    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

                           CONSTITUTIONALITY OF THE
                               INDIVIDUAL MANDATE

    =======================================================================

                                    HEARING

                                   BEFORE THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                   __________

                               FEBRUARY 16, 2011

                                   __________

                                Serial No. 112-5

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

                      U.S. GOVERNMENT PRINTING OFFICE
    64-582                    WASHINGTON : 2011
    -----------------------------------------------------------------------
    For sale by the Superintendent of Documents, U.S. Government Printing
    Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
    area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC
    20402-0001

                           COMMITTEE ON THE JUDICIARY

                          LAMAR SMITH, Texas, Chairman
    F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
        Wisconsin                        HOWARD L. BERMAN, California
    HOWARD COBLE, North Carolina         JERROLD NADLER, New York
    ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT,
    BOB GOODLATTE, Virginia                  Virginia
    DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
    STEVE CHABOT, Ohio                   ZOE LOFGREN, California
    DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
    MIKE PENCE, Indiana                  MAXINE WATERS, California
    J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
    STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
    TRENT FRANKS, Arizona                  Georgia
    LOUIE GOHMERT, Texas                 PEDRO PIERLUISI, Puerto Rico
    JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
    TED POE, Texas                       JUDY CHU, California
    JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
    TOM REED, New York                   LINDA T. SANCHEZ, California
    TIM GRIFFIN, Arkansas                DEBBIE WASSERMAN SCHULTZ, Florida
    TOM MARINO, Pennsylvania
    TREY GOWDY, South Carolina
    DENNIS ROSS, Florida
    SANDY ADAMS, Florida
    BEN QUAYLE, Arizona

          Sean McLaughlin, Majority Chief of Staff and General Counsel
           Perry Apelbaum, Minority Staff Director and Chief Counsel

                                C O N T E N T S

                                  ----------

                               FEBRUARY 16, 2011

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Lamar Smith, a Representative in Congress from the
      State of Texas, and Chairman, Committee on the Judiciary.......     0
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Ranking Member, Committee on
      the Judiciary..................................................     6

                                   WITNESSES

    The Honorable Kenneth T. Cuccinelli, II, Attorney General,
      Virginia
      Oral Testimony.................................................     8
      Prepared Statement.............................................    11
    Walter Dellinger, Professor, Duke University School of Law
      Oral Testimony.................................................    17
      Prepared Statement.............................................    19
    Randy E. Barnett, Professor, Georgetown University Law Center
      Oral Testimony.................................................    27
      Prepared Statement.............................................    29

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable Lamar Smith, a Representative
      in Congress from the State of Texas, and Chairman, Committee on
      the Judiciary..................................................     4
    Prepared Statement of the Honorable Kamala D. Harris, Attorney
      General of California, submitted by the Honorable Jerrold
      Nadler, a Representative in Congress from the State of New
      York, and Member, Committee on the Judiciary...................    46
    Prepared Statement of John Kroger, Oregon Attorney General,
      submitted by the Honorable Jerrold Nadler, a Representative in
      Congress from the State of New York, and Member, Committee on
      the Judiciary..................................................    53

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable Henry C. ``Hank'' Johnson,
      Jr., a Representative in Congress from the State of Georgia,
      and Member, Committee on the Judiciary.........................    97
    Prepared Statement of Charles Fried, Beneficial Professor of Law,
      Harvard Law School.............................................   100
    American Constitution Society (ACS) for Law and Policy, Issue
      Brief, The Health Care Lawsuits: Unraveling A Century of
      Constitutional Law and The Fabric of Modern American
      Government, Simon Lazarus, February 8, 2011....................   106
    Statement of Support from Legal Scholars.........................   133
    Articles on Health Care Reform...................................   140

                           CONSTITUTIONALITY OF THE
                               INDIVIDUAL MANDATE

                                  ----------

                          WEDNESDAY, FEBRUARY 16, 2011

                              House of Representatives,
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Committee met, pursuant to call, at 9:35 a.m., in room
    2141, Rayburn House Office Building, the Honorable Lamar Smith
    (Chairman of the Committee) presiding.
        Present: Representatives Smith, Sensenbrenner, Coble,
    Gallegly, Goodlatte, Lungren, Chabot, Issa, Pence, Forbes,
    King, Franks, Gohmert, Poe, Chaffetz, Reed, Griffin, Marino,
    Gowdy, Ross, Adams, Quayle, Conyers, Nadler, Scott, Watt,
    Lofgren, Jackson Lee, Waters, Cohen, Johnson, Quigley, Chu,
    Deutch, and Wasserman Schultz.
        Staff Present: (Majority) Allison Halataei, Deputy Chief of
    Staff/Parliamentarian; Zachary Somers, Counsel; and Heather
    Sawyer, Minority Counsel.
        Mr. Smith. The Judiciary Committee will come to order.
    Without objection, the Chair is authorized to declare recesses
    of the Committee at any time. We welcome our panelists today as
    well as all Members who are present in the room. I am going to
    recognize myself for an opening statement, and then recognize
    the Ranking Member for his opening statement.
        As the Framers of the Constitution understood, Congress has
    an independent duty to examine the constitutionality of the
    legislation it considers. Ideally, we should assess the
    constitutionality of legislation before it becomes law.
    However, given the unprecedented nature of the health care
    law's individual mandate, it is important that we examine its
    constitutionality then though it has already been enacted.
        The individual mandate, which requires all Americans to
    purchase health insurance, is the foundation of the new health
    care law. It is also, in my judgment, unprecedented. Twenty-
    seven States are now challenging the constitutionality of the
    new law. Two Federal district court judges have ruled that the
    individual mandate is unconstitutional, two have determined
    that it is not. Ultimately, it will, of course, be decided by
    the Supreme Court.
        The individual mandate requires Americans to purchase
    health insurance from a private company. It does not matter
    whether they want health insurance or can even afford it. Under
    this law, Americans must either obtain insurance or pay a
    penalty. But the Constitution, which creates a Federal
    Government of limited, enumerated powers, does not necessarily
    allow Congress to require individuals to purchase any good or
    service including health insurance.
        As Judge Vinson observed in his opinion in the Florida case
    declaring the health care law unconstitutional, ``it is
    difficult to imagine that a Nation which began, at least in
    part, as a result of opposition to a British mandate imposing a
    nominal tax on all tea sold in America, would have set out to
    create a government with the power to force people to buy tea
    in the first place.''
        The Obama administration argues that the individual mandate
    is either a law that is necessary and proper for the regulation
    of interstate commerce or, alternatively, that the mandate is
    constitutional because it is a tax.
        The Administration's arguments are supported by neither the
    original meaning of the Constitution nor Supreme Court
    precedent.
        The Constitution gives Congress the authority to regulate
    economic activity, which includes everything from growing wheat
    to managing a restaurant to running a Fortune 500 company. But
    the current health care law wrongly assumes that Congress can
    also regulate economic inactivity. Neither the Constitution nor
    the Supreme Court has ever given Congress that authority.
        There is a difference between regulating economic activity
    that is ongoing and forcing Americans to engage in an economic
    activity, in this case, purchasing health insurance. Part of a
    free society means the freedom to choose not to do something.
    Never before in America's history has Congress required people
    to purchase a good or service simply because they live in the
    United States, at least not until now.
        If the commerce clause allowed Congress to regulate
    inactivity, Congress could force Americans to buy anything that
    might conceivably affect commerce in some way. If the housing
    sector were struggling, Congress could force renters to
    purchase a house. If the auto industry is on the verge of
    collapse, Congress could force individuals who take public
    transportation to purchase a car, or if falling citrus prices
    were driving farmers into bankruptcy, Congress could force
    consumers to purchase oranges.
        The Administration asserts that the decision not to
    purchase health insurance is unique because if Americans don't
    purchase health insurance, the cost of their health care
    shifted to the government. But the same can be said of every
    other type of insurance that people choose not to purchase.
    There is no end to the number of commercial transactions
    Americans could be forced into if the commerce clause were as
    broad as the Obama administration argues.
        Because the Administration's commerce clause argument is
    without legal precedent the Administration has argued that the
    individual mandate is authorized by Congress' power to tax.
    This argument, however, is an unpersuasive revisionist
    justification for the mandate that was not raised until the
    mandate was challenged in court.
        The health care law explicitly calls the penalty imposed on
    those who fail to purchase insurance a penalty not a tax. As
    President Obama stated, the mandate is ``absolutely not a tax''
    and ``nobody considers it a tax increase.'' Additionally the
    mandate's penalty is not listed with the provisions of the
    health care law intended to raise revenue for the government.
    And the IRS is prohibited from seeking the same types of
    punishment for failure to pay the penalty as it does for
    failure to pay taxes.
        The arguments in favor of the constitutionality of the
    individual mandate are unconvincing and, if accepted, would
    give the Federal Government almost unlimited power over
    Americans' lives. In my opinion, the individual mandate is both
    unprecedented and unconstitutional. We should question any law
    that appears to violate the Constitution and common sense.
        [The prepared statement of Mr. Smith follows:]

                                   __________

        Mr. Smith. That concludes my opening statement. I am very
    pleased to recognize the Ranking Member the gentleman from
    Michigan, Mr. Conyers, for his opening statement.
        Mr. Conyers. Thank you very much, Chairman Smith. Good
    morning, Members of the Committee and distinguished witnesses
    present. We are here today to have a hearing on the
    constitutionality of the individual mandate. You will note that
    the term individual mandate does not appear anywhere in the
    bill that is being claimed to have an unconstitutional
    provision.
        The Affordable Care Act includes the term minimum coverage
    requirement in the bill. There is nothing--the term
    ``individual mandate'' does not appear.
        Now, I enjoyed our first reading of the Constitution on the
    floor in the Congress in all of my career here. I hope somebody
    got more out of it than I did, because reading the Constitution
    and understanding the Constitution are two different things. I
    think you could be in about the sixth or seventh grade and you
    can read clearly enough to read the Constitution. It does not
    comport with your understanding of the Constitution. And that
    is why Chairman Smith and I have talked about evening classes,
    informal sessions with our colleagues here to talk with experts
    about certain provisions of the law of the Supreme Court
    decisions and the Constitution itself, and I encourage our
    reading and negotiations on that.
        Now, as a universal single-payer health care advocate, I
    was not enthusiastic about all of the benefits that accrued to
    the insurance industry under the Affordable Care Act. I
    supported it nevertheless. And I assume because of that support
    the insurance industry itself supports this so-called
    individual mandate. I wonder how they feel about this assault
    on that portion of the law.
        Fortunately, the Chairman and his Committee did not say
    that consequently that voids the whole Act itself. I hope he
    didn't say that. I didn't interpret him to say that and he
    doesn't say that.
        And so I am struck by the partisan nature of the discussion
    that is going on this morning here about constitutionality
    because you see many years ago, my colleagues in the other
    body, Senators Orrin Hatch and Senator Charles Grassley, along
    with 18 other Republican colleagues, included the notion of an
    individual mandate in their health care bill of 1993. And I
    hope someone asks me to prove that because my staff has
    researched this.
        Now, in addition to that, we have other supporters on the
    constitutional question who are not Democrats. Former
    Massachusetts Governor Mitt Romney featured an individual
    mandate as part of his successful health care reform law in
    Massachusetts where it helped reduce insurance premiums by 40
    percent while the national average has increased 14 percent.
        Given this demonstrated success and the need to solve our
    national health care crisis, one would hope that my friends on
    the other side of the aisle would continue to embrace the idea
    that has been brought forth by Republicans at a earlier period
    of time. But unfortunately, they have taken a different course
    and are now suggesting that the individual mandate is
    unconstitutional.
        Now I would like to cite the Constitution. Congress has the
    clear power under article 1, section 8, clause 3 of the
    Constitution, which gives us the authority to regulate commerce
    between the States. And further, that power is augmented by
    article 1, section 8, clause 18, which grants us discretion to
    choose the ``necessary and proper'' means of achieving our
    legitimate regulatory goals. And if I could just begin my
    conclusion by explaining briefly why our authority here is
    really beyond question. And I suppose that this hearing today
    may conclusively determine that.
        First, the core argument that is put forward by my friends
    is that this regulates inactivity. Now what in the world does
    that mean, to regulate inactivity? It requires us to accept
    what really amounts to a complete fiction because we all
    participate in the health care market. That is one statement I
    can make. Everybody from the time they are born until the time
    we leave this planet will participate in the health care market
    one way or the other. No one can claim that they will never get
    ill or get injured or get sick. We even promise emergency care
    for all who need it. As a matter of fact, we passed a law to
    say that emergency rooms must take in people who are ill and
    don't have any insurance and don't have any visible means to
    pay for the health care that they seek at a hospital.
        The cost of uncompensated care in this country last year
    was $43 billion. And those costs, of course, are shifted to
    other Americans who pay higher taxes and increased fees for
    medical care and insurance premiums. The individual mandate
    recognizes the reality that we are all active in the health
    care market and regulates how and when we pay for our health
    care. Doing so is uncontrovertibly within the scope of
    congressional power.
        Now while some of my colleagues may think talking about
    inactivity is an argument, I would counter with the statement
    of former solicitor general Charles Fried, a Reagan appointee,
    who said that in any event, it is irrelevant as a matter of
    law. Solicitor General Fried is not a partisan supporter of the
    Affordable Care Act. But he is a staunch defender of the
    Constitution, and in his view, the individual mandate is fully
    constitutional because Congress unquestionably has the power to
    regulate the interstate health and insurance markets and the
    discretion to choose the necessary and proper means of doing
    so.
        Solicitor General Fried has testified in the other body,
    and I would ask unanimous consent to enter his statement into
    the record.
        Mr. Smith. Without objection.
        Mr. Conyers. In conclusion, Chairman Smith and I thank you
    for your generosity with the time. We have been hearing a lot
    about individual liberty, the right to be let alone. But is it
    really? For example, States can and do require citizens to
    purchase car insurance. You have to have insurance to drive a
    car. In Massachusetts, legislation signed by former Governor
    Romney obligates that States' residents to purchase health
    insurance.
        There are many, many other laws that impose affirmative
    obligations on our citizenry. We must pay taxes. We must send
    our children to school and vaccinate them, we must contribute
    to Medicare, and to Social Security, just to name a few in the
    long list. So I am pleased to be here today to join in this
    discussion with the Members of the Committee.
        And I thank the Chairman for his generous allowance of
    time.
        Mr. Smith. Thank you, Mr. Conyers.
        Without objection, other Members' statements will be made a
    part of the record. We welcome our panelists today, and our
    first witness is going to be introduced by the gentleman from
    Virginia, Mr. Goodlatte.
        Mr. Goodlatte. Thank you, Mr. Chairman, for holding this
    hearing and affording me the opportunity to introduce our
    attorney general, Congressman Forbes and Congressman Scott join
    me in welcoming Ken Cuccinelli who was elected attorney general
    of Virginia on November 3, 2009, and was sworn into office on
    January 16, 2010.
        In this position, he is responsible for overseeing the
    Office of the Attorney General and its more than 300 attorneys
    and support staff.
        Prior to this, Attorney General Cuccinelli served in the
    Senate of Virginia from August 2002 to January 2010.
        As a State senator and private attorney, Attorney General
    Cuccinelli worked to improve all levels of the Commonwealth
    mental health system, first serving as a court-appointed
    attorney for individuals in Virginia's involuntary civil
    commitment process. After joining the Senate in 2002, he passed
    legislation that has provided for more humane treatment of the
    mentally ill and helped family members better cope with
    treating their loved ones.
        Best known nationally, however, for having brought the
    first lawsuit challenging the constitutionality of the
    individual mandate, a challenge which was successful at the
    district level before Judge Henry Hudson in the Eastern
    District of Virginia. That case is now on appeal.
        Mr. Chairman, it is my pleasure to welcome a great leader
    of the Commonwealth of Virginia.
        Mr. Smith. Thank you, Mr. Goodlatte.
        Our second witness is Walter Dellinger. Mr. Dellinger is
    the head of appellate practice at O'Melveny & Myers and the
    Douglas Maggs professor emeritus of law at Duke University Law
    School. Mr. Dellinger served as assistant attorney general for
    the Office of Legal Counsel from 1993 to 1996 and as acting
    solicitor general from the 1996 1997 term of the U.S. Supreme
    Court.
        By our joint reckoning, he is making perhaps his 30th
    appearance before Congress as a witness today, 30th or 31st,
    something like that.
        Our final witness is Randy Barnett. Mr. Barnett is the
    Carmack Waterhouse professor of legal theory at the Georgetown
    University Law Center. He has served as a visiting professor at
    Northwestern and Harvard Law School and was awarded a
    Guggenheim Fellowship in Constitutional Studies and has
    authored over nine books and over 100 articles and reviews.
        Each of the witness' statement will be made a part of the
    record. We welcome you all and look forward to your 5 minutes'
    worth of a statement after which we will need to move on to the
    next witness.
        We appreciate your presence and look forward to the
    testimony, first of Attorney General of Virginia, Mr.
    Cuccinelli.

    TESTIMONY OF THE HONORABLE KENNETH T. CUCCINELLI, II, ATTORNEY
                           GENERAL, VIRGINIA

        Mr. Cuccinelli. Thank you, Mr. Chairman and Members of the
    Committee. I will not repeat my written testimony. In my oral
    testimony, I would like to make three points to you all. The
    first is that what the States are doing, and I will refer to
    the States generically, there are dozens of cases running
    challenging the individual mandate. My focus obviously being an
    Attorney General is on the States' cases. What the States are
    doing in challenging the individual mandate and which
    ultimately will result in a request to the Supreme Court to
    find that individual mandate unconstitutional, is very modest
    from a legal perspective. We are not asking the Supreme Court
    to change any law, to expand or contract any of its precedent,
    simply to apply the existing law to deny the opportunity to the
    Federal Government to massively expand its power to compel
    American citizens to act.
        The other side, the Federal Government, requires to prevail
    an expansion, as noted by the judges that have even rules in
    their favor, an expansion of the commerce clause power which is
    already vast, as it stands under Supreme Court precedent right
    now, the Federal Government requires that to be expanded yet
    again, and further, in order to prevail in this case.
        It is the Federal Government that is asking for a dramatic
    change to the law, not the States that are challenging the
    individual mandate. That is the first point I would like to
    leave you with.
        The second point is that this case, while it, of course,
    deals with the legislation passed last year that the President
    signed March 23 last year relating to health insurance, health
    care and a variety of other things, the litigation is not so
    much about health care as it is about liberty. And the reason
    for that is that if the power that the Federal Government, for
    the first time, is exercising in the legislation passed last
    year is allowed to stand, then it can be applied across the
    economy and across the lives of our citizens in ways that are
    not part of the discussion now because they don't have anything
    to do with health care.
        The Chairman referenced ordering people to buy a car, to
    eat asparagus or broccoli, the vegetable of discussion changes
    day to day, those compulsions were addressed by judges in these
    cases, they are very legitimate concerns, and until the United
    States can articulate a constitutional boundary to the power
    that it proposes the Federal Government has, it should lose in
    the Supreme Court because of the vast expansion of Federal
    power.
        To give you one example, Professor Turley, here at George
    Washington University, I am sure some of you are familiar with
    him, in his first op-ed after this case was filed, he noted
    that if the States lose this case, it is the end of federalism
    as we have known it for over 220 years, the end of federalism.
        Federalism, of course, is intended, in part, to protect the
    liberty of citizens ultimately by the tension established by
    the Federal and State governments.
        And I would submit to you that the States that are
    assaulting the individual mandate in court are doing exactly
    what the Founders expected us to do, and that is, to check
    Federal power when they overstep the boundaries of the
    Constitution. That is exactly what we are doing in this case.
        My third point is more historical. Whenever we deal with a
    novel question of constitutional law, and this is an
    unprecedented exercise of Federal power, and so the question
    that the court is dealing with is novel, I would reference Mr.
    Conyers' remarks about the inactivity, activity distinction,
    that has never arisen before because no case the Supreme Court
    has ever dealt with before has ever had to consider it because
    Congress has never presumed to have the power to compel
    Americans in the way done with the individual mandate.
        In that sort of a circumstance, we do look back to the
    founding period. We look back to the writing of the commerce
    clause, and we look back to the context in which it was
    written. What was the problem they were trying to solve? And if
    you recall the colonial period, during that time, the colonists
    engaged in boycotts of British goods. This began in the 1760's
    with the Stamp Act and the follow-on Acts of taxation
    primarily, but it also included the Intolerable Acts. And a
    Massachusetts convention in 1768 determined to boycott British
    goods until the Stamp Act was lifted and the duties imposed by
    it were lifted.
        Cross the water to Britain, King George III is furious
    about this. In a mercantilist economic system, this hurts.
    Merchants are hurting, his shippers are hurting, and at that
    time, the solicitor general and attorney general by tradition
    sat in the Parliament and the solicitor general was asked in
    Parliament if what the colonists were doing was treason to
    boycott British goods. And the solicitor general responded by
    saying that while the colonists have come up to the line, they
    have come to within a hair's breadth, they are within the law
    to boycott British goods.
        Now that didn't sit well with a lot of the powers that be
    in Britain at the time. But the corollary of that is that they
    could not compel colonists, subjects of the crown and
    parliament, to purchase the goods of their choice. But we now
    have a President and had a Congress that thinks that they can.
    Thank you, Mr. Chairman.
        Mr. Smith. Thank you Mr. Cuccinelli.
        [The prepared statement of Mr. Cuccinelli follows:]

                                   __________

        Mr. Smith. And Mr. Dellinger.

               TESTIMONY OF WALTER DELLINGER, PROFESSOR,
                     DUKE UNIVERSITY SCHOOL OF LAW

        Mr. Dellinger. Thank you, Chairman Smith.
        The provisions of the Affordable Care Act that are at issue
    in this case are so clearly within the commerce power that
    there are multiple ways that it is a perfectly unremarkable
    application of Federal power. Yes, it does impose an
    affirmative obligation, an affirmative obligation as an
    alternative to paying a 2\1/2\ percent tax penalty, in order to
    encourage Americans to have a minimum health coverage. It is as
    Solicitor General Fried who served under Ronald Reagan, as Mr.
    Conyers noted, so eloquently put it, this is a perfectly
    routine application of Congress' power to regulate the
    insurance market.
        Now what is absolutely at stake in this litigation is the
    provision of the health care law that for the first time
    prohibits insurance companies from denying coverage to
    Americans because of preexisting conditions, the provision that
    for the first time prohibits insurance companies from denying
    coverage to individuals because they have a child who is born
    with a birth defect. This was a very important reform, to
    ensure that Americans could obtain the health care coverage
    they needed.
        Of course, when you do that, you create the possibility
    that people can say, well, I am going to wait to buy my
    insurance when I am in the ambulance on the way to the hospital
    because they can't turn me down. And therefore, it was clearly
    reasonably adapted, reasonably related to use Justice Scalia's
    language justifying the use of the necessary and proper clause,
    it is reasonably adapted to the law that prohibits insurance
    companies from denying coverage to individual Americans to
    provide this financial incentive for Americans to maintain
    minimum coverage.
        That is all. It is perfectly unremarkable. It is clearly a
    regulation of commerce as no one would doubt that Congress has
    the authority to regulate the terms and conditions upon which
    insurance is bought and sold and that this is a very essential
    facilitation of the requirement that insurance companies not be
    allowed to deny coverage.
        What is striking about it is that is there something so
    remarkable about this affirmative obligation that would mean
    that it has to be accepted from what would otherwise be
    Congress' power to regulate these commercial transactions. It
    is actually no more intrusive than Medicare or Social Security.
    All three of them, Medicare, Social Security and the minimum
    coverage requirements that are called the individual mandate,
    those three only apply to individuals that go into the economy,
    the penalty provisions only apply if you go into the economy
    and earn a sufficient amount, $18,000 for a couple, earn a
    sufficient amount, that you have to file Federal income taxes.
    If you go into the economy and do that, you are required to pay
    7\1/2\ percent of your earnings into Social Security, 15
    percent if you are self-employed. You are required to pay a
    certain--to take care of your old age benefits, you are
    required to pay a few percentage points for Medicare to provide
    for health coverage after you are 65, and now you are required
    to pay up to 2\1/2\ percent and an additional tax penalty to
    provide for health care before you are 65, unless you are
    maintaining minimum coverage.
        The difference between this approach and what is done with
    Social Security and Medicare, and the reason it was supported
    for so long by so many conservatives, is it that offers more
    choice. Instead of having a single monolithic governmental
    provider, it allows people a choice among private providers of
    insurance. That surely is a choice that Congress can make to
    favor a market approach over a government bureaucracy approach.
        Is this unprecedented? Has Congress ever ``regulated
    inactivity''?
        Congress of course has no free standing power to regulate
    inactivity. It has a variety of powers which it can sometimes
    use to impose affirmative obligations. That is what we are
    talking about.
        In 1792, months after the Bill of Rights was adopted,
    Congress passed a law requiring every adult free male to
    purchase a weapon, to purchase ammunition, to purchase a
    knapsack. No one said, oh my goodness, this is a regulation of
    inactivity, and if Congress could regulate that they could
    regulate anything. The reason they didn't is that what it was
    was the imposition of an affirmative obligation where Congress
    has the authority to impose an affirmative obligation.
        Now, let me go just right to the question of limits, first
    of all, this doesn't implicate the Supreme Court's decision
    limiting Congresses' power to regulate noneconomic local
    matters, like street violence, or guns within schools--near
    schools. Morrison and Lopez deal with different issues because
    this regulates a matter that is entirely economic, entirely
    commercial.
        Secondly, does it allow Congress to require the eating of
    asparagus or broccoli? I wanted to decide that with General
    Cuccinelli about how many times the word ``broccoli'' would be
    mentioned this morning. Of course it doesn't. The liberty
    clause of the Constitution stands in the way of that kind of
    imposition of activity on individuals.
        Does it require the purchase of any other products? Can I
    tell you if Congress can regulate this, anything that Congress
    cannot regulate? I can tell you thousands of things Congress
    cannot regulate after this is upheld. I brought the Yellow
    Pages because if you want me to spend the next 3 days, I can
    read every product that Congress would not have the power to
    require you to purchase----
        Mr. Issa. Mr. Chairman, has the opening statement
    concluded?
        Mr. Smith. Conclude your testimony.
        Mr. Dellinger. I will. I will by saying that the
    justification will be that Congress can require the purchase of
    the unique product, which is one that no one can be assured
    they will not use and which we have complete and total evidence
    that when people are not insured, they transfer that cost to
    other Americans, other people who are sick, or to taxpayers and
    that is a unique situation where Congress can encourage people
    to maintain minimum coverage. It would not be a precedent for
    any of the parade of horribles that come marching through this
    Committee room.
        Thank you, Mr. Chairman.
        Mr. Smith. Thank you, Mr. Dellinger.
        [The prepared statement of Mr. Dellinger follows:]

                                   __________
        Mr. Smith. Mr. Barnett.

    TESTIMONY OF RANDY E. BARNETT, PROFESSOR, GEORGETOWN UNIVERSITY
                               LAW CENTER

        Mr. Barnett. Thank you, Mr. Chairman, and thank you to the
    Members of the Committee.
        Let me begin today with a thought experiment. Imagine that
    I tell you 100 things that you may not do tomorrow. For
    example, you may not run on a treadmill, you may not eat
    broccoli, you may not buy a car, and 97 other specific things
    that you can't do tomorrow. Now while your liberty would
    certainly be restricted, there would still be an infinite
    number of things that you may still do.
        All right. Now suppose I tell you 100 things that you must
    do tomorrow. You must run on a treadmill, you must eat
    broccoli, you must buy a car and 97 other things. These 100
    mandates could potentially occupy all your time and consume all
    your money.
        I offer this illustration to help you see why economic
    mandates are so much more onerous than either economic
    regulations or prohibitions, and why so dangerous an unwritten
    constitutional power should not be implied. Now of course, we
    all know that Congress may mandate the citizens register for
    the military and serve if called, submit a tax form, fill out a
    Census form and serve on a jury.
        But each of these duties is necessary for the operation of
    government itself, and each has traditionally been recognized
    as duties that are inherent in being a citizen of the United
    States. They are inherent in United States citizenship. In
    essence, the mandate's defenders are claiming that because
    Congress has the power to draft you into the military, it has
    the power to make you do anything less than this, including
    mandating that you send your money to a private company and do
    business with it for the rest of your life.
        To justify this claim of power, implied power, supporters
    of the mandate say that health care is different or unique. But
    a factual description of health care is not a constitutional
    principle. It does not provide any principled line identifying
    when economic mandates are constitutional and when they are
    not. Once a power to conscript Americans to enter into
    contracts with private companies is accepted here, the Supreme
    Court will never limit it to any particular factual
    circumstance in the future.
        From now on, Congress would simply have the power to impose
    economic mandates whenever it deems it convenient to its
    regulation of the national economy. So when a defender of the
    insurance mandate says health care is unique, you need to ask,
    okay, but what is the constitutional limit on the power to
    impose economic mandates?
        Now some have responded that the commerce power is limited
    by the protection of liberty in the due process clause. But law
    professors know, even if the American people do not, that the
    Supreme Court now limits the scope of the due process clause to
    protecting only a very few specifically defined fundamental
    rights, none of which would include a right to refrain from
    doing business with private companies.
        As important, claiming that commerce is limited only by the
    due process clause or some other expressed prohibition in the
    Constitution is really to claim that Congress' enumerated
    powers in article 1 are unlimited except as they are qualified
    by the Bill of Rights. Such a proposition has always been
    rejected by the Supreme Court. As Chief Justice Rehnquist wrote
    in Lopez v. United States, ``We start with first principles,
    the Constitution creates a Federal Government of enumerated
    powers.'' And then he went on to quote James Madison's
    Federalist 45 and here is what Madison said, ``The powers
    delegated by the proposed Constitution to the Federal
    Government are few and defined. Those which are to remain in
    State governments are numerous and indefinite.''
        As I explained in my written testimony, existing Supreme
    Court doctrine limits Congress to the regulation of economic
    activity, and to date, has never sanctioned implied
    congressional power to regulate inactivity. In other words, the
    Supreme Court has said that Congress may go this far and no
    farther. But even if it did, even if the Supreme Court were to
    uphold this, each Member of Congress must still decide for him
    or herself whether conscripting Americans to enter into
    contractual relations with a private company is a proper
    exercise of the commerce power.
        In 2010, Congress claimed a power that had never before
    been claimed, the power to mandate that every citizen enter
    into a contractual relationship with a private company and do
    business with it or another business like it for the rest of
    their life. Had this ever been done before? Each of you would
    know all the economic mandates that you must obey upon pain of
    penalty to the IRS, you don't know of any such mandates because
    this claim of power is literally unprecedented.
        For this reason, if you conclude that economic mandates are
    either unnecessary or improper and are therefore
    unconstitutional and beyond your power to impose, this
    conclusion would affect only one law ever enacted by this
    Congress, the Affordable Care Act of 2010.
        And this fact makes it much more likely that it will be
    held unconstitutional by the Supreme Court.
        Nothing in Judge Vinson's opinion in Florida imposes any
    new limits on congressional power. For over 200 years, Congress
    has gotten along without a power to mandate that every citizen
    enter into a contractual relationship with a private company.
    Congress has ample means to solve free rider problems by
    regulating economic activity and devising tax and spending
    schemes and does not need this new and dangerous power.
        Because economic mandates are both an unnecessary and
    improper means for regulating interstate commerce, the
    individual insurance mandate is unconstitutional, and I believe
    Congress should repeal it. Thank you.
         Chairman Smith. Thank you, Mr. Barnett.
        [The prepared statement of Mr. Barnett follows:]

                                   __________
        Mr. Smith. I will recognize myself for questions and Mr.
    Cuccinelli, I would like to address my first question to you.
    You mentioned that if the individual mandate is upheld, you
    feel that it would be the end of federalism. I gather then that
    you also feel that if Congress can require everyone to purchase
    health insurance, that there is really no limit to Congress'
    ability to regulate under the commerce clause. Is that the
    case?
        Mr. Cuccinelli. That is correct, Mr. Chairman. Once you
    have allowed, sort of kicked open that door, there is no
    articulable limit to that power. I am sure I could come up, as
    Mr. Dellinger mentioned, with examples what I would call crumbs
    off the table that might remain exclusively within the power of
    the States, but we would have dramatically, dramatically
    reduced that sphere.
        Mr. Conyers, in is his opening remarks, referenced auto
    insurance and the Massachusetts insurance example, both
    legitimate examples, I hear questions about them all the time.
    Massachusetts is a State. The Constitution as originally
    written did not limit States. It limited the Federal
    Government, and it is the Federal Government that has stepped
    outside those boundaries. Massachusetts can do exactly what the
    Federal Government attempted to do last year perfectly well
    within its constitutional prerogative as a sovereign entity in
    our constitutional system.
        That is why federalism is so threatened by this legislation
    is you completely gut that differential, the distinctive
    authority and responsibility that was left to the States when
    the Federal Government was limited by the enumerated powers.
    And that is why the language of the 10th Amendment reads the
    way it does, is that residual power which we typically refer to
    as the police power is still left with States, and it would be
    gutted if the individual mandate is allowed to stand.
        Mr. Smith. Thank you, Mr. Cuccinelli.
        Mr. Barnett, supporters of the individual mandate say we
    don't need to worry because the due process clause puts a limit
    on Congress' power. Do you buy that argument?
        Mr. Barnett. Well, the due process clause does put a limit
    on Congress' power and it puts a limit on the States power as
    well. And if that is the only limit that is on the State and
    Federal power, that means that Congress' power is the same as
    the States' power, it is just as broad, if that is the only
    limit, since it is the same limit on both entities. But we know
    that that is not right that Congress has limited and enumerated
    powers and the States' powers are broad and diverse. So that
    can't be the only limit.
        Essentially what argument says, Mr. Chairman, is that the
    enumerated powers in article 1, section 8 are unlimited in and
    of themselves, they are unlimited and they are only to be
    qualified by the Bill of Rights or the due process clause. It
    is like saying Congress' powers are unlimited unless they
    violate free speech. It is the same kind of argument.
        Mr. Smith. Mr. Barnett, one other question. Supporters of
    the individual mandate also say that somehow health care is
    unique and therefore we also don't need to worry about
    excessive power residing in the hands of Congress.
        Do you think that health care is so unique that that should
    alleviate our concerns?
        Mr. Barnett. Whether or not health care is unique, the
    factual uniqueness of any particular market is not a
    constitutional principle. And for 200 years, the Supreme Court
    has declined to examine the factual reach of any particular
    congressional law.
        What they need is a firm line that they can judicially
    administer, and they don't get into the factual details of this
    circumstance versus that circumstance. So the problem with that
    objection is it is not a constitutional limitation, it will
    never be held as a constitutional limitation, so it don't solve
    the basic problem.
        Mr. Smith. Thank you, Mr. Barnett.
        And the gentleman from Michigan, Mr. Conyers is recognized
    for his questions.
        Mr. Conyers. Thank you, Chairman Smith. First of all, I
    want to thank the Attorney General Of Virginia for his
    instructions. I will not debate this now because we are short
    of time, but I wanted to just ask you this question: What is it
    that two solicitor generals, Fried and Dellinger, don't
    understand about the constitutionality of the issue that brings
    us here this morning? What is it that they don't understand and
    that you do understand? Could you explain that for me?
        Mr. Cuccinelli. Mr. Conyers, they, along with many others,
    we could pile the list of supporters of each position on a
    scale and it would be a mile high, but the position they have
    taken is accepting that there are not no limits but virtually
    no limits on the commerce clause power of Congress.
        And you commented earlier on the inactivity focus of us on
    our attack on the individual mandate, if one can treat a
    decision to do nothing as activity for purposes of Supreme
    Court precedent, which even judges ruling in favor of the
    Federal Government have had to make that logical leap, that is
    the leap they have to make, they have to redefine words and
    they have to have leaps of language and logic to prevail, and
    they are willing to do that.
        Mr. Conyers. I want to assure you that the sky is not
    falling. I want to give you the assurance today that federalism
    is probably alive and well before, during and after the Supreme
    Court decision on this matter.
        Now, Mr. Dellinger, do you have a response for Professor
    Barnett in this discussion that we are having this morning?
        Mr. Dellinger. Mr. Conyers, I believe that the fundamental
    flaw in the critique of this legislation, the no-limits
    critique, is it assumes that a decision by the Supreme Court
    upholding this law would say that we are upholding this law
    because in our opinion Congress can regulate anything it wants
    or Congress can require the purchase of any product it wants,
    but why in the world would you think that would be what the
    Supreme Court would hold?
        Whether a Supreme Court decision sustaining this minimum
    coverage incentive or requirement would allow Congress to do
    lots of other things when would entirely depend upon what the
    Supreme Court gave as the reason. And I think, I can't, I am
    sure there are ethical rules and criminal rules that prevent
    Members of Congress and witnesses from wagering, but if there
    weren't, I would wager that not only would this be upheld if it
    gets to the Supreme Court, that is, if any of the courts of
    appeal strike it down, which they may not, and I would wager
    that--and I have sampled a lot of other Supreme Court experts,
    I would wager that Chief Justice Roberts writes an opinion
    upholding the law. And he is not going to write an opinion that
    says, we are upholding this law because Congress can require
    people to buy any product that Congress chooses or engage in
    any exercise. They are going to uphold it by saying in this
    case it is imminently intertwined with a fundamental part of
    the interstate markets in health insurance and health care.
        And here is what the opinion I expect by the chief justice
    will cite. It will say that 94 percent of the long term
    uninsured have actually utilized health services. It will say
    that only one-third of the cost of health service is obtained
    by the uninsured are paid for by the uninsured. Of hospital
    costs, only 10 percent of the hospital costs obtained by the
    uninsured are paid for by the uninsured. Ninety percent of
    those costs are transferred to other Americans, other patients
    who are sick, and to taxpayers.
        And in those circumstances, when Congress is regulating a
    market by prohibiting insurance companies from denying
    coverage, it can surely create an incentive more, modest more
    respecting of liberty than the way Medicare and Social Security
    operate in order to encourage people to maintain minimum
    coverage.
        That is what the Supreme Court will say, and it won't be a
    precedent for requiring any other obligation to purchase
    anything whatsoever.
        Mr. Conyers. Well, I want to assure you that as long as you
    stay away from Internet gambling, wagers are probably permitted
    in the Rayburn building. Thank you, Mr. Chairman.
        Mr. Smith. Thank you, Mr. Conyers.
        The gentleman from Virginia, Mr. Goodlatte, is recognized
    for his questions.
        Mr. Goodlatte. Thank you, Mr. Chairman.
        Gentlemen, welcome. This is a very interesting discussion.
    But Mr. Dellinger, I have to tell you that while the Supreme
    Court can write anything they want to in their opinion, they
    have historically done so from the perspective of what
    parameters they are going to impose upon what Congress can do
    based upon that decision and based upon the precedents that
    have stood before them.
        And quite frankly, I find it astonishing that you would
    compare Social Security or Medicare or any other government
    program which is funded through taxation, and then provided to
    people who can choose to avail themselves of it or not as the
    equivalent of mandating that individuals buy a private product
    from a private company which the government is also going to
    then mandate to that private company what has to be provided in
    the product.
        And I would yield first to the Attorney General and see if
    he would like to address that point.
        Mr. Cuccinelli. Thank you, Congressman.
        I would note that every example that I have heard listed by
    either Mr. Dellinger or Mr. Conyers, car insurance, Medicare,
    Social Security the 1792 Militia Act that Mr. Dellinger was
    referring to, all stand on their own constitutional footing and
    it is not the commerce clause, or none of them. None of them.
    They all have an independent power provided to Congress. The
    Militia Act, if you read your article 1 section 8, you will see
    it worded affirmatively that you may raise an army, that there
    is vast authority over the militia and how it is to be governed
    and utilized. That doesn't exist in commerce. You must regulate
    something that already exists. They may not compel it into
    being.
        Car insurance we already talked about. That is within the
    realm States. Medicare and Social Security as you note are
    implemented using the taxing power, a broad though not
    unlimited power of Congress.
        The other example cited so far is for schooling which is
    within the realm of the power of States, not the Federal
    Government.
        So none of the other examples are applicable. And I am one
    of these--I was an engineer before I went to the dark side and
    went to law school. So I had this logical training that forces
    me to argue in certain ways, I would say. And all of the
    discussion of the importance of the subject, I take for
    granted. I agree this is important. The Supreme Court has
    repeatedly noted that that doesn't matter, it doesn't matter.
    What matters is are you within the boundaries of the
    Constitution? And this isn't even close.
        Mr. Goodlatte. Let me ask you about another argument that
    has been made by the Justice Department in supporting their
    case. They have argued that the individual mandate penalty is
    constitutional as a tax.
        And could you explain the problem with the argument that
    the mandate's penalty is a tax.
        Mr. Cuccinelli. First of all, let's note that this argument
    really didn't exist until they began to worry we might actually
    beat them.
        Mr. Goodlatte. We were told here that it wasn't a tax.
        Mr. Cuccinelli. Of course, and rather famously and
    emphatically the President in the George Stephanopoulos
    interview said the same thing. And that was cited by Judge
    Vinson in his October 14 order in the Florida case. But it is
    called a penalty. It had been called a tax in an earlier
    version of the bill. That was changed to a penalty.
        The Supreme Court has noted La Franca. There is a
    distinction that matters between taxes and penalties. The
    taxing power, as I already mentioned, is broad for you all, for
    Congress. However, it is not unlimited either.
        And the money you must pay if you fail to obey the
    government dictate and buy their chosen health insurance is a
    penalty. It is a punishment for failure to comply. That is a
    penalty. It was called a penalty. It acts as a penalty. In form
    and substance it is a penalty. To rename it after the fact in
    court attacks doesn't change its form or its substance. And it
    does not generally raise revenue as the money raised for
    Medicare and Social Security do. That is why those stand just
    fine. And it is an argument that not even the two judges who
    have found the individual mandate constitutional have bought.
        I would suggest to you that if all you have to do, and you
    here as Congress, if all you have to do is penalize me some
    amount of money if I don't obey whatever you put in the
    legislation whatever the legislation can be and that can
    survive under the taxing power, that is a truly radical
    argument in terms of Federal power. That is radical. And it is
    not being upheld by any judge anywhere. And playing along with
    Mr. Dellinger's wagers, I bet you that not a single judge in
    America upholds that argument. They may uphold the individual
    mandate. It is going to be a close call. But they will not
    uphold that taxing argument.
        Mr. Goodlatte. Thank you, Mr. Chairman.
        Mr. Smith. Thank you, Mr. Goodlatte.
        The gentleman from New York, Mr. Nadler, is recognized for
    his questions.
        Mr. Nadler. Thank you. I agree with Mr. Cuccinelli. I don't
    think anybody will uphold that argument because they will never
    get to it because they will decide the case is valid, the law
    is valid as an expression of Congress' power under the commerce
    clause.
        Before I begin my questioning, let me ask the Chairman for
    unanimous consent to enter into the record the testimony
    submitted for today's hearing by the attorneys general of
    California and Oregon, Kamala Harris and John Kroger.
        Like Attorney General Cuccinelli, they are involved in
    legal challenges to the Affordable Care Act. But they defend
    the constitutionality of the law and herald it as a much-needed
    solution to their States' and our Nation's health care crisis.
        Having their perspectives will be useful to our
    consideration of this issue.
        Mr. Smith. Without objection.
        [The information referred to follows:]

                                   __________

                                   __________

        Mr. Nadler. Thank you. I now would like to start the
    questioning.
        Let me ask Mr. Cuccinelli, a number of our laws impose
    affirmative obligations on citizens. We must all pay taxes, buy
    car insurance, send our children to school and vaccinate them.
        Yet critics of the Affordable Care Act proclaim that this
    law, not any of these other existing affirmative obligations,
    signals the end of liberty as we know it. And they posit
    various hypotheticals raising questions about government
    forcing citizens to eat leafy greens or to exercise, both from
    my perspective perhaps objectionable.
        Can the States require residents to eat broccoli or require
    them to exercise, Mr. Cuccinelli?
        Mr. Cuccinelli. I am sorry, eat broccoli or----
        Mr. Nadler. Can the States require, can the States, can
    Virginia require someone to eat 2 ounces of broccoli a day?
        Mr. Cuccinelli. I think they could certainly order people
    to buy broccoli.
        Mr. Nadler. Can they require them to eat broccoli?
        Mr. Cuccinelli. I think that is a more difficult question.
        Mr. Nadler. But they could require them to buy them?
        Mr. Cuccinelli. And the Federal Government cannot.
        Mr. Nadler. Now, presumably what you are saying is under
    the police power, the State can order that?
        Mr. Cuccinelli. That is correct.
        Mr. Nadler. And the Federal Government doesn't have the
    police power?
        Mr. Cuccinelli. That is correct. Well----
        Mr. Nadler.  But if that is correct, if the State under
    the, if the State can exercise its authority to order someone
    to buy broccoli or to exercise, then the quarrel here is not
    about individual liberty such as you talked about. It is not a
    question of the liberty interests under the Fifth Amendment,
    but it is a question of who gets to exercise that authority. If
    the State can order it, then that is not protected by the Fifth
    Amendment, or the 14th for that matter.
        And the question then is, since somebody can order it, the
    question is who can exercise the authority which concededly is
    not limited by the liberty interest of the Fifth Amendment. And
    so long as we act within an enumerated power, which I would
    contend we do here, doesn't the supremacy clause answer that
    question as well in favor of Congress?
        Mr. Cuccinelli. Mr. Nadler, I would acknowledge that if you
    take the broccoli example and say the State government can
    order but the Federal Government cannot, that there is the
    potential within each of the 50 States for the citizens there
    to be burdened with that obligation.
        Mr. Nadler. My question is not that. My question is: Isn't
    your argument that the Congress is limited by a liberty
    interest here negated, and that the question has nothing to do
    with the liberty interest of the Fifth Amendment? The question
    is simply one of how far the commerce clause power extends,
    which is not a liberty question, but is an enumerated powers
    questions, and the liberty question is, therefore, really a red
    herring?
        Mr. Cuccinelli. Yes, this case is about liberty and not
    health care. And the reason that the distinction you are making
    does not address that problem is that the Federal system of
    sovereignty, States and Federal being separate and having
    separate spheres of authority, is intended to be a structural
    protection for liberty.
        So the fact that the States still have this reservoir of
    power and authority does not change the fact that the division
    of that power and authority is a protection.
        Mr. Nadler. Of course, that argument you have just made has
    been specifically rejected numerous times under the supremacy
    clause jurisprudence of the Supreme Court.
        Mr. Cuccinelli. That is not correct, Congressman.
        Mr. Nadler. I ask Mr. Dellinger briefly to comment on what
    Mr. Cuccinelli just said, and on my contention, that if a State
    can force you to eat broccoli, then it is not a question of
    liberty, it is simply a question of whether Congress can to do
    something under the commerce clause or not, there is no liberty
    interest question here.
        Mr. Dellinger. That is correct. I think there is no issue
    of liberty in anything that the States can do and the Federal
    Government can do. Let me give credit to the other side by
    saying that there is the following question: What I think they
    misnamed ``the regulation of inactivity'' is actually the
    imposition of an affirmative obligation in an area where
    Congress has power, jurisdictional authority to legislate.
        Now, I think as Professor Barnett, who has been one of the
    great advocate of----
        Mr. Nadler. Let me interrupt you for a second because my
    time is about to run out. This whole question of the inactivity
    and the liberty interest of inactivity, et cetera, wasn't that
    disposed of really by Wickard v. Filburn when the courts
    specifically said, in 1942, I think it was, that the Federal
    Government, under the commerce clause, could regulate the
    private production of wheat for the farmer's own use, that that
    affected interstate commerce, because if he didn't grow it, he
    would buy it from someone else. And the court there is saying,
    in effect, that Congress has the right to prevent an
    inactivity, namely that he wouldn't buy it from someone else?
        Mr. Dellinger. I think, yes, that essentially Wickard is a
    case in which the court recognized that Congress is encouraging
    people to make a purchase in interstate commerce who would have
    preferred not to make such a purchase.
        Mr. Smith. The gentleman's time has expired.
        The gentleman from California, Mr. Lungren, is recognized.
        Mr. Lungren. Thank you very much. And I hope my friend from
    New York will pay as much attention to the opinion of this
    attorney general from California as he does to the new one, but
    I may be asking for too much.
        You know, I am sorry, even though I went to law school at
    Georgetown and practiced law and was attorney general and
    argued a case before the Supreme Court, sometimes we seem to
    make these things so esoteric that the average person is left
    out. That is, only those of us with coats and ties on or judges
    who are attorneys with robes on can really make sense of this.
        I always thought that the intent of the Founding Fathers
    was to have a limited government. And I always thought that one
    of the defining issues of limited government was the power to
    compel; that is compulsion. And what I don't understand, and
    with due respect to you, Mr. Dellinger, because I respect you
    and I have liked your opinions many other times, I don't
    understand why you so easily find that the power of the Federal
    Government in this instance is closer to the power to compel
    one to defend the country, including compel performance in the
    Armed Forces by way of a draft, as opposed to the liberty
    interest that is explicitly expressed in the Fifth Amendment,
    you can't be compelled to testify against yourself.
        Now, I know we don't have a specific amendment that says
    Congress cannot compel an individual to buy a product, but I
    thought if there is any essence of the sense of liberty, it
    would be that. And I am, well, put off a little bit by your
    argument. It almost seems to me that you are saying because
    there is a constitutional end, you can use a constitutional
    means to get there. That the commerce clause is so elastic that
    if there is any way we can shoehorn anything in, then Congress
    can use the power of compulsion to do that. And your opening
    statement was emotional about what we want to do about those
    who have preexisting condition, but it didn't go to the
    constitutional question of whether, therefore, we can do that.
        I mean, as I have told my friends on this panel many times,
    the Constitution is the truly inconvenient truth. You may want
    to do it, but we don't have the right to do it. And I am really
    surprised at this, and also your argument, and even Mr.
    Cuccinelli's argument about the difference between the State
    and the Federal Government. If you think about a liberty
    interest and you read the 10th Amendment, the 10th Amendment
    seems to say, at least to me, that there is a whole area of
    activity that is left to the States and the sovereignty of the
    people.
        So if there is a liberty interest with respect to an
    individual, the 10th Amendment says that is to be expressed and
    protected by the sovereignty of the people within the States,
    which would say that there is still a liberty interest, but the
    concept of protecting it on the State level is left to popular
    sovereignty. Now, I know that may not be the current thinking
    with some, but can you help me with that? How do you so easily
    find that we have the right to compel someone to act in this
    way, to purchase a product, particularly when you say no one
    can escape being part of the system and therefore everything I
    do affects everybody else. Well, you know, there are people who
    don't believe in doctors and don't go to doctors, and there are
    people who are hermits who will never utilize these services.
        And there are other ways to do this, by the way. One of the
    ways you could do it, I am not saying it is the most practical
    way, but you could say that we understand, for instance, young
    people, we want to get young people in and they don't do it
    because they make a bet that on average they are not going to
    be sick like the rest of us, and that is a pretty good bet. But
    when they lose it, they have to pay. One of the ways you could
    do to incentivize young people to be part of it is say if, in
    fact, you have an illness, if, in fact, you have an accident
    and you are taken care of and there are bills that are
    incurred, you will never be allowed to discharge that in
    bankruptcy. That will follow you the rest of your life.
        Now, that is one incentive, one way of doing it that
    doesn't get into the question of the liberty interest.
        And so, are you saying that ultimately as long as you can
    shoehorn something within the commerce clause, we have no
    protection against the government's compulsion? We have no
    protection against the government's compulsion as long as
    Congress decides that we are going to compel you in a certain
    way?
        Mr. Dellinger. Well, first of all, I want to correct one
    statement you made. I have never taken a position that this is
    in any way like the solemn responsibility Congress compels
    sometimes for people to engage in military service. That is
    not----
        Mr. Lungren. That was my metaphor to say within those
    parameters, on the one side we all recognize that in order to
    have a government work, a society work, we can compel people.
    On the other hand----
        Mr. Conyers. Mr. Chairman, I ask unanimous consent that the
    gentleman be given an additional minute.
        Mr. Smith. Without objection.
        Mr. Lungren. I am not saying you were, but I am trying to
    say it seems to me those are the two edges of the question. I
    think you easily go to the one side, and I would say I find it
    very difficult to get that way.
        Mr. Dellinger. Look, you said we ought to put this simply
    so the people can understand it, and I agree. I think Ronald
    Reagan's solicitor general was chosen by President Reagan
    because he had a very good capacity to put things simply.
        What Charles Fried said was this is a regulation of an
    interstate commercial transaction. It is a requirement rather
    than a prohibition, but it is still a regulation of commerce,
    and Congress has the power. Now, the question is: Is it so
    intrusive because it is an affirmative obligation? And I think
    that is a serious question because affirmative obligations, as
    Randy Barnett has noted, affirmative obligations are more
    intrusive than negative prohibitions. So I think you could well
    argue that just because something has some influence on
    commerce, if it is an affirmative obligation, Congress needs to
    have a better reason than that.
        But unlike any of the thousand products mentioned here,
    this is in the Yellow Pages or in the Sears catalog, this is a
    product where Congress can simply say 94 percent of the people
    have used health care for the long term uninsured, and we can,
    therefore, create a financial incentive, that is all it is, a
    financial incentive to participate.
        Is that intrusive in liberty. Mr. Goodlatte said it was
    astonishing that I would compare it to the use of the tax power
    for Medicaid and Social Security.
        What I find surprising is the notion that there is a
    constitutional rule that the only way Congress could deal with
    a situation like this would be to provide a monolithic
    government provided, taxpayer-supported system, rather than
    having the same kind of or even lesser incentive to purchase a
    product in a private market. That seems unremarkable to me.
        Mr. Smith. The gentleman's time has expired.
        The gentleman from Virginia, Mr. Scott, is recognized.
        Mr. Scott. Thank you, Mr. Chairman.
        Welcome, Attorney General.
        Mr. Dellinger, one of the things your testimony kind of
    talked around it is about what do we call this thing? And it
    has always intrigued me that the label is so important. People
    pretty well accept the idea if you go to a gas station with a
    credit card, it should be prohibited to charge you extra for
    using the credit card. However, people think it ought to be
    permissible to have a cash discount. So if there are two
    prices, one a credit card price and then a lower cash price, if
    you call it a penalty for using a credit card, that is bad. But
    if you call it, the same differential, if you call it a cash
    discount, then that should be permissible.
        It seems to me that we are in the same situation on what we
    call this thing. There is no mandate. If you don't have
    insurance, you pay the tax. If everybody is paying the tax, if
    we called this thing a tax credit for having insurance, would
    that have made a difference because there is no mandate? It is
    calling it a tax credit for having insurance, and that would
    mean Mr. Cuccinelli couldn't label it a mandate and couldn't
    label it a penalty. If you called it a tax credit, would that
    have made a constitutional difference?
        Mr. Dellinger. I don't think it should because even when
    you consider it as a commerce clause matter, the fact that it
    is clearly within commerce and would be unremarkable if it were
    done unmistakably as a tax credit for having coverage rather
    than an additional tax penalty for not having coverage, it
    seems that is very deeply nonintrusive. Your notion about what
    to call----
        Mr. Scott. That is what we hear about. We hear about the
    penalty, the mandate. If we called it a tax credit, would it
    have made a difference?
        Mr. Dellinger. It shouldn't. It just would have changed the
    rhetoric.
        Mr. Scott. Mr. Cuccinelli, would have made a difference if
    we called it a tax credit?
        Mr. Cuccinelli. As I mentioned earlier, if the structure is
    as it is now in the bill and you changed the word ``penalty''
    to ``negative tax credit'' or something, the substance is still
    the same. It is the substance that the Supreme Court has looked
    to historically. It does not operate as a tax; therefore, it is
    not a tax. Therefore, it does not fall under the taxing and
    spending power for the general welfare. It will have to survive
    on some other basis.
        Mr. Scott. You can get a tax credit for solar panels. You
    don't have to buy a solar panel; but if you do, you get a tax
    credit for it.
        Mr. Cuccinelli. Well, the critical distinction in your
    point, and it goes to the earlier sort of shift of Mr. Nadler
    over to Wickard v. Filburn is yes, but if you compelled the
    purchase of solar panels, we would be in a totally different
    category. Much like the Wickard case----
        Mr. Scott. We don't compel the insurance. If you don't have
    insurance, you pay the extra tax. You don't have the tax credit
    for insurance.
        Mr. Cuccinelli. You do, in fact, compel it, and you provide
    a punishment for those who don't obey the compulsion. The
    Wickard case, the wheat case, I am sure you all are familiar
    with, would have been like this legislation if Wickard was
    compelled to grow wheat. He was not, but he chose to do so and,
    therefore, was governed because his activities, voluntarily
    engaged in, were subject to regulation under the commerce
    clause.
        Mr. Scott. You have labeled it a mandate when there is no
    mandate. You don't have to buy insurance.
        Mr. Cuccinelli. Well, if you don't, you are not obeying the
    law.
        Mr. Scott. You pay the extra penalty. If you don't have
    insurance, you don't get the tax credit. And if we labeled this
    a tax credit for having insurance, we wouldn't be here.
        Mr. Cuccinelli. You still have the structural problem of
    the legislation as it is. The words on it, if I could ask you
    to set aside----
        Mr. Scott. If it had a different differential, those
    without insurance will pay a tax, and those with insurance get
    a tax credit and will not have to pay that extra tax, would
    that make a difference?
        Mr. Cuccinelli. Well, you give tax credits for various
    forms of insurance that are purchased, and at least that tax
    credit standing on its own has never been challenged, so far as
    I know.
        Mr. Scott. So, Mr. Dellinger, if we labeled it different,
    would we have a different conclusion?
        Mr. Dellinger. I think your question very effectively
    points out the fact that this simply isn't very intrusive. If
    it is just the flip side of providing a tax credit, a modest
    tax credit for maintaining insurance by having a set of modest
    tax penalties for not maintaining insurance, how is this the
    end of liberty as we know it?
        Mr. Scott. Well, is it true there is not a mandate to have
    insurance?
        Mr. Dellinger. There is a freestanding requirement in the
    bill, a requirement that everyone should have coverage unless
    they already have Medicare or Medicaid or they are below the
    poverty level. The penalty provision only applies to people who
    engage in certain activities, which I will describe.
        You can search the bill for the word ``individual
    mandate.'' It nowhere appears.
        Mr. Scott. So you have the difference, if we labeled it
    ``tax credit,'' we would have avoided a lot of this
    controversy?
        Mr. Dellinger. Absolutely. And it can't be that a mere
    labeling like that is something on which turns some great issue
    of liberty.
        If you ask an ordinary person to say look, if you are
    sitting out in the woods, you don't have to buy insurance
    because there is no penalty that attaches to it. If you go to
    work in the economy, they are going to deduct money for Social
    Security for your old age. They are going to deduct money for
    your Medicare for health care after you are 65, and they are
    going to add a 2\1/2\ percent tax penalty to pay for coverage
    before you are 65 unless you are maintaining minimum coverage.
        No one is going to say well, gosh, one of those is the end
    of liberty as we know it; and the other two are all right. In
    fact, this argument sounds exactly like the arguments over the
    challenge to Social Security. And those attacking Social
    Security said, if Congress can mandate a requirement age of 65,
    financial support for those over 65, they can set the
    retirement age at 30, or 25. The Supreme Court said Congress is
    never going to do that. That doesn't mean it is
    unconstitutional.
        People said when the minimum wage law was passed, that if
    you could have a minimum wage of $10 an hour, why couldn't
    Congress have a minimum wage of $5,000 an hour. Once again the
    Court said Congress is never going to do that. That, I think,
    hardly counts as an argument. No one would think of this as
    unremarkable. No one is going with bayonets and force you,
    force march you to some insurance agency. It is just a
    financial incentive to maintain minimum coverage, as your
    question points out.
        Mr. Smith. The gentleman's time has expired.
        The gentleman from Iowa, Mr. King, is recognized for his
    questions.
        Mr. King. Thank you, Mr. Chairman. I appreciate this
    hearing today, and I think there has been a tremendous amount
    of instructive testimony that has come out from each of you. I
    look at the bookends, Mr. Cuccinelli and Mr. Barnett, have
    made, I think, the arguments that I would be making. And so
    rather than turn directly to either one of the gentlemen, I
    would go to Mr. Dellinger who probably hasn't had quite enough
    time to air his position.
        I would first take it to this point as I listened to the
    discussion about Wickard v. Filburn. I have a couple of follow-
    up questions for you, Mr. Dellinger.
        Do you believe that Wickard v. Filburn was justly and
    rightly held?
        Mr. Dellinger. I do.
        Mr. King. Rather than go into my disagreement with that, I
    think that expanded the commerce clause beyond the intentions
    of the Founding Fathers or the concepts that we basically hold
    today, then would you describe what you think, if ObamaCare is
    upheld as constitutional and the provisions of the commerce
    clause are, you might argue not expanded, I would argue they
    would be expanded if that were the case, then what could be
    constrained by the commerce clause? What type of activity would
    be constrained and where would the boundaries be?
        Mr. Dellinger. That is a very good question. It would
    depend, of course, on the kind of opinion that the Supreme
    Court wrote upholding the law.
        In my view, the Supreme Court, in upholding it, will say
    first of all, nothing we uphold today gives Congress any power
    to regulate local noneconomic matters unless they have some
    special showing of relation to interstate commerce. So nothing
    we hold today undercuts United States v. Morrison, United
    States v. Lopez, regulating local, noneconomic matters is
    something Congress cannot generally do.
        Secondly, they would say we think when Congress imposes
    affirmative obligations, it has to show that is really tightly
    related to--I expect them to say Congress has to show that
    there is a substantial relationship to a regulation of
    commerce. And a substantial relationship here would be that
    this is part and parcel of a regulation of insurance contracts
    that prohibits denial of coverage for preexisting conditions to
    provide a financial incentive for people to participate. It
    does not provide--our opinion today, they will say, does not
    mean that Congress can simply require anyone to purchase
    anything in order to stimulate the economy.
        Mr. King. And then quickly, before I go to Mr. Barnett, can
    you tell me, the distinction I just heard, the language used
    ``health care'' and ``health insurance'' and the distinction
    between the two was blurred in your opening testimony. Can you
    draw a distinction between the two?
        Mr. Dellinger. I think both of those markets are markets
    obviously which Congress can regulate under its commerce power.
    They account for one-sixth of the national economy. Health care
    is unique in that no one can decide not to utilize it. Health
    insurance is how you pay----
        Mr. King. Would you agree that is has been a practice to
    conflate the two terms, and it makes it difficult sometimes for
    us to sort the two when we use the term ``health care''
    interchangeable with ``health insurance,'' and we should do a
    better job of being careful how we use that terminology?
        Mr. Dellinger. Yes.
        Mr. King. Let me just make that a statement because the
    clock is ticking, and I turn to Mr. Barnett.
        Mr. Barnett, would you care to respond to the response that
    you heard from Professor Dellinger?
        Mr. Barnett. Yes. It is what I said in my opening
    statement, Mr. King, and that is that we have heard no
    constitutional principle.
        The Supreme Court, if they uphold this bill, they will
    write an opinion. They will talk a lot about how health care is
    different. But then they will say we must defer to Congress's
    assessment that this was necessary in order to impose insurance
    requirements. So they will defer to you is basically how the
    opinion will be written. They will not identify a limiting
    principle, if they uphold this bill.
        At least we have not heard from any of the proponents of
    the bill a constitutional principle that the Supreme Court
    could enunciate. If they say health care is different, what I
    am saying to you is that never in the history of this country
    has the Supreme Court gotten into a factual determination
    saying well, okay, health care is different. That is okay. But
    this other market for cars, let us say, that is different.
    There is a constitutional difference between the two. They
    haven't ever said that, and they are not going to say that.
        Mr. King. And likely then, if the Supreme Court upholds,
    then they would leave the discretion to Congress to define
    because they would be reluctant to?
        Mr. Barnett. I would just say that I bet you, Professor
    Dellinger would take that bet, that he would not want to take
    the bet that if the Supreme Court upholds the mandate, that
    they won't say that in the future it is up to Congress to
    decide whether to impose mandates.
        Mr. King. General Cuccinelli.
        Mr. Cuccinelli. Well, actually, Mr. Dellinger and I were on
    a panel in October at the Washington Legal Foundation, and when
    he was asked the principle at that time, he said the limits
    would be political. And I agree with him. I think that is the
    absolutely dead on, accurate, honest answer. And that means
    majority rules. If that is the case, why have a constitution in
    the first place?
        Mr. King. I will accept that as a closing remark, and I
    yield back the balance of my time.
        Mr. Smith. Thank you, Mr. King.
        The gentleman from Georgia, Mr. Johnson, is recognized for
    his questions.
        Mr. Johnson. Thank you, Mr. Chairman. I was in the process
    of formulating my thoughts here.
        Let me ask, or let me note the fact that Mr. Cuccinelli,
    you have opined that States have the power to mandate that an
    individual purchase insurance. That is what you said as far as
    Massachusetts is concerned; is that correct?
        Mr. Cuccinelli. Yes, sir, that is correct.
        Mr. Johnson. And you have also stated that your State, the
    State of Virginia, has the power to compel or mandate that its
    citizens purchase broccoli?
        Mr. Cuccinelli. I think that is probably correct, yes.
        Mr. Johnson. And it can compel them to actually eat the
    broccoli?
        Mr. Cuccinelli. No, I didn't go there. I don't think so.
        Mr. Johnson. Okay, just to purchase the broccoli. What
    provision of the Virginia constitution would authorize the
    State of Virginia to compel its citizens to purchase broccoli?
        Mr. Cuccinelli. Congressman, you wouldn't find it in the
    constitution of Virginia. The power resides with the States
    best articulated in the 10th Amendment. It is a power not given
    to the Federal Government; and, therefore, it is left to the
    States and the people through the 10th Amendment.
        Mr. Johnson. No, if the State has the power to compel its
    citizens to purchase broccoli, where does it get that power
    from? Is it an express power or is it an implied power in the
    Virginia constitution?
        Mr. Cuccinelli. It is not in the Virginia constitution. It
    is a residual power remaining in the States because it was not
    given from the States to the Federal Government when the
    Constitution was written. So it stays with Virginia.
        Mr. Johnson. Well, you realize that probably some
    individuals in the State of Virginia would argue that since the
    power to compel a citizen to purchase broccoli is not stated in
    the constitution expressly, then it has been left to the people
    themselves, that power? You realize that, correct?
        Mr. Cuccinelli. I would agree with that statement with
    respect to the Federal Constitution. But the State
    constitutions, and Virginia in particular, lays out not only
    what the governmental structure would be, but it is not
    formulated like the Federal Constitution to be a specific list
    of enumerated powers.
        Mr. Johnson. And the Federal Government, I would argue to
    you, because times have changed since the enactment of the
    Constitution and its amendments, times have changed, things
    have grown, the concerns and affairs of the government have
    grown and expanded, both State and Federal, and they are much
    more complicated now than they were back in the 18th century;
    is that correct?
        Mr. Cuccinelli. Absolutely undeniable, Congressman.
        Mr. Johnson. And so, therefore, we have to have an ability
    to interpret the Constitution with an understanding of how it
    applies under current conditions; isn't that a reasonable
    proposition? Or should we just stick with a strict authority or
    strict interpretation of the Framers of the Constitution, what
    they intended at the time? Because even the Supreme Court
    didn't do that in its Citizens United case, did they?
        Mr. Cuccinelli. Congressman, you are looking to change
    interpretations with changing times, and I would suggest to you
    that the proper course is to amend the Constitution if some
    alternative power is believed to be more necessary or
    appropriate to our time that was not originally granted to the
    Federal Government when they enumerated powers in the
    Constitution.
        Mr. Johnson. If one of Virginia's citizens said that the
    State of Virginia does not have the power to force me to
    purchase broccoli unless it goes and gets a constitutional
    amendment which would authorize it to do so, would that be
    reasonable?
        Mr. Cuccinelli. As a policy matter, perhaps not. But as a
    constitutional matter, they could pursue that through the
    general assembly. And if they got a bill, I suspect it would
    stand up under the Virginia constitution.
        Mr. Johnson. I believe what we are doing is we are arguing
    for States rights when it is politically expedient to do so,
    and then when the Federal Government wants to regulate
    something like the ability of States to determine whether or
    not damages in medical malpractice injuries should be capped or
    not, then it is okay for the Federal Government to come into
    that kind of a situation and legislate. And so it is politics.
    And that is what we have here with this health care argument in
    the courts.
        And, unfortunately, due to the activities of a couple of
    our Supreme Court Justices and how close they are to the Koch
    brothers, I am disappointed at the specter of politics coming
    into a decision by the U.S. Supreme Court on this very issue.
    And with that, I will yield back the balance of my time.
        Mr. Smith. The gentleman's time has expired.
        Let me say to Members that one of our witnesses, Mr.
    Cuccinelli, is going to have to leave in 15 minutes for a prior
    engagement. We ought to have at least three more rounds of
    questions.
        Mr. Lungren. Parliamentary inquiry, Mr. Chairman.
        Mr. Smith. The gentleman from California is recognized.
        Mr. Lungren. I know under the rules of the House, one is
    not allowed to call into question the motivation of a Member of
    Congress in the House or the Senate or the President of the
    United States. Does that rule of the House also refer to
    members of the Supreme Court?
        Mr. Smith. I think the gentleman may have referred to
    politics, and I am not sure that accusing someone of politics
    is impugning their character. So I would say it does not apply
    in this case.
        Mr. Lungren. Mr. Chairman, there was a particular reference
    to particular individuals and decisions made by members of the
    Supreme Court, and one would believe that was a question of
    motivation. And I know my objection is not timely, but I
    believe that the gentleman's words could have been taken down
    under the ruling of the parliamentarian in past decisions.
        Mr. Smith. As the gentleman stated, his objection is not
    timely. In any case, I am sure that the gentleman from Georgia
    did not intend to impugn the integrity of members of the
    Supreme Court, either individually or in the whole.
        If the gentleman from Georgia would want to comment on
    that, he is welcome to. If not, we will move on to questions.
        Mr. Johnson. I appreciate that, Mr. Chairman. Just to clear
    it up, I did not comment about what the Supreme Court has
    already ruled. It is what I fear that they may rule. But this
    matter may not even get to the U.S. Supreme Court. We will have
    to see.
        Mr. Smith. We will now recognize the gentleman from
    Indiana, Mr. Pence, for his questions.
        Mr. Pence. Thank you, Mr. Chairman. I want to thank you for
    calling this hearing on what I think is perhaps the most
    important constitutional question since I arrived on the
    Judiciary Committee in 2001. That is this question of whether
    or not the Federal Government has the power under the
    Constitution of the United States to order Americans to
    purchase goods or services, whether they want them or need them
    or not.
        And I want to thank this panel: General Cuccinelli, who I
    greatly admire for his thoughtful testimony; and Professor
    Dellinger and Professor Barnett. This has been an important
    discussion.
        We have now added the Judiciary Committee to a chorus of
    kitchen tables around America, small tables in diners over
    coffee. This is an argument the American people are fully
    engaged in, and I think it is an enormously important debate.
    And the disposition of this debate I think will bear greatly on
    the liberties of our people for generations to come.
        Professor Dellinger held up the phone book and compared,
    frighteningly, and began to recite various goods and services
    that could never be compelled by the Federal Government. And
    while that list may be long and I assume good faith by the
    witness, I fear that list, what would be included is longer
    than any American today would ever imagine. Meaning those
    things that could be regulated.
        I want to associate myself strongly with something that you
    said, General Cuccinelli. You quoted Professor Jonathan Turley
    who said if the States lose this case, it is the end of
    federalism. Let me say that I think the effort by States like
    yours, like my own beloved Indiana, 27 States in all,
    challenging this unprecedented exercise of Federal power
    represents potentially the rebirth of federalism in America. I
    leave that maybe for another hearing, Mr. Chairman, but I think
    something very special is happening in America today, and I
    believe it is something that our Founders would have, as you
    said, General Cuccinelli, I think they would have greatly
    identified with the notion that States ought to, by definition,
    they should feel obligated to defend the liberties of the
    people and defend their own prerogatives as a means of ensuring
    the ongoing vitality of the limited government enshrined in the
    Constitution of the United States, and most especially, defined
    in the 10th Amendment.
        I want to say specifically on this issue of regulating the
    market, and Professor Dellinger, I think you and I vigorously
    disagree on this, but I have great respect for your career and
    for your intellect. Let me just stipulate, you will never
    convince me that the Constitution of the United States gives
    this government the power to order Americans to buy health
    insurance. You just will never convince me of that. So I don't
    want you to spend a lot of energy on that. You don't even have
    to come over here.
        Mr. Dellinger. I was going to leave.
        Mr. Pence. That is not going to happen. But it is important
    to me to understand your thinking on this. You actually said
    this fell, in your judgment, this individual mandate in this
    legislation, fell within, I think you used the phrase ``routine
    power to regulate the insurance market.'' This is a very
    sincere question, and sometimes we do more posturing here, but
    I would love to know your answer to this question, and that is:
    How does regulating a market include compelling people to
    participate in that market? It does seem to me that you make a
    point that the commerce clause contemplates an orderly
    regulation of the Federal Government and commerce between the
    States. But is it your view that if the government has the
    power to regulate the insurance market in this country, that by
    definition that also includes the power to compel Americans to
    participate in that market?
        Mr. Dellinger. That is closer to General Charles Fried's
    view from the Reagan administration that purely and simply,
    just as the Supreme Court held in 1905, that prohibiting
    interstate commerce was a regulation of commerce, prohibiting
    the shipment of lottery tickets in that case, so you can either
    prohibit a commerce or require commerce, either way you are
    setting the rules for commerce, I don't think you need to, and
    I don't think the Supreme Court would actually reach that
    question because I think they would simply say regulating
    existing insurance contracts by forbidding preexisting
    condition denials, for example, is clearly a regulation of
    commerce.
        And the only question is this, to use the court's phrase,
    Justice Scalia's phrase, reasonably related to that regulation.
    And, secondly, that this is a market in which Americans will
    already participate, cannot choose not to participate, and the
    facts show very substantially transfer the costs to other
    people.
        Now, let me acknowledge that when I say this is a routine
    application, I think you are right to raise a question about
    that. Let me acknowledge that in the following sense. While it
    is well within the commerce power, imposing affirmative
    obligations may very well demand a stronger level of
    justification. I think what the Supreme Court would say is
    there are three limits on Congress's power. First is political.
    That is, it is the only thing that prevents you from adopting a
    minimum wage of $5,000 an hour.
        Second, there are liberty clause objections and Bill of
    Rights objections. And thirdly, where I think Congress is
    imposing affirmative obligations, you might need a special
    justification. You can't simply say making people buy something
    will help that company, it would help the economy, therefore
    they can willy-nilly buy something.
        As Randy Barnett said, a Supreme Court decision upholding
    this would talk a lot about the uniqueness of health care. It
    is the one market where Federal law requires people to provide
    you with a service whether you are going to pay for it or not
    and transfer the costs to other people. Therefore, it is
    uniquely one where you could justify requiring people to
    maintain coverage.
        Mr. Smith. The gentleman's time has expired.
        The gentleman from North Carolina, Mr. Watt, is recognized.
        Mr. Watt. Thank you, Mr. Chairman.
        I actually wasn't intending to ask questions. I came back
    to thank my good friend, Mr. Dellinger, and the other two
    witnesses, of course, but my relationship with Mr. Dellinger
    goes back a long, long ways to North Carolina.
        But I can't resist the rare opportunity that I have to
    agree with Mr. Pence on a couple of issues, the first of which
    is this is important for the Judiciary to have the hearing
    about, even though in no sense will we be the final word on
    this. It is working its way up through the courts. There is
    substantial division of opinion about it. And ultimately, it
    will be decided by the United States Supreme Court. So I think
    it is important for me to agree with Mr. Pence that this is an
    important hearing for the Judiciary Committee to have. It is
    important for me to agree with him that Mr. Dellinger has had a
    long and very bright legal career, and we thank him for that.
        And I hope we have some agreement on one other thing
    because Mr. Pence and I, over the years, have had pretty strong
    feelings about one thing, and one comment he made, the comment
    that says you will never convince me that this is
    constitutional, I have kind of been in that position one time
    myself on the short end of a 434-1 vote on an issue that I
    thought was unconstitutional and that the Supreme Court
    ultimately disagreed with my view on. I hope that once the
    Supreme Court, if it does say this is constitutional, maybe
    that will convince him because I had to have an attitude
    adjustment on that issue once the Supreme Court ruled. I had to
    come back and vote for some things I had to implement, to vote
    for funding for something that I had previously thought was
    unconstitutional.
        And I hope we have the agreement that his never, ever,
    ever, Walter Dellinger won't convince me, also doesn't apply to
    the Supreme Court because he is going to be out there possibly
    in a very difficult position. Having been there myself, I can
    attest to that.
        With that, this has been a great hearing. I am glad I got
    to hear the witnesses before I had to go off and hear witnesses
    in another Committee. I am glad I got a chance to come back and
    at least express my appreciation to the Chairman for having the
    hearing and to position myself in a similar position at the
    opposite end of a spectrum from Mr. Pence, but nevertheless,
    the dilemma is the same. We try to do what we believe is
    constitutional. There is no way we would have been able to
    convince Mr. Pence, or others, that this was a constitutional
    undertaking.
        But at some point, the Supreme Court is going to resolve
    this question, and we are all going to have to live with it one
    way or another. And I hope that the American people and the
    Congress will get on with it and hopefully provide health care
    to all of the American citizens if that is the ultimate
    outcome.
        So with that, Mr. Chairman, I yield back the balance of my
    time.
        Mr. Smith. Thank you, Mr. Watt.
        Mr. Cuccinelli, thank you for your testimony today. We
    understand you have to leave.
        Mr. Cuccinelli. May I just thank Congressman Watt for
    something that in my own legislature in Richmond I don't always
    see, and that is a commitment to upholding your oath. If you
    think it is not constitutional, to voting against it. I do not
    see that enough. I don't have--I am not here with you all, I am
    in Richmond, but my friends don't always abide by that. They
    kick it to the court. They say it is a decision for the court.
    Read your oath, and I really appreciate, Mr. Watt, you
    fulfilling that oath in the way.
        Ms. Lofgren. Mr. Chairman?
        Mr. Smith. The gentlewoman from California is recognized
    out of order.
        Ms. Lofgren. I appreciate that and I understand that the
    attorney general has to leave. I did have questions for him,
    and I am wondering if I may submit those questions to him in
    writing and get his agreement to answer them.
        Mr. Cuccinelli. Ma'am, absolutely. And if we can help any
    of you all, even if you may not agree, we are happy to help
    talk through subject matter with anyone of you all to try to be
    as helpful as we can as you try to do your job as you see fit.
        Ms. Lofgren. Thank you.
        Ms. Wasserman Schultz. Mr. Chairman?
        Mr. Smith. Let me say to all Members that it is a part of
    our regular order of business that all Members have 5
    legislative days to submit questions to the Chair, and we will
    submit the questions to the witnesses and get their responses
    in time to make them a part of the record.
        Ms. Wasserman Schultz. Mr. Chairman.
        Mr. Smith. The gentlewoman from Florida is recognized.
        Ms. Wasserman Schultz. Mr. Chairman, Attorney General
    Cuccinelli, I am the next Democrat to ask questions, and my
    questions are of you. Do you have an extra couple of minutes?
        Mr. Cuccinelli. I brought my running boots, so I can.
        Ms. Wasserman Schultz. Thank you very much.
        Mr. Smith. Actually the gentlewoman from Florida is not the
    next Member to ask questions.
        Ms. Wasserman Schultz. I said I am the next Democrat.
        Mr. Smith. The gentleman from Arizona, Mr. Franks, is
    recognized.
        Mr. Franks. Mr. Chairman, because General Cuccinelli has
    been so kind to stay a little longer, let me first start out,
    thank you for reminding us of our oath. We take an oath, we
    swear to uphold and defend the Constitution, not to adding the
    words unless the Supreme Court thinks otherwise. I am grateful
    to you because that is indeed one of the great geniuses of this
    country is that when we with trifurcated this government, all
    of us would have to have some tension between us, if necessary,
    to maintain the great principles of the country, and I am
    grateful to you, sir.
        This debate over the individual mandate, I believe, is a
    big one, Mr. Chairman. I know that Professor Dellinger has
    expressed sort of the general thought here, and I will
    paraphrase, that no one can escape being part of the system
    when it comes to health care. I guess I am concerned because
    if, indeed, the commerce clause in the Constitution can compel
    us to buy a certain product, then I wonder what cannot be
    reached within the framework of economy? Any inactivity or
    activity, I wonder what could not be reached by the commerce
    clause?
        I just think that the Chairman put it so well in his
    opening statement, those who threw the Boston Tea Party for
    excessive taxation of tea, I wonder how they would respond if
    their government told them they had to buy tea. I think that it
    might have been an even more lively party.
        Every exercise of Congress's power to regulate interstate
    commerce has involved some form of action or transaction
    engaged in by an individual or legal entity. The government's
    theory that the decision not to buy insurance is an economic
    one, would, for the first time ever, permit laws commanding
    people, coercing citizens, to engage in economic activity.
        According to Ilya Shapiro, he is senior fellow of
    constitutional studies at the CATO Institute, under such a
    reading which two judges have upheld, Congress would be the
    sole arbiter of its own powers. The only check would be
    political. The Federal Government would have plenary power,
    plenary authority to compel activities, as we have heard,
    ranging from eating spinach to joining gyms to lessen the
    burden on the health care system, to coercing citizens to buy
    GM cars as, perhaps, an auto bailout.
        So, Mr. Barnett, how would you describe the breadth of what
    I suggest is a power grab under the ObamaCare rubric?
        Mr. Barnett. Well, as I said, Congress has never before
    tried to impose an economic mandate on the people. So it is a
    new power. It is a new claim of power. And they have been able
    to get along without that power for over 200 years. So they are
    not claiming the power to do other things, but they are
    claiming the power to do this. And being able to make you do
    something, being able to make you enter the marketplace rather
    than regulate you after you voluntarily choose to enter the
    marketplace is a vast expansion of congressional power,
    especially when it claims the power to do so as long as it sees
    a rational connection between this mandate and its regulation
    of interstate commerce, or sometimes more broadly put, the
    regulation of the national economy.
        It is a vast claim of new power that will, after it is
    recognized by the Supreme Court, if it ever is, will be solely
    within Congress's discretionary power to exercise.
        Mr. Franks. Mr. Chairman, I would just express a sense of
    gratitude to the American people because the former Congress
    seemed to be headed in a pretty dangerous direction. The
    precedent that they were willing to set, if you look at the
    original version of ObamaCare introduced by the former House
    leadership, it would require families to purchase insurance
    that the CBO estimated would be $15,000 a year annually. It
    would require families to do that for the average family of
    four.
        First of all, I am wondering if that is what is considered
    free insurance, $15,000 a year requirement.
        Under the original version, the even worse potential
    precedent that they were attempting to set, and it didn't pass,
    I am grateful for that, but it is an indication of the, I guess
    arrogance, is the word. The failure to purchase the insurance
    would have resulted in not only civil penalties, but criminal
    penalties. If the head of household chose a pay medical
    expenses out of pocket rather than purchase health insurance,
    the citizen could have been fined a quarter of a million
    dollars or sentenced up to 5 years in prison.
        I am wondering if that kind of provision could be in a
    health care bill introduced in the Congress. If ObamaCare is
    upheld, is there anything standing in the way of such a legal
    scheme to be instituted in the future? And Mr. Barnett, I will
    give you a shot at it.
        Mr. Barnett. Congressman, that is a very good point. As Mr.
    Dellinger has noted, there are two provisions of the current
    Act. One is the requirement that every person have health
    insurance, and the other is a monetary penalty for the failure
    to. Those are two different provisions.
        The issue is the constitutionality of the requirement. And
    if that requirement is upheld, the Supreme Court will certainly
    say that Congress has powers to enforce this requirement
    however it wishes to. It has chosen in its first iteration to
    enforce it as a monetary fine or penalty. In the words of the
    statute, a penalty. That is what it chose to do so now. Only
    applicable to people who pay taxes.
        But there is no reason, there is no constitutional limit on
    Congress's power to enforce the requirement, once the
    requirement is upheld as a valid regulation of commerce. So you
    are absolutely right. That parade of horribles, that parade of
    severe penalties could easily be upheld once the precedent of
    the requirement is set.
        Mr. Smith. The gentleman's time has expired.
        The gentlewoman from Florida, Ms. Wasserman Schultz, is
    recognized for her questions.
        Ms. Wasserman Schultz. Mr. Chairman, thank you.
        Attorney General Cuccinelli, I appreciate your indulgence.
    I will try to ask my questions rapid fire to get you on your
    way.
        You mentioned in your written testimony that you see no
    constitutional problem with Congress taxing Americans to pay
    for government-provided health care; is that right?
        Mr. Cuccinelli. Yes, ma'am.
        Ms. Wasserman Schultz. And you believe that Medicare is
    constitutional?
        Mr. Cuccinelli. Yes, ma'am.
        Ms. Wasserman Schultz. And you believe that Social Security
    is constitutional?
        Mr. Cuccinelli. Yes, ma'am.
        Ms. Wasserman Schultz. And that is because in your view
    Congress is taxing the activity of working?
        Mr. Cuccinelli. In the transaction, yes. Voluntarily
    engaged in.
        Ms. Wasserman Schultz. Right. So in your view, Congress can
    tax labor in the present to pay for social welfare legislation
    down the road, and you are fine with that?
        Mr. Cuccinelli. The tax, what it goes for is irrelevant.
    They have the taxing power.
        Ms. Wasserman Schultz. But something that we can--the
    concept of taxing labor in the present to pay for social
    welfare down the road is something that you are fine with? You
    think it is constitutional?
        Mr. Cuccinelli. As a constitutional matter, yes.
        Ms. Wasserman Schultz. Okay. Do you also believe that
    Congress can regulate activities that substantially affect
    interstate commerce as was decided in United States v. Lopez?
        Mr. Cuccinelli. Yes.
        Ms. Wasserman Schultz. Were you aware that in 2008 alone,
    the uninsured, those who got sick or had an accident and
    couldn't pay racked up $43 billion in health care costs?
        Mr. Cuccinelli. I read that in briefs for well on a year.
        Ms. Wasserman Schultz. Is $43 billion a lot of money to
    you?
        Mr. Cuccinelli. It is heck of a lot of money. It is more
    than my State's budget.
        Ms. Wasserman Schultz. It is not more than mine, but it is
    certainly a lot of money. Do you conceive that $43 billion
    worth of uninsured medical costs substantially affects
    interstate commerce?
        Mr. Cuccinelli. Yes, but it does not give you the ability
    to compel people against their own desire to enter into a
    market to address the problem.
        Ms. Wasserman Schultz. No, no, no. Because in United States
    v. Lopez, which you support, commerce that is substantially
    affected, Congress has the ability to regulate. That is what
    you stated.
        Mr. Cuccinelli. Ma'am, if your assertion in that question
    is that then they can do anything, then you have reduced the
    necessary and proper clause to the necessary clause. Anything
    necessary to regulate is therefore within Congress's power;
    that is simply not the case.
        Ms. Wasserman Schultz. No, the Supreme Court decided that
    activities that substantially affect interstate commerce, which
    you just acknowledged that $43 billion is substantially
    affecting commerce, then by connecting those dots, then you
    would agree that that kind of impact affects interstate
    commerce significantly?
        Mr. Cuccinelli. Not as you have phrased it.
        Ms. Wasserman Schultz. Well, did you know that the average
    family paid an extra $1,000 last year in their medical premiums
    due to the cost of the uninsured?
        Mr. Cuccinelli. Again, I read it in briefs over the last
    year.
        Ms. Wasserman Schultz. Do you pay for your own health care?
        Mr. Cuccinelli. Yes.
        Ms. Wasserman Schultz. Okay, wouldn't you like to have an
    extra thousand dollars in your pocket?
        Mr. Cuccinelli. I would like to have an extra thousand
    dollars whether I paid for my health care or not.
        Ms. Wasserman Schultz. So would we all. Do you think
    American families would like to have that extra thousand
    dollars in your budget each year?
        Mr. Cuccinelli. Obviously.
        Ms. Wasserman Schultz. You would do what with an extra
    thousand dollars, invest in a bank, invest in stocks, make sure
    that you could send your kids to college?
        Mr. Cuccinelli. Or donate to a Republican in Florida. Who
    knows.
        Ms. Wasserman Schultz. You may have to look at a different
    district than mine. You might be throwing money away if you do
    that.
        Mr. Cuccinelli. Freely and with no compulsion, you are
    right.
        Ms. Wasserman Schultz. I think we have established pretty
    clearly that you acknowledge that $43 billion is a significant
    amount of money, that it significantly affects interstate
    commerce, and I think your arguments that somehow we are
    regulate inactivity by your testimony and your answers to my
    questions makes it pretty clear that the individual mandate is
    constitutional.
        Mr. Cuccinelli. No, actually your questions used the words
    ``activity'' in your presumption, and that is where you fail.
        Ms. Wasserman Schultz. Well, $43 billion in expenditures is
    activity.
        Mr. Cuccinelli. People deciding not to do something is
    inactivity. It is the state of doing nothing.
        Ms. Wasserman Schultz. If they go to the emergency room----
        Mr. Smith. Let the witness answer one question.
        Ms. Wasserman Schultz. Oh, he answered a bunch. Thank you.
        Mr. Cuccinelli. If you look at the argument that you are
    talking about there, there are two, call them ``boxes.'' One is
    the action of a transaction undertaken. The other is the
    decision not to undertake a transaction. To do nothing. Now, if
    doing nothing is regulatable under the commerce clause, it
    literally has infinite reach. If something can be regulated,
    that is everything.
        Ms. Wasserman Schultz. Mr. Attorney General, individuals
    who have to go to the emergency room to get their health care
    which is part of that $43 billion is not inactivity. That is
    activity that we all pay for.
        Mr. Cuccinelli. You can regulate at that point.
        Ms. Wasserman Schultz. So it substantially affects
    interstate commerce.
        Mr. Cuccinelli. And you can regulate at that point. And the
    Federal Government, by its own law, has sold the treatment that
    causes in part the costs you are identifying. So the Federal
    Government has trapped itself into a financial corner and then
    says hey, we are trapped into a financial corner, give us new
    constitutional powers so we can get out. That doesn't hold
    water.
        Mr. Smith. The gentlewoman's time has expired.
        Ms. Wasserman Schultz. And I do appreciate the Attorney
    General's Indulgence. It was a pleasure bantering with you.
        Mr. Cuccinelli. Yes, ma'am, for me as well.
        Mr. Smith. Mr. Cuccinelli, we appreciate your being here.
        The gentleman from Texas, Mr. Gohmert is recognized.
        Mr. Gohmert. Thank you, Mr. Chairman.
        I think most of us would agree, including General
    Cuccinelli, that the right to regulate is far different from
    the right to mandate. And, in fact, if this Congress did a
    better job of regulating rather than trying to run people's
    lives, this country would be a whole lot better off. And in
    fact, if the Federal Government, for example, did a better job
    of regulating fraud and illegal activity with regard to stocks,
    than perhaps we wouldn't have the Madoffs out there taking
    advantage of people. But this government has gotten so
    interested in mandating and running people's lives, that we
    have lost sight of the job that is really important and that
    is, regulating, making sure there is a fair, level playing
    field for people to play on. We have been so busy being players
    on the field and referees that we have really skewed what the
    original intent was of the Constitution.
        And so we hear all this talk about car insurance. Let me
    ask the witnesses, are you aware of any State in the Union in
    the United States that mandates the purchase of car insurance
    in order to reside in that State? Either.
        Mr. Dellinger. No.
        Mr. Gohmert. Because I keep hearing that brought up, car
    insurance. States can mandate car insurance. But I know, as
    smart as both of you are, you know that no State mandates the
    purchase of car insurance unless a resident decides to take
    advantage of the privilege of driving on the State's roadways,
    correct?
        Mr. Dellinger. That is correct. What is similar about that,
    that particular mandate, is that the reason that it is one of
    the rare items that people are compelled to purchase to operate
    a motor vehicle is that no one can be assured that they are
    just not going to have an accident and impose costs on other
    people.
        Mr. Gohmert. Well, there----
        Mr. Dellinger. And so here as well no one can be ensured
    that they are not going to use health care and put the cost on
    other people.
        Mr. Gohmert. Let's go back. I haven't asked about health
    care yet, because I am wanting to go after this metaphor of car
    insurance purchase.
        The fact is there is not a State in this country that
    requires anybody to purchase car insurance on themselves in
    order to have the privilege of driving on the roads. Every
    State that I am aware of requires the purchase of insurance to
    protect against damaging someone else, but you don't have to
    buy insurance to drive on a road to cover your own damages. So
    that is another difference from car insurance. This is the
    Federal Government going in and saying, for the first time
    ever, we are requiring not only the purchase of a private
    product, but we are requiring you to purchase a private product
    that must be used on yourself.
        That seems pretty significant.
        Mr. Dellinger. What is similar is that, in both cases, the
    cost is imposed on other people. When you have a car accident,
    it imposes costs on other individuals. Liability insurance
    means that there is going to be a way to pay those individuals.
        When the uninsured use hospitalizations, they wind up
    paying only 10 percent of----
        Mr. Gohmert. Who is ``they'', sir?
        Mr. Dellinger. The uninsured--the uninsured pay only 10
    percent of the hospitalization costs that they use.
        Mr. Gohmert. Do you know how much insurance companies pay
    on the cash value of services that are rendered? I know from
    some lawsuits in which I was involved you have got insurance
    companies that pay about 10 percent of what someone who doesn't
    have insurance has to pay. So there are all kinds of problems
    with the system the way it is set up.
        We could regulate that system. We could require free market
    competition, which we don't have and can't have as long as
    nobody really knows what insurance companies are paying, what
    pharmaceuticals get paid, what somebody really could get away
    with paying if they work out a deal with cash. Those are the
    kind of things we ought to regulate, and then people don't have
    to be paying for everybody else's.
        But again I see I am running out of time.
        But let me just say, with regard to my friend from Georgia
    who brought up Supreme Court justices, I wish I had heard from
    my friends across the aisle the sense of outrage and also from
    Common Cause the kind of outrage they are expressing, and the
    racial hatred they are stirring up by doing so, if they had
    raised that kind of issue over an ACLU leader sitting in
    judgment on cases involving the ACLU or a Supreme Court judge
    who has been a solicitor general sitting on cases in which the
    solicitor general was involved. I think it would have a lot
    more credibility to raise it at this point.
        And with that I yield back.
        Mr. Smith. Thank you, Mr. Gohmert.
        The gentleman from Florida, Mr. Deutch, is recognized.
        Mr. Deutch. I thank you, Mr. Chairman.
        First of all, Mr. Chairman, I would, as a Member of the
    other side of the aisle, take offense to the suggestion that
    those in my caucus are somehow stirring up racial hatred. I
    think it is an inappropriate comment.
        Mr. Gohmert. Would the gentleman yield?
        Mr. Deutch. I will.
        Mr. Gohmert. I didn't say that. I was redressing Common
    Cause that stirred up demonstrations that created racial
    epithets and threats to Supreme Court justices and their
    family. I am not aware of anybody on the other side of the
    aisle stirring up that kind of issue; and if I indicated that,
    I did not intend to. I was referring to Common Cause. So thank
    you.
        I ask unanimous consent that he have additional time to
    make up for what I said.
        Mr. Smith. Without objection, the gentleman from Florida is
    yielded 1 additional minute.
        Mr. Deutch. Thank you, Mr. Chairman.
        We have been able to do the one thing that all of us
    believe in. With the General's departure, we have leveled the
    playing field.
        I have some questions for both of you.
        Professor Dellinger, you spoke earlier about the fact
    that--and we have now confirmed with the General--that it is
    constitutional to require the purchase of old age survivors and
    disability insurance, that being Social Security; it is
    constitutional to make payments, health insurance payments,
    throughout one's working life with those benefits to then be
    paid out upon retirement, that is Medicare; so I would like to
    understand then why this is different, but I would like to play
    it in a different direction.
        Professor Barnett, if the Federal Government enforced an
    individual mandate by deducting premiums from Americans'
    paychecks and providing individuals with a coupon to buy
    private insurance that they would have to be required--mandated
    to buy from a private insurance company, would that be
    constitutional, in your opinion?
        Mr. Barnett. Mr. Congressman, this actually gets back to
    Mr. Scott's earlier question about labels making a difference.
    I agree with you that labels make a big difference. And
    Congress does have a tax power. It is the label given one of
    your powers, the tax power. And when you exercise that power,
    you can collect revenues, and then you can then spend those
    revenues for the general welfare, to provide for the general
    welfare and the common defense.
        And the programs that you have just mentioned are an
    exercise of that tax power, and the constraint on the tax power
    that is provided for up till now is political. And that is the
    reason why Congress doesn't like to exercise it so much.
    Because when they do exercise the tax power they have to pay a
    political price for doing so. So they might rather call it
    something else. So labels actually do make a difference.
        Mr. Deutch. So collecting taxes then and handing out
    coupons and requiring that those coupons be spent in the
    private market, that is acceptable. That is constitutional.
        Mr. Barnett. That would be an exercise of your tax and
    spending power, Congressman.
        Mr. Deutch. And what if individuals have the option to
    purchase publicly run health insurance in the exchange? I guess
    the question is, would public ownership of a health plan affect
    the interpretation of the constitutionality of the mandate?
        Mr. Barnett. I think the simplest way to put this is, if
    Medicare is constitutional, then Medicare for everyone is
    constitutional.
        Mr. Deutch. So single-payer clearly would be
    constitutional?
        Mr. Barnett. Yes.
        Mr. Deutch. And would an even greater exercise then of a
    single-payer financed through new taxes and automatically
    provided to all Americans, that would clearly be
    constitutional? If, instead of this, we had an additional tax
    that was used to finance a publicly created entity to provide
    health insurance, that is clearly constitutional?
        Mr. Barnett. Yeah.
        Mr. Deutch. So how much more government intervention is
    required to make the Affordable Care Act constitutional?
        Mr. Barnett. There is no principle of constitutional law
    that measures the degree of intrusiveness of constitutional
    power. You have a list of powers in article 1, section 8, and
    some of them are very intrusive, and some of them are not. One
    of the most intrusive powers you have is power of taxation.
    That is the reason why the general public is very sensitive to
    when you invoke that power. And candidates run for public
    office pledging they won't invoke that power. So the label
    makes a big difference in terms of the constraint on that
    power, but you do have that power.
        Mr. Deutch. Professor Dellinger, would you flesh out that
    distinction between the Affordable Care Act provisions and the
    proposed privatization of Medicare which would provide coupons
    that would then be--would then mandate individuals to use those
    coupons in the private market?
        Mr. Dellinger. I think what is important about that example
    is that, functionally, it would be the same and yet there would
    be no doubt about one being valid. The rhetorical arguments
    wouldn't even be available to challenge it. So you have to ask
    whether it could possibly be some great incursion in liberty if
    you are merely talking about the way in which you label
    matters.
        But I think your question leads to a more--an even more
    profound point, which is much of the argument against the
    purchase requirement or the requirement that you maintain
    insurance is that it is novel.
        Now, all new laws are novel. But this is novel for a
    particular reason. This is really the first time for a major
    social program that Congress has chosen a market approach,
    giving American citizens greater choice and giving them the
    choice among private providers, rather than doing it through an
    imposition and a monolithic government bureaucracy. And that is
    what is novel.
        Mr. Deutch. Professor Dellinger, I am sorry. I am running
    out of time.
        Professor Barnett, the last question is, why shouldn't
    Congress be able to require individuals to assume
    responsibility for their own health care when their inaction on
    the issue has a direct and negative impact on society?
        You spoke earlier about the things that we politicians run
    on. Well, a lot of us are run on individual responsibility. Why
    shouldn't we be expected to impose some responsibility on
    American citizens to take responsibility for themselves?
        Mr. Barnett. You certainly may, Congressman, as long as it
    is within one of the powers that is given to you by the
    Constitution.
        Mr. Deutch. Thank you.
        Mr. Chairman, I yield back.
        Mr. Smith. Thank you, Mr. Deutch.
        The gentleman from Pennsylvania, Mr. Marino, is recognized.
        Mr. Marino. Thank you, Mr. Chairman.
        Gentlemen, I have to admit that my constitutional appetite
    has been fully satisfied today with your discussions. I really
    appreciate that.
        Professor Dellinger, I am not a betting man, but I think I
    am forced to take you up on your bet, not with who may write
    the opinion but the outcome of it. We shall see.
        Mr. Dellinger. We shall see. And I will send a note to your
    constituents saying what a fine and outstanding person you are
    if you prevail. And you can hold me up to ridicule if----
        Mr. Marino. I would never do that. I respect your intellect
    and your arguments here today.
        This question is to both of you, but, please, Mr. Barnett,
    would you start with this?
        My question is, there was discussion about if the Supreme
    Court does rule this is not unconstitutional and then sending
    back to the Congress for further legislation as to how the
    health care program would be implemented, the limitations, does
    that not move the line, the scrimmage line down the field for
    further issues concerning constitutionality of what Congress
    can do as far as implementing any particular program or any
    particular thought that a Congressman or woman has in mind
    promoting their cause? Do you understand my question?
        Mr. Barnett. Really, all that is at issue here,
    Congressman, I believe, is whether the Constitution gives
    Congress the power to impose economic mandates on the general
    public. So that is what the Supreme Court is going to have to
    decide one way or the other. And your guess is as good as mine
    perhaps how they are going to rule.
        If they should uphold the power for the first time to
    impose economic mandates on the general public, then at that
    point when Congress now has this new power that it has never
    needed to exercise before, there is going to be an awful lot of
    future litigation or at least future issues about when that
    power can and should be employed and when it cannot be. But,
    generally speaking, the Court will defer to Congress' judgment
    about when it may exercise one of the powers that Court thinks
    the Congress has. So once they have acknowledged this power,
    chances are at that point it is just going to be a matter of
    Congress to employ this new power that it has.
        Mr. Marino. Professor Dellinger.
        Mr. Dellinger. I think a lot of your colleagues have asked
    questions in the following form: If this is upheld, then can't
    Congress do anything? And the answer to that is, if the Supreme
    Court were to uphold this requirement on the grounds that
    Congress can do anything, then indeed Congress can do anything.
    But they won't.
        The reason Chief Justice Roberts will write the opinion is
    because I think he will want to write a narrow opinion. He
    won't want to say that the market alternatives are ruled out
    and you can only use monolithic government alternatives. He
    will write an opinion to say that this is upheld not because
    Congress can use its commerce power to impose affirmative
    obligations willy-nilly to purchase, but it is upheld because
    of all the reasons we have said about the central role it plays
    in avoiding the displacement of costs on to other citizens.
        And if that is the opinion the Supreme Court writes, then
    only things that fit within that parameter will be regulatable
    by Congress, and I think that will be a very small set.
        Mr. Barnett. Congressman, you have yet to hear from my
    friend, Mr. Dellinger--and he truly is my friend, actually. It
    is not just one of these things we just say to each other. We
    have known each other for a long time--and you have yet to hear
    from former Solicitor General Fried, who was my torts professor
    in law school, any constitutional limitation, any
    constitutional limitation on this new claim of a power to
    impose economic mandates.
        Yes, health care is unique. It is different. It is free
    rider problems. It is this. It is that. Those are not
    constitutional principles. I agree if the mandate is upheld,
    the opinion will be written like that. But it will not impose
    any future constraint on the use of this new power once it is
    acknowledged. And that is why you are having this hearing,
    because there is a lot at stake as to what is going to happen
    going forward.
        Mr. Marino. Gentlemen, thank you. I have no further
    questions. I yield back my time.
        Mr. Dellinger. Chairman Smith, I have my own individual
    mandate that I may need a couple of minutes to take care of, if
    that is possible. I trust Mr. Barnett not to say anything
    completely dishonest while I am down the hall.
        Mr. Smith. We have had a request for a 7th inning stretch,
    and we will take 5 minutes to recess and then resume our
    hearing.
        [recess.]
        Mr. Smith. The Judiciary Committee will resume our hearing;
    and the gentlewoman from Texas, Ms. Jackson Lee, is recognized
    for her questions.
        Ms. Jackson Lee. Thank you very much, Mr. Chairman; and I
    appreciate this hearing. It has been fascinating. And I am
    disappointed not because I don't have two remaining stellar
    witnesses but that the Attorney General would not allow me to
    banter with him. But I hope as we go forward with our witnesses
    we will be able to give all Members a chance to question all
    witnesses and that their time will be accordingly.
        This is an important issue, and I just want to start with
    sort of a given constitutional premise from the Wickard-Filburn
    case that indicates that even when a farmer grew his own wheat
    for personal consumption it was discerned that it was
    interstate commerce.
        So I want to raise questions of policy and law, Mr.
    Dellinger, because you have argued before the Supreme Court and
    because we have two distinct positions, four courts, two
    decisions, one, the Affordable Care Act is constitutional, and
    then the second with two courts unconstitutional.
        And I might make the point that there is certainly some
    question as to the persuasion of the two courts that rendered
    the decision that it was unconstitutional, so the Supreme Court
    becomes even more important, and I think that is what the
    Founding Fathers intended for us to do.
        Let me just give you these numbers: 5.8 million Texans
    without coverage, includes 1.5 million children. My State has
    the highest rate of residents without health insurance, 26.8
    percent. According to a Gallup poll, 16 percent of American
    adults are without health insurance. Census numbers say that 46
    million Americans in totality are uninsured, 41.5 percent
    Hispanic Americans, and 19.9 percent of African Americans.
    Those are policy questions.
        And let me just ask this. As I reflect on Supreme Court
    decisions through the ages or say in the last--since 1950, 1954
    decision on Brown v. Board of Education, have lawyers made
    policy arguments before the Supreme Court?
        Mr. Dellinger. Well, I think the answer to that question is
    yes. In many instances, lawyers in our system do argue what the
    practical outcome would be of one decision or another. It is--
    --
        Ms. Jackson Lee. Along with the law. I understand.
        Mr. Dellinger. Throughout, yes.
        Ms. Jackson Lee. But, in fact, you can raise sort of the
    irreparable harm potential from a policy perspective as you
    make your arguments.
        Mr. Dellinger. That is one kind of argument that people can
    and have made. Yes.
        Ms. Jackson Lee. Well, I would venture to say a State that
    has some 26 percent or large numbers of unemployed, 5.8 million
    and 26.8 percent, a Nation that has 41 percent Hispanic
    uninsured and then a sizable number of African Americans, I
    think we have a question of whether there has been irreparable
    harm.
        So let me just proceed with some of the questions.
        I will ask you, Mr. Dellinger, if instead of the word
    ``penalty'' someone said you will get a ticket if you don't
    have health insurance, would that have answered some of the
    opponents' concern? Tickets, you got a parking ticket, you got
    a lack of health insurance ticket. Are we in the business of
    semantics? Do we need to say that you have a ticket, you get a
    ticket when you don't have insurance?
        Would that have answered this whole question of the
    mandate? Are we playing semantics here?
        Mr. Dellinger. I think that is a question better asked to
    those who believe it is unconstitutional. I think it is--since
    it is no more intrusive than Medicare or Medicaid as a
    practical matter, I don't think the label matters, that it is
    not constitutional in any respect.
        Professor Barnett, if they impose a ticket on you, would it
    be unconstitutional?
        Ms. Jackson Lee. And before he answers the question, let me
    also raise this question, and I am not being facetious. But
    could I not be engaged in economic activity by actively not
    getting insurance? Isn't it a fine line of semantics? And might
    I just--let me just put this on the record so you both can
    answer this.
        Just a few years ago, a Republican, Senator Orrin Hatch,
    supported the idea of mandates in the Republican proposal for
    health insurance. In fact, as I understand it, he said, ``to
    tell you what you have to buy even if you don't want to buy
    it'' is a quote. And then their particular plan would have
    required everyone to buy coverage, and it would have helped
    them do so by giving them a health care credit, which was a
    point made earlier.
        So couldn't I actively not be insured, and isn't that
    economic activity? Professor.
        Mr. Barnett. I thought maybe I would add to our
    conversation a definition of penalty and the definition of tax
    that has been adopted by the Supreme Court in a 1996 case, and
    here is how justice Souder defined those two terms: He said, if
    the concept of penalty means anything, it means punishment for
    an unlawful act or omission. So that is what a penalty is, the
    substance, not the label, just the thing.
        By contrast, he then described a tax as, quote, a pecuniary
    burden laid upon individuals or property for the purpose of
    supporting the government. That is a tax.
        So it isn't just a matter of labels. It is a matter of
    substance. And you have to ask yourself, is the penalty that is
    called a penalty in the bill, is it a punishment for an
    unlawful act or omission defined as failure to have health
    insurance, or is it an enactment, a burden laid upon
    individuals for the purpose of supporting the government?
        Ms. Jackson Lee. I ask the gentleman for 15 additional
    seconds.
        Mr. Smith. The gentlelady is recognized for an additional
    30 seconds.
        Ms. Jackson Lee. I thank the gentleman.
        And I would make the argument, one, that, instead, it is an
    incentive to do right, that it is not penalizing you. Because
    penalty is punishment. You are not punished if you have health
    insurance, in fact. And so you are, in fact, incentivized to
    have health insurance, rather than take the negative, which is
    to suggest that because you have the penalty you are being
    punished.
        I am helping you. I am helping you not have 26 percent
    uninsurance in the State of Texas. I am helping children be
    insured. I am helping diverse minorities be insured.
        And I know during the civil rights arguments, even though
    we were arguing on the Constitution, there were many policy
    statements being made. Do we want to live in a Nation that
    discriminates against a person for the color of their skin?
        In addition to the amendment constitutional argument, do we
    want to live in a Nation where there are people who are
    uninsured, causing catastrophic costs to the Nation and others
    have to pay? I think that is a question that should be
    considered by the courts.
        And I also need to--I understand the Souder language, but I
    also need to say whether or not it is more an incentive than it
    is a punishment. I am more inspired by incentive, and I welcome
    it being a parking ticket. We give parking tickets all the
    time, and no one complains about being required to do the right
    thing.
        I yield back.
        Mr. Smith. The gentlelady's time has expired.
        The gentleman from South Carolina, Mr. Gowdy.
        Mr. Gowdy. Thank you, Mr. Chairman.
        I want to start by commending all three of the witnesses,
    the two that are remaining and the Attorney General, for the
    civility and the professionalism with which you disagree with
    each other, which really is an example for all of us.
        Professor Dellinger, was Morrison correctly decided?
        Mr. Dellinger. Yes.
        Mr. Gowdy. So Congress can mandate that the victim of
    domestic violence purchase health insurance but cannot set a
    forum in which she seeks justice for her injuries?
        Mr. Dellinger. That is correct.
        Mr. Gowdy. Help a guy that made a C in con law understand.
        Mr. Dellinger. Well, the reason is that the Supreme Court
    held in Morrison that local crime had only an attenuating
    connection to national commerce.
        Mr. Gowdy. But she has got injuries which will be treated
    for at a hospital. So we can make her have health insurance for
    her injuries, but we can't set the forum for the adjudication
    of the underlying crime.
        Mr. Dellinger. Correct.
        Mr. Gowdy. What about Lopez?
        Mr. Dellinger. That is because there is something different
    about the health care market that you can't avoid participating
    in it and transferring the costs to others.
        And also what the Court was concerned about in Morrison and
    in Lopez regulating guns near schools was that fact that, once
    you got into the area of local crime, because all local crime
    affects commerce in the sense that people who are crime victims
    are less productive, there is no limit to what----
        Mr. Gowdy. However, in Title XVIII you specifically have to
    prove that the gun traveled in interstate commerce. In the
    Hobbs Act, you have to prove that the good that was stolen from
    the store in a Hobbs Act case traveled in interstate commerce.
        Mr. Dellinger. Correct.
        Mr. Gowdy. So you concede there are--that this language
    ``Congress shall have the power to regulate commerce among the
    several States'' still means something.
        Mr. Dellinger. Yes.
        Mr. Gowdy. Can Congress mandate the purchase of dental
    insurance if we show that overall dental health is tantamount
    to overall dental health? Can we mandate the purchase of dental
    insurance.
        Mr. Dellinger. It would depend on what the Supreme Court
    said in upholding the health care mandate.
        Mr. Gowdy. Well, I am asking you. If you were on the
    Supreme Court, you are advocating on behalf of the
    constitutionality of this particular mandate.
        Mr. Dellinger. If I were on the Supreme Court and asked to
    pass on a mandate to purchase dental insurance, I would want to
    know whether Congress had the same basis for showing that
    people had no choice but to get dental care. And maybe that
    showing could be made and that the cost of that care, when
    obtained, was transferred to other taxpayers.
        Mr. Gowdy. What about life insurance? Because we are all
    going to die, and generational debt is a bad thing. Can
    Congress mandate the purchase of life insurance?
        Mr. Dellinger. I would assume that that is distinguishable.
    Because there is no showing that if you don't buy life
    insurance that the cost is going to be imposed on other
    Americans.
        Mr. Gowdy. Can you give me three examples where you would
    find that Congress has exceeded its--that the commerce clause
    is not as elastic as some of my colleagues believe it to be?
        Mr. Dellinger. Yes.
        Mr. Gowdy. I will just take three.
        Mr. Dellinger. Congress cannot regulate that you eat
    broccoli, that you go to a gym, or, in my view, that you
    purchase a flat-screen television.
        Mr. Gowdy. So you do not see much of a stretch between
    mandating the purchase of health insurance and mandating other
    things that contribute to good overall health like vision
    insurance and dental insurance?
        Mr. Dellinger. Contributing to overall health is a fine and
    salutary objective, but it may be one that the Court would
    think is a matter for local governments. This is a regulation
    of an economic activity itself, and let me just give you one
    example.
        If the----
        Mr. Gowdy. I will give you 10 seconds, because I have one
    more chance to ask another law professor a question, and I have
    never had this chance in my life.
        Mr. Dellinger. Ask Professor Barnett again; and if I have a
    moment, I will come back.
        Mr. Gowdy. Some would argue that you gave the road map to
    the opposition, so to speak, by your wonderful advocacy in
    Raich. Am I correct pronouncing it?
        Mr. Barnett. Raich. Angel Raich was my client.
        Mr. Gowdy. And that is marijuana being sold, grown purely
    within a State, and you convinced the Supreme Court that that
    impacts--that Congress can regulate that. How is that not a
    road map for the opposition?
        Mr. Barnett. When you say I convinced the Supreme Court,
    you mean I argued strenuously against that, and I only got
    three votes, and I lost that case.
        Mr. Gowdy. You lost it. Well then good. That makes me feel
    better.
        Mr. Barnett. It was Solicitor General Paul Clement who won
    that case, and I failed to convince the Court.
        Mr. Gowdy. In 10 seconds, if the Chairman will give me 10
    seconds, how does Raich not carry the day on this issue?
        Mr. Barnett. Because it would be as though Congress had
    required that my client grow marijuana for medical purposes.
    What they said is she couldn't grow it, and the majority of the
    Court said she couldn't grow it. Because growing marijuana,
    like growing any other good, is an economic activity and
    therefore is something within Congress' power to reach,
    economic activity. But they never said or intimated that
    somehow Congress had the power to make her grow marijuana. That
    would be a step that no one even imagined until last year was
    something Congress would ever claim.
        Mr. Smith. The gentleman's time has expired. Good question.
    Thank you.
        Mr. Issa, the gentleman from California, is recognized.
        Mr. Issa. Thank you, Mr. Chairman.
        The line of questioning has been interesting, and I
    apologize I have been going in and out with another Committee.
    But I am trying to understand something.
        Mr. Barnett, you are a professor. Maybe you can help me.
    There is a long history of States requiring insurance if you
    want to drive an automobile, right? But even when they require
    you to do that--I am a native of Ohio--they have held in those
    States that, constitutionally, they can't make you buy the
    insurance, but they can make you provide the equivalent of
    insurance. So, in the case of Ohio, they can't make you buy
    insurance. They can make you post a bond, show financial
    ability to pay if you are in an accident, or buy insurance.
        Is there anything in the Health Care Reform Act that is the
    equivalent of that for people who say I can take care of my own
    health care?
        Mr. Barnett. Well there is an exemption in the Act for
    people who have religious objections. So it is somehow not
    necessary that they----
        Mr. Issa. But being wealthy enough to pay for your own
    health care is not a religion.
        Mr. Barnett. No. No.
        Mr. Issa. So we don't--in this Act, if there were no other
    problem, we fail to observe people's right to pay out of their
    pocket. In other words, we force them to enter into a
    commercial relationship with a for-profit entity, an insurance
    company.
        Mr. Barnett. That is the mandate. Yes.
        Mr. Issa. Is that enough to be unconstitutional, just
    because we didn't leave them their individual liberty to simply
    pay the doctor themselves?
        Mr. Barnett. I think the way to simplify this, just for
    purpose of understanding, whichever side of this you are on, is
    that when you choose to engage in voluntary activity government
    at the State and Federal level may regulate that activity that
    you choose to engage in in a variety of ways. And the Federal
    Government has some powers to regulate, State governments have
    other powers to regulate. But there is just no dispute that if
    you voluntarily decide to engage in activity the government can
    tell you how to do it, like if you are going to drive a car,
    you have to do it this way. You have to get a driver's license,
    too, in addition to insurance. That is something else you have
    to get.
        Mr. Issa. So you agree that the Federal Government could
    simply nationalize all insurance and take away from all States
    the right to regulate insurance companies, eliminate 50 States'
    insurance commissioners?
        Mr. Barnett. The Supreme Court in 1944 said that insurance
    was commerce, an interstate commerce, and that is the precedent
    that we are living with. For 100 years before that, it denied
    that is true. But now that is established law, and no one is
    contesting that. So Congress can do, in regulating that
    industry, whatever they can do in regulating any other
    industry.
        Mr. Issa. Here is a question I find amazing, and it is not
    on the same topic as others.
        So those who voted for ObamaCare--we will call those the
    other side of the aisle and nobody on this side of the aisle--
    they could have simply created 50 State complete over-the-
    border selling, and they could have even taken it on to a 50
    State common federalized system if they had wanted to. They
    could have usurped all of the States and had anyone who is
    licensed anywhere be licensed to the Federal Government and
    therefore sell insurance in all 50 States and created
    incredible competition on a national basis by having a single
    standard, couldn't they?
        Mr. Barnett. The reason why States still regulate insurance
    is because Congress passed the McCarran-Ferguson Act in 1944.
    After the Supreme Court said it was in your hands, then
    Congress turned around and said we are going to preserve the
    State system that had been up and running----
        Mr. Issa. Right. But ObamaCare has partially preempted it.
    It could have preempted that.
        So I understand that when my colleagues on the other side
    said they wanted to bend the health curve down, they wanted to
    save money, and they wanted to find ways to have more
    competition so that you wouldn't have just one choice in
    Alabama or South Carolina, they could have done that very
    easily because one law trumps the one before it. They would
    simply amend that.
        Mr. Barnett. Yes, Congressman.
        Mr. Issa. So we didn't do the constitutional common 50
    State insurance. We didn't put in any kind of a personal
    responsibility alternative where you simply post a bond or
    provide the proof that you can pay for it. We didn't do a lot
    of things we could do. But we chose to mandate that you pay if
    you don't pay. Is that right?
        Mr. Barnett. Yes, Congressman.
        Mr. Issa. Mr. Dellinger, you have done a wonderful job of
    telling me how, you know, there are all these things that are
    okay constitutionally. But what about that mandate that I pay a
    private entity rather than, if you will, the personal
    responsibility that was envisioned by our Founders? They
    certainly did expect that George Washington could have a doctor
    come in on his own, that he wouldn't have to buy something that
    wasn't even available at the time, insurance, right?
        Mr. Dellinger. Right.
        Mr. Issa. Mr. Chairman, I thank you for this hearing.
        Being the last on my side, I would assume that all that
    could be said had already been said, but I found one little
    piece that I thought hadn't, and I yield back.
        Mr. Smith. Thank you, Mr. Issa, for your contribution.
    Actually, you are next to last, because the gentlewoman from
    Florida, Mrs. Adams, is recognized.
        Mr. Issa. Sorry, only on my side.
        Mrs. Adams. Thank you, Mr. Chairman.
        And I will preface this by saying I come from Florida,
    also; and I stood with our Attorney General then, Attorney
    General McCollum, when he challenged this law when it was
    signed into law. I agree with him. I believe that it is
    unconstitutional, and I will go ahead and tell you up front.
        I am trying to reconcile how you believe, Mr. Dellinger,
    that if someone is sitting in their home and they are not
    engaged in any activity how the Federal Government could then
    force them to engage in this activity?
        Mr. Dellinger. Well, the Federal Government, like the State
    and local governments, has for more than 200 years sometimes
    imposed affirmative obligations on individuals where they have
    had power. Sometimes it is an important power like the militia
    power where everyone was required sitting at home to go out and
    buy a knapsack for their ammunition, the Congress in 1792.
    Congress is never considered, quote, regulating an activity
    when they impose an affirmative obligation and then they can
    only impose an affirmative obligation where they already have
    the power to do so.
        Now, the penalty in this law does not apply to someone who
    is just sitting at home. It is only when that person goes into
    the national economy and earns $18,000 for a couple that they
    are required to file a Federal income tax and make a 2\1/2\
    percent additional penalty payment if they haven't maintained
    minimum insurance coverage. Like you have to pay a couple
    percentage points for Medicare coverage for when they are over
    65, they have to pay 7\1/2\ percent for Social Security for
    old-age assistance after they are 65.
        Those are impositions that the government makes, the latter
    two under the taxing power, but none of them seem particularly
    extraordinary in terms of an incursion of liberty. And, in
    fact, what is so----
        Mrs. Adams. Let me stop you there. Because the knapsack and
    the gun--I also am a staunch supporter of the Second Amendment,
    and I understand that that was done so that we would have some
    kind of protection to our country, and that is a constitutional
    requirement that government provide for our safety and well-
    being.
        On that same inference that you are saying, so this person
    who works, may not have a car, and so, therefore, under that
    same analogy, there are car accidents, there are a lot of tort
    actions, there is a lot of costs associated with those
    accidents. Would you then say that we should maybe say that
    everyone, no matter if they own a car or not, because you are
    going to buy car insurance, so are you now saying that everyone
    who owns a car, whether they own a car or not, should have to
    pay car insurance so that everyone would be covered if
    something were to happen in an accident?
        Mr. Dellinger. No, I would not.
        Mrs. Adams. Okay. You made a comment that kind of concerned
    me. You said that no one can decide not to use health care. Do
    you believe that everyone has to use health care?
        Mr. Dellinger. No. What I mean by that--and that is a good
    question. What I mean by that is, except for those who have
    religious objections to health care----
        Mrs. Adams. You didn't say that, though. You said--and you
    said it right here in this hearing, and I wrote it down
    verbatim because I thought that was unusual. You said, no one
    can decide not to use it.
        Mr. Dellinger. Yes, that is correct.
        Mrs. Adams. So that concerns me also because----
        Mr. Dellinger. May I----
        Mrs. Adams. When I hear about the Federal Government taking
    more and more liberty away from the American people or imposing
    their will on the American people, when I heard that statement,
    it made me concerned that you believe that no one can decide
    not to use health care in America.
        Mr. Dellinger. That is a statement of fact, Mrs. Adams, not
    a statement of preference. That is to say, no one can be
    assured if you are riding a bicycle, as I do, that you are not
    going to be hit by a truck and wind up in the emergency room.
    And when you do, under the Emergency Medical Treatment Act,
    they are going to have to provide with you with treatment,
    whether or not you are going to pay for it----
        Mrs. Adams. If you get hit by the truck, hopefully they
    have insurance. Because if you are driving that vehicle on a
    city roadway or a city roadway or a county roadway or a Federal
    roadway then in order to have the privilege of driving that
    truck, you have to have insurance. So let's move on.
        Mr. Dellinger. I was on a bicycle.
        Mrs. Adams. I really am concerned about that statement, but
    I am going to move on. Because there has been conversation
    about choice, choice, here; and I would like to know from you
    and Mr. Barnett how do you equate choice with mandate? How do
    you bring those two together?
        Mr. Dellinger. I bring them together in the following
    sense, that one proposal for dealing with health care for the
    last 40 years, one that Congress did not adopt, is simply to
    extend Medicare from age 65 all the way down so that people
    would be taxed out of their income to pay for Medicare. This
    alternative adopted instead, Mrs. Adams, gave people more
    choice among private providers, rather than having them limited
    to a government provider.
        Mrs. Adams. Mr. Barnett, quickly.
        Mr. Barnett. This bill does give people the choice between
    a congressionally mandated--between providers of
    congressionally mandated health insurance policies. You no
    longer have a choice--insurance companies no longer have a
    choice on what terms to offer you and you no longer have a
    choice on whether to do business with them. The only choice you
    have is which insurance company you do business with. And that
    is not really--that is a choice, but it is not the choices that
    we started with.
        Mrs. Adams. Thank you.
        Mr. Smith. I thank the gentlewoman.
        The gentleman from Arkansas, Mr. Griffin, is recognized for
    his questions.
        Mr. Griffin. I don't have any at this time.
        Mr. Smith. That makes it easy.
        We have concluded our hearing, and let me thank the
    witnesses again for their testimony.
        Without objection, all Members will have 5 legislative days
    to submit additional questions for the witnesses, and we will
    make their responses part of the record.
        Also without objection, Members will have 5 legislative
    days to submit additional materials for the record.
        With that, again, thanks to the witnesses. We are
    adjourned.
        [Whereupon, at 12:23 p.m., the Committee was adjourned.]
                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

     Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a
       Representative in Congress from the State of Georgia, and Member,
                           Committee on the Judiciary

       Prepared Statement of Charles Fried, Beneficial Professor of Law,
                               Harvard Law School

     American Constitution Society (ACS) for Law and Policy, Issue Brief,
     The Health Care Lawsuits: Unraveling A Century of Constitutional Law
     and The Fabric of Modern American Government, Simon Lazarus, February
                                    8, 2011

                    Statement of Support from Legal Scholars

                         Articles on Health Care Reform

                                   __________

                                   __________

                                   __________

                                   __________