[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




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                       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:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    

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    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:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    


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    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






















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