could cut enrollments by 20 million to 22 
     million.

  Honestly, can my colleagues on the other side of the aisle in good 
conscience go home to their States and say: I voted to repeal ObamaCare 
and you are going to lose your health insurance as a result of it.
  I can tell you what it means in my State. A million people would lose 
their health insurance because of this Republican repeal effort. I 
don't know how Members of Congress--House or Senate--from Illinois 
could in good conscience vote to take health insurance away from 
massive numbers of Americans.
  We are blessed here. Those of us who serve in Congress have access to 
good health insurance. It is not cheap. It shouldn't be. But it is 
there. It is always there, and we don't have to worry about it. Some 
Members are wealthy enough that they take care of it in other ways. For 
most Members of Congress, we use the insurance marketplace and pay our 
share of the premiums. The government pays a share of it, just as it 
does for Federal employees.
  We have access to health insurance. How then could we turn and say to 
the people we represent: I just voted for a bill to take away your 
access to health insurance.
  That is what this Cassidy-Graham bill does. That to me is hard to 
imagine--that a Member can believe they were elected to the Senate for 
that purpose.
  What does it do to the States with this capped block grant in terms 
of their loss of Federal funds? It is amazing. Some States would lose 
as much as 60 percent of what they currently receive under the current 
law.

       According to the numbers crunched by the Center on Budget 
     Policy Priorities, among the states that went all-in on 
     Obamacare, including expanding Medicaid and mounting 
     aggressive enrollment support for the marketplaces, 
     California would get $27.8 billion less in federal funding in 
     2026, New York $18.9 billion less, and Massachusetts $5.1 
     billion less.

  I looked at the list for my State of Illinois. It would lose $1.4 
billion in Federal funding by 2026. Just to show the contrast, as for 
the State of Texas, which did not expand Medicaid and which did not 
cover low-income individuals with health insurance, what would the 
Cassidy-Graham bill do for the State of Texas? They wouldn't lose a 
penny. They would add in Federal funding $8,234 million.
  They would be big winners because they turned their back on low-
income individuals and didn't expand Medicaid or increase the number of 
enrollees. What a perverse incentive for Governors and governments on a 
State basis to turn down coverage knowing that at some point they will 
be rewarded for that approach.

       Another provision of Cassidy-Graham that is significantly 
     worse than its predecessors is the latitude it gives states 
     to eviscerate consumer-protection rules in the Affordable 
     Care Act.

  One of the most important parts of the Affordable Care Act was a 
reform that said: If you are going to buy health insurance, it is going 
to be there when you need it. First, you will be able to buy it, even 
if you have someone in your family with a preexisting condition. That 
is one of the first casualties of Cassidy-Graham--going back to a 
failed idea in the past, which said if you have a sick baby or if you 
have a spouse who survived cancer, you either can't buy health 
insurance or you can't afford it. We got rid of that once and for all. 
At least we thought we did. Cassidy-Graham brings it back to life. It 
says: Let the insurers decide if they want to cover you or not.
  Another thing we said is that the disparity in premium costs between 
the most expensive policy and the least will be 3 to 1. Cassidy-Graham 
tosses it out and says it is 5 to 1. What it means--and AARP knows this 
better than any other organization--is that senior citizens are going 
to end up paying more for their health insurance under Cassidy-Graham 
than they currently do under the Affordable Care Act.

[[Page S5831]]

  When you look at the other protections that we built in to provide 
that your policy, when you bought it, would cover mental illness and 
substance abuse treatment, that is considered revolutionary but 
important. Finally, after all of these years in America, we are looking 
at mental illness as an illness rather than a curse. We are looking at 
it as something that can be successfully treated. Yet here comes 
Cassidy-Graham tossing out that requirement as well.
  Let the insurers decide what they want to offer. I was talking to one 
of the Republican Senators the other day, and he said: Well, you know, 
some people just may not want to buy certain coverage.
  I can understand that, but I can also understand the reality of life. 
Who can predict that next year or next month you would learn that 
perhaps your high school daughter has been taking opioids and now is 
addicted to heroin? You didn't know it before, not when you bought your 
health insurance policy. Now that you know it, who is going to cover 
the substance abuse treatment?
  Under the Affordable Care Act, it is built into your health insurance 
policy. Under the Cassidy-Graham approach, it is an option. Try it if 
you like it. It doesn't work in a lot of circumstances. We buy 
insurance for things we pray will never happen, but we want to be 
covered in case they do. Cassidy-Graham walks away from that. They are 
for what they call ``flexibility.'' It is flexibility to buy insurance 
that isn't there when you really need it.
  When you look at the litany of all of the States that are winners and 
losers under Cassidy-Graham, you have to shake your head. Why would we 
be richly rewarding States that have not done their part to expand 
Medicaid coverage? Why would we devastate the Medicaid Program, which 
is so important for so many people?
  Medicaid is a program that many people didn't understand until we got 
into this debate, but it is a program that is essential if you have a 
disabled child.
  A woman in Champaign, IL, with a young son in his twenties suffering 
from autism told me that without Medicaid coverage he would have to be 
institutionalized, and there is no way her family could afford it.
  We know that Medicaid is there for that family and for many low-
income families when it comes to pregnancies, to make sure that mom has 
a successful pregnancy and that the baby is born healthy and ready to 
thrive.
  Is that an important asset? Of course it is, and it is an important 
element of Medicaid. The one thing that costs the most in Medicaid is 
something the Republicans don't want to acknowledge, and that is the 
fact that two out of three people in nursing homes--seniors who are 
under medical care--rely on Medicaid. Without that Medicaid assistance, 
who is going to pay that bill? The family reaching into their savings? 
Some can, but most will not be able to afford it.
  How will the Republicans explain that away as just one of the 
benefits of flexibility--that Medicaid is not there when your parent or 
grandparent desperately needs it?
  So now we have this debate before us, which will come up by the end 
of next week, and it is one that really will affect a lot of people 
across America. I, for one, will do everything I can to stop this. Any 
program that is going to take health insurance away from a million 
people in Illinois and up to 30 million nationwide is a bad start, a 
bad idea, a failed idea.
  I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                             Cloture Motion

  Pursuant to rule XXII, the Chair lays before the Senate the pending 
cloture motion, which the clerk will state.
  The senior assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the nomination 
     of Noel J. Francisco, of the District of Columbia, to be 
     Solicitor General of the United States.
         Mitch McConnell, John Kennedy, Lamar Alexander, Johnny 
           Isakson, Mike Rounds, Tom Cotton, Roy Blunt, John 
           Barrasso, Patrick J. Toomey, Cory Gardner, John Hoeven, 
           Rob Portman, Bill Cassidy, John Cornyn, Orrin G. Hatch, 
           Lisa Murkowski, Thom Tillis.

  The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory 
quorum call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Noel J. Francisco, of the District of Columbia, to be 
Solicitor General of the United States, shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Mississippi (Mr. Cochran), the Senator from South Carolina 
(Mr. Graham), and the Senator from Kansas (Mr. Moran).
  Mr. DURBIN. I announce that the Senator from New Jersey (Mr. 
Menendez) is necessarily absent.
  The PRESIDING OFFICER (Mr. Flake). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 49, nays 47, as follows:

                      [Rollcall Vote No. 200 Ex.]

                                YEAS--49

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     Lee
     McCain
     McConnell
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Strange
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--47

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Donnelly
     Duckworth
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harris
     Hassan
     Heinrich
     Heitkamp
     Hirono
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     McCaskill
     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden

                             NOT VOTING--4

     Cochran
     Graham
     Menendez
     Moran
  The PRESIDING OFFICER. On this vote, the yeas are 49, the nays are 
47.
  The motion is agreed to.
  The Senator from Arkansas.


    Recognizing the 70th Anniversary of the United States Air Force

  Mr. BOOZMAN. Mr. President, I rise to speak in honor of the 70th 
anniversary of the United States Air Force.
  In the seven decades since its inception on September 18, 1947, the 
U.S. Air Force has bravely fought to protect freedom, liberty, and 
peace on every continent around the globe. From active participation in 
major international conflicts to providing humanitarian support 
throughout the world, the U.S. Air Force has continued to be the 
Nation's leading edge across every domain and throughout every location 
by meeting the challenges of an ever-changing world with limitless 
strength, resolve, and patriotism. Today, more than 100,000 airmen are 
standing watch at 175 global locations, committed to continuously 
defending the people and interests of the greatest Nation in the world.
  As cochair of the Senate Air Force Caucus and the son of a retired 
Air Force master sergeant, I have been personally touched by the proud 
history of this distinguished service. From the earliest days of 
aviation when the Department of War accepted its first military 
airplane to the present-day delivery of global airpower, the U.S. Air 
Force has made tremendous strides in the technological innovation and 
operationalization of air, space, and cyberspace warfighting 
capabilities.
  The earliest aviation pioneers believed in the notion of airpower and 
fought for its development into a force so formidable that its 
responsibilities

[[Page S5832]]

and contributions would eventually be recognized as being equal to 
those of land and sea power. In essence, the birth of the U.S. Air 
Force began the dawn of a new era, where the skies became the ultimate 
high ground.
  As we celebrate this historic occasion, we must also remember and 
honor the courageous men and women of the U.S. Air Force, as the 
service would not be what it is today without these fine airmen.
  I had the privilege of speaking at the Department of Defense's 
National Prisoner of War/Missing In Action Recognition Day last week. 
It served as a poignant reminder of the many sacrifices made by our men 
and women in uniform.
  One such airman, Brig. Gen. Kenneth Newton Walker, played an 
important role in building the organization that would later become an 
independent air service. General Walker's direct contributions to 
crafting doctrine and policy were instrumental to the creation of the 
modern U.S. Air Force.
  General Walker was reported missing in action after his B-17 Flying 
Fortress went missing over Papua, New Guinea, in 1943, and was 
posthumously awarded the Medal of Honor by President Roosevelt. The 
actions of fearless warriors like General Walker symbolize a continuing 
commitment to meeting the demands of an increasingly dynamic and 
dangerous world with limitless strength, resolve, and determination.
  These dedicated airmen and their values of integrity, service before 
self, and excellence that they uphold in all they do embody a proud 
heritage, a tradition of honor, and a legacy of valor. We owe them a 
tremendous amount of gratitude for the sacrifices they have made 
defending the greatest country on Earth on this, the 70th anniversary 
of the United States Air Force.
  I am especially proud of my home State of Arkansas and its 
contribution to our air superiority. The Little Rock Air Force Base and 
the 188th Wing in Fort Smith play an important role in our national 
security. I am proud to support these missions and look forward to 
continuing to support our airmen stationed in Arkansas and throughout 
the world.
  I am pleased to be here speaking on behalf of a grateful nation, 
remembering, honoring, and commending our airmen and the world's 
greatest Air Force.
  I yield back.
  Mr. GRASSLEY. Mr. President, I am pleased to support Noel Francisco 
to serve as the next Solicitor General.
  Mr. Francisco comes to us with impressive credentials. He graduated 
from the University of Chicago Law School and clerked for Judge Luttig 
on the Fourth Circuit and Justice Scalia on the Supreme Court. He has 
spent time in both the private sector at prestigious law firms and in 
the public sector as counsel to the President at the White House and in 
leadership roles at the Department of Justice.
  Mr. Francisco has impressive experience arguing before the Supreme 
Court. His client won in each of the three cases he argued there. He 
has been named one of Washington, DC's ``Super Lawyers,'' as well as 
one of the ``100 Most Influential Lawyers in America.''
  It is vital for the Office of the Solicitor General to have its 
leader in place, so I am pleased that, after waiting for over 3 months 
on the Senate floor, we are finally voting on this nominee today.
  Mr. DURBIN. Mr. President, I rise in opposition to the nomination of 
Noel Francisco to be the Solicitor General of the United States.
  The Solicitor General--often called the ``tenth Justice''--argues on 
behalf of the United States in the Supreme Court. It is a critical 
position in our government, and it is critical that we have a Solicitor 
General with the independence to tell the President when the position 
he wants the United States to take before the Court is indefensible.
  Mr. Francisco already had a troubling tenure as Acting Solicitor 
General earlier this year. He led the effort to defend the original 
version of the President's controversial travel ban. That Executive 
order was blocked repeatedly in Federal courts and was then withdrawn. 
In defending this unconscionable order, Mr. Francisco argued that there 
should be no judicial review when a President makes decisions on 
immigration policy on the basis of his national security assessment. 
The Ninth Circuit stated that ``there is no precedent to support this 
claimed unreviewability, which runs contrary to the fundamental 
structure of our constitutional democracy.'' If he is confirmed, Mr. 
Francisco would likely be called upon again to defend President Trump's 
latest iteration of the travel ban when it is considered by the Supreme 
Court in October.
  When he was under consideration by the Judiciary Committee, I asked 
Mr. Francisco many questions to give him the opportunity to show his 
independence from President Trump. For example, I asked him if he 
agreed with President Trump's absurd claim that 3 to 5 million people 
voted illegally in the 2016 election. He refused to answer the 
question.
  I asked him if he believed it was appropriate for a President to ask 
an FBI Director to pledge loyalty to him. He declined to comment.
  I also asked him about the Constitution's Emoluments Clause, which 
prohibits government officials from accepting gifts or benefits from 
foreign states without Congress's consent and which many legal scholars 
believe President Trump has violated. Mr. Francisco actually had 
written an opinion on the Emoluments Clause when he was in the Justice 
Department's Office of Legal Counsel. I asked him what he believed the 
Founding Fathers intended this clause to mean. His response? ``I do not 
have any well-formed views on the scope of the Emoluments Clause.'' It 
is puzzling that an originalist like Mr. Francisco would not comment on 
the original meaning of a constitutional provision, but he clammed up 
when it came to this particular clause which is directly relevant to 
President Trump's behavior.
  While Mr. Francisco has been reluctant to demonstrate independence 
from President Trump, he has been willing at many points in his career 
to demonstrate loyalty to special interests. For example, Mr. Francisco 
gave a speech at the 2015 annual conference of the Community Financial 
Services Association, better known as the trade association for the 
payday lending industry. Here is what he said: ``The payday lending 
industry is facing the challenge of a lifetime. It is essential that, 
as an industry, you be prepared to respond on all fronts, and it has 
been my privilege to assist you in doing this over the last few years. 
This includes the legislative front, the regulatory front, and--my 
favorite--the legal front.''
  Let's be clear. We don't need a Solicitor General who thinks it is a 
privilege to assist payday lenders.
  Mr. Francisco also was a prominent lawyer for the tobacco industry. 
His advocacy on their behalf prompted a number of national antismoking 
and health organizations to call for Mr. Francisco to recuse himself 
from tobacco-related litigation matters if he were confirmed. I asked 
Mr. Francisco if he would commit to recuse himself from tobacco 
litigation, but he would not make that commitment.
  Mr. Francisco has been eager to position himself alongside rightwing 
groups like the Federalist Society and the Heritage Foundation. He made 
this particularly clear at a speech he gave to the Heritage Foundation 
on May 19, 2016, when he said: ``We live in an era where our views, 
traditional views, are under constant attack. Our adversaries have not 
even really tried to beat us through the democratic processes, but 
instead go straight to the courts, where they often win not by 
asserting that our views are legally wrong, but that they are so 
fundamentally illegitimate that the Constitution prohibits them. And 
they now have an increasingly compliant Judiciary that agrees with 
their policy views and that is unconstrained by legal principle.''
  This is a troubling characterization, to claim that people who do not 
share the views of the Heritage Foundation are ``our adversaries.'' It 
is just as troubling to claim that the Judiciary is acting 
``unconstrained by legal principle'' whenever it disagrees with the 
views of the Heritage Foundation. Comments like this raise serious 
questions about the ideology Mr. Francisco would bring to the Solicitor 
General's office.
  Make no mistake--President Trump is likely to keep the Supreme Court

[[Page S5833]]

busy. It has never been more important to choose a Solicitor General 
who displays independent judgment and who is willing to say no if the 
views the President wants to execute are improper or unlawful. In my 
questions to him, I repeatedly gave Mr. Francisco the opportunity to 
display that independent judgment, but he did not do so, and what I 
have seen in his speeches and his advocacy concerns me.
  In short, I do not believe Mr. Francisco has demonstrated that he can 
be the Solicitor General that our Nation needs. I will oppose his 
nomination.
  Mr. BOOZMAN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. MARKEY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                               Healthcare

  Mr. MARKEY. Mr. President, in July, millions of Americans awoke from 
a months-long nightmare, as the Senate did the right thing and voted 
down multiple Republican proposals to repeal the Affordable Care Act. 
The American people breathed a sigh of relief when the future of their 
healthcare and of their children's healthcare was safe for the time 
being.
  Unfortunately, Republicans want us to go back to that nightmarish 
time by reigniting their proposal to threaten healthcare coverage for 
millions of Americans. While the bill the Republicans are supporting 
today may have a new name, it contains the same mean, devastating 
policies. It is a zombie bill that despite best efforts and against the 
will of the American people, will not die.

  Like its TrumpCare predecessors, the Graham-Cassidy bill will result 
in less coverage and increased costs. It eliminates the built-in 
protections for Americans with preexisting conditions, causing many of 
them to see their premiums skyrocket just because of a diagnosis. Some 
experts estimated that an individual with diabetes could face a premium 
surcharge of $5,600 under Graham-Cassidy.
  Graham-Cassidy will also allow States to decide what insurers have to 
cover and what they don't; meaning, once again, your ability to have 
comprehensive healthcare coverage would depend upon where you live.
  This is not the type of healthcare reform people in this country want 
or need, and it is certainly not the type of reform to help us overcome 
our Nation's opioid use disorder epidemic.
  With 91 Americans dying every day from an opioid overdose, we are 
clearly in the midst of our Nation's preeminent public health crisis. 
Over these last few months, we have heard time and time again that 
access to substance use disorder care is the linchpin to stemming the 
continually rising tide of opioid overdoses. Unfortunately, it appears 
our Republican colleagues have not been listening.
  To be fair, access to treatment today is still a challenge. Only 1 in 
10 people with substance use disorders receive treatment. Right now, an 
estimated 2 million people with an opioid addiction are not receiving 
any treatment for their disorder.
  Yet the solution is not to block-grant funds which would otherwise be 
used to help people get care for their substance use disorders. The 
answer is also not kicking people off their insurance, but that is what 
my Republican colleagues are yet again proposing to do.
  As with the previous versions of TrumpCare, Graham-Cassidy would 
threaten insurance coverage for 2.8 million Americans with a substance 
use disorder. It would end Medicaid expansion and cap the program, 
slashing its funding and decapitating access to lifesaving care. This 
bill would simply take a machete to Medicaid--the leading payer of 
behavioral healthcare services, including substance abuse treatment.
  Also, in the same vein as earlier proposals, Graham-Cassidy would 
allow States to waive the essential health benefits the Patients' Bill 
of Rights put in place under the Affordable Care Act that ensures that 
every plan provides comprehensive coverage. Because covering mental 
health and substance use disorder treatment is expensive, this would 
likely be one of the first benefits to be cut. As a result, someone 
struggling with opioid use disorder would have to pay thousands of 
dollars in out-of-pocket costs, likely forcing many to forgo lifesaving 
substance use disorder care.
  This epidemic of opioid abuse and overdose deaths will only get worse 
as long as we have a system that makes it easier to abuse drugs than to 
get help for substance use disorders. Graham-Cassidy would only 
exacerbate this already dire problem in our country.
  Just last week, a leading sponsor of the bill said: ``We recognize 
there are circumstances where states that expanded Medicaid will have 
to really ratchet down their coverage.'' ``Rachet down,'' that is not 
improving healthcare. That is ripping insurance coverage away from the 
one in three Americans struggling with opioid use disorder who relies 
on Medicaid. That is gutting billions of dollars in addiction care and 
treatment.
  Graham-Cassidy isn't a new block grant program, it is a chopping 
block program--for Medicaid, for coverage, for access to critical 
substance use disorder services.
  I believe past is prologue here. Just as Americans rejected the 
inhumane and immoral TrumpCare of months past, they are already seeing 
this new attempt is more of the same and, in some cases, worse. Many 
patient, provider, and other healthcare groups have already come out 
against Graham-Cassidy, citing the bill's inability to maintain the 
healthcare coverage and consumer protections currently provided in the 
Affordable Care Act. It is deja vu.
  Enough is enough. Republicans newest shortsighted stunt is detracting 
attention from bipartisan efforts to stabilize the individual insurance 
market and to help decrease costs. Let's end this partisan gambit to 
repeal and replace the Affordable Care Act and start focusing on ways 
to make the healthcare system in our country better, not worse.
  We need all of you, in every corner of the country, to once again 
stand up and fight against these mean attempts to harm the health of 
our family members, our friends, and our neighbors. We need your 
energy, your commitment, and your passion to do what you did a few 
months back to help make sure our better angels once again will 
prevail. You have done it before, and I know you can do it again.
  My Democratic colleagues and I will be fighting right here with you 
to finally put this zombie healthcare bill to rest.
  This is the time. This Chamber will be the place where we have this 
debate within the next week on whether there is going to be a 
destruction of the Affordable Care Act, a destruction of the promise of 
access to healthcare for every American. The Republicans are coming 
back, once again, to try to destroy that promise.
  The Republicans harbor an ancient animosity toward the goal of 
ensuring that there is, in fact, universal coverage for every single 
American; that it is a right and not a privilege. What they want to do 
is to leave these programs as debt-soaked relics of the promises that 
have been made to ensure that there is, in fact, coverage for every 
American.
  So this is going to be the debate.
  Daniel Patrick Moynihan, the great Senator from New York, used to say 
that when you do not want to help a program or to hurt a program, you 
engage in benign neglect--benign neglect. What the Republicans are 
doing is engaging in a program of designed neglect--of ensuring, after 
this designed program is put in place, that there is a reduction in 
coverage, that there are fewer people who get the help they need, that 
older people have to pay more, that fewer people get access, and that 
Planned Parenthood is defunded. It is all part of a program of designed 
neglect of the healthcare of all Americans.
  This is a historic battle. It was not completed in July. Now, in the 
next 10 days, we must complete this fight and make sure they are not 
successful.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.

[[Page S5834]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. KLOBUCHAR. Mr. President, I rise to join my colleagues on the 
floor to share concerns I have been hearing from people in my State 
about the latest healthcare repeal bill.
  Minnesotans and patient groups, such as AARP, oppose this bill 
because eliminating the Medicaid expansion and the Affordable Care 
Act's help for millions of people means they would lose coverage, and 
it would increase their out-of-pocket costs.
  People in my State are concerned about this bill's impact on rural 
hospitals, especially--as are the rural hospitals--because it makes 
deep cuts to Medicaid, and the new block grant in the bill would end 
completely by 2027.
  I am very concerned that this bill would reverse the progress we are 
making in addressing the opioid epidemic by putting a cap on Medicaid, 
a program that has been critical for substance abuse treatment for 
people struggling with this addiction.
  A few months ago, I pointed out that we were on plan F in the Senate. 
Plans A and B were the two House versions of a repeal; plans C and D 
were the two Senate versions of the repeal; plan E was the repeal bill 
without a replacement plan; and then we were presented with plan F. 
That, of course, went down after the Senate Democrats were joined by 
three Republican Senators in voting it down. I actually thought we 
couldn't get lower than F, but apparently we can because now we are 
here.
  Many of the Minnesotans I have talked to don't like A, B, C, D, E, F, 
or the plan we are discussing that has been proposed. I have heard from 
people all over my State. At the Minnesota State Fair, I heard from 
Democrats, Republicans, and Independents. I heard from people from our 
cities and people from our rural areas. There are a lot of people--
nearly 2 million people--at the Minnesota State Fair, which is the 
biggest State fair in the country. A lot of people stopped by my booth. 
I heard from the old and the young, from men and women, cancer 
survivors, people with disabilities, and many more. None of them wanted 
us to keep going down a partisan path when it comes to healthcare.
  That is why I was so happy to tell them over the recess that new 
work--bipartisan work--was being done with Senator Alexander and 
Senator Murray, two Senators who proved that they could work across the 
aisle on the education bill, which they did last year. They are the 
leaders on the Health, Education, Labor, and Pensions Committee, and 
they have been moving forward together with truly bipartisan hearings 
and discussions. I have attended a number of them with Governors and 
with experts on this issue to figure out the best ways to strengthen 
the individual markets and to reduce costs. That is something we have 
done successfully in our State with an all-Republican legislature and a 
Democratic Governor. We worked on it in our State, so I figured we 
could maybe bring this out on the national level. But it isn't enough 
that the work that is going on with Senator Alexander and Senator 
Murray on a bipartisan basis could be imploded in favor of another 
version of a repeal bill that hasn't even gone to a hearing before the 
HELP Committee in regular order, as we would expect--the regular order 
Senator McCain spoke up for in the incredible speech he gave when he 
came back to the Senate. If that isn't enough, we heard yesterday that 
we will not even be able to get a full Congressional Budget Office 
analysis of this bill this month. Why would we rush to take a vote 
before we have that critical information?
  I have repeatedly heard my colleagues criticize moving forward with 
bills when we don't know their impact. Our constituents are owed this. 
This is the entire healthcare system of America. Why would we be taking 
a vote on a bill when we don't even know the full impact--when we do 
not have a full score of the bill--either financially or, most 
honestly, the impact it would have on people's healthcare? Our 
constituents are owed this. It is their healthcare and their money we 
are messing around with.
  When I talk to my constituents, none of them ask me to do what we 
already know this bill does. It cuts Medicaid, eliminates the Medicaid 
expansion, threatens protections for people with preexisting 
conditions, and kicks people off their insurance coverage. Instead, 
they want us to work together on bipartisan solutions to fix what we 
have when it comes to healthcare: to strengthen the exchanges, support 
small businesses, reform delivery systems, and lower the cost of 
prescription drugs. I don't see anything in this bill that would lower 
the cost of prescription drugs--nothing.
  I have heard the same message from senior groups and the Children's 
Hospital Association, which are strongly opposed to this bill. I have 
heard the same message from the American Heart Association, the 
American Diabetes Association, the American Cancer Society, and several 
other patient groups that have said this ``proposal just repackages the 
problematic provisions'' of the bills that were voted down earlier this 
summer.
  This bill, the Graham-Cassidy bill, is not the only option. Instead 
of making these kinds of cuts and moving backward, Senator Alexander 
and Senator Murray have invited all Senators, as I noted, to 
participate in their process. They have had dozens of Senators show up 
at early morning breakfasts or, as Senator Alexander calls them, 
coffees, with 30, 40 Senators showing up. I know because I was there. 
Why do they show up? Because they know we must make changes to the 
Affordable Care Act. They also know, based on the work we have seen in 
Minnesota and other places, these changes can be made across the aisle.
  In these hearings and discussions on bipartisan solutions, we have 
talked about the State-based reinsurance program passed in Minnesota. 
While we are still waiting for the Federal waiver--I will make a pitch 
for this at this moment--from the administration, even passing it alone 
helped us to bring promised rates down. I know Alaska has a State-based 
reinsurance program and recently got approval from the administration, 
and New Hampshire and other States are pursuing similar plans. That is 
why I support Senator Kaine and Senator Carper's legislation, the 
Individual Health Insurance Marketplace Improvement Act, to reestablish 
a Federal reinsurance program. This bill would lower premiums by 
providing support for high-cost patients.
  Another topic we have discussed frequently as part of the HELP 
Committee process over the past few weeks is the cost-sharing reduction 
payments. These are crucial to stabilizing the individual market and 
reducing uncertainty. That is why I support Senator Shaheen's 
Marketplace Certainty Act.
  It is clear that this type of legislation could get support from both 
sides of the aisle to improve the system, but beyond these immediate 
fixes, it is long past time that we come together to pass legislation 
to address the skyrocketing costs of prescription drugs. I have a bill 
that would harness the negotiating power of 41 million seniors on 
Medicare to bring drug prices down. Right now, Medicare is actually 
banned by law from using their market power to negotiate for better 
prices. I would bet on 41 million seniors for getting better prices, 
but we are not giving them that chance.
  Senator McCain and I have a bill to allow Americans to bring in safe, 
less expensive drugs from Canada.
  Senator Lee and I have a bill that would allow temporary importation 
of safe drugs that have been on the market in another country for at 
least 10 years when there isn't a healthy competition for that drug in 
this country. This would let patients access safe, less expensive 
drugs.
  Senator Grassley and I have a bill which would stop something called 
pay-for-delay, where big pharmaceutical companies actually pay off 
generic companies to keep less expensive drugs off the market. That 
bill would save taxpayers $2.9 billion and a similar amount for 
individual consumers.
  Are those bills in this latest proposal from our Republican 
colleagues? No, they are not. Instead, what does this bill do? While it 
devastates the Medicaid Program, it repeals big parts of the Affordable 
Care Act that help people afford insurance and, instead, puts in place 
an inadequate block grant which completely goes away in 10 years. This 
bill does the opposite of what the people came up to me and talked to 
me about in my State over the August break.
  So before we rush through a vote on it, before we even know the 
impact of

[[Page S5835]]

it, before it has even gone through the committee process as it is 
supposed to do, before we even give an opportunity for Senator Lamar 
Alexander and Senator Patty Murray--the two leaders on the committee 
that matters for healthcare--to come up with their plan, no, the 
proposal would be to rush the vote on this, and that is just wrong.
  What is this in real terms? It is a woman from Pine Island, MN. Her 
husband has struggled with mental illness for years, but she told me 
she felt so fortunate that he was able to get mental health treatment 
through their insurance coverage. She is worried that if these types of 
repeal efforts succeed, people like her husband will go back to being 
desperate for help.
  This debate is about people with preexisting conditions who would see 
their costs skyrocket under this bill. Teri from my State has ovarian 
cancer. Unfortunately, it is not the first time she has had it. She 
said that when she was diagnosed back in 2010, she ended up declaring 
bankruptcy due to the cost of her treatment. Teri said bankruptcy was 
``just a reality for a lot of people with cancer.''
  Luckily, under the Affordable Care Act, Teri can afford insurance and 
is currently responding well to treatment, which, by the way--I see 
Senator Durbin here--is based on NIH-funded research. It is treatment 
based on that research, which, unfortunately, we cut back on in the 
bill, and Senator Durbin will continue to fight to get that treatment 
through the Department of Defense included.
  But the bill we are facing now, the Graham-Cassidy bill, would allow 
insurers to charge sick people or those with preexisting conditions 
much more than healthy people. Teri is worried that it would make it 
difficult, if not impossible, for people like her to afford health 
insurance.
  This debate is about all the parents whom I have spoken to over the 
last few months who have children with disabilities. These parents 
would literally come up to me at parades over the summer, bring their 
kids over in the middle of the parade route, and introduce those 
children to me--kids in wheelchairs, kids with Down syndrome--and say: 
This is a preexisting condition. This is what a preexisting condition 
looks like. That is why they oppose repeal.
  In Minnesota, one out of four children get their health coverage from 
Medicaid, and 39 percent of our children with disabilities or special 
healthcare rely on Medicaid or children's health insurance. We should 
be spending our time this week reauthorizing the Children's Health 
Insurance Program before States like mine run out of money at the end 
of the month, before debating another repeal bill for which we don't 
even have a Congressional Budget Office score on the impact. That word 
``score'' sounds technical, but it is about what the bill would mean to 
people like those kids who came up to me in the parades with their 
parents and to people, like Teri, with ovarian cancer.
  This debate is also about our seniors and our rural communities. Our 
hospitals are essential to rural communities. They don't just provide 
health services; they employ thousands of doctors, nurses, pharmacists, 
and other healthcare workers. These rural hospitals often operate at 
margins of less than 1 percent. That is one reason Senator Grassley and 
I introduced the Rural Emergency Acute Care Hospital Act a few months 
ago to help rural hospitals stay open. But cutting Medicaid by billions 
of dollars and repealing the Medicaid expansion would move us in the 
opposite direction.
  In my State, Medicaid covers one out of five people living in rural 
areas. I know my colleagues, Senators Collins, Capito, and Murkowski, 
have previously expressed real concerns about the impact of Medicaid 
cuts in their States, which also have big rural populations. Cutting 
Medicaid and eliminating the Medicaid expansion doesn't just threaten 
healthcare coverage for these populations; it threatens the local 
communities where these hospitals are located.
  These rural hospitals are on the frontlines of one important fight; 
that is, the fight against the opioid epidemic. We just found out that 
in our State last year, over 600 people died from opioid and other drug 
overdoses--over 600 people. That is about two per day. It is more 
people than we see die from car crashes in our State. It is more people 
than we see die from homicide. Deaths from prescription drugs now claim 
more lives than either of those two issues. This epidemic affects our 
seniors too. One in three Medicare part D beneficiaries received a 
prescription opioid last year.
  While there is much more work to do to combat the epidemic, I want to 
recognize the progress we have made with the CARA Act and the Cures 
Act, with all the work that has been done, but making cuts to Medicaid 
will move us in the other direction.
  We have all heard the voices, not just of those on the frontlines of 
the opioid crisis but from doctors and hospitals, patients, seniors, 
nursing homes, and schools saying that this bill is not the way 
forward. Instead, let's do what we all heard people wanted us to do in 
August; that is, to work across the aisle on actual solutions that help 
people afford healthcare.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous rule, all postcloture time 
has expired.
  The question is, Will the Senate advise and consent to the Francisco 
nomination?
  Mr. DURBIN. Mr. President, 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.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Mississippi (Mr. Cochran) and the Senator from Kansas (Mr. 
Moran).
  Mr. DURBIN. I announce that the Senator from New Jersey (Mr. 
Menendez) is necessarily absent.
  The PRESIDING OFFICER (Mr. Cruz). Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 50, nays 47, as follows:

                      [Rollcall Vote No. 201 Ex.]

                                YEAS--50

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     Lee
     McCain
     McConnell
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Strange
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--47

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Donnelly
     Duckworth
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harris
     Hassan
     Heinrich
     Heitkamp
     Hirono
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     McCaskill
     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden

                             NOT VOTING--3

     Cochran
     Menendez
     Moran
  The nomination was confirmed.
  The PRESIDING OFFICER. The Senator from Alaska.
  Ms. MURKOWSKI. Mr. President, I ask unanimous consent that with 
respect to the Francisco nomination, the motion to reconsider be 
considered made and laid upon the table and the President be 
immediately notified of the Senate's action.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________