[Senate Hearing 112-904]
[From the U.S. Government Publishing Office]
S. Hrg. 112-904
THE CONSTITUTIONALITY OF THE AFFORDABLE CARE ACT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
----------
FEBRUARY 2, 2011
----------
Serial No. J-112-3
----------
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. Hrg. 112-904
THE CONSTITUTIONALITY OF THE AFFORDABLE CARE ACT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
FEBRUARY 2, 2011
__________
Serial No. J-112-3
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PRINTING OFFICE
89-899 PDF WASHINGTON : 2011
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard, a U.S. Senator from the State of Illinois.. 1
prepared statement........................................... 52
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 4
prepared statement........................................... 55
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 58
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 60
WITNESSES
Witness List..................................................... 51
Kroger, John, Oregon Attorney General, Salem, Oregon............. 6
prepared statement........................................... 63
Fried, Charles, Beneficial Professor of Law, Harvard Law School,
Cambridge, Massachusetts....................................... 8
prepared statement........................................... 76
Carvin, Michael A., Partner, Jones Day, Washington, DC........... 10
prepared statement........................................... 82
Barnett, Randy E., Carmack Waterhouse Professor of Legal Theory,
Georgetown University Law Center, Washington, DC............... 12
prepared statement........................................... 95
Dellinger, Walter, Douglas B. Maggs Professor Emeritus of Law,
Duke University School of Law, Durham, North Carolina.......... 14
prepared statement........................................... 104
QUESTIONS
Questions submitted by Senator Dick Durbin for John Kroger....... 112
Questions submitted by Senator Dick Durbin for Charles Fried..... 113
Questions submitted by Senator Dick Durbin for Michael Carvin.... 114
Questions submitted by Senator Dick Durbin for Randy Barnett..... 115
Questions submitted by Senator Dick Durbin for Walter Dellinger.. 116
Questions submitted by Senator Jeff Sessions for Michael Carvin.. 118
Questions submitted by Senator Jeff Sessions for Randy Barnett... 121
ANSWERS
Responses of John Kroger to questions submitted by Senator Durbin 123
Responses of Charles Fried to questions submitted by Senator
Durbin......................................................... 131
Responses of Michael A. Carvin to questions submitted by Senator
Durbin......................................................... 135
Responses of Michael A. Carvin to questions submitted by Senator
Sessions....................................................... 136
Responses of Randy E. Barnett to questions submitted by Senator
Durbin......................................................... 140
Responses of Randy E. Barnett to questions submitted by Senator
Sessions....................................................... 141
NOTE: At the time of printing, after several attempts to obtain
responses to the written questions, the Committee had not
received any communication from Walter Dellinger............... 145
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Congressional Record--Senate, December 23, 2009.................. 146
Harris, Kamala D., Attorney General of California, Department of
Justice, statement............................................. 149
AARP, Nora Super, Government Relations & Advocacy, Washington,
DC, joint statement............................................ 153
Small Business Majority, Joseph E. Sandler, Counsel for Amicus
Curiae, statement and attachment............................... 168
Constitutional Accountability Center, Elizabeth Wydra, Chief
Counsel and Douglas Kendall, President, Washington, DC,
February 1, 2011, letter....................................... 186
National Senior Citizens Law Center (NSCLC), Rochelle Bobroff and
Simon Lazarus, Federal Rights Project, Washington, DC,
statement...................................................... 194
Center for American Progress Action Fund, February 2, 2011,
article........................................................ 197
Lazarus, Simon, ``The Health Care Lawsuits: Unraveling a Century
of Constitutional Law and the Fabric of Modern American
Government,'' American Constitution Society for Law and Policy,
Washington, DC, brief.......................................... 200
Lazarus, Simon, ``The Health Care Lawsuits: Unraveling a Century
of Constitutional Law and the Fabric of Modern American
Government, Executive Summary,'' American Constitution Society
for Law and Policy, Washington, DC, brief...................... 227
Abbott, Greg, Attorney General of Texas, Austin, Texas, February
2, 2011, letter................................................ 235
Bondi, Pam, Florida Attorney, statement.......................... 238
Hatch, Hon. Orrin G., ``Does the Constitution Constrain
Congressional Judgment?: Constitutional Problems with Health
Insurance Reform Legislation,'' Regent Journal of Law & Public
Policy (RJLPP)................................................. 241
``Forcing Americans To Buy What They Don't Want,'' by Senator
Orrin G. Hatch, Chicago Tribune, April 4, 2010, article........ 276
``Why the Health Care Bills Are Unconstitutional,'' by Senator
Orrin G. Hatch, Kenneth Blackwell, and Kenneth A. Klukowski,
Wall Street Journal, January 2, 2010, article.................. 278
U.S. District Court, Northern District of Florida, Pensacola
Division, court case........................................... 280
Strange, Hon. Luther, Alabama Attorney General, statement........ 300
Pruitt, Hon. E. Scott, Attorney General of Oklahoma, statement... 303
Shurtleff, Hon. Mark L., Attorney General of Utah, statement..... 308
THE CONSTITUTIONALITY OF THE AFFORDABLE CARE ACT
----------
WEDNESDAY, FEBRUARY 2, 2011
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
Room SH-216, Hart Senate Office Building, Hon. Richard J.
Durbin, presiding.
Present: Senators Durbin, Leahy, Klobuchar, Franken,
Blumenthal, Grassley, Sessions, Hatch, Cornyn, and Lee.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Senator Durbin. This hearing of the Senate Judiciary
Committee will come to order. I want to thank Chairman Leahy
for allowing me to convene this hearing. I expect him to be
here and join us shortly.
The title of today's hearing is the Constitutionality of
the Affordable Care Act. This is the first-ever Congressional
hearing on whether the landmark health care law complies with
the Constitution. I would like to thank the Chairman, as I
mentioned, and also thank my friend and the Ranking Member of
the Senate Judiciary Committee, Senator Chuck Grassley of Iowa,
who will make an opening statement after I have completed my
own. And then we will turn to the witnesses and seven-minute
rounds so that the Senators present will have a chance to
question this distinguished panel.
When Judge Vinson of the Northern District of Florida
issued a ruling on Monday striking down the Affordable Care
Act, I know it must have caused some concern across America.
Many Americans who are counting on the provisions of that
health care law are in doubt now about its future. I am certain
that many parents of children with pre-existing conditions
wonder if they will be able to buy insurance now if this law is
stricken and the pre-existing conditions become an exclusion
for insurance coverage.
Senior citizens who were hoping that we would close the
doughnut hole, that gap in Medicare prescription drug coverage,
will wonder what it means, whether they have to return the
checks that were sent to them or the next check that will be
sent in the future.
Millions of Americans will be in doubt. Those who are 25
years old and now eligible to be covered by their parents'
family health care plan may have some questions about that.
Cancer patients who had joined the Act's new high-risk pools
may have doubts as well. And small businesses who thought tax
credits were coming their way may be asking Members of
Congress, ``What does this all mean?''
I want those millions of Americans to know that they should
not despair.
First, they ought to reflect on the simple history of major
legislation in America. This is not the first major law that
has been challenged in the courts, even challenged successfully
in the lower courts, as to its constitutionality. Let me
mention two or three others: the Social Security Act, the Civil
Rights Act of 1964, and the federal minimum wage law--all of
those successfully challenged in lower courts, but ultimately
upheld by the Supreme Court. I think the same is going to
happen with the Affordable Care Act.
And for those who are keeping score as to the challenges in
federal courts to this law, make certain that you know the
numbers. Twelve federal district court judges have dismissed
challenges to this law, two have found the law to be
constitutional, and two have reached the opposite conclusion.
How is it possible that these federal judges, 16 different
federal judges, who not only study the Constitution but swear
to uphold it, have drawn such different conclusions? Well, I
think those of us on the Judiciary Committee and serving in the
Senate understand that many people can read that Constitution
and come to different conclusions.
It is unlikely that we are going to produce a national
consensus in this room, maybe not even an agreement with the
people in attendance. But if we serve the Congress and the
Nation by fairly laying out the case on both sides, I think
this is a worthy undertaking by the Senate Judiciary Committee.
At the heart of the issue is Article I, Section 8, which
enumerates the only powers delegated to Congress. Now, one side
argues that with the passage of the Affordable Care Act,
Congress went beyond that constitutional authority. The other,
which includes those of us who voted for the law, disagrees.
Within those enumerated powers is one described by one
constitutional scholar as ``the plainest in the Constitution'':
the power to regulate commerce. So the threshold question is:
Is the health care market in America commerce?
I think the answer is obvious, but ultimately the Supreme
Court will decide. Over the course of history, the Court has
interpreted this ``plainest of powers'' through its application
of the Founders' vision to current times. Whether it was Roscoe
Filburn, growing wheat to feed his chickens in 1941, or Angel
Raich, using homegrown marijuana to treat her chronic illnesses
in 2002, Justices from Robert Jackson to Antonin Scalia have
made it clear that Congress has broad power to regulate private
behavior where there is any rational basis to conclude it
substantially affects interstate commerce.
The role of the lower courts is to apply those precedents
to the facts. But sometimes lower court judges--many might be
characterized as ``activists'' by their critics--try to make
new law. And this has happened in Florida and Virginia as
judges, I believe, have ignored the precedents and created a
new legal test distinguishing ``activity'' from ``inactivity,''
a distinction that cannot be found anywhere in the Constitution
or Supreme Court precedent.
This is an historic room. I have had four opportunities--
Senator Grassley has probably had more--to meet in this room
and to interview prospective nominees to serve on the United
States Supreme Court. They all stand with the photographers and
the cameras rolling, hold up their hands and take the oath, and
then sit and answer questions many times for days. Time and
again, the questions that are asked of them is whether or not
they are going to follow the Constitution and precedents or
whether they are going to be judicial activists. That is the
standard that should be applied as we consider the future of
the Affordable Care Act. I believe, if the Justices of the
Supreme Court apply the precedents, look at the clear meaning
of the Constitution, that they are going to find this law
constitutional.
When the Affordable Care Act comes before the Supreme
Court, I am confident that they will recognize that Congress
can regulate the market for health care that we all participate
in and that it can regulate insurance, which is the primary
means of payment for health care services.
The political question which has enervated this debate
focuses primarily on one section. Even if Congress has the
enumerated power under Section 8 to tax and to pass laws
affecting the health care market, did it go too far in
requiring that individuals who do not buy health insurance
coverage face a tax penalty, the individual responsibility
section of the law?
Returning to Article I, Section 8, which allows Congress
``to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers,'' the Supreme
Court just last year in Comstock case said ``the Necessary and
Proper Clause makes clear that the Constitution's grants of
specific Federal legislative authority are accompanied by broad
power to enact laws that are convenient, or useful or conducive
to that authority's beneficial exercise.'' The test is whether
the means is rationally related to the implementation of a
constitutionally enumerated power. Is an individual mandate
``rationally related'' to Congress' goals of making health care
more affordable and prohibiting health insurance companies from
denying coverage for those with pre-existing conditions? It is
clear to me that private health insurance companies could not
function if people only bought coverage when they faced a
serious illness.
It is also worth noting that many who argue the Affordable
Care Act is unconstitutional are the same people who are
critics of judicial activism. They are pushing the Supreme
Court to strike down this law because they could not defeat it
in Congress and they are losing the argument in the court of
public opinion where four out of five Americans oppose repeal.
Why is public sentiment not lining up behind the repeal
effort? Because a strong majority of Americans do not believe
that their children should be denied health insurance because
of pre-existing conditions. They want to cover their young
adult children under their family plans. They believe small
businesses should be given tax credits to cover health
insurance for their employees. They oppose caps on coverage and
the health industry's cancellation of coverage when people need
it the most.
With many parts of our world in turmoil today over
questions of freedom, we should never forget that the strength
of our Constitution lies in our fellow citizens who put their
faith in its values and trust the President, Congress, and the
courts to set aside the politics of the moment and to fairly
apply 18th century rhetoric to 21st century reality.
Now I want to recognize Senator Grassley, the Ranking
Member of the Committee, for his opening statement.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Thank you, and I appreciate my
colleague's discussion of the constitutional issues that are
here. I also appreciated his discussion of some of the policy
issues within this legislation. Whether you agree parts of this
bill are very good, parts of it are very bad, things that ought
to be thrown out, things that ought to be put into it that
maybe are not in it, are all legitimate issues. But the real
issue for us today is on the constitutionality of it, and I
think we are very fortunate in this country to be under the
rule of law, under that Constitution. I think we are very
fortunate to be probably the only country out of 190 on the
globe that agree in the principle of limited government, and
that is something that we not only appreciate; it is something
that we ought to worship, and it is something that ought to be
considered the American people are very special people for that
reason. So I look forward to those constitutional issues.
We agree on the issue of it is constitutional, we move
forward; and if it is not constitutional, we start over again.
And, of course, all of the policies that are in dispute that my
colleague mentioned would be continued if this is
constitutional. And if it is not constitutional, then we will
debate those issues once again.
The Florida judge who ruled on the constitutionality of the
new health law this Monday compared the Government's arguments
to Alice in Wonderland. That same reference applies equally to
today's hearing. Things are getting ``curioser and curioser.''
Under our system of limited and enumerated powers, the
sensible process would have been to have held a hearing on the
law's constitutionality before the bill passed, not after.
Instead, the Congress is examining the constitutionality of the
health care law after the ship has sailed.
Like Alice in Wonderland, ``Sentence first, verdict
afterward.''
So what has gotten us to this point?
Early in the debate, Republicans and Democrats agreed that
the health care system had problems that needed to be fixed.
I was part of the bipartisan group of Senators on the
Finance Committee who were trying to reach an agreement on
comprehensive health reform.
However, before we could address some of the key issues,
some Democratic Senators and the administration ended these
negotiations, and the majority took their discussions behind
closed doors.
What emerged was a bill that I feel has major problems
beyond even constitutionality. Republicans argued that instead
of forcing it through the Senate, Republicans and Democrats
should return to the negotiating table to find common-sense
solutions that both parties could support.
Of course, the plea went unanswered, and the majority
passed their health care law without a single Republican vote.
In fact, when Republicans identified specific concerns,
such as the constitutionality of the individual mandate, we
were told our arguments were pure messaging and obstructionism.
Throughout the debate, the majority argued that the
individual mandate was essential for health reform to work.
There are many constitutional questions about the
individual mandate. Is it a valid regulation of interstate
commerce? Is it a tax?
The reality is that no one can say for certain. The
nonpartisan Congressional Research Service notes that it is
unprecedented for Congress to require all Americans to purchase
a particular service or good.
The Supreme Court has stated that the Commerce Clause
allows regulation of a host of economic activities that
substantially affect interstate commerce. No dispute about
those decisions. But it has never before allowed Congress to
regulate inactivity by forcing people to act.
What is clear is that if this law is constitutional,
Congress can make Americans buy anything that Congress wants to
force you to buy.
The individual mandate is the heart of the bill. My friend,
Senator Baucus, Chairman of the Finance Committee, said at the
mark-up back in September 2009, the absence of a requirement of
``a shared responsibility for individuals to buy health
insurance'' guts the health care reform bill.
If the Supreme Court should strike down the individual
mandate, it is not clear that the rest of the law can survive.
The individual mandate is the reason that the new law bars
insurance companies from denying coverage based on pre-existing
conditions, and the sponsors made the mandate the basis for
nearly every provision of the law.
Judge Vinson's ruling that the whole law must be stricken
reflects the importance of the mandate to that overall outcome.
Then there is the Medicaid issue before us. Does the new
law amount to impermissible coercion of the States? States do
have the choice to drop out of the Medicaid program. No dispute
about that.
But some of my colleagues on the other side of the aisle
may even make that case today even though I do not think they
are really promoting that as a viable option for the States. If
a State drops out of Medicaid, the new health law states
clearly that none of that State's citizens would be eligible
for tax credits because people with incomes at Medicaid
eligibility levels can never be eligible for tax credits.
The idea that the Federal Government could, through
Medicaid, drive the single largest share of every State budget
seems very inconsistent with the objective of our federal
system of Government.
At this point, Mr. Chairman, Senator Durbin, I ask that a
statement from Virginia Attorney General be placed in the
record. I am interested in hearing from the witnesses today,
but ultimately, we all know that the subject of this hearing is
finally going to be determined by the Supreme Court.
Thank you very much.
Senator Durbin. Thanks, Senator Grassley, and without
objection, that statement will be made part of the hearing.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Durbin. I want to invite my colleagues on the
Democratic side, if they would like to move and fill these
seats, they would be certainly welcome to come closer.
I would ask now if this panel of witnesses would please
stand and take the oath. Please raise your right hand. Do you
swear or affirm the testimony you are about to give before the
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Mr. Kroger. I do.
Mr. Fried. I do.
Mr. Carvin. I do.
Mr. Barnett. I do.
Mr. Dellinger. I do.
Senator Durbin. Thank you.
Let the record reflect that all of the witnesses have
answered in the affirmative. Each of the witnesses will be
given five minutes for an opening statement, and then we have
seven-minute rounds where Senators will ask questions.
Our first witness is Attorney General John Kroger of the
State of Oregon. Attorney General Kroger was elected in 2008
and I think has a national distinction in the fact that he was
nominated by both the Democratic and Republican Parties. So he
truly is a bipartisan Attorney General from the State of
Oregon. He and eight other States Attorneys General recently
filed an amicus brief before the Sixth Circuit in support of
the Affordable Care Act's constitutionality.
Prior to his election in 2008, Attorney General Kroger
served as a United States Marine, a law professor, a federal
prosecutor, and a member of the Justice Department's Enron Task
Force. While a federal prosecutor, he served on the multi-
agency Emergency Response Team that investigated the 9/11
attacks on the World Trade Center.
Attorney General Kroger received his bachelor's and
master's degrees from Yale University and his law degree from
Harvard law School.
General Kroger, thank you for being here today and the
floor is yours.
STATEMENT OF HON. JOHN KROGER, OREGON ATTORNEY GENERAL, SALEM,
OREGON
Mr. Kroger. Thank you very much. My name is John Kroger,
and I am the Attorney General of Oregon.
Over the course of my career, I have taken an oath to
defend the Constitution as a United States Marine, as a federal
prosecutor, and as the Attorney General of my State, and I take
that obligation extraordinarily seriously. I am confident that
the Affordable Care Act is constitutional and will ultimately
be judged constitutional.
The reason for that confidence is quite simple. There have
been four primary arguments raised in litigation challenging
the bill, and I believe all four arguments are, as a legal
matter, meritless. I would like to briefly review the four
arguments and explain why I believe they have no merit.
The first argument is that the Commerce Clause by its own
terms only regulates commerce. The argument is that declining
to get health insurance is not commerce but refusing to engage
in commerce, and thus falls outside the power of Congress to
regulate. This argument is extraordinarily weak because it was
explicitly rejected in Gonzalez v. Raich. In that case, the
Court held, and I quote: ``Congress can regulate purely
intrastate activity that is not in itself commercial.'' That
belief was stated not just in the majority opinion, which was
joined by Justice Kennedy, but in the concurrence from Justice
Scalia as well.
This argument is also dangerous. The Gonzalez opinion
provides the constitutional foundation for federal
criminalization of all laws banning the home production and
home use of child pornography and dangerous drugs like
methamphetamine. As a prosecutor, I think overturning Gonzalez
would be a disaster.
The second argument that has been raised is based on the
so-called activity/inactivity distinction. In Perez v. United
States and subsequent cases, the Supreme Court spoke of the
Commerce Clause regulating commercial activities. Opponents
have used this language to raise a novel argument that the
Constitution prohibits the regulation of inactivity. The
litigants also claimed that declining to buy insurance is not
an activity but inactivity, and thus constitutionally
protected. There are three serious flaws with this argument.
The first is that the inactivity/activity distinction has
absolutely no basis in the text of the Constitution.
Second, the Court recognized in both the Wickard decision
and in Carter v. Carter Coal that Congress can regulate not
only activities but conditions, and I believe that that would
also apply then to the condition of being without health care.
Third, people lack insurance because businesses do not
offer it to their employees, insurance companies decline to
extend it for pre-existing conditions, or individuals fail to
select it and pay for it--some out of choice, some because they
cannot. All of these are actions with real-world and often very
tragic consequences. The constitutional fate of a great Nation
cannot be decided by semantics and word games that label real-
world actions as inactivity.
The third argument which is cited by some litigants and
also by some courts is that the Supreme Court has never
interpreted the Constitution to allow Congress to force
individuals to buy a product. This argument is simply
inaccurate because this precise claim was raised and rejected
by the Court in Wickard v. Filburn. In that case, the plaintiff
argued that, as a result of the Agricultural Adjustment Act, he
would be forced to buy a product--food--on the open market. As
Mr. Justice Jackson wrote, the claim was that Congress was
``forcing some farmers into the market to buy what they could
provide for themselves.'' This claim, then, is identical to the
one that has been raised in the litigation, that individuals
should not be and cannot be forced to buy a health insurance
product when they would rather self-insure or pay for the
product of health care themselves.
Writing for a unanimous Court, Justice Jackson rejected the
claim, holding that these kinds of questions are ``wisely left
under our system for the resolution by the Congress.'' Again,
existing precedents strongly support the constitutionality of
the Affordable Care Act.
Finally, critics claim that the personal responsibility
mandate impermissibly interferes with constitutionally
protected liberty. I find this argument odd because the
Constitution does not create or protect the freedom to
freeload. Right now we have 40 million Americans who do not
have health care coverage. Those 40 million people have the
right to go to a hospital emergency room, and hospitals are
legally required to provide that care. As a result of that,
they rack up approximately $40 billion of health care fees
every year. The opponents of the bill claim that this cost
shifting is constitutionally protected. I would simply suggest
that there is no constitutional right to force other people to
pay for your own health care when you decline to take
responsibility for yourself.
Thank you very much for your time.
[The prepared statement of Mr. Kroger appears as a
submission for the record.]
Senator Durbin. Thank you very much, General Kroger.
Our next witness is Charles Fried. Professor Fried has
served on the Harvard Law School faculty since 1961 as a
renowned scholar of constitutional law. He served as Solicitor
General under President Ronald Reagan from 1985 until 1989. He
worked in the Reagan administration Justice Department as a
Special Assistant to the Attorney General. From 1995 until
1999, Professor Fried served as Associate Justice of the
Supreme Judicial Court of the State of Massachusetts. He
received his B.A. from Princeton, a bachelor's and master's
degree from Oxford University, and a J.D. from Columbia
University School of Law.
Professor, thanks for joining us today, and please proceed
with your statement.
STATEMENT OF CHARLES FRIED, BENEFICIAL PROFESSOR OF LAW,
HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS
Mr. Fried. Thank you. I should just add to that statement
in my C.V. that I have two of my former students here:
Professor Barnett, to whom I taught torts, and Attorney General
Kroger, to whom I taught constitutional law.
[Laughter.]
Mr. Fried. I come here not as a partisan for this Act. I
think there are lots of problems with it. I am not sure it is
good policy. I am not sure it is going to make the country any
better. But I am quite sure that the health care mandate is
constitutional.
I have my doubts about the part that Senator Grassley
mentioned with the Medicaid compulsion on the States. That is
something I worry about, but the health care mandate I think
really is--I would have said a no-brainer, but I must not with
such powerful brains going the other way.
Clearly, insurance is commerce. That was held by the
Supreme Court in 1944. There was a time when the Supreme Court
did not think it was commerce. But it has been ever since, and
if you look at the mountain of legislation, most noticeably the
ERISA legislation, you see that the Congress and the courts
obviously think insurance is commerce. And in health care,
surely health care insurance surely is commerce, insuring, as
it does, something like 18 percent of the gross national
product.
Now, if that is so, if health care insurance is commerce,
then does Congress have the right to regulate health care
insurance? Of course it does. And my authorities are not
recent. They go back to John Marshall, who sat in the Virginia
Legislature at the time they ratified the Constitution and who
in 1824, in Gibbons v. Ogden, said regarding Congress' commerce
power, ``What is this power? It is the power to regulate; that
is, to prescribe the rule by which commerce is to be
governed.'' To my mind, that is the end of the story. The
constitutional basis for the mandate is that, the mandate is a
rule--more accurately part of a system of rules--''by which
commerce is to be governed,'' to quote Chief Justice Marshall.
And if that were not enough for you, though it is enough
for me, you go back to Marshall in 1819 in the McCulloch v.
Maryland, where he said, [T]he powers given to the government
imply the ordinary means of execution. . . .The government
which has a right to do an act''--surely to regulate health
insurance--''and has imposed on it, the duty of performing that
act, must, according to the dictates of reason, be allowed to
select the means. . . .'' And that is the Necessary and Proper
Clause, and he ends by saying, ``Let the end be legitimate''--
that is to say, the regulation of health insurance--''let it be
within the scope of the Constitution''--ERISA--``and all means
which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consistent with the letter and
spirit of the Constitution, are constitutional.''
Well, that to me again is the end of the story, and I think
that one thing is noteworthy about Judge Vinson's opinion where
he said, ``If we strike down the mandate, everything else
goes,'' shows as well as anything could that the mandate is
necessary to the accomplishment of the regulation of health
insurance. But is it proper?
Well, there is, I think, an intellectual confusion here.
This is clearly necessary to the success of Congress's scheme.
It is improper only if it bumps up against some specific
prohibition in the Constitution. And the only prohibitions I
can think of that this bumps up against are the Liberty Clauses
of the Fifth and 14th Amendment. And if that is so, then not
only is ObamaCare unconstitutional, but so is RomneyCare in
Massachusetts. And I think that is an example of an argument
that proves too much.
Thank you.
[The prepared statement of Mr. Fried appears as a
submission for the record.]
Senator Durbin. Thank you very much, Professor.
Our next witness is Michael Carvin. Mr. Carvin is a partner
in the D.C. office of Jones Day law firm, where he specializes
in constitutional, appellate, civil rights, and civil
litigation against the Federal Government. During the Reagan
administration, Mr. Carvin was a Deputy Assistant Attorney
General in the Justice Department's Civil Rights Division and
the Office of Legal Counsel. He was one of the lead lawyers
that argued before the Florida Supreme Court on behalf of
President George W. Bush in the 2000 Florida election recount
controversy, received his B.A. from Tulane University, and his
J.D. from George Washington Law School.
Mr. Carvin, thanks for being here today and please proceed.
STATEMENT OF MICHAEL A. CARVIN, PARTNER, JONES DAY, WASHINGTON,
D.C.
Mr. Carvin. Thank you for the opportunity, Senator.
The individual mandate obviously compels citizens to engage
in a contract with a wealthy corporation even though often, and
perhaps usually, it is to the citizen's economic disadvantage
to engage in that contract for health insurance when he is
healthy and does not need the insurance. And I think it is
agreed that this is unprecedented. Congress has never before
required a citizen to engage in contractual commercial activity
pursuant to the Commerce Clause. And we have heard today and
obviously the debate has been that this difference is
immaterial. There is no difference between regulating
inactivity, compelling someone to contract, and regulating
activity, regulating someone who has decided to contract and
has entered the commercial marketplace.
Under this reasoning, of course, that means that because we
can tell GM how to contract with its customers when they decide
to buy a car or how to contract with its employees in terms of
its workplace conditions, since there is no difference that
means we could compel somebody to contract with General Motors
to buy a car or to enter into an employment contract. And the
gist of my remarks is that this is not some semantic lawyer's
trick, something we came up with in response to the health care
act. It is a core principle that goes to the most basic
constitutional freedoms and limits on federal enumerated
powers.
In the first place, insurance is obviously commerce. That
is not the issue. The issue is whether inactivity is commerce.
Sitting at home and staying out of the commercial marketplace
is not commerce. It only becomes commerce if you leave your
house and decide to buy or sell goods or services. Then you
have got commerce which you can regulate.
Moreover, the decision of the citizen not to buy health
insurance does not even affect commerce. Unlike the examples we
have heard in terms of the plaintiffs in Wickard and Raich,
those people were engaging in commerce. They were providing
goods that were going to enter the commercial mainstream.
Indeed, they were providing goods that were precisely of the
sort that Congress was free to regulate if in interstate
commerce.
Now, the decision to sit at home does not affect Insurance
Company A's ability to contract with Citizen B. It has no
effect on it. If there was no pre-existing condition mandate in
the bill, this would have no effect. So the rationale for the
individual mandate is not that you are eliminating a barrier to
commerce. The rationale for the individual mandate is you are
ameliorating a Congressional distortion of commerce. Congress
told insurance companies that they had to take people with pre-
existing conditions. That is obviously good for the patients,
but it is obviously costly for the insurance companies. So what
we are doing is conscripting American citizens to ameliorate
the economic harm that Congress has visited on those insurance
companies, and this is not in any way within the traditional
commerce power.
Congress can tell Mr. Filburn not to grow his wheat, but
what it cannot do is tell Mr. Filburn's neighbor that he has
got to buy some other crop of Mr. Filburn's to ameliorate the
harm that Congress just visited on him by banning his wheat.
This is different in degree and kind, and it is literally
without a limiting principle.
As the court noted in the Florida case, the more Congress
can distort in the first place the commercial marketplace, it
can then bootstrap that original distortion into regulating all
sorts of things, all sorts of contracts, from credit cards to
cards to mortgages, that it could never get at in the first
instance. And it is also not proper.
Mr. Fried suggests that it is certainly fine to compel
people to contract, but just recently, the Court in the Eastern
Enterprises case said you could not force coal companies to, in
essence, provide health insurance contracts to former miners.
Well, what does this Act do? It forces a citizen to contract
with a wealthy corporation to ameliorate the corporation's loss
of profits. If that is proper, then, again, there is literally
nothing that Congress cannot do.
And what is the limiting principle that has been suggested
here and elsewhere? The Liberty Clause, which I used to call
the Due Process Clause, which suggests that that will limit
Congress' power. But, of course, that is a restriction on the
States. That is a restriction on the States' powers. So they
are conceding that the only limitation on Congress' limited
enumerated powers is the same as the limits on the States'
plenary police power. And if the Supreme Court has been clear
about anything, it is that you cannot obliterate the
distinction between the limited Federal Government and the
State government. And if you do that, if you advance a Commerce
Clause analogy which entirely eliminates that distinction, then
that alone shows you that it is an abuse of the commerce power.
Thank you.
[The prepared statement of Mr. Carvin appears as a
submission for the record.]
Senator Durbin. Thank you very much, Mr. Carvin.
Our next witness is Randy Barnett, the Carmack Waterhouse
Professor of Legal Theory at the highly regarded Georgetown
University Law Center, where he teaches constitutional law and
contracts. Professor Barnett previously served as a prosecutor
in Cook County--he is from Calumet City--and he has been a
visiting professor at Northwestern and Harvard Law School. Of
particular relevance for today's hearing, Professor Barnett
argued the Commerce Clause case Gonzalez v. Raich, which we
have heard referred to several times, before the Supreme Court
in 2004. He is a graduate of Northwestern University and
Harvard Law School.
Thanks for coming today and please proceed with your
statement.
STATEMENT OF RANDY E. BARNETT, CARMACK WATERHOUSE PROFESSOR OF
LEGAL THEORY, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC
Mr. Barnett. Thank you, Senator.
In 2010, something happened in this country that has never
happened before: Congress required that every person enter into
a contractual relationship with a private company. Now, it is
not as though the Federal Government never requires you to do
anything. You must register for the military and serve if
called, you must submit a tax form, fill out a census form, and
serve on a jury. But the existence and nature of these very few
duties illuminates the truly extraordinary and objectionable
nature of the individual insurance mandate. Each of these
duties is inherent in being a citizen of the United States;
each is necessary for the operation of the government itself,
and each has traditionally been recognized.
In the United States, sovereignty rests with the people,
with the citizenry. And if Congress can mandate that you do
anything that is ``convenient'' to its regulation of the
national economy, then that relationship is now reversed.
Congress would have all the discretionary power of a king, and
the American people would be reduced to its subjects.
In essence, the mandate's defenders claims that because
Congress has the power to draft you into the military, it has
the power to make you do anything less than that, including
mandating that you to send your money to a private company and
do business with it for the rest of your life. This simply does
not follow. The greater power does not include the lesser.
No one claims that the individual mandate is justified by
the original meaning of the Commerce Clause or the Necessary
and Proper Clause. Instead, the Government and those law
professors who support the mandate rest their arguments
exclusively on Supreme Court decisions. But given that economic
mandates have never before been imposed on the American people
by Congress, there cannot possibly be any Supreme Court case
expressly upholding such a power.
In my written testimony and a forthcoming article, I
explain why nothing in current Supreme Court doctrine on the
tax power, the Commerce Clause, or the Necessary and Proper
Clause justifies the individual insurance mandate. To summarize
that, rather than impose a tax on the American people, Congress
decided instead to invoke its regulatory powers under the
Commerce Clause. But because the commerce power has never been
construed to include the power to mandate that persons must
engage in economic activity, in litigation the government has
been forced to rely heavily on the Necessary and Proper Clause.
But the individual mandate is neither necessary nor proper.
First, it exceeds the limits currently placed on the exercise
of the Necessary and Proper Clause provided by the Supreme
Court in the Lopez, Morrison, and Raich decisions. Second, the
individual mandate is not necessary to ``carry into execution''
the regulations being imposed on the insurance companies.
Instead, it is being imposed to ameliorate the free rider
effects created by the Act itself. Congress cannot bootstrap
its powers this way.
In my written testimony, I also explain why the individual
mandate is improper because it commandeers the people in
violation of the 10th Amendment that reserves all powers not
delegated to Congress by the Constitution ``to the States
respectively, or to the people.'' The 10th Amendment protects
popular sovereignty as well as the States.
But wholly apart from what the Supreme Court has said about
Congress' power, each Senator and Representative takes his or
her own oath to uphold the Constitution, and each must reach
his or her own judgment about the scope of Congressional
powers. After the Supreme Court relied on the Necessary and
Proper Clause to uphold the constitutionality of the Second
National Bank in McCulloch v. Maryland, a case you are going to
hear a lot about today, President Andrew Jackson vetoed the
renewal of the bank because he viewed the bank as both
unnecessary and improper. And, therefore, he found it to be
unconstitutional. He wrote, ``If our power over means is so
absolute that the Supreme Court will not call in question the
constitutionality of an act of Congress the subject of
which''--and then he quotes McCulloch--`` `is not prohibited,
and is really calculated to effect any of the objects intrusted
to the Government,'. . . it becomes us to proceed in our
legislation with the utmost caution.''
Therefore, regardless of how the Supreme Court may
eventually rule, each of you must decide for yourself whether
the mandate is truly necessary to provide, for example, for the
portability of insurance if one changes jobs or moves to
another State. Each of you must decide if commandeering that
Americans enter into contractual relations with a private
company for the rest of their lives is a proper exercise of the
commerce power. If you conclude that the mandate is either
unnecessary or improper, then, like President Jackson, you are
obligated to conclude that it is unconstitutional and to
support its repeal.
But even if you do not find that the mandate is
unconstitutional, this week's ruling in Florida suggests that
there is a good chance that the Supreme Court will. So you
might want to consider constitutional alternatives to the
individual mandate sooner rather than later.
Thank you.
[The prepared statement of Mr. Barnett appears as a
submission for the record.]
Senator Durbin. Thank you very much, Professor Barnett.
And now our final witness is Walter Dellinger. Professor
Dellinger is the Douglas B. Maggs Professor Emeritus of Law at
Duke University Law School. He is a partner and chair of the
appellate practice at the law firm of O'Melveny Myers. He
served as Acting Solicitor General under President Clinton from
1996 to 1997. He also was Assistant Attorney General and head
of the Justice Department's Office of Legal Counsel from 1993
to 1997. He is a graduate of the University of North Carolina
at Chapel Hill and Yale Law School.
Professor Dellinger, we are glad you are here today. Please
proceed.
STATEMENT OF WALTER DELLINGER, DOUGLAS B. MAGGS PROFESSOR
EMERITUS OF LAW, DUKE UNIVERSITY SCHOOL OF LAW, DURHAM, NORTH
CAROLINA
Mr. Dellinger. Thank you very much, Senator.
The coming together of the American colonies into a single
Nation was more difficult than we can easily now imagine. But
come together they did in the summer of 1787, and they created
the greatest common market, continental in scope, that the
world had ever seen.
John Marshall characterized the power to regulate the
commerce of that Nation as the power to regulate that commerce
which concerns more States than one. The notion put forward by
those who have brought these lawsuits that it is beyond the
power of Congress to regulate the markets and to make efficient
the markets in health care and health insurance that comprise
one-sixth of the national economy is a truly extraordinary,
astonishing proposition.
The arguments that are made are essentially that it is
novel and has not been done before, and that crazy things will
be done if it is accepted. Neither of those arguments pass
muster. Each of them are exactly the arguments that were made
when the challenge was brought to the Social Security Act of
1935, first accepted by the lower courts and then rejected by
the Supreme Court.
First of all, this is a regulation unlike those in the
cases of Morrison and Lopez of local non-economic matters. This
is a regulation of economic matters, as Solicitor General Fried
has put it so well. Moreover, it is a regulation that is
critical to the provision that prohibits insurance companies
from denying coverage to Americans because of pre-existing
conditions or because a child is born with a birth defect.
Now, a lawyer is said to be someone who can think about one
thing that is inextricably related to another thing without
thinking about the other thing. And the excellent challengers
to this legislation want to do that. There is no dispute over
the proposition that Congress can regulate insurance contracts
to say you cannot turn down people who have pre-existing
conditions, you cannot turn down people because their children
are born with a birth defect.
That being the case and the fact that Judge Vinson himself
agrees that it is necessary and essential for the Act to
operate to also provide a financial incentive for people to
maintain coverage generally, those two provisions are
inextricably interlinked. My good friend Mr. Carvin says that
the provision that prohibits insurance companies from denying
coverage for people who have pre-existing conditions, he calls
that a ``Congressional distortion.'' I think most Americans
that are now assured that when they change jobs they will not
lose their insurance, who are now assured that if they have a
child born with a defect they will not lose their insurance, do
not think of that as a distortion. They think of it as a
regulation of the market, which Congress has ample authority to
make sure works effectively.
Now, the fact that something is within the commerce power
does not mean that it is permissible. Is this so intrusive that
it should be carved out of the commerce power? And the answer
is it is really rather unremarkable. It is no more intrusive
than Social Security and Medicare. Only if you go to work and
earn taxable income do the penalty provisions apply to you that
require coverage. So if you go to work and earn taxable income,
one of the things you find out is that the Government takes 7.5
percent from you and your employer for Social Security, 15
percent if you are self-employed. They take additional lesser
taxes for Medicare. And then for coverage after you are 65, for
coverage before you are 65, and for your family they provide a
2.5-percent financial penalty if you do not maintain coverage.
It is extraordinary to think that something that gives you more
choice, that allows you access to the market, is somehow so
intrusive of liberty that it has to be carved out from the
scope of the Commerce Clause.
Of course, it has not been done before. As Justice Story
noted, every new act of Congress is something that has not been
done before, and that mode of reasoning he said is found by all
persons to be indefensible.
Will it lead to some extraordinary, expansive Congressional
power? It will not. The limiting principle is clear. The
Liberty Clauses prevent anyone from forcing Americans to eat
certain vegetables or go to the gym. Whether it is State
governments or the Federal Government, those are precluded.
And what about the fact that this is something that
provides an incentive to buy products in the private market? I
never thought I would hear conservatives say that there is
something more intrusive about buying products in the private
market than there is about having a single governmental
provider. But that is essentially their argument. And is it a
precedent for doing that for any product? Not at all, because
this product is, if not unique, it has characteristics which
would limit the application simply because, one, it is a market
which no one can be assured that they will not enter. You never
know when you are going to get hit by a truck and impose
countless thousands of dollars of expenses in medical care
which you are guaranteed to be provided by the Emergency
Medical Treatment Act. That is not true of flat screen
televisions. If my team makes the Super Bowl and I have not
thought that they would and have not provided for a flat screen
television, I cannot show up and have someone provide it to me.
But with health care, no one can be assured that they will not
need it, and when they do need it, it is often the case that
the cost is transferred to other people. Ninety-four percent of
the long-term uninsured have used medical care.
So at the end of the day, it is absolutely unremarkable
that this market is one where Congress is using a market
mechanism to encourage participation. The attacks against it
are fully reminiscent of the attacks made against Social
Security. In the Supreme Court, it was argued that if Congress
could set a retirement age at 65, they could set it at 30 and,
therefore, it must be unconstitutional to have Social Security
at all. The Supreme Court rejected that. It was said that if
Congress can set a minimum wage of $10, they could set a
minimum wage of $5,000. That did not stop the Court from
sustaining the minimum wage law.
So at the end of the day, I think this challenge to the
legitimacy of judicial review is one that we have seen before.
And even a more conservative court than we have ever seen in
1937 stepped back from that precipice and said, ``We are not
going to stand in the way of Social Security.'' And I think at
the end of the day the Supreme Court will not stand in the way
of something which is less intrusive, which respects the
autonomy of Americans, and corrects the functioning of a
national market.
Thank you.
[The prepared statement of Mr. Dellinger appears as a
submission for the record.]
Senator Durbin. Thanks very much, Professor Dellinger.
We have been joined by the Chairman of the Committee,
Senator Patrick Leahy. I would like to give him an opportunity
if he would like to make an opening statement or submit it for
the record.
Chairman Leahy. Thank you very much.
One, I thank Senator Durbin for holding this hearing. When
he first asked about that, I thought it was an extremely
important one and obviously very timely. I must say that I have
no doubt Congress acted within the bounds of its constitutional
authority.
Professor Barnett from the law school that both Senator
Durbin and I attended says we should look at our oath of
office. We do. I have been sworn into the Senate seven times,
and I can remember vividly each time taking that oath. And I
repeat it to myself all the time. I think most of us do.
But we had arguments on the constitutional issue. In fact,
during the Senate debate, I talked about those arguments. I
responded to them. And the Senate voted on the constitutional
issue. The Senate formally rejected a constitutional point of
order claiming that the individual responsibility requirement
was unconstitutional. It is not as though it was not
considered. We voted on it. We voted that the Act was
constitutional.
Now, two courts have ruled it is not. Two courts have ruled
that it is. We all know that ultimately it is going to go to
the Supreme Court to be decided. As I was coming in here, I
heard Professor Fried, who has testified before this
Committee--as Professor Dellinger has, and we have all profited
by such testimony--saying that it was not going to go into
questions about the policy but about the constitutionality. And
I appreciate that. The Act was neither novel nor unprecedented.
I believe it rested on what has been a century's work of
building on our safety net in this country.
The opponents sought to continue their political battle by
challenging the law minutes after--it seemed almost minutes
after President Obama signed it into law. It was actually
within a few days. They want to achieve in courts what they
were unable to achieve in Congress. This was debated for over a
year or most of the year, countless hearings, countless
debates, on and off the floor. And many Americans now have
access to health care today because of the Affordable Care Act.
Parents who have children in school, in college, will be able
to keep them on their policy until they are 26 years old. If
you have a child with juvenile diabetes, they cannot be
refused; if you have got a pre-existing condition, you cannot.
There are a whole lot of things. It eliminates
discriminatory practices by health insurers, making sure that a
patient's gender was no longer a pre-existing condition. Just
think about that. In the 21st century, some were talking about
gender being a pre-existing condition. We have added important
tools to help law enforcement recover taxpayer dollars lost to
fraud and abuse in the health care system. While Senator
Grassley and I may have disagreed about the health care bill
itself, we agreed on going after fraud and abuse in the system.
A lot of our Nation's senior citizens will now pay less for
their prescription drugs.
I realize that some want the courts to deliver a victory
that they could not secure in the Congress. Over the course of
this country, that has happened many, many times, people from
both sides on issues. But I would hope that the independent
judiciary will act as an independent judiciary and will be as
mindful as Justice Cardozo was when he upheld 75 years ago the
constitutionality of Social Security. He wrote: ``[W]hether
wisdom or unwisdom resides in the scheme of benefits set forth.
. . it is not for us to say. The answer to such inquiries must
come from Congress, not the courts.'' I agree with that. I hope
the Court will follow his wise example.
Mr. Chairman, I will have some questions for the record. I
have another hearing, but I compliment you for doing this. I
think this is as important a hearing as being held in the
Congress at this time.
[The questions of Chairman Leahy appears under questions
and answer.]
Senator Durbin. Thanks a lot, Chairman Leahy. We appreciate
that very much.
As I would not invite my former law school professors to
stand in judgment of my performance as a Senator, I will not
ask Professor Fried to issue another grade to Professor
Barnett. He had that chance once before. But I would like to
ask you to comment, Professor Fried, if you would, about one of
the statements made by Professor Barnett, and it relates to the
question of whether this is a unique situation where we are, in
fact, imposing a duty on citizens to either purchase something
in the private sector or face a tax penalty. And I would like
to ask you to comment on that generally, but specifically, if
you can, I am trying to go back to the case involving this
famous man, Roscoe Filburn. Mr. Filburn objected to a federal
law which imposed a penalty on him if he grew too much wheat,
and he argued before the Court that this wheat was being
consumed by him and by his chickens, and that as a result, the
law went too far. I think the net result of the law is that he
either faced a penalty or complied with the allotment
requirement and then had to make a purchase in the open market
to feed his chickens.
Is there an analogy here? Would you like to comment on this
general notion that this is unique in that the law requires a
purchase in the private market?
Mr. Fried. I taught Professor Barnett torts, not
constitutional law.
[Laughter.]
Chairman Leahy. Maybe he thinks it is a tort.
Mr. Fried. The Filburn case can be distinguished only if
you say, ``After all, Mr. Filburn did not have to eat, and his
chickens did not have to eat.'' And that is an absurd argument,
and I think Mr. Dellinger pointed that out. That is like saying
that if you could make a commitment that you will never use
health care, that you will never visit an emergency room, that
you will never seek the ministrations of a doctor, then you
should be free not to enter this system. That is silly. That is
the first point of non-distinction in Wickard.
There is another point which is made, and I get a little
hot under the collar when I hear it, and that is that this
turns us from citizens into being subjects. And Judge Vinson
also said that those who threw the tea into Boston harbor would
be horrified at this.
Let me remind you that the citizens of the earlier United
States were well acquainted with many taxes. Remember the
Whiskey Rebellion. The reason they threw that tea in the harbor
was taxation without representation. A parliament which they
had not elected did this to them.
Well, the people elected the Congress, and in 2010, they
changed the Congress, and that is why we are not subjects, why
we are citizens.
Senator Durbin. Professor Barnett, you and Mr. Carvin have
alluded to this activity and inactivity distinction. Tell me
what case you look to for precedent or what part of the
Constitution you refer to to come up with this approach.
Mr. Barnett. Thank you, Senator. Well, there is nothing in
the Constitution that says that Congress has the power to
regulate economic matters, which is what Professor Dellinger
referred to; and there is nothing in the Constitution that even
says that Congress has the power to regulate activity that has
a substantial effect on interstate commerce. That latter
doctrine--there is no former doctrine. There is no economic
matters doctrine in the Constitution. As for the substantial
effects doctrine, that is given to us by the Supreme Court, not
the Constitution itself.
So I have been operating--my testimony is based entirely on
what the Supreme Court has said, and the Supreme Court has time
and time again referred to the Congress' power and authorized
Congress to exercise its power to regulate activity, economic
activity. That is what it says. In fact, in Justice Scalia's
concurring opinion in Raich, which the plaintiffs--the
government in this case--relies heavily on--Justice Scalia uses
the word ``activity'' or ``activities'' 42 times. That is a
lot.
So that is what we are looking to, and what we notice is
that the Court has never said that Congress has the power to
regulate economic matters, economic decisions, nor economic
inactivity. It has simply said the Congress can go this far,
economic activity, and has never said the Congress can go
farther.
Now, it could say that, Senator. It is free, next time it
hears a case like this one, to say it can go farther. Of
course, we know that. It just has not done so up until now.
Senator Durbin. For the record, I think the other four
witnesses have acknowledged explicitly that the health care
industry is part of commerce. Do you accept that?
Mr. Barnett. Yes, I do, absolutely.
Senator Durbin. All right. General Kroger, how would you
respond to this comment: We are talking about the inactivity of
a citizen, not the overt act of a citizen?
Mr. Kroger. I would say two things, Senator. First of all,
most of the case law does speak repeatedly of activities
because most bills are regulating activities. But the Supreme
Court has certainly never limited the Commerce Clause to a
formal category of activities and prohibited Congress from
acting otherwise.
The Wickard case itself specifically cites the language in
Carter v. Carter Coal, which says that the proper test is not
just whether there is an activity but whether there is a
condition that can be regulated. And so I think this somewhat
artificial attempt to restrict the Congress to only regulating
activities as opposed to conditions falls short. It simply does
not make sense under the case law.
Senator Durbin. And I would like to ask Professor
Dellinger--I just have a minute left here. Judge Vinson
basically said, ``Since I found this one section to be
unconstitutional, I am going to basically say that the entire
Act is unconstitutional, virtually unconstitutional.'' And then
there is a question as to what the operative effect of his
decision is on that particular district, that State, and the
Nation.
Would you comment on those two aspects of his decision?
Mr. Dellinger. Well, I think that Judge Vinson's decision
sweeps far beyond where it was necessary to go and takes down
completely unrelated provisions. And I think that the fact that
two other federal district courts have upheld the
constitutionality of the law will indicate that his opinion
will not have a necessary effect at this moment.
The Department of Justice, I think, is considering whether
to seek an appeal, even though he issued no order, to
nonetheless clarify that only the individual mandate is at
stake. And, of course, everyone agrees that what is also at
stake is the provision that prohibits insurance companies from
denying coverage for pre-existing conditions. Those two are
linked, and I think that aspect of it is indisputable.
Senator Durbin. Thank you very much.
Senator Grassley.
Senator Grassley. Professor Fried, you have made very clear
that you are convinced that there is no doubt that the mandate
in the health law is constitutional. So would you see any need
for Congress to make any changes to the mandate in order to
increase the chances that it would be found to be
constitutional, make more certain it was constitutional?
Mr. Fried. I see no need for it because it seems so clearly
constitutional. You are wearing a belt. Maybe you want to put
on some suspenders as well. I do not know. But I think it is
not necessary. I suppose it would be proper.
Senator Grassley. Okay. Then to any of the witnesses, some
of you have discussed the Supreme Court's decision that has
given Congress broad authority under the Commerce Clause. That
is the whole point here. But Congress has never before passed a
law that requires people who are not already engaged in an
activity, commercial or otherwise, to affirmatively purchase a
product or service. Could the Supreme Court strike down such a
novel provision as the individual mandate without overturning a
single one of its precedents?
Mr. Carvin. Yes, Senator, that is clearly true. It is the
defenders of the Act who are seeking to extend the Court's
Commerce Clause jurisprudence past what it currently is. Again,
as Professor Barnett has pointed out, they have only suggested
that activities that affect interstate commerce can be
regulated under the Commerce Clause. They have never suggested
that Congress can compel people to engage in certain activities
to offset the economic effects of another part of the law.
To get back to Senator Durbin's question, they have never
suggested that they could compel Mr. Filburn to grow wheat.
They have never suggested, again, as I pointed out in my
testimony, that they could require Mr. Filburn's neighbors to
buy some other of his crops to counteract the negative economic
effects on limiting the amount of wheat that he could grow.
Contrary to my good friend Charles Fried, I think those
distinctions are hardly lawyerly semantics. I would think they
are relatively obvious to most people.
Senator Grassley. If you want to add, Professor Dellinger.
Mr. Dellinger. Yes, Senator Grassley. I think the very
notion that what is involved here is ``inactivity'' can be
called into question. If you are sitting alone in the woods
doing nothing, the tax penalty does not apply to you. You have
to go out and enter the national economy, earn $18,000 for a
couple in order to be required to file an income tax return.
Only then do you have to pay a 2.5-percent penalty if you do
not maintain insurance coverage. And since no one can be
assured they are not going to need health care, they are going
to be active participants in the health care markets. So in
both of those ways, this is in that sense by no means a pure
regulation of inactivity. And I believe there is no case ever
that has come close to holding that Congress cannot impose
affirmative obligations when doing so carries out its
regulatory authority over an important part of the national
economy.
Mr. Barnett. If I can just add, the penalty might not apply
to everyone, but the mandate does apply to everyone. It is the
penalty that is enforcing the mandate that might not apply to
everyone, but the mandate that says every American has to have
health insurance, has to obtain or procure health insurance,
that does, I believe, apply to everyone.
Mr. Fried. If I might just add, the Supreme Court precedent
which I have always thought was very relevant is the 1905
decision in Jacobson v. Commonwealth of Massachusetts.
Massachusetts said every citizen had to obtain a smallpox
vaccination. Jacobson thought this was an attack on his
liberty. He was fined $5, and the Supreme Court said, ``Pay the
fine.''
Mr. Carvin. That illustrates the distinction that I am
talking about. Massachusetts acted to stop the spread of an
infectious disease pursuant to its power to protect the health
and welfare of the State's citizens. Congress does not have
that plenary power. Under Mr. Fried's analysis, Congress could
tomorrow require everyone to buy vitamins or vaccinations
because in another part of the law they have required doctors,
for perfectly charitable reasons, to provide free vitamins and
vaccinations to others. And this would be an offsetting effect
just like the individual mandate is an offsetting effect. If
Congress can do that--than I think we all agree Congress can do
everything that State governments can do today, subject to the
restrictions of the Liberty Clause. And if that is true, then
there is no distinction between the commerce power and the
police power. And, again, I think we would all agree that the
Court has made clear that if there is no such distinction, that
means the commerce power has been exceeded.
Senator Grassley. I want to go on to ask for a comment on a
quote from the Center for American Progress critical of Judge
Vinson: ``If Judge Vinson were to have his way, insurance
companies will yet again be able to deny you coverage because
you have a pre-existing condition, drop your coverage when you
get sick, limit the amount of care you receive, take more of
your premium dollars from their profits.''
I think that this group shares the same thoughts that many
of the supporters of this legislation have used as a basis for
the law as well as a basis for this hearing, that there seems
to be no difference between law and politics. And, of course, I
think the supporters of that view think that the judge who
rules that a law is unconstitutional must oppose the policies
as contained in the law.
Obviously, I take a different view. I believe that a judge
is obligated to make sure that the laws that Congress passes
comply with the Constitution. If Congress passes a law that is
beyond the constitutional power to enact no matter how popular
or desirable the provisions of that law are for some people,
the courts have an obligation to strike it down.
Number one--and, by the way, I wanted to direct this to the
three people on the left.
[Laughter.]
Senator Grassley. I am sorry. General Kroger, Professor
Fried, and Professor Dellinger. Do you think it is appropriate
to personally attack a judge's ruling striking down a law by
saying that the judge must prefer particular policy results
that the critic opposes?
Mr. Fried. No, it is not proper.
Senator Grassley. Okay. And anybody can add if they want
to, but let me go on to the next one. Is it fair to say that
Judge Vinson's decision aims to take away benefits that
millions of Americans are already seeing and putting insurance
companies back in charge of your health care?
Mr. Fried. It will have that effect. Quite possibly he
greatly regrets it.
Senator Grassley. And do you think that judges should
decide cases based on their best understanding of the meaning
of the Constitution or on whether they think their rulings
would have good or bad policy consequences?
Mr. Fried. The former.
Senator Grassley. Obviously, it is good to have that
understanding, that we are a society based upon law and not
upon what judges just happen to think it might be.
You are right. My time is up.
Senator Durbin. Senator Leahy.
Chairman Leahy. I always have to watch out for these tough
chairmen. Actually, on that last question, Professor Fried, do
you know anybody who disagrees with that, whether the left or
the right?
Mr. Fried. Yes, I am afraid I do.
[Laughter.]
Chairman Leahy. But do you know anybody who should disagree
with it?
Mr. Fried. Not a soul.
Chairman Leahy. I thought you might go that way.
Mr. Kroger, it is good to have you here. We always like
having Attorneys General here. We are fortunate to have two
former Attorneys General on this Committee--Senator Blumenthal
and Senator Whitehouse. You represent the State of Oregon, and
you said that Oregon is a sovereign State--I am trying to
summarize your testimony--and is charged with protecting and
promoting the health and welfare of its citizens. Do you have
any concern about the constitutionality of the requirement that
individuals purchase health insurance?
Mr. Kroger. None whatsoever.
Chairman Leahy. Thank you.
Now, as Attorney General, were you asked to or did you on
your own review the legal basis for the Affordable Care Act?
Mr. Kroger. Yes, I have, Senator.
Chairman Leahy. Do you think it intrudes on Oregon's
responsibility to protect the health and welfare of its
citizens?
Mr. Kroger. Senator, I think it greatly assists the ability
of the State of Oregon to protect its citizens.
Chairman Leahy. Thank you.
Professor Fried, you know, having been here actually from
the time of President Ford, when you were Solicitor General for
President Reagan, I still almost feel like I--that is when I
think I first met you. I almost feel I should call you
``Solicitor General.'' But do you believe that the requirement
in the Affordable Care Act that individuals purchase health
insurance represents an unprecedented extension of Congress'
authority to regulate insurance under the Commerce Clause?
Mr. Fried. It is a new requirement. I do not think it is
unprecedented. I think the language which I quoted to you from
Chief Justice Marshall at the beginning of our Nation amply
covers it.
Chairman Leahy. You say that it is a different one. Let me
just explore that a little bit further. Do you believe that
there have been new limitations on the Commerce Clause by the
current Court or other courts that give you concern that the
Affordable Care Act is not a constitutional----
Mr. Fried. There have been--excuse me, Senator.
Chairman Leahy. No. Go ahead.
Mr. Fried. There have been limitations. I sat at counsel
table with the prevailing argument in United States v. Morrison
because I believed that the relevant provisions of the Violence
Against Women Act were unconstitutional, and the Court so held.
But that was because the Court found, correctly, that, as
despicable and criminal as it is for a man to beat up his
girlfriend, it is not commerce. Well, there is no doubt health
insurance is commerce.
Chairman Leahy. And on the Violence Against Women Act, did
not the Congress go back and redraft it based on the ruling in
Morrison?
Mr. Fried. I believe they did, but----
Chairman Leahy. Or a version of it.
Mr. Fried. I believe they did, but I cannot swear to that,
and I have sworn to my testimony.
Chairman Leahy. Thank you. Again, one of the reasons why I
enjoyed your tenure as Solicitor General with President Reagan.
Does anybody want to add to this? Mr. Carvin, here is your
chance to disagree with Professor Fried.
Mr. Carvin. I never pass up a chance to disagree with
Charles.
[Laughter.]
Mr. Carvin. It rarely happens. Again, Senator, I do think
there is a fundamental difference in two respects. You are
compelling people to engage in commerce, and what is the
rationale? Is it that by not contracting with insurance
companies that somehow acts as an impediment to commerce? No.
What it does do is prevent this free rider problem that
Congress created by imposing the pre-existing condition. Now, I
call that a distortion of commerce. I did not suggest that in a
normative sense. Congress interferes in the private market all
the time, and what they have done is impose certain
restrictions on insurance companies and they are, therefore,
compelling people to ameliorate that problem. So the individual
mandate does not carry into execution the regulation of
commerce. It corrects a distorting effect of the regulation of
commerce. And it seems to me that that distinction is critical
because, otherwise, again, if Congress decides to limit what
banks can do with mortgages or credit cards or car companies,
then obviously they could conscript the citizenry to offset
that.
Chairman Leahy. Which is a repeating of your earlier
argument, and I am only cutting you off because my time is
running out.
Mr. Carvin. I was about finished. Thank you.
Chairman Leahy. Plus your time is running out.
Professor Barnett and Professor Dellinger, if you can very
briefly----
Mr. Barnett. All I would say, Senator, is--I wanted to talk
about the two quotes that Professor Fried mentioned, one from
McCulloch, which refers to Congress' power to use any ordinary
means of execution. A mandate is not an ordinary means of
execution. It is extraordinary.
Second, in Gibbons v. Ogden, Justice Marshall said that
Congress may prescribe the rule by which commerce is to be
governed. Nobody up here thinks that the failure to buy health
insurance is itself commerce. That is not what anybody here
thinks. So that does not fall under this language either.
So neither one of those quotations directly apply to the
situation we currently face.
Chairman Leahy. Professor Dellinger.
Mr. Dellinger. Yes, I would like to respond, I think, to
what is one of Michael Carvin's best points. I disagree that
this matter would stand for the proposition that, where
Congress imposes costs on companies, it could then make up for
that, fix that by going out and making people buy that
company's products. That is not true because in this instance,
Congress is dealing with a dysfunction and an important
national market caused by the fact that companies have an
incentive to deny coverage to people with pre-existing
conditions; as a result of that, they are not covered. In order
to make that market work efficiently, you need to encourage
people to join the market so that they do not wait and order up
their health insurance on their cell phone in the ambulance on
the way to the hospital. That is a market problem that Congress
can address and fix.
It is unprecedented, quote-unquote, but only in the sense
that the Affordable Care Act uses a market-based system giving
people more choices than has been our previous custom of
providing a single governmental payer, as we did under Social
Security and largely do under Medicare. So the idea that this
is unprecedented is only one that it is a new use of a market-
based approach, less intrusive, providing more choice.
Chairman Leahy. Thank you.
Thank you, Mr. Chairman.
Senator Durbin. Thanks a lot, Mr. Chairman.
Senator Cornyn.
Senator Cornyn. Thank you, Senator Durbin, and thanks to
all the witnesses for being here. I feel like I am back in law
school, but we appreciate the fact that each of you are giving
us the benefit of your expertise and your opinions on a very
important issue, no doubt.
I was tempted to say, Mr. Chairman, that I wish we had done
this before the law was passed, which we did not, as opposed to
now. But I think, Professor Barnett, you make a very important
point, that Congress' duty with regard to a law like this does
not end when it passes a law. Indeed, if, in fact, we are of
the opinion that it exceeds either the prudential or
constitutional bounds of Congressional power under the Commerce
Clause, we can repeal it. And I would just say to my friend who
is chairing the Committee, Senator Durbin, I know it was
suggested earlier that it is either this or nothing. I think
they call that the fallacy of a false dichotomy. There are not
just two choices. There are many other choices that are
available to Congress if this were to be repealed and replaced,
and I am sure we will talk about that a lot more.
But let me just say--I went back to look at the Federalist
Papers where in Federalist 45 James Madison talked about the
powers of the Federal Government being enumerated and specific
and the power of the State being broad. And, indeed, the
heading for the Federalist 45 is ``Alleged Danger From the
Powers of the Union to the State Governments Considered.'' It
was exactly this sort of relationship between the State
government and State power and individual citizens and the
Federal Government that I think is causing the most concern
here, because my own view is that the individual mandate is an
unprecedented overreach of the Federal Government's limited and
enumerated powers. And I know lawyers can disagree, and we do
disagree, and we usually do so in a civil and dignified way,
and that is great.
By the way, Mr. Chairman, I would ask unanimous consent to
introduce a letter from the Attorney General of Texas, Greg
Abbott. He was one of the 26 Attorneys General who were
successful in the litigation recently concluded in the district
court in Florida.
Senator Durbin. Without objection.
Senator Cornyn. I thank the Chair.
[The letter appears as a submission for the record.]
Senator Cornyn. So really I think what worries people more
than anything else, whether they articulate it quite this way
or not, is that I think a lot of people feel like the
fundamental relationship between the Federal Government and the
American people has somehow been altered in a basic and
sweeping way. And whether they can say, well, that is a
violation of the 10th Amendment or it is a violation of the
Commerce Clause or the Necessary and Proper Clause or whatever,
I think it depends on the individual and their background and
expertise.
But I just want to ask whether you agree--let me ask
Professor Fried this question. Jonathan Turley, a law professor
who testifies occasionally here before us, said that if the
Supreme Court upholds the individual mandate, it is hard to see
what is left of federalism. Do you agree or disagree with that?
Mr. Fried. I disagree with that. I recall in the Violence
Against Women Act there must have been Attorneys General from
52 States arguing that that Act was constitutional, and it was
thrown out anyway because it was not commerce, and that was a
correct decision. I supported it. I helped procure it, indeed.
But that was because what the act covered was not commerce.
This is as I recall, the great debate in the Senate was between
this device and something called the government option. And the
government option was described as being something akin to
socialism. And I think there is a bit of a point to that. But
what is striking, Senator, is that I do not think anybody in
the world could argue that the government option or, indeed, a
single-payer federal alternative would have been
unconstitutional. It would have been deplorable. It would have
been regrettable. It would have been Western if not Eastern
European.
[Laughter.]
Mr. Fried. But it would not have been unconstitutional. And
it is odd that this, which is an attempt to keep health
coverage in the private market, is now being attacked that way.
Senator Cornyn. You made a very good case that Congress can
pass some very bad laws that are still constitutional.
Mr. Fried. Yes, sir.
Senator Cornyn. Because time is running short--and I hope
we will have a chance for a second round because seven minutes
does not give us enough time. But I did want to explore.
Professor Fried, you did say that while you are not troubled by
the individual mandate, you are troubled by this huge unfunded
mandate imposed on the States by the Medicaid expansion.
Indeed, there is a whole body of law that you are no doubt
expert in that talks about the Federal Government's coercing
the States and commandeering the States to pursue a federal
policy that is beyond the Federal Government's authority to do.
And I will have to tell you that one of the consequences of
this in my State is a $27 billion unfunded mandate over the
next 10 years for the Medicaid expansion, which is crowding out
spending at the State level for education and transportation
and other important priorities.
I just want to ask you to expand briefly on your concerns
in this area.
Mr. Fried. The case that comes to mind is South Dakota v.
Dole which required the States--and that was not even a funding
mandate--to alter the drinking age and threatened them with the
withdrawal of five percent of highway funds if they did not
comply. And the Supreme Court said, Well, five percent is so
little that it is not that much of a threat. Implicit in that
is, Would you believe 10 percent? How about 50 percent? And the
unfunded mandate here is huge, and that is why I said to
Senator Grassley that I think there really is a constitutional
worry about that.
Senator Cornyn. If I could just conclude by saying that was
one of the bases for the Texas challenge, and I believe the
other Attorneys General in the Florida case--I do not believe
that the judge got to that issue because--I may stand corrected
here, but although we are focusing on the individual mandate, I
am interested in your testimony with regard to the coercion or
commandeering of State authorities and State budgets.
Thank you. My time is up for now. I hope to come back.
Senator Durbin. Thanks, Senator Cornyn.
Senator Franken.
Senator Franken. Well, I feel like I am back in law school.
I did not go to law school.
[Laughter.]
Senator Franken. Attorney General Kroger, Mr. Carvin said
and then repeated essentially this in his testimony: A decision
not to buy health insurance does not affect commerce. Is that
an accurate quote?
Mr. Carvin. Absent the pre-existing condition ban, true. In
other words, if you took the pre-existing condition ban out of
the law, the insurance company would be able to contract with
its patients, and the fact that some stranger to that
transaction sat at home would not affect that contractual
relationship. The argument I am making is that the pre-existing
condition ban is what enables Congress to reach out and bring
that stranger to the transaction in.
Senator Franken. Well, without the mandate, you could not
have the pre-existing condition; it would not work in the law.
But this is a question for Attorney General Kroger. A decision
not to buy health insurance does not affect commerce. Mr.
Kroger, when the uninsured in your State go to emergency rooms
and cannot pay their bills, how much does that cost Oregon
hospitals every year?
Mr. Kroger. You know, Senator, I have spoken to the CEOs of
various hospitals around the State. The amount of charitable
care, care of persons who do not have insurance, varies from
hospital, between three and in some cases as high as 12 percent
of the amount of care that they are providing. The idea that
being uninsured does not affect commerce is just factually
incorrect. Every American pays higher insurance premiums to
cover those costs.
Senator Franken. I understand it costs about $1.1 billion
every year for Oregon hospitals. Do you know how much that
costs insured Oregonians in terms of higher premiums?
Mr. Kroger. Senator, the different studies show somewhere
between $450 in higher insurance premiums for individuals, up
to about $1,500 for families who are required to help carry
that cost of the uninsured.
Senator Franken. So this basically sounds to me like
insured Oregonians are subsidizing uninsured Oregonians.
Mr. Kroger. That is correct, Senator.
Senator Franken. So would you agree with the statement that
a decision not to buy health insurance does not affect
commerce?
Mr. Kroger. It clearly does affect commerce, Senator.
Senator Franken. OK. Thank you.
Professor Dellinger, my understanding is that when the
Supreme Court decides cases, they are interpreting the
Constitution, or if they are ruling based on precedent, they
are ruling based on previous Supreme Court interpretations of
the Constitution. Is that correct?
Mr. Dellinger. Yes, sir.
Senator Franken. Okay. I have to say that I am confused--
and maybe it is because I did not go to law school--by Mr.
Barnett's testimony when he says, ``No one claims that the
individual mandate is justified by the original meaning of
either the Commerce Clause or Necessary and Proper Clause.
Instead, the Government and those law professors who support
the mandate have rested their arguments exclusively on the . .
. Supreme Court.''
First of all, I am confused because I know of at least two
scholars, Jack Balkin and Akhil Amar, who do think the original
intent of the Commerce Clause supports the constitutionality.
Are Akhil Amar and Jack Balkin no one? They are pretty
esteemed, are they not?
Mr. Dellinger. They are, and so is----
Senator Franken. So the statement is not actually accurate.
Mr. Dellinger. And so is Professor Barnett, but you----
Senator Franken. Okay. Well, but I am sure Akhil Amar and
Jack Balkin have made ridiculous statements, too. I am sorry. I
did not mean that.
Mr. Dellinger. Okay.
Senator Franken. I did. I did.
[Laughter.]
Senator Franken. Anyway, sorry. See, but to me on this--and
I did not go to law school, but it seems to me that there is a
transitive property. If A equals B, B equals C, and C equals D,
A equals D. And since the courts are relying on precedent, they
are relying on a Supreme Court that was interpreting the
Constitution. Right? So is it not true that by relying on
precedent you are really interpreting the intent of the
Founders?
Mr. Dellinger. That is true, Senator Franken, but I would
also be perfectly willing to go back to the original
understanding and find that this is fully consistent with it in
the following sense: The Framers did assume in 1787 that there
would be substantial areas that were matters for local
regulation only and the national government would be limited to
regulating only that commerce which concerns more States than
one.
What happened over the ensuing two centuries is that the
category of what affects more States than one has increased
dramatically because of developments in telecommunications and
markets, et cetera. We now have a single national market so
that Congress' authority to regulate that commerce which
concerns more States than one is greatly vaster than the
Framers would have imagined, not because of any difference in
constitutional principle that they adopted, but because of the
extraordinary developments in technology, communications, and
other matters which make us a single----
Senator Franken. Like airplanes.
Mr. Dellinger. Which have made us a single national
economy, yes.
Senator Franken. Senator Cornyn made this 10th Amendment
point. As I understand it, the way the 10th amendment was
written, and if you go to the Federalist Papers, it was written
specifically to exclude the word ``expressly.'' This is the
10th Amendment: ``The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.''
Now, I remember that when they were writing this some South
Carolina representative wanted to put in ``expressly,'' which
had been in the Articles of Confederation, and Madison said no.
And Madison writes in the Federalist Papers that if you put
``expressly'' in, then every possible power of the Federal
Government would have to be written in an encyclopedic way into
the Constitution and that that would be absurd. Is that your
understanding, is that everybody's understanding of the 10th
Amendment? Is that history right? Is my history right?
Mr. Dellinger. It is mine.
Senator Franken. Thank you.
Senator Durbin. I would like to welcome to the Judiciary
Committee Senator Lee of Utah and recognize him at this point.
Senator Lee. Thank you, Mr. Chairman. I want to thank each
of our witnesses for coming today. For a law geek like me, it
is an honor to be here and be able to interact with each of
you.
I want to echo something that has been mentioned once or
twice this morning but emphasize it again. I think it is
important that we do this as Senators because I believe that
among the founding generation, the Founding Fathers, there was
no understanding that was more ubiquitous than the idea that
what we were creating at the national level was not an all-
purpose national government possessing general police powers
but a limited-purpose Federal Government. And I think one of
our jobs as Senators is to make sure that, regardless of what
the courts say that we can get away with in court, regardless
of how broadly we may exercise our power without judicial
interference, we take a second look and say, separate and apart
from what the court says we can do, should we be doing this? Is
this consistent with our role as legislators operating within a
government with decidedly limited powers?
I also like the quote from Justice Jackson that was pulled
out a few minutes ago, I think by Mr. Kroger, to the effect
that certain decisions are wisely left for Congress. The courts
lack the authority to be a sort of roving commission on all
things constitutional. We have to make a number of these
decisions on our own regardless of whether the courts are going
to do them for us.
I wanted to ask a few questions of Mr. Dellinger, if that
is okay, Professor. Do you agree, first of all, with James
Madison's assessment that Mr. Cornyn quoted a few minutes ago
that while the powers of the Federal Government are few and
defined, those that are left to the States are numerous and
indefinite?
Mr. Dellinger. I do agree, and I think Senator Cornyn
correctly cites Federalist 45 for that proposition. And as I
said, Senator Lee, within the area of Congress' authority to
regulate national commerce, what has grown is the
interdependency of national commerce, not our understanding of
the Constitution.
Senator Lee. Sure. Sure, it has grown. But they had
interstate commerce then. They were interconnected. In fact,
that was the whole reason why we need to be a union in the
first place, right?
Mr. Dellinger. Correct.
Senator Lee. We could not survive. So they understood this
interconnectedness. This is not new. It has been facilitated by
jet airplanes and by the Internet, but----
Mr. Dellinger. That is right. But if you get sick in North
Carolina in 1787, it had no effect in Utah.
Senator Lee. Well, Utah then was part of Mexico.
[Laughter.]
Senator Lee. Still a lovely place, but----
Mr. Dellinger. It had no effect in Pennsylvania, if I may
clarify my remarks.
Senator Lee. Okay, okay. But they were interconnected, so
perhaps the changes that we have had have been changes of
degree. Perhaps we were more interdependent then than we are
now, but you would still agree that it is still accurate to say
the powers of the Federal Government are few and defined,
whereas those reserved to the States are numerous and
indefinite.
Mr. Dellinger. Yes.
Senator Lee. And yet if this law is upheld, if this law is
within Congress' limited power to regulate commerce among the
States--notice it did not say ``commerce.'' It says ``commerce
among the several States and with foreign nations.'' If this is
within Congress' power, wouldn't it also be within Congress'
power to tell every American, including you and me and
everything in this room, that we must eat four servings of
green leafy vegetables each day?
Mr. Dellinger. No.
Senator Lee. Why is that? What is the distinction?
Mr. Dellinger. The distinction is that a regulation of
commerce to be constitutional has to be a permissible
regulation of commerce, and something which intrudes into the
area of personal autonomy does not meet that standard.
Senator Lee. Like, say, deciding where to go to the doctor
and how to pay for it. I am trying to understand the difference
between the personal autonomy at issue there and that presented
by this law.
Mr. Dellinger. Well, the case about broccoli is a case that
is covered both by Lopez and Morrison; that is, you are
regulating a local non-economic matter, what you eat and
whether you exercise. And it is also governed as well--it is
doubly unconstitutional because it is governed as well by the
principle in cases like Luxburg and Vacco and Cruzan that say
that an individual has the right to refuse unwanted medical
treatment. You have a constitutional right to refuse it, and
I----
Senator Lee. Please understand, Professor, I am talking
about the Commerce Clause here. I am not talking about----
Mr. Dellinger. I understand that, but I----
Senator Lee. Let us keep our discussion limited to the
Commerce Clause.
Mr. Dellinger [continuing]. Think if you talk about whether
Congress could require people to buy other products--what would
be Congress' legitimate reason for doing so? I think there
would be many constitutional objections?
Senator Lee. Oh, I can come up with one right now. I mean,
look, if we are going to make sure that everybody has got
health insurance and that the Government is going to pick up
the slack behind, then Congress could assemble a panel of
experts--let us say your functional equivalence from the
dietary council industry who would come and tell us that if you
eat four servings of green leafy vegetables every single day,
you are 50 percent less likely to suffer from heart disease,
cancer, stroke, or a whole host of other ailments. That is
going to cost the government less money. So there is a pretty
tight nexus there.
Mr. Dellinger. Yes, but as the Court said in Gonzalez v.
Raich, that is a Morrison and Lopez problem of dealing with
non-economic matters, and the Court said in Gonzalez where the
act under review is ``a statute that directly regulates
economic, commercial activity, our opinion in Morrison casts no
doubt on its constitutionality.'' This is a direct regulation
of a commercial activity, not something that merely affects a
commercial activity.
Senator Lee. Okay. Let us change the hypothetical just
slightly then. Instead of saying you must eat them, it would
say you must take the first $200 out of each month's earnings
and purchase the equivalent of four servings of green leafy
vegetables to eat per day. This all of a sudden is economic
activity. This is not Lopez, where we are talking about bare,
non-commercial, intrastate possession of a firearm within a
school zone, or about Morrison, where you are talking about
non-economic intrastate acts of violence.
Mr. Dellinger. Okay. It seems to me that there are two
responses to the argument that upholding this would stand for
the proposition that Congress can force people to buy anything.
The first is that this is a requirement that you make
provision to buy something which you cannot ever be assured you
will not use and cannot be assured you will not transfer the
cost to others. So I think it is distinguishable.
But, second, the very form of that argument was used to
attack the minimum wage and Social Security.
Senator Lee. Social Security was----
Mr. Dellinger [continuing]. Minimum wage, your question to
be--if the issue were the constitutionality of the minimum wage
law and it were 1937, you would be asking me, is it a
regulation of commerce for Congress to have a minimum wage of
$5,000 an hour? And that has never been a legitimate--is it a
regulation of commerce to say that if you buy one car, you have
to buy three cars? That form of argument, I think, was used
against Social Security and used against Medicare, and Congress
has, in fact, never abused that. It has never set the
retirement age at 25 as the opponents of the Social Security
Act said would be possible if you upheld a retirement plan for
people over 65. So the very form of the argument, I think,
deflects attention from what is basically a completely
unremarkable regulation of an important national market.
Senator Lee. Mr. Chairman, I see my time has expired. I
have got one very brief follow-up question. Could I just ask
that? Then I will be finished.
I was pleased to see in your written testimony that you
have become such a huge fan of Justice Scalia's jurisprudence.
He is also one of my favorite Justices on the Court. You quote
him repeatedly as a source for the Court's post-Wickard v.
Filburn jurisprudence under the Commerce Clause. Is it the case
that that necessarily reflects his view as an original matter,
as a matter of first principles? Or are those views made in
recognition of the fact that he is bound by stare decisis?
Mr. Dellinger. That is a good question, Senator, and I do
not know the answer to that. It could well be that he is
reflecting stare decisis, and I do admire him, because I
believe that in the case that you and I are arguing against
each other, he cast the critical vote for the position that
sustained my argument and not yours.
[Laughter.]
Senator Lee. And he could not have been more wrong, could
he?
Thank you.
Senator Durbin. Thank you, Senator Lee.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman.
I am going to take a little different tack than Mr. Lee in
terms of the practicality of these decisions as you look at
people who--I think Mr. Kroger is well aware of this--already
small business is taking advantage of the discounts that they
are getting and the fact that you have got people who are--kids
who are getting to keep their insurance that have pre-existing
conditions and States who are now struggling to figure out what
they are going to do in light of these decisions. And so my
question--I know Senator Durbin asked this of Professor
Dellinger, but maybe a few of the other witnesses want to chime
in. What is the practical, immediate outcome of the decision in
Florida on Monday? And I understand that some State Attorneys
General are telling people they do not need to do the work to
comply with the law since Judge Vinson did not stay his ruling
pending the government's appeal. Other States think it would be
irresponsible not to continue making preparations for
implementation of the Act in case Judge Vinson's opinion is
overruled at higher levels.
I guess I would start quickly with you, Mr. Kroger. Just
from the practical level, what are you telling your State what
they should do in light of the Florida ruling?
Mr. Kroger. Well, Senator, I hate to sound like a lawyer as
a practical matter, if I----
Senator Klobuchar. Aren't you a lawyer?
Mr. Kroger. Yes. If I was giving advice to State
government, it would be covered by attorney-client privilege--
--
Senator Klobuchar. Oh, okay.
Mr. Kroger.--and I would not be prepared to share it with
you here.
Senator Klobuchar. OK.
Mr. Kroger. I can say, generally, that I think it would be
a huge mistake for a State to pretend that this is the final
word. Obviously, we have decisions on both sides that have come
out. They are only district court opinions. And so, you know,
my sense is that it would be an enormous mistake for a State
not to continue on with implementation of the Act.
Senator Klobuchar. Professor Fried.
Mr. Fried. I do not have a judgment on that. It seems to me
odd that one judge in Florida could govern the Nation. So----
Senator Klobuchar. If they were in Minnesota, that might be
different.
Mr. Fried. Not to me, it would not.
[Laughter.]
Mr. Fried. But I cannot really speculate. I had not thought
that one through.
Senator Klobuchar. The next two, Mr. Carvin, Professor
Barnett.
Mr. Carvin. I will join Professor Fried's agnostic
response. I am not really sure.
Mr. Barnett. I have been asked this, too, Senator, and I do
not think I know the answer. But I can say without violating
attorney-client privilege that I saw Attorney General Abbott
from Texas on the news last night, and he said himself that he
was counseling the Texas legislature that they should continue
to act pursuant to the law until it is ruled upon by above. So
I do not know if he is right, but I do know that he is someone
whose opinion I respect, and that is the advice he is giving
his own State legislature.
Senator Klobuchar. Okay. Along these same lines, Judge
Vinson struck the entire Affordable Care Act down because he
found that the individual mandate was unconstitutional. That is
a step that an earlier decision, which also found problems with
the Act from the Eastern District of Virginia, did not take. Do
you think the constitutionality of the whole law is contingent
on the individual mandate? And then I guess a secondary
question was how important it is to you that there was not a
severability clause included in the bill. We will start with
you, Professor Dellinger. Do you want to----
Mr. Dellinger. I think it strikes me as far too sweeping,
and I will pass that question on to my colleagues.
Senator Klobuchar. Professor Fried, and then we will go----
Mr. Fried. I do not believe that Judge Vinson said that the
other parts of the statute were unconstitutional. What he said
was because there is no severability clause and because the
rest of the Act becomes unworkable without the mandate, which
is something, of course, that many of us have been arguing,
therefore, in striking the mandate, he is really in effect
striking the rest of the statute because the rest of the
statute becomes unworkable. But he is not saying that it is
unconstitutional.
Senator Klobuchar. Right.
Mr. Fried. If I read him correctly.
Senator Klobuchar. Okay. I just meant it more broadly. So
do you think it matters that there is not a severability
clause?
Mr. Barnett. A severability clause, Senator, would not be
dispositive. It would help the Court in discerning what the
intent of Congress was. So in the absence of a severability
clause, the judge must try to figure out what the intent of
Congress was, and the government, even in its brief, said that
the insurance regulations imposed on the insurance companies
were not severable from the mandate. Then the only question was
for the judge--and that seemed pretty obvious--whether he could
go into the bill, the 2,700-page bill, and look at all the
provisions that were not regulations of insurance companies,
sort of like the 1099 requirement, let us say, and say, Well,
those could stand independently of these. And he said that is
just not something he thinks the judge ought to be able to do,
to go inside a bill and just find the ones that he thinks can
work and not work. So he just said, ``It is outside my purview,
and I am just going to have to go with the whole thing.''
Senator Klobuchar. All right. Professor Dellinger stated
that the minimum coverage requirement in the Affordable Care
Act is no more intrusive than Social Security or Medicare. What
do you think about that statement, Professor Fried?
Mr. Fried. It is distinguishable because, after all, the
argument is being made you do not have to buy insurance, you
can pretend that you will never get sick and so on and so
forth. But with Social Security, you only get into that system
if you earn money, if you have a job, if you make a living.
Well, for goodness sake.
Senator Klobuchar. Professor Dellinger.
Mr. Dellinger. Although the mandate applies to everyone who
is not exempted because they already have Medicare, their
income is too low, et cetera, like Social Security, the penalty
provision only applies if you enter the market and earn money.
And so what strikes me as so remarkable about the attack on
this law is that it seems to me to be in two ways everything
conservatives should abhor.
First of all, it seeks to establish the principle that
Congress can address a major national economic problem only by
providing a monolithic government solution and is precluded
from using a more choice-friendly----
Senator Klobuchar. You are saying the argument would lead
you to believe that under their argument that would be
constitutional.
Mr. Dellinger. Yes. And I know Professor Barnett, I
believe, acknowledges that. I think Mr. Carvin does, too. You
could have--and so if the only way Congress can address a
market problem is by having the government step in and be the
exclusive provider, that strikes me as an odd position for
conservatives to take, which is why the idea of using the
market and creating a financial incentive has always been more
or less a conservative idea, a Republican idea. It is very akin
to what the previous President Bush wanted to do with parts of
Social Security: give people a financial incentive to go into
the private market. That private market approach was adopted
here, so it seems odd to attack that and say you can only use a
government approach. And it also seems odd to say that five
Justices sitting in Washington should decide a matter of
economic regulation for the whole country. Both of those seem
to me approaches that ought to be anathema to anyone who
marches under the banner of conservatism.
Senator Klobuchar. Thank you very much.
Senator Durbin. Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman. I first want
to ask consent to place a few items in the record. I have a
statement for myself and one submitted by our Attorney General
of our great State, Mark Shurtleff.
Senator Durbin. Without objection.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
[The prepared statement of Mr. Shurtleff appears as a
submission for the record.]
Senator Hatch. Now, Utah is an original plaintiff in this
multi-State lawsuit, and of course, Judge Vinson singled out
Utah as having standing as well. Attorney General Shurtleff has
been at the head of the pack in finding for individual liberty
and State sovereignty, and I am very proud of Utah's role in
this. So I ask consent for Judge Vinson's opinion to be part of
the record as well as the friend-of-the-court brief filed in
that case by 32 Senators, including several members of this
Committee.
[The information referred to appears as a submission for
the record.]
Senator Hatch. And, finally, I ask consent that a few of
the articles that I published on this subject in newspapers
such as the Wall Street Journal and Chicago Tribune and the
Regent Journal of Law and Public Policy, if I could have those
in the record as well, Mr. Chairman.
Senator Durbin. Without objection.
[The information referred to appears as a submission for
the record.]
Senator Hatch. Now, it has already been said that the
distinction between activity and inactivity is not in the text
of the Constitution. I think most all of you have said that.
Ah, a textualist is born. But neither are words such as
``substantial effects'' or ``broader regulatory scheme'' or
anything else the Supreme Court has come up with that defenders
of ObamaCare rely on. And there is no ``intrusiveness''
standard in the Constitution either. Would you agree with that,
Professor Barnett?
Mr. Barnett. Of course. That is not a constitutional
standard or doctrine that I am aware of.
Senator Hatch. Well, none of them are.
Mr. Carvin.
Mr. Carvin. Right, no. Obviously, things that substantially
affect commerce is something that the Court says is within the
Commerce Clause, but as has been pointed out, there are a
number of things that affect commerce--violence against women,
possessing guns--which the Court has said, no, no, those do not
come within the ambit. And I would argue that economic
inactivity is far more afield from the commerce power than
things like buying and possessing guns.
Senator Hatch. I am very grateful to have Professor Fried
here--he is a grand old friend--and Professor Dellinger is an
old friend, both of whom I admire greatly. I do not know you,
Mr. Kroger, but I am sure you are just fine.
[Laughter.]
Senator Hatch. Now, the Congressional Budget Office, in the
past, has said that requiring individuals to purchase a
particular good or service was ``unprecedented.'' Now, that is
the Congressional Budget Office. The Congressional Research
Service recently concluded that, ``It is a novel issue whether
Congress may use the Commerce Clause to require an individual
to purchase a good or a service.'' I think it is a novel issue,
I submit, because Congress has never done it before.
Now, I will throw this question to each of our witnesses
and hope I get straight answers. Can you give me an actual
example other than ObamaCare of Congress requiring individuals
to purchase a particular good or service?
Mr. Kroger. Senator, if I may, my parents own a small
business. They are constituents of Senator Cornyn's. And if you
told them that the government had never required them to buy a
good or service, they would be astounded. The federal OSHA law
and regulations require all kinds of sole proprietors and small
business people to go out and buy equipment, whether it is
orange cones or hard hats or a fire disposal system in a
restaurant. The environmental laws require a huge range of
small business owners to buy air filters up to, you know,
sulfur oxide scrubbers.
The reason small business people tend not to like
government regulation, and particularly federal regulation, is
because it does require them to spend money on goods and
services. And so I think those are----
Senator Hatch. Only as a condition of being in business.
Mr. Kroger. You know, Senator, the----
Senator Hatch. I mean, these people are not trying to get
into business.
Mr. Kroger. It is true that my parents could close down
their business. All people could close down their business.
Senator Hatch. Well, they do not have to because they can
go into business. But as a condition of going into it, they
have to meet certain laws, right?
Mr. Kroger. Yes, I----
Senator Hatch. In this particular case, we have an
inactivity of people--if you want to use that word. I do not
find it the greatest word in the world. But we have an
inactivity here that they do not want to do. And they would
make their choice not to do it.
Let me go to you, Professor Fried.
Mr. Fried. I think the idea that one can make a choice not
to seek health care throughout one's life is simply not
realistic and cannot be the basis for an attack on the
constitutionality.
Senator Hatch. It is not right. I have to concede that
point. But that still begs the question of whether it should be
mandated.
Mr. Fried. Well, I think once you have taken the first step
and you have made that first concession, the rest follows.
Senator Hatch. Okay.
Mr. Fried. And it has brought to mind the various things
that were considered in the Senate and which the previous
President, I think, very wisely suggested as an alternative to
Social Security. And as an alternative, it was suggested that
you could buy mutual funds from Vanguard, from Fidelity, and
you would not have to buy it from the Government. And maybe one
would say that, well, you do not have to work. You can simply,
you know, sit on a corner and say, ``Spare change,'' and then
you would not have to pay Social Security. But I think that is
unrealistic as well.
Senator Hatch. Let me go to Mr. Carvin. I only have a few
seconds left.
Mr. Carvin. No, they have never done it before, and if you
buy any of the analogies that have been just agreed to, then
there is no limit on Congress. The notion that health care is
unique because you have to buy the goods is factually
incorrect. You have to buy transportation, clothes, housing,
shelter, food. The notion that health insurance is somehow a
core requirement is kind of silly. And, of course, if you
started drawing these distinctions between transportation and
health care, you get back into the sort of unprincipled
distinctions that bedeviled Commerce Clause jurisprudence prior
to at least the 1930s.
Senator Hatch. Mr. Barnett.
Mr. Barnett. It has never been done before, Senator, and
the fact is that even though everyone might be said to one day
need health care, the bill itself exempts people from buying
health--health insurance is not the same thing as health care.
Everyone does not go into the insurance market, and the bill
exempts people for religious reasons from having to obtain
health insurance. So, clearly, even Congress recognized that
not everyone has to obtain health insurance just because they
may or may not one day seek medical care. So the fact that
medical care is an inevitability--which it is not for everyone.
But to the extent that it is likely, it does not mean
insurance. A completely different product is an inevitability.
Senator Hatch. Walter.
Mr. Dellinger. Senator, my understanding is that the very
first Congress required every adult free male to purchase and
equip themselves with muskets, with ammunition, even certain
forms of dress to carry the weapons and equipage with them. It
is true that----
Senator Hatch. But you have got to admit that the----
Mr. Dellinger. That has been a long----
Senator Hatch [continuing]. Provides guidance for that.
Mr. Dellinger. It has been a long time since then. Yes, you
can say when something has not been done before that it is
novel or unprecedented, but no matter how much one italicizes
those words, it does not amount to a constitutional argument.
This is novel in the sense that Congress has decided to use a
market approach, and it has used it with regard to the purchase
of a commodity that truly is unlike others. There is nothing
else in our economy where an individual who has made no
preparation for the expense could go in and get a million
dollars' worth of goods and services provided to them, the cost
of which is passed on to others. There is nothing like that. So
in that truly unique market, an incentive for people to make
provision through insurance seems unremarkable.
Senator Hatch. One reason I raised it is for the purpose of
showing that it has never been done before, and I think there
are good reasons why it has never been done before. But I have
asked the distinguished Chairman if he would just let me make a
couple more remarks. I have a lot of other things I would like
to ask, but my time is up. If you will indulge me, I would
appreciate that.
You know, because no Commerce Clause cases involve Congress
regulating decisions rather than an activities, that renders
this case as a case of first impression, which is my point.
ObamaCare backers cite mandates that derive from different
enumerated powers. They argue, for example, as some of you have
argued here--I have been very interested in these arguments--
that Congress has imposed mandates on individuals before such
as jury service and military draft or Social Security.
Professor Fried has made this argument. And simply because one
provision of the Constitution allows Congress to require that
someone do something cannot mean that the Commerce Clause
allows the Congress to impose an individual insurance mandate.
Jury duty, for example, as been mentioned, has multiple
layers of exceptions that make it far less compulsory for most
people. It is also ``necessary and proper'' in order to
exercise Congress' power to establish lower courts and to
implement the Sixth Amendment right to trial by an impartial
jury.
Congress may impose a military draft, which, again, has
layers of exceptions, pursuant to enumerated powers to raise
and support armies, and they can clothe them and ask them to
have guns as well and maintain a navy.
And the Social Security system, which has been raised here,
is, unlike this insurance mandate, unequivocally an exercise of
Congress' power to tax and spend for the general welfare. It is
a completely different issue, as far as I am concerned.
Now, each of these examples stands clearly within
enumerated power. The insurance mandate does not. And I think,
great scholars that you are, I think you have to admit that. If
Congress could impose--now, that does not say that I am right
and you are wrong, but it does make it more clear. If Congress
could impose any mandate on an individual because it may impose
a particular mandate on certain individuals, there would be no
limits to federal power at all. And that is where I have a lot
of difficulty here and have had a lot of difficulty as I have
studied this matter.
Now, I have got to say, I respect all of you, and I respect
the differences in points of view. But for the life of me--
Professor Fried, I have a great regard for you, but I am really
amazed at some of your arguments here today. Great man that you
are. Now, I expected them from Walter Dellinger.
[Laughter.]
Mr. Dellinger. Thank goodness I have General Fried with me.
Mr. Fried. It is wonderful not to lose one's power to
surprise.
[Laughter.]
Senator Hatch. Well, you have never lost that power. I have
to say that I probably agree with you much more on many other
issues than I do here, but I have really enjoyed this. I really
appreciate it. You have taken the time here. This is a very,
very important issue.
And, Walter, Professor Dellinger, I want you to at least
realize that the liberal part of you should be protecting our
rights, not necessarily broadening them in the sense of making
us have to buy health insurance.
Mr. Dellinger. Senator, just a brief comment. I think you
make obviously a very good point that most legislation, State--
--
Senator Hatch. I thought they were points.
Mr. Dellinger. Well, you made one that I thought was----
Senator Hatch. Okay, one.
[Laughter.]
Mr. Dellinger. And that is that most legislation, State and
federal, prohibits individuals from doing things. But there has
always been some legislation, State and federal, that imposes
affirmative obligations.
Senator Hatch. No question.
Mr. Dellinger. That does not mean that--in that sense, it
is unremarkable to impose affirmative obligations, though I
think our----
Senator Hatch. You can find those in the Constitution, is
my point.
Mr. Dellinger. I think I--well, but it is also true under--
it is the commerce power that Congress uses to build interstate
highways and tells people that they have to move and take a
check from the government. It is the commerce power that does
that. So there are lots of affirmative obligations.
Now, I think we should be very attentive. Affirmative
obligations can be more intrusive, and, therefore, we have to
take a careful look to make sure that they do not transcend any
limits. This to me it seems easily does not.
Senator Hatch. Well, I have transcended my limits, and I
apologize to the distinguished Chairman, but I appreciate him
giving me this little leeway because I have to leave, and I
just want to thank each one of you for coming.
Senator Durbin. Thanks very much, Senator Hatch.
If any members of the panel would like us to take a break
for a few minutes here before we proceed, just kind of give a
high sign. Should we just keep----
Mr. Fried. I need to get back to Boston if I possibly can,
but that is a two o'clock train.
Senator Durbin. Well, I swear that we will get you to the
station on time.
We are honored to have as a new Member of the Senate
Judiciary Committee Senator Blumenthal of Connecticut, who is a
former Attorney General of that State. Welcome, Senator
Blumenthal. Please proceed.
Senator Blumenthal. Thank you, Mr. Chairman, and thank you
to the panel.
I have to make clear at the very beginning I do not feel
like I am back in law school. If law school had been this
interesting and enlightening, I would have gone to more
classes.
[Laughter.]
Senator Blumenthal. I just want to join Senator Hatch and
other Members of the Committee in thanking you for spending the
time with us today and giving us the benefit of some very
important testimony.
I want to say particularly to General Kroger that I
appreciate your being here and your having the courage to do
what you have done in declining to join what may be a popular
stance in some quarters in challenging the lawsuit. I declined
as Attorney General to join in that challenge, partly because
this new Act actually saves money for many, many States,
including Connecticut. It saves Connecticut some $53 million
through September 2011 and perhaps does the same for Oregon and
other States, but also because I believe that the lawsuit is
without merit. And I think that the two opinions we have to the
contrary from Judge Hudson and Judge Vinson show clearly that
it is without merit, and partly because of this distinction
made out of non-cloth, non-constitutional cloth, between
inactivity and activity, which is nowhere present in any
previous case of the United States Supreme Court, but also
because I think they give very, very inadequate attention and
weight to the doctrine that laws should be presumed
constitutional.
Judge Hudson, in effect, rejects the idea because of a
footnote in City of Chicago v. Morales. Judge Vinson considers
it almost not at all. In fact, he says that, as I recall, ``I
can consider''--``I assume that I can consider the
constitutionality instead of I presume that it is
constitutional.''
So I want to direct this question to you, General Kroger,
and also perhaps to the other members of the panel. Aren't you
troubled by the lack of weight given to this presumption, which
is so fundamental to the work that you and other Attorneys
General and the Attorney General of the United States does day
in and day out in defending statutes against constitutional
attack?
Mr. Kroger. Senator, I would simply agree with you that the
presumption of constitutionality is extraordinarily important,
and that deference is shown to the democratically elected
officials in the State to craft the right policy that will
govern the country. And I think probably both of those could
use greater emphasis in the decisions that go forward.
Senator Blumenthal. And would you agree that one of the
reasons that this presumption should have stronger and special
weight in this case is that, in fact, the U.S. Congress, as
Senator Leahy pointed out earlier, considered these
constitutional issues in deliberating and debating this law? So
it is not as if the courts have discovered this issue or the
plaintiffs have discovered it. Congress considered it, and a
co-equal branch of government is entitled to that respect.
Mr. Kroger. Senator, I think ultimately, of course, it is
the Court's province to declare whether the law is
constitutional or unconstitutional, and as someone who appears
in front of courts all the time, I would hate to in any way
imply that they do not have that responsibility. But I do think
closer attention to precedent would make a big difference in
these cases going forward.
Senator Blumenthal. Let me ask Mr. Carvin, and Professor
Barnett perhaps, your views on this issue and whether you are
not troubled by the overreaching--and I do not use that word
lightly--the judicial overreaching that very plausibly could be
seen in this disregard for the presumption of
constitutionality.
Mr. Carvin. I certainly think the presumption of
constitutionality is important, and I think the Congress has
very broad discretion in its Commerce Clause regulation. But I
think the key thing to focus on both under the Necessary and
Proper Clause and the Commerce Clause is Congress was given
broad discretion in terms, broad means to achieve a legitimate
end. This comes from McCulloch v. Maryland. And for reasons
that I will not repeat, I think Congress is seeking to achieve
an illegitimate end in this context.
I would also caution that it is unfair to label activities
which strike down laws as unfair judicial activism. Judicial
activism to me is striking down a law that is constitutional
because you think it is bad policy. I think it would be equally
wrong to uphold a law that you believe is unconstitutional
because you think it is good policy. In both instances, the
judge is not doing what I think we all agree judges should do,
is look at the law and not be influenced by the desirability of
the policy.
Mr. Barnett. Senator, I am confident that you are not
impugning Judge Vinson's integrity in ruling the way he did,
but I know people----
Senator Blumenthal. Not at all.
Mr. Barnett. I know you are not, but some people outside
this room are. And in light of your question, I just want to
point out that this very same Judge Vinson who held that the
individual mandate was unconstitutional turned away the State
AG's challenge to the Medicaid requirements under their
interpretation of South Dakota v. Dole. That is the very same
judge in the very same case upholding an act of Congress,
although it, too, is being challenged by 26 Attorneys General
while he--as he turns away their challenge. He upholds the law
while he finds another part of the law unsatisfactory. I think
that should be added to the record in defense of Judge Vinson's
integrity in respecting a co-equal branch of government.
Senator Blumenthal. Thank you very much.
Thank you, Mr. Chairman.
Senator Durbin. Thanks a lot. I am going to recognize
Senator Sessions for the last Senator to ask in the first
round. We will have a second round, but I have asked my
colleagues if they have questions; let us do it in a shorter
period of time and try our best to accommodate the schedules of
our kind panel.
Senator Sessions.
Senator Sessions. Thank you.
I would like to offer for the record the written testimony
of Florida Attorney General Pam Bondi for this, and I also will
be offering for the record a statement from Alabama's Attorney
General Luther Strange, who would be also of the belief that--
both of them are of the belief that the Act is
unconstitutional.
[The statements appears as a submission for the record.]
Senator Sessions. The U.S. Government is a government of
limited powers. I mean, this is how it was created, and there
are explicit grants of power to the Federal Government, and
there are certain powers that were not given to the Federal
Government. In recent years, there has been a feeling about in
our country that the Federal Government can do anything it
desires to do on any subject, and I think the rulings attacking
this statute are refreshing to me in that it causes our Nation
to once again enter into a discussion about what it means to be
a government of limited powers.
I would just suggest how far we have gotten from these
issues when there are explicit constitutional provisions, the
right to keep and bear arms, whereas we have four members of
the Court who want to read that out of the Constitution. It has
a specific provision that provides individuals the right to not
have their property taken except for public use. It has
specific provisions that allow free and robust debate and the
ability to speak out in public forums. Those things are
individual rights that our courts somehow have gotten to the
point that they are not very important anymore. I think in
those cases the State either won or almost won that would
diminish individual rights as opposed to the State. So I just
think this is a fundamental point that we ought to know.
We did not have hearings in this Committee on the health
care bill, the constitutionality of it. When people raised it
on the floor of the Senate, as quite a number did, they were
ignored for the most part, and it was dismissed out of hand. We
also had a Congressman I saw on television basically saying,
What has the Constitution got to do with this? You know, it was
a disrespectful approach to the Constitution entirely. So
Congress did not do such a good job, frankly. We did not
seriously engage in a debate about whether this power was
legitimately granted to the Federal Government.
And, of course, the comment was made about States and the
money. I would just note that my Governor, Governor Riley, has
told me he is stunned by the economic impact that this health
care bill would have on State budgets. It is a stunning thing.
Senator Cornyn tells me that Texas expects a $27 billion hit on
Medicaid requirements for the State under this. So it is huge.
Mr. Carvin, if the courts were to allow the individual
mandate to stand and thereby grant the Federal Government
authority to compel private citizens to purchase goods or
services to promote some broader government policy, can you
identify any limiting principle that would prevent the
government from mandating the purchase of anything or
everything?
Mr. Carvin. I cannot, and there have been a few efforts to
try and identify them today. If Congress can require you to
subsidize a corporation because of burdens the Federal
Government has imposed on that corporation, I do not see any
limit in terms of requiring you to purchase--I think everyone
agrees--commercial goods, credit card contracts, cars, things
like that.
Mr. Dellinger, whom I greatly respect, has suggested that
maybe there is some restriction in terms of requiring you to
purchase health care because that involves personal autonomy.
But I would think that most people would think that purchasing
health insurance and deciding how you pay for it and what
doctor you go to would implicate personal autonomy.
I would also point out there is disagreement between my
brother Dellinger and my brother Fried on this point. Professor
Fried thinks that it is perfectly okay to require you to
purchase a vaccination citing the Jacobson case, and Professor
Dellinger apparently would think that would implicate the
Liberty Clause.
At the end of the day, all that can be agreed on in terms
of a limiting principle is, well, Congress cannot do anything
under the Commerce Clause that is unconstitutional. Well,
Congress can never do anything that is unconstitutional, so it
makes the limitations in the Commerce Clause utterly
irrelevant, because all it means is they cannot violate the
Bill of Rights. Well, that would be true if you gave to
Congress absolute plenary power. They still could not violate
the Bill of Rights.
So I would argue that all of these so-called limiting
principles are, A, very difficult to understand and, B,
meaningless, particularly the one that suggests that, gee,
health insurance is something you have got to buy and it is
different than every other product. Well, I have got to buy
food and transportation and housing and clothing every day, and
I think people feel much more of a compulsion to buy those
products than health insurance, particularly a healthy 27-year-
old who may well honestly, and quite rationally, think, I am
not going to go to the doctor except rarely for the next 20
years, and I can maybe make a much better deal for myself than
being compelled into this, what everyone agrees is an
extraordinarily overpriced health insurance market.
Senator Sessions. Thank you. I believe that is a very
important point. It basically says that at some level, if we
eviscerate the logic of Commerce Clause, which, as I understand
it, was designed to regulate commerce between States and
fundamentally it has been broadened and broadened, but I do
believe there is a limit to it.
Mr. Carvin, I hear you make a reference to the judicial
activism question. I believe the President said, or one of his
spokespersons, that this judicial ruling was judicial activism.
I strongly believe and have stated repeatedly that a decision
that invalidates an act of Congress, if that act of Congress is
unconstitutional, is not activism. Is that what you would
agree?
Mr. Carvin. I think everyone agrees that activism is
striking down acts of Congress even though there is nothing in
the Constitution that prevents it. If there is something in the
Constitution that prevents it, then obviously you need to
strike it down. No one on this panel is going to tell you it
would be judicial activism that strikes down a law that denies
women the vote, because we can all look at the Constitution and
realize that that is blatantly unconstitutional. I think these
labels are sometimes thrown around in a very pejorative manner
that is unfair to judges that are trying to grapple with what
at least I think everyone on the panel would agree is a very
nuanced and difficult constitutional question.
Mr. Fried. I agree with that.
Senator Sessions. Thank you, Mr. Fried. Good to see you
again.
Thank you, Mr. Chairman. I am sorry to have been late. I
have the Budget Committee and will have to return. Thank you.
Senator Durbin. Thank you, Senator Sessions.
I would like, if I could, to enter into the record the
Congressional Record for December 23, 2009. In this section
which I am entering, Senator Hutchison of Texas raised a
constitutional point of order concerning the Affordable Care
Act, and in stating her constitutional point of order, she said
that she objected to it, believing it was unconstitutional
because it violated the 10th Amendment, and she specifically
referred to the mandate that it was impose on Texas to buy
health insurance for teachers and employees. And it was then
considered and voted on by the Senate on December 23, 2009, and
the roll call vote was yes sustaining the point of order and 60
votes against the point of order. So there was a constitutional
question raised specifically on the floor during the course of
the debate.
[The information referred to appears as a submission for
the record.]
Senator Durbin. I would like to ask Professor Fried--the
point raised by Senator Lee, the ``buy your vegetables, eat
your vegetables'' point--I would like to ask you to comment on
that, because that is the one I am hearing most often by people
who are saying, Well, if the government can require me to buy
health insurance, can it require me to have a membership at a
gym or eat vegetables? We have heard from Professor Dellinger
on that point. Would you like to comment?
Mr. Fried. Yes. We hear that point quite a lot. It was put
by Judge Vinson, and I think it was put by Professor Barnett in
terms of eating your vegetables. And for reasons I set out in
my testimony, it would be a violation of the Fifth and the 14th
Amendment to force you to eat something. But to force you to
pay for something--I do not see why not. It may not be a good
idea. I do not see why it is unconstitutional.
I suppose that under the food stamp program there are all
kinds of regulations which distinguish between healthy and
unhealthy foods, and if there are not, perhaps there ought to
be. And in any case, if there were, it would not be
unconstitutional. And that is a situation where you are going
to get your money only to buy your broccoli. That is all we are
going to give you money for.
Now, you can say, well, you do not need food stamps. A lot
of people do not need food stamps. But some people do. And
those kinds of mandates, I think, are all over the law. The
mandate that you eat your vegetables, that you go to the gym, I
would be willing to--I would love to argue that case, the
unconstitutionality of that, before any court in the country
and up to the Supreme Court, but on liberty grounds.
Senator Durbin. Professor Barnett, my last question relates
to a section of your testimony which may be taken out of
context or misconstrued, and I want to give you an opportunity
to clarify it.
When you close your testimony, you make reference to
McCulloch v. Maryland and the national bank and the decision by
President Jackson that he viewed the bank as unnecessary,
improper, unconstitutional. And you say in your concluding
second-to-last paragraph, ``In short, just because the Supreme
Court defers to you does not mean the Constitution lets you do
anything you like.''
I want to make sure I understand and give you an
opportunity to state. If the law of the land is a Supreme Court
decision, whether I agree with it or not, whether I think it is
constitutional or not, it is, in fact, the law of the land and
I have to follow it, correct?
Mr. Barnett. Absolutely. May I expand just a bit?
Senator Durbin. Sure, of course.
Mr. Barnett. The point I am trying to make and that I think
is really important is that much of Supreme Court doctrine,
getting back to Senator Blumenthal's question, involves a
presumption of constitutionality in which they defer to the
Congress' judgment upon the scope of its own powers. And
President Jackson is saying, if the Court is going to defer to
us, if that is what McCulloch v. Maryland stands for--which he
is commenting on that specific case--then it is incumbent upon
us to independently assess whether we think something is
unnecessary, improper, and also unconstitutional. So he thought
he was respecting the Supreme Court decision in McCulloch v.
Maryland by holding the act unconstitutional, the bank, which
the Supreme Court had itself found to be constitutional.
Senator Durbin. But the law of the land until the President
acted was clear. The decision of the Court was controlling.
Whether I happen to agree with it as an individual citizen----
Mr. Barnett. You are absolutely right, Senator, and nothing
in that statement was meant to imply anything to the contrary.
I appreciate the opportunity to clarify that.
Mr. Fried. May I add to that, Senator?
Senator Durbin. Of course.
Mr. Fried. I think there is a great difference between the
Congress deliberately passing a statute which the Court said
violates the Constitution and refusing to pass a statute which
the Congress thinks is unconstitutional even though the Court
has said it is not unconstitutional. I think there is a big
difference between those two things, and I think that is what
President Jackson was talking about. And I think that the
renowned citizen of Illinois, Abraham Lincoln, made much the
same point in his debates in respect to Dred Scott.
So there is a difference, and I think Professor Barnett is
dead right about that. You have an independent judgment. You
have no leeway to violate what the Court has said violates the
Constitution. But you are not bound to say that if they say it
is constitutional, I guess it must be. No, I think he is right
about that.
Mr. Dellinger. Can I add, Senator, that I also agree that
he is clearly right that Members of Congress have an
independent obligation to make constitutional decisions. I
would just like to clarify a point where I think Charles Fried
and I may differ.
We both agree that one can easily dismiss hypotheticals
about laws requiring you to go to the gym or eat broccoli
because they implicate liberty interests that are invalid.
With respect to incentives to buy commercial products, I
think I disagree or may disagree that I think the Court need
not go anywhere near having to hold that it would be acceptable
to require people to buy commercial products outside the well-
defined context that presents itself here where virtually
everyone has no choice but to participate in the health care
market, where $45 billion is transferred from people who are
underinsured to others, where 94 percent of the long-term
uninsured have actually accessed that health care market, and
where Congress is curing a dysfunction. Those elements are
unlikely ever to be presented again, and, therefore, I think
that this unremarkable financial incentive to have insurance is
not going to be a predicate for a parade of horribles marching
through the city of Washington.
Senator Durbin. Thank you.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
I had a chance to ask Professor Fried and Professor
Dellinger about this, but I would like to give Mr. Carvin and
Professor Barnett a shot at it. I asked about Professor
Turley's comment that if the Supreme Court upholds the
individual mandate, it is hard to see what is left of
federalism. And let me ask you to consider this in your answers
as well.
It sounds to me like Professor Fried is arguing there are
no limits on Congress' power to require an individual to buy
insurance. And the argument, it sounds like, the distinction--
and I may be missing something--with regard to broccoli and
other leafy vegetables is you cannot require them to eat it.
But you might be able to require them to buy it under the
Commerce Clause.
So I would just like to ask Professor Barnett and Mr.
Carvin to consider this: The health care costs imposed by
diabetes, which is really a ticking time bomb in terms of our
health care costs and especially children who are obese and
because they get seriously ill and have a premature end to
their lives, some of them, as a result, I do not really
understand how if you concede that requiring the purchase of
health insurance because of the costs on taxpayers of
uncompensated care, how that is different if you look at the
costs of diabetes and what that imposes on taxpayers, and why,
if you say, well, you can require them to buy insurance, you
cannot say, well, you are required to buy a gym membership, you
are required to buy fruits and vegetables. It sounds to me like
they are saying you cannot make them eat them, but you can
require them to buy them. That sounds very strange to me. Would
you care to respond, please?
Mr. Carvin. I think everyone agrees that the skyrocketing
health care costs are more attributable to the rising costs of
health care than these distortions in the insurance market that
have been talked about. So if you want to reduce health care
costs, not only would it be appropriate if the Court upholds
this; it would attack the problem much more directly. Your
diabetes example is an excellent one. I assume even Walter
would agree that they could require you to attend smoking
cessation programs if you are a smoker and all these other
kinds of unhealthy habits. I cannot imagine why they could not
go at it.
And then to respond to Walter's larger point that this is
some unique system--and to Senator Franken's point that, look,
we have so regulated and subsidized this market, these people
who decide to live their own lives are really becoming these
sorts of free riders, means that you will always have an excuse
to force people to engage in purchasing insurance the more that
the government has regulated the particular area. That was the
point that Judge Vinson made yesterday. It has this very
perverse bootstrapping effect that the more the Federal
Government encroaches on markets in local areas, then it gives
them a greater power under the Commerce Clause to get at all
these people who are so-called free riders because of this
subsidy issue. So it literally builds on itself such that the
distinction between local and national is quite literally
obliterated.
Senator Cornyn. Professor Barnett.
Mr. Barnett. First, as to Professor Turley's point about it
would be the end of federalism, whether or not it would be the
end of federalism, it would be the functional end of the
enumerated powers scheme that is one of the central features of
federalism. Federalism is based not only on States having
independent rights or powers, but it is based on Congress
having limited and enumerated powers. And if, after this, there
is not justiciable limit on Congress' power, then that part of
the constitutional scheme is gone, and the Supreme Court has
said repeatedly that that is an essential part--that any ruling
that would lead to that outcome cannot be a correct ruling.
That is a reductio ad absurdum of any argument that would lead
to that outcome.
And the only other point I would make is that, you know, I
think Professor Fried in his testimony and again today, he has
basically conceded the basic claim that if Congress can make
you buy this, then they can make you buy anything. Now, he has
not conceded the claim that they can make you eat anything that
you buy. But in his testimony, he says--and he affirmed it
again today--that they can make you buy a gym membership. They
cannot make you go to the gym.
Well, that may not be everything because they cannot make
you go to the gym, but it is a whole heck of a lot, and I think
that people would really be surprised that Congress--that there
is nothing improper under the Commerce Clause--that the--let me
get back to first principles here: that the power of Congress
to regulate commerce among the several States that takes place
between one State and another goes all the way down to make
you, the individual person, buy a gym membership at your gym,
that that includes that power. That is a stretch, and that is a
stretch that would end the doctrine of enumerated powers.
Senator Cornyn. If I may ask one more question, then I
would be glad to have other witnesses who want to respond
subject to the Chairman's time limits here. I just want to ask
one specific question, Mr. Carvin, because you have talked
about the police power and the power of the States relative to
the Federal Government. I think some people are confused by the
fact that States like my State require an individual who drives
to buy liability insurance and why there is a different
argument when it comes to the power of the Federal Government.
Would you care to respond to that?
Mr. Carvin. Right. Obviously, the States can play a
relatively paternalistic role in protecting the health and
welfare of others. I am not an expert on the car insurance
laws, but I think even there they are not requiring you to
insure yourself. They are requiring you to have insurance if
you run into somebody else. But presumably the States, unlike
the Federal Government, might require you insure yourselves
like they can require you to wear a motorcycle helmet. But I do
not think anyone would think that that is part of the commerce
power, but I may be wrong even on that.
And the other two obvious points are that it is a condition
of access to the highways as well. Again, it does not get at
somebody sitting in their home, which distinguishes it from
this, and Randy----
Mr. Barnett. Yes. No State requires you to buy a car and
operate a car. Only if you choose to buy and operate a car do
you have to buy insurance. And, in fact, I do not think there
are any States that require you to buy insurance if you only
operate a car on private property and do not go out into the
public highways.
So this gets back to an earlier line of questioning. It is
absolutely garden variety regulation to tell you, to tell a
citizen that if you are going to do something, here is how you
have to do it. That is just something that the government does.
And that is a fundamentally different proposition than telling
the citizen they must do this thing--not if they are going to
do it, here is how you do it, but they must do the thing
itself. And that is the line that this bill crosses that
Congress under the commerce power has never crossed before.
Senator Cornyn. Professor Dellinger, I know you want to
respond.
Mr. Dellinger. I do. I want to say two things.
One, it is similar to automobile liability insurance in the
following sense: If you are going to drive, the States say you
have to have liability insurance. And here it says if you are
going to use health care, you need to have health care
insurance. And since this is a product which everyone will use
or at least no one can be assured that they will not wind up at
the hospital, in that sense it seems quite similar. I may say I
am never going to use a flat screen TV, and you hold it to me,
you do not have to buy me one.
Now, I do not agree with Michael Carvin's suggestion that,
in my view, upholding this legislation would mean that it would
be constitutional for Congress to require anything that would
reduce the national health bill like exercise or smoking
cessation. What is different about this is that it is a
regulation, as Charles Fried noted, that since 1944 the Court
has clearly held the regulation itself is of the commercial
transaction of purchasing health insurance. And I think that
distinguishes it from all other of the hypotheticals.
Senator Cornyn. Mr. Dellinger, Professor Dellinger, the
only point I was trying to make--and perhaps I did not make it
very well--is that the power of the State to legislate is quite
broad under the police powers because of anything having to do
with health, safety, and welfare. But that is not to say, just
because a State can legislate on an issue, that the Federal
Government cannot because of the doctrine of federalism that we
have talked about, the 10th Amendment, and the power of the
Federal Government is different than the power of the State
government.
Mr. Dellinger. I wholly agree, and I think there is nothing
in the defense of the Constitution under this bill that calls
into question decisions like United States v. Morrison and
United States v. Lopez where the Supreme Court held that when
Congress tries to regulate crime, local crime, because of its
supposed effects on commerce, that the Court will draw a line
there because it is a regulation of matters that are local and
non-economic. Here is a regulation that is part and parcel of
national economic regulation and, therefore, does, I think,
call into question those limits.
Senator Durbin. Thank you, Senator.
Senator Blumenthal, you have the last question.
Senator Blumenthal. Yes, thank you again. I will resolve to
ask this question very simply, and it may be sort of a follow-
up to Senator Cornyn's excellent line of questioning. Tax or
penalty. A lot of discussion outside this room, almost none
here that I can recall. Is it a tax or a penalty? Does it make
a difference? And maybe it makes no difference, and, therefore,
we do not----
Mr. Fried. Well, if the Congress had frankly enacted a tax
on everybody which they would then remit to those people who
bought private health insurance, it is hard for me to imagine
that we would be having this discussion. But Congress did not
so enact. It did not do so for political reasons. It did not
want to have this viewed as a tax. And I think they are now
paying the price in the fact that they have got to confront
this discussion.
But it was not, for better or worse, put as a tax, although
the penalty is something that is collected by the Internal
Revenue Service, I believe. But it is not viewed--it was not
enacted as a tax, because if it had been, as Senator Cornyn
pointed out, the power to tax for the general welfare and spend
for the general welfare is pretty plenary. But that is not how
Congress chose to enact this, so it has left us with this
debate that we are having.
Senator Durbin. Professor Barnett, last word.
Mr. Barnett. I do want to agree with the other thing that
Professor Fried just said about that. That is my assessment as
well.
The only thing I would add to it is that if you actually
try to justify what was done as a tax, then essentially it
does--here is the sense in which, Senator, it does not matter
because, again, it would be an unprecedented proposition that
Congress can require American citizens to do whatever it
chooses to require, and then enact a monetary penalty under its
tax power to penalize them for not doing that. That is really
no different than the debate we just had two hours about
whether this exceeds Congress' power or not. In other words,
whether you call a fine a tax or a fine, it would still give
Congress the unlimited power to order and command that citizens
do anything, and that has never been done before. The tax power
has never been used for that before. So that is the only thing
I would add to what Professor Fried has said.
Mr. Dellinger. Senator Blumenthal, it is relevant in the
following sense: There is a misimpression out there that under
this law, I think. Federal agents arrive in black helicopters,
dressed in fully equipped armed Ninja costumes, kick down your
bedroom door, and drag you off at the point of bayonets to an
insurance agency. In fact, all that happens is that for those
who are not otherwise exempted and when they are filling out
their federal income tax return, if you are not maintaining
minimum coverage, you have to pay an additional 2.5 percent,
much less than Social Security. That is all that happens. So in
that sense, this great intrusion on liberty does not approach
any slippery slope or exceed any understood limits in our legal
culture.
Senator Durbin. Thank you very much to the panel that has
joined us. I think this has been an excellent hearing.
Professor Dellinger, Professor Barnett, Mr. Carvin, Professor
Fried, and Attorney General Kroger, it is an honor that you all
joined us for this important consideration of this major
legislation. Many organizations have submitted testimony, and
it will be added to the record: the California Attorney General
Kamala Harris, AARP, a hundred legal scholars who happen to
agree with the constitutionality of the Act, the Small Business
Majority, Constitution Action Center, the National Senior
Citizens Law Center, and the Center for American Progress
Action Fund, and without objection, they will be placed in the
record.
[The statements appears as a submission for the record.]
Senator Durbin. I would just say that it is possible that
written questions may come your way in the next week or two,
which I hope you would respond to in a timely fashion. It would
be greatly appreciated.
Again, thank you all very much. This hearing stands
adjourned----
Mr. Fried. Senator, as a citizen, not a subject, may I say
that what the Senate has shown and this Committee has shown is
our government at its best. And it was a privilege to
participate in it.
Senator Durbin. And you can make your train.
[Laughter.]
Senator Durbin. Thank you.
[Whereupon, at 12:41 p.m., the Committee was adjourned.]
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