[Senate Hearing 112-904]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 112-904

            THE CONSTITUTIONALITY OF THE AFFORDABLE CARE ACT

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               ----------                              

                            FEBRUARY 2, 2011

                               ----------                              

                           Serial No. J-112-3

                               ----------                              

         Printed for the use of the Committee on the Judiciary



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                                                        S. Hrg. 112-904

            THE CONSTITUTIONALITY OF THE AFFORDABLE CARE ACT

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                            FEBRUARY 2, 2011

                               __________

                           Serial No. J-112-3

                               __________

         Printed for the use of the Committee on the Judiciary






[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]











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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York              JON KYL, Arizona
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island     LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director






                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Richard, a U.S. Senator from the State of Illinois..     1
    prepared statement...........................................    52
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     4
    prepared statement...........................................    55
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................    58
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    60

                               WITNESSES

Witness List.....................................................    51
Kroger, John, Oregon Attorney General, Salem, Oregon.............     6
    prepared statement...........................................    63
Fried, Charles, Beneficial Professor of Law, Harvard Law School, 
  Cambridge, Massachusetts.......................................     8
    prepared statement...........................................    76
Carvin, Michael A., Partner, Jones Day, Washington, DC...........    10
    prepared statement...........................................    82
Barnett, Randy E., Carmack Waterhouse Professor of Legal Theory, 
  Georgetown University Law Center, Washington, DC...............    12
    prepared statement...........................................    95
Dellinger, Walter, Douglas B. Maggs Professor Emeritus of Law, 
  Duke University School of Law, Durham, North Carolina..........    14
    prepared statement...........................................   104

                               QUESTIONS

Questions submitted by Senator Dick Durbin for John Kroger.......   112
Questions submitted by Senator Dick Durbin for Charles Fried.....   113
Questions submitted by Senator Dick Durbin for Michael Carvin....   114
Questions submitted by Senator Dick Durbin for Randy Barnett.....   115
Questions submitted by Senator Dick Durbin for Walter Dellinger..   116
Questions submitted by Senator Jeff Sessions for Michael Carvin..   118
Questions submitted by Senator Jeff Sessions for Randy Barnett...   121

                                ANSWERS

Responses of John Kroger to questions submitted by Senator Durbin   123
Responses of Charles Fried to questions submitted by Senator 
  Durbin.........................................................   131
Responses of Michael A. Carvin to questions submitted by Senator 
  Durbin.........................................................   135
Responses of Michael A. Carvin to questions submitted by Senator 
  Sessions.......................................................   136
Responses of Randy E. Barnett to questions submitted by Senator 
  Durbin.........................................................   140
Responses of Randy E. Barnett to questions submitted by Senator 
  Sessions.......................................................   141
NOTE: At the time of printing, after several attempts to obtain 
  responses to the written questions, the Committee had not 
  received any communication from Walter Dellinger...............   145

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Congressional Record--Senate, December 23, 2009..................   146
Harris, Kamala D., Attorney General of California, Department of 
  Justice, statement.............................................   149
AARP, Nora Super, Government Relations & Advocacy, Washington, 
  DC, joint statement............................................   153
Small Business Majority, Joseph E. Sandler, Counsel for Amicus 
  Curiae, statement and attachment...............................   168
Constitutional Accountability Center, Elizabeth Wydra, Chief 
  Counsel and Douglas Kendall, President, Washington, DC, 
  February 1, 2011, letter.......................................   186
National Senior Citizens Law Center (NSCLC), Rochelle Bobroff and 
  Simon Lazarus, Federal Rights Project, Washington, DC, 
  statement......................................................   194
Center for American Progress Action Fund, February 2, 2011, 
  article........................................................   197
Lazarus, Simon, ``The Health Care Lawsuits: Unraveling a Century 
  of Constitutional Law and the Fabric of Modern American 
  Government,'' American Constitution Society for Law and Policy, 
  Washington, DC, brief..........................................   200
Lazarus, Simon, ``The Health Care Lawsuits: Unraveling a Century 
  of Constitutional Law and the Fabric of Modern American 
  Government, Executive Summary,'' American Constitution Society 
  for Law and Policy, Washington, DC, brief......................   227
Abbott, Greg, Attorney General of Texas, Austin, Texas, February 
  2, 2011, letter................................................   235
Bondi, Pam, Florida Attorney, statement..........................   238
Hatch, Hon. Orrin G., ``Does the Constitution Constrain 
  Congressional Judgment?: Constitutional Problems with Health 
  Insurance Reform Legislation,'' Regent Journal of Law & Public 
  Policy (RJLPP).................................................   241
``Forcing Americans To Buy What They Don't Want,'' by Senator 
  Orrin G. Hatch, Chicago Tribune, April 4, 2010, article........   276
``Why the Health Care Bills Are Unconstitutional,'' by Senator 
  Orrin G. Hatch, Kenneth Blackwell, and Kenneth A. Klukowski, 
  Wall Street Journal, January 2, 2010, article..................   278
U.S. District Court, Northern District of Florida, Pensacola 
  Division, court case...........................................   280
Strange, Hon. Luther, Alabama Attorney General, statement........   300
Pruitt, Hon. E. Scott, Attorney General of Oklahoma, statement...   303
Shurtleff, Hon. Mark L., Attorney General of Utah, statement.....   308

 
            THE CONSTITUTIONALITY OF THE AFFORDABLE CARE ACT

                              ----------                              


                      WEDNESDAY, FEBRUARY 2, 2011

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:02 a.m., in 
Room SH-216, Hart Senate Office Building, Hon. Richard J. 
Durbin, presiding.
    Present: Senators Durbin, Leahy, Klobuchar, Franken, 
Blumenthal, Grassley, Sessions, Hatch, Cornyn, and Lee.

  OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 
                   FROM THE STATE OF ILLINOIS

    Senator Durbin. This hearing of the Senate Judiciary 
Committee will come to order. I want to thank Chairman Leahy 
for allowing me to convene this hearing. I expect him to be 
here and join us shortly.
    The title of today's hearing is the Constitutionality of 
the Affordable Care Act. This is the first-ever Congressional 
hearing on whether the landmark health care law complies with 
the Constitution. I would like to thank the Chairman, as I 
mentioned, and also thank my friend and the Ranking Member of 
the Senate Judiciary Committee, Senator Chuck Grassley of Iowa, 
who will make an opening statement after I have completed my 
own. And then we will turn to the witnesses and seven-minute 
rounds so that the Senators present will have a chance to 
question this distinguished panel.
    When Judge Vinson of the Northern District of Florida 
issued a ruling on Monday striking down the Affordable Care 
Act, I know it must have caused some concern across America. 
Many Americans who are counting on the provisions of that 
health care law are in doubt now about its future. I am certain 
that many parents of children with pre-existing conditions 
wonder if they will be able to buy insurance now if this law is 
stricken and the pre-existing conditions become an exclusion 
for insurance coverage.
    Senior citizens who were hoping that we would close the 
doughnut hole, that gap in Medicare prescription drug coverage, 
will wonder what it means, whether they have to return the 
checks that were sent to them or the next check that will be 
sent in the future.
    Millions of Americans will be in doubt. Those who are 25 
years old and now eligible to be covered by their parents' 
family health care plan may have some questions about that. 
Cancer patients who had joined the Act's new high-risk pools 
may have doubts as well. And small businesses who thought tax 
credits were coming their way may be asking Members of 
Congress, ``What does this all mean?''
    I want those millions of Americans to know that they should 
not despair.
    First, they ought to reflect on the simple history of major 
legislation in America. This is not the first major law that 
has been challenged in the courts, even challenged successfully 
in the lower courts, as to its constitutionality. Let me 
mention two or three others: the Social Security Act, the Civil 
Rights Act of 1964, and the federal minimum wage law--all of 
those successfully challenged in lower courts, but ultimately 
upheld by the Supreme Court. I think the same is going to 
happen with the Affordable Care Act.
    And for those who are keeping score as to the challenges in 
federal courts to this law, make certain that you know the 
numbers. Twelve federal district court judges have dismissed 
challenges to this law, two have found the law to be 
constitutional, and two have reached the opposite conclusion. 
How is it possible that these federal judges, 16 different 
federal judges, who not only study the Constitution but swear 
to uphold it, have drawn such different conclusions? Well, I 
think those of us on the Judiciary Committee and serving in the 
Senate understand that many people can read that Constitution 
and come to different conclusions.
    It is unlikely that we are going to produce a national 
consensus in this room, maybe not even an agreement with the 
people in attendance. But if we serve the Congress and the 
Nation by fairly laying out the case on both sides, I think 
this is a worthy undertaking by the Senate Judiciary Committee.
    At the heart of the issue is Article I, Section 8, which 
enumerates the only powers delegated to Congress. Now, one side 
argues that with the passage of the Affordable Care Act, 
Congress went beyond that constitutional authority. The other, 
which includes those of us who voted for the law, disagrees.
    Within those enumerated powers is one described by one 
constitutional scholar as ``the plainest in the Constitution'': 
the power to regulate commerce. So the threshold question is: 
Is the health care market in America commerce?
    I think the answer is obvious, but ultimately the Supreme 
Court will decide. Over the course of history, the Court has 
interpreted this ``plainest of powers'' through its application 
of the Founders' vision to current times. Whether it was Roscoe 
Filburn, growing wheat to feed his chickens in 1941, or Angel 
Raich, using homegrown marijuana to treat her chronic illnesses 
in 2002, Justices from Robert Jackson to Antonin Scalia have 
made it clear that Congress has broad power to regulate private 
behavior where there is any rational basis to conclude it 
substantially affects interstate commerce.
    The role of the lower courts is to apply those precedents 
to the facts. But sometimes lower court judges--many might be 
characterized as ``activists'' by their critics--try to make 
new law. And this has happened in Florida and Virginia as 
judges, I believe, have ignored the precedents and created a 
new legal test distinguishing ``activity'' from ``inactivity,'' 
a distinction that cannot be found anywhere in the Constitution 
or Supreme Court precedent.
    This is an historic room. I have had four opportunities--
Senator Grassley has probably had more--to meet in this room 
and to interview prospective nominees to serve on the United 
States Supreme Court. They all stand with the photographers and 
the cameras rolling, hold up their hands and take the oath, and 
then sit and answer questions many times for days. Time and 
again, the questions that are asked of them is whether or not 
they are going to follow the Constitution and precedents or 
whether they are going to be judicial activists. That is the 
standard that should be applied as we consider the future of 
the Affordable Care Act. I believe, if the Justices of the 
Supreme Court apply the precedents, look at the clear meaning 
of the Constitution, that they are going to find this law 
constitutional.
    When the Affordable Care Act comes before the Supreme 
Court, I am confident that they will recognize that Congress 
can regulate the market for health care that we all participate 
in and that it can regulate insurance, which is the primary 
means of payment for health care services.
    The political question which has enervated this debate 
focuses primarily on one section. Even if Congress has the 
enumerated power under Section 8 to tax and to pass laws 
affecting the health care market, did it go too far in 
requiring that individuals who do not buy health insurance 
coverage face a tax penalty, the individual responsibility 
section of the law?
    Returning to Article I, Section 8, which allows Congress 
``to make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers,'' the Supreme 
Court just last year in Comstock case said ``the Necessary and 
Proper Clause makes clear that the Constitution's grants of 
specific Federal legislative authority are accompanied by broad 
power to enact laws that are convenient, or useful or conducive 
to that authority's beneficial exercise.'' The test is whether 
the means is rationally related to the implementation of a 
constitutionally enumerated power. Is an individual mandate 
``rationally related'' to Congress' goals of making health care 
more affordable and prohibiting health insurance companies from 
denying coverage for those with pre-existing conditions? It is 
clear to me that private health insurance companies could not 
function if people only bought coverage when they faced a 
serious illness.
    It is also worth noting that many who argue the Affordable 
Care Act is unconstitutional are the same people who are 
critics of judicial activism. They are pushing the Supreme 
Court to strike down this law because they could not defeat it 
in Congress and they are losing the argument in the court of 
public opinion where four out of five Americans oppose repeal.
    Why is public sentiment not lining up behind the repeal 
effort? Because a strong majority of Americans do not believe 
that their children should be denied health insurance because 
of pre-existing conditions. They want to cover their young 
adult children under their family plans. They believe small 
businesses should be given tax credits to cover health 
insurance for their employees. They oppose caps on coverage and 
the health industry's cancellation of coverage when people need 
it the most.
    With many parts of our world in turmoil today over 
questions of freedom, we should never forget that the strength 
of our Constitution lies in our fellow citizens who put their 
faith in its values and trust the President, Congress, and the 
courts to set aside the politics of the moment and to fairly 
apply 18th century rhetoric to 21st century reality.
    Now I want to recognize Senator Grassley, the Ranking 
Member of the Committee, for his opening statement.

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE 
                            OF IOWA

    Senator Grassley. Thank you, and I appreciate my 
colleague's discussion of the constitutional issues that are 
here. I also appreciated his discussion of some of the policy 
issues within this legislation. Whether you agree parts of this 
bill are very good, parts of it are very bad, things that ought 
to be thrown out, things that ought to be put into it that 
maybe are not in it, are all legitimate issues. But the real 
issue for us today is on the constitutionality of it, and I 
think we are very fortunate in this country to be under the 
rule of law, under that Constitution. I think we are very 
fortunate to be probably the only country out of 190 on the 
globe that agree in the principle of limited government, and 
that is something that we not only appreciate; it is something 
that we ought to worship, and it is something that ought to be 
considered the American people are very special people for that 
reason. So I look forward to those constitutional issues.
    We agree on the issue of it is constitutional, we move 
forward; and if it is not constitutional, we start over again. 
And, of course, all of the policies that are in dispute that my 
colleague mentioned would be continued if this is 
constitutional. And if it is not constitutional, then we will 
debate those issues once again.
    The Florida judge who ruled on the constitutionality of the 
new health law this Monday compared the Government's arguments 
to Alice in Wonderland. That same reference applies equally to 
today's hearing. Things are getting ``curioser and curioser.''
    Under our system of limited and enumerated powers, the 
sensible process would have been to have held a hearing on the 
law's constitutionality before the bill passed, not after. 
Instead, the Congress is examining the constitutionality of the 
health care law after the ship has sailed.
    Like Alice in Wonderland, ``Sentence first, verdict 
afterward.''
    So what has gotten us to this point?
    Early in the debate, Republicans and Democrats agreed that 
the health care system had problems that needed to be fixed.
    I was part of the bipartisan group of Senators on the 
Finance Committee who were trying to reach an agreement on 
comprehensive health reform.
    However, before we could address some of the key issues, 
some Democratic Senators and the administration ended these 
negotiations, and the majority took their discussions behind 
closed doors.
    What emerged was a bill that I feel has major problems 
beyond even constitutionality. Republicans argued that instead 
of forcing it through the Senate, Republicans and Democrats 
should return to the negotiating table to find common-sense 
solutions that both parties could support.
    Of course, the plea went unanswered, and the majority 
passed their health care law without a single Republican vote.
    In fact, when Republicans identified specific concerns, 
such as the constitutionality of the individual mandate, we 
were told our arguments were pure messaging and obstructionism.
    Throughout the debate, the majority argued that the 
individual mandate was essential for health reform to work.
    There are many constitutional questions about the 
individual mandate. Is it a valid regulation of interstate 
commerce? Is it a tax?
    The reality is that no one can say for certain. The 
nonpartisan Congressional Research Service notes that it is 
unprecedented for Congress to require all Americans to purchase 
a particular service or good.
    The Supreme Court has stated that the Commerce Clause 
allows regulation of a host of economic activities that 
substantially affect interstate commerce. No dispute about 
those decisions. But it has never before allowed Congress to 
regulate inactivity by forcing people to act.
    What is clear is that if this law is constitutional, 
Congress can make Americans buy anything that Congress wants to 
force you to buy.
    The individual mandate is the heart of the bill. My friend, 
Senator Baucus, Chairman of the Finance Committee, said at the 
mark-up back in September 2009, the absence of a requirement of 
``a shared responsibility for individuals to buy health 
insurance'' guts the health care reform bill.
    If the Supreme Court should strike down the individual 
mandate, it is not clear that the rest of the law can survive. 
The individual mandate is the reason that the new law bars 
insurance companies from denying coverage based on pre-existing 
conditions, and the sponsors made the mandate the basis for 
nearly every provision of the law.
    Judge Vinson's ruling that the whole law must be stricken 
reflects the importance of the mandate to that overall outcome.
    Then there is the Medicaid issue before us. Does the new 
law amount to impermissible coercion of the States? States do 
have the choice to drop out of the Medicaid program. No dispute 
about that.
    But some of my colleagues on the other side of the aisle 
may even make that case today even though I do not think they 
are really promoting that as a viable option for the States. If 
a State drops out of Medicaid, the new health law states 
clearly that none of that State's citizens would be eligible 
for tax credits because people with incomes at Medicaid 
eligibility levels can never be eligible for tax credits.
    The idea that the Federal Government could, through 
Medicaid, drive the single largest share of every State budget 
seems very inconsistent with the objective of our federal 
system of Government.
    At this point, Mr. Chairman, Senator Durbin, I ask that a 
statement from Virginia Attorney General be placed in the 
record. I am interested in hearing from the witnesses today, 
but ultimately, we all know that the subject of this hearing is 
finally going to be determined by the Supreme Court.
    Thank you very much.
    Senator Durbin. Thanks, Senator Grassley, and without 
objection, that statement will be made part of the hearing.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Durbin. I want to invite my colleagues on the 
Democratic side, if they would like to move and fill these 
seats, they would be certainly welcome to come closer.
    I would ask now if this panel of witnesses would please 
stand and take the oath. Please raise your right hand. Do you 
swear or affirm the testimony you are about to give before the 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you God?
    Mr. Kroger. I do.
    Mr. Fried. I do.
    Mr. Carvin. I do.
    Mr. Barnett. I do.
    Mr. Dellinger. I do.
    Senator Durbin. Thank you.
    Let the record reflect that all of the witnesses have 
answered in the affirmative. Each of the witnesses will be 
given five minutes for an opening statement, and then we have 
seven-minute rounds where Senators will ask questions.
    Our first witness is Attorney General John Kroger of the 
State of Oregon. Attorney General Kroger was elected in 2008 
and I think has a national distinction in the fact that he was 
nominated by both the Democratic and Republican Parties. So he 
truly is a bipartisan Attorney General from the State of 
Oregon. He and eight other States Attorneys General recently 
filed an amicus brief before the Sixth Circuit in support of 
the Affordable Care Act's constitutionality.
    Prior to his election in 2008, Attorney General Kroger 
served as a United States Marine, a law professor, a federal 
prosecutor, and a member of the Justice Department's Enron Task 
Force. While a federal prosecutor, he served on the multi-
agency Emergency Response Team that investigated the 9/11 
attacks on the World Trade Center.
    Attorney General Kroger received his bachelor's and 
master's degrees from Yale University and his law degree from 
Harvard law School.
    General Kroger, thank you for being here today and the 
floor is yours.

STATEMENT OF HON. JOHN KROGER, OREGON ATTORNEY GENERAL, SALEM, 
                             OREGON

    Mr. Kroger. Thank you very much. My name is John Kroger, 
and I am the Attorney General of Oregon.
    Over the course of my career, I have taken an oath to 
defend the Constitution as a United States Marine, as a federal 
prosecutor, and as the Attorney General of my State, and I take 
that obligation extraordinarily seriously. I am confident that 
the Affordable Care Act is constitutional and will ultimately 
be judged constitutional.
    The reason for that confidence is quite simple. There have 
been four primary arguments raised in litigation challenging 
the bill, and I believe all four arguments are, as a legal 
matter, meritless. I would like to briefly review the four 
arguments and explain why I believe they have no merit.
    The first argument is that the Commerce Clause by its own 
terms only regulates commerce. The argument is that declining 
to get health insurance is not commerce but refusing to engage 
in commerce, and thus falls outside the power of Congress to 
regulate. This argument is extraordinarily weak because it was 
explicitly rejected in Gonzalez v. Raich. In that case, the 
Court held, and I quote: ``Congress can regulate purely 
intrastate activity that is not in itself commercial.'' That 
belief was stated not just in the majority opinion, which was 
joined by Justice Kennedy, but in the concurrence from Justice 
Scalia as well.
    This argument is also dangerous. The Gonzalez opinion 
provides the constitutional foundation for federal 
criminalization of all laws banning the home production and 
home use of child pornography and dangerous drugs like 
methamphetamine. As a prosecutor, I think overturning Gonzalez 
would be a disaster.
    The second argument that has been raised is based on the 
so-called activity/inactivity distinction. In Perez v. United 
States and subsequent cases, the Supreme Court spoke of the 
Commerce Clause regulating commercial activities. Opponents 
have used this language to raise a novel argument that the 
Constitution prohibits the regulation of inactivity. The 
litigants also claimed that declining to buy insurance is not 
an activity but inactivity, and thus constitutionally 
protected. There are three serious flaws with this argument.
    The first is that the inactivity/activity distinction has 
absolutely no basis in the text of the Constitution.
    Second, the Court recognized in both the Wickard decision 
and in Carter v. Carter Coal that Congress can regulate not 
only activities but conditions, and I believe that that would 
also apply then to the condition of being without health care.
    Third, people lack insurance because businesses do not 
offer it to their employees, insurance companies decline to 
extend it for pre-existing conditions, or individuals fail to 
select it and pay for it--some out of choice, some because they 
cannot. All of these are actions with real-world and often very 
tragic consequences. The constitutional fate of a great Nation 
cannot be decided by semantics and word games that label real-
world actions as inactivity.
    The third argument which is cited by some litigants and 
also by some courts is that the Supreme Court has never 
interpreted the Constitution to allow Congress to force 
individuals to buy a product. This argument is simply 
inaccurate because this precise claim was raised and rejected 
by the Court in Wickard v. Filburn. In that case, the plaintiff 
argued that, as a result of the Agricultural Adjustment Act, he 
would be forced to buy a product--food--on the open market. As 
Mr. Justice Jackson wrote, the claim was that Congress was 
``forcing some farmers into the market to buy what they could 
provide for themselves.'' This claim, then, is identical to the 
one that has been raised in the litigation, that individuals 
should not be and cannot be forced to buy a health insurance 
product when they would rather self-insure or pay for the 
product of health care themselves.
    Writing for a unanimous Court, Justice Jackson rejected the 
claim, holding that these kinds of questions are ``wisely left 
under our system for the resolution by the Congress.'' Again, 
existing precedents strongly support the constitutionality of 
the Affordable Care Act.
    Finally, critics claim that the personal responsibility 
mandate impermissibly interferes with constitutionally 
protected liberty. I find this argument odd because the 
Constitution does not create or protect the freedom to 
freeload. Right now we have 40 million Americans who do not 
have health care coverage. Those 40 million people have the 
right to go to a hospital emergency room, and hospitals are 
legally required to provide that care. As a result of that, 
they rack up approximately $40 billion of health care fees 
every year. The opponents of the bill claim that this cost 
shifting is constitutionally protected. I would simply suggest 
that there is no constitutional right to force other people to 
pay for your own health care when you decline to take 
responsibility for yourself.
    Thank you very much for your time.
    [The prepared statement of Mr. Kroger appears as a 
submission for the record.]
    Senator Durbin. Thank you very much, General Kroger.
    Our next witness is Charles Fried. Professor Fried has 
served on the Harvard Law School faculty since 1961 as a 
renowned scholar of constitutional law. He served as Solicitor 
General under President Ronald Reagan from 1985 until 1989. He 
worked in the Reagan administration Justice Department as a 
Special Assistant to the Attorney General. From 1995 until 
1999, Professor Fried served as Associate Justice of the 
Supreme Judicial Court of the State of Massachusetts. He 
received his B.A. from Princeton, a bachelor's and master's 
degree from Oxford University, and a J.D. from Columbia 
University School of Law.
    Professor, thanks for joining us today, and please proceed 
with your statement.

   STATEMENT OF CHARLES FRIED, BENEFICIAL PROFESSOR OF LAW, 
          HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS

    Mr. Fried. Thank you. I should just add to that statement 
in my C.V. that I have two of my former students here: 
Professor Barnett, to whom I taught torts, and Attorney General 
Kroger, to whom I taught constitutional law.
    [Laughter.]
    Mr. Fried. I come here not as a partisan for this Act. I 
think there are lots of problems with it. I am not sure it is 
good policy. I am not sure it is going to make the country any 
better. But I am quite sure that the health care mandate is 
constitutional.
    I have my doubts about the part that Senator Grassley 
mentioned with the Medicaid compulsion on the States. That is 
something I worry about, but the health care mandate I think 
really is--I would have said a no-brainer, but I must not with 
such powerful brains going the other way.
    Clearly, insurance is commerce. That was held by the 
Supreme Court in 1944. There was a time when the Supreme Court 
did not think it was commerce. But it has been ever since, and 
if you look at the mountain of legislation, most noticeably the 
ERISA legislation, you see that the Congress and the courts 
obviously think insurance is commerce. And in health care, 
surely health care insurance surely is commerce, insuring, as 
it does, something like 18 percent of the gross national 
product.
    Now, if that is so, if health care insurance is commerce, 
then does Congress have the right to regulate health care 
insurance? Of course it does. And my authorities are not 
recent. They go back to John Marshall, who sat in the Virginia 
Legislature at the time they ratified the Constitution and who 
in 1824, in Gibbons v. Ogden, said regarding Congress' commerce 
power, ``What is this power? It is the power to regulate; that 
is, to prescribe the rule by which commerce is to be 
governed.'' To my mind, that is the end of the story. The 
constitutional basis for the mandate is that, the mandate is a 
rule--more accurately part of a system of rules--''by which 
commerce is to be governed,'' to quote Chief Justice Marshall.
    And if that were not enough for you, though it is enough 
for me, you go back to Marshall in 1819 in the McCulloch v. 
Maryland, where he said, [T]he powers given to the government 
imply the ordinary means of execution. . . .The government 
which has a right to do an act''--surely to regulate health 
insurance--''and has imposed on it, the duty of performing that 
act, must, according to the dictates of reason, be allowed to 
select the means. . . .'' And that is the Necessary and Proper 
Clause, and he ends by saying, ``Let the end be legitimate''--
that is to say, the regulation of health insurance--''let it be 
within the scope of the Constitution''--ERISA--``and all means 
which are appropriate, which are plainly adapted to that end, 
which are not prohibited, but consistent with the letter and 
spirit of the Constitution, are constitutional.''
    Well, that to me again is the end of the story, and I think 
that one thing is noteworthy about Judge Vinson's opinion where 
he said, ``If we strike down the mandate, everything else 
goes,'' shows as well as anything could that the mandate is 
necessary to the accomplishment of the regulation of health 
insurance. But is it proper?
    Well, there is, I think, an intellectual confusion here. 
This is clearly necessary to the success of Congress's scheme. 
It is improper only if it bumps up against some specific 
prohibition in the Constitution. And the only prohibitions I 
can think of that this bumps up against are the Liberty Clauses 
of the Fifth and 14th Amendment. And if that is so, then not 
only is ObamaCare unconstitutional, but so is RomneyCare in 
Massachusetts. And I think that is an example of an argument 
that proves too much.
    Thank you.
    [The prepared statement of Mr. Fried appears as a 
submission for the record.]
    Senator Durbin. Thank you very much, Professor.
    Our next witness is Michael Carvin. Mr. Carvin is a partner 
in the D.C. office of Jones Day law firm, where he specializes 
in constitutional, appellate, civil rights, and civil 
litigation against the Federal Government. During the Reagan 
administration, Mr. Carvin was a Deputy Assistant Attorney 
General in the Justice Department's Civil Rights Division and 
the Office of Legal Counsel. He was one of the lead lawyers 
that argued before the Florida Supreme Court on behalf of 
President George W. Bush in the 2000 Florida election recount 
controversy, received his B.A. from Tulane University, and his 
J.D. from George Washington Law School.
    Mr. Carvin, thanks for being here today and please proceed.

STATEMENT OF MICHAEL A. CARVIN, PARTNER, JONES DAY, WASHINGTON, 
                              D.C.

    Mr. Carvin. Thank you for the opportunity, Senator.
    The individual mandate obviously compels citizens to engage 
in a contract with a wealthy corporation even though often, and 
perhaps usually, it is to the citizen's economic disadvantage 
to engage in that contract for health insurance when he is 
healthy and does not need the insurance. And I think it is 
agreed that this is unprecedented. Congress has never before 
required a citizen to engage in contractual commercial activity 
pursuant to the Commerce Clause. And we have heard today and 
obviously the debate has been that this difference is 
immaterial. There is no difference between regulating 
inactivity, compelling someone to contract, and regulating 
activity, regulating someone who has decided to contract and 
has entered the commercial marketplace.
    Under this reasoning, of course, that means that because we 
can tell GM how to contract with its customers when they decide 
to buy a car or how to contract with its employees in terms of 
its workplace conditions, since there is no difference that 
means we could compel somebody to contract with General Motors 
to buy a car or to enter into an employment contract. And the 
gist of my remarks is that this is not some semantic lawyer's 
trick, something we came up with in response to the health care 
act. It is a core principle that goes to the most basic 
constitutional freedoms and limits on federal enumerated 
powers.
    In the first place, insurance is obviously commerce. That 
is not the issue. The issue is whether inactivity is commerce. 
Sitting at home and staying out of the commercial marketplace 
is not commerce. It only becomes commerce if you leave your 
house and decide to buy or sell goods or services. Then you 
have got commerce which you can regulate.
    Moreover, the decision of the citizen not to buy health 
insurance does not even affect commerce. Unlike the examples we 
have heard in terms of the plaintiffs in Wickard and Raich, 
those people were engaging in commerce. They were providing 
goods that were going to enter the commercial mainstream. 
Indeed, they were providing goods that were precisely of the 
sort that Congress was free to regulate if in interstate 
commerce.
    Now, the decision to sit at home does not affect Insurance 
Company A's ability to contract with Citizen B. It has no 
effect on it. If there was no pre-existing condition mandate in 
the bill, this would have no effect. So the rationale for the 
individual mandate is not that you are eliminating a barrier to 
commerce. The rationale for the individual mandate is you are 
ameliorating a Congressional distortion of commerce. Congress 
told insurance companies that they had to take people with pre-
existing conditions. That is obviously good for the patients, 
but it is obviously costly for the insurance companies. So what 
we are doing is conscripting American citizens to ameliorate 
the economic harm that Congress has visited on those insurance 
companies, and this is not in any way within the traditional 
commerce power.
    Congress can tell Mr. Filburn not to grow his wheat, but 
what it cannot do is tell Mr. Filburn's neighbor that he has 
got to buy some other crop of Mr. Filburn's to ameliorate the 
harm that Congress just visited on him by banning his wheat. 
This is different in degree and kind, and it is literally 
without a limiting principle.
    As the court noted in the Florida case, the more Congress 
can distort in the first place the commercial marketplace, it 
can then bootstrap that original distortion into regulating all 
sorts of things, all sorts of contracts, from credit cards to 
cards to mortgages, that it could never get at in the first 
instance. And it is also not proper.
    Mr. Fried suggests that it is certainly fine to compel 
people to contract, but just recently, the Court in the Eastern 
Enterprises case said you could not force coal companies to, in 
essence, provide health insurance contracts to former miners. 
Well, what does this Act do? It forces a citizen to contract 
with a wealthy corporation to ameliorate the corporation's loss 
of profits. If that is proper, then, again, there is literally 
nothing that Congress cannot do.
    And what is the limiting principle that has been suggested 
here and elsewhere? The Liberty Clause, which I used to call 
the Due Process Clause, which suggests that that will limit 
Congress' power. But, of course, that is a restriction on the 
States. That is a restriction on the States' powers. So they 
are conceding that the only limitation on Congress' limited 
enumerated powers is the same as the limits on the States' 
plenary police power. And if the Supreme Court has been clear 
about anything, it is that you cannot obliterate the 
distinction between the limited Federal Government and the 
State government. And if you do that, if you advance a Commerce 
Clause analogy which entirely eliminates that distinction, then 
that alone shows you that it is an abuse of the commerce power.
    Thank you.
    [The prepared statement of Mr. Carvin appears as a 
submission for the record.]
    Senator Durbin. Thank you very much, Mr. Carvin.
    Our next witness is Randy Barnett, the Carmack Waterhouse 
Professor of Legal Theory at the highly regarded Georgetown 
University Law Center, where he teaches constitutional law and 
contracts. Professor Barnett previously served as a prosecutor 
in Cook County--he is from Calumet City--and he has been a 
visiting professor at Northwestern and Harvard Law School. Of 
particular relevance for today's hearing, Professor Barnett 
argued the Commerce Clause case Gonzalez v. Raich, which we 
have heard referred to several times, before the Supreme Court 
in 2004. He is a graduate of Northwestern University and 
Harvard Law School.
    Thanks for coming today and please proceed with your 
statement.

STATEMENT OF RANDY E. BARNETT, CARMACK WATERHOUSE PROFESSOR OF 
 LEGAL THEORY, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC

    Mr. Barnett. Thank you, Senator.
    In 2010, something happened in this country that has never 
happened before: Congress required that every person enter into 
a contractual relationship with a private company. Now, it is 
not as though the Federal Government never requires you to do 
anything. You must register for the military and serve if 
called, you must submit a tax form, fill out a census form, and 
serve on a jury. But the existence and nature of these very few 
duties illuminates the truly extraordinary and objectionable 
nature of the individual insurance mandate. Each of these 
duties is inherent in being a citizen of the United States; 
each is necessary for the operation of the government itself, 
and each has traditionally been recognized.
    In the United States, sovereignty rests with the people, 
with the citizenry. And if Congress can mandate that you do 
anything that is ``convenient'' to its regulation of the 
national economy, then that relationship is now reversed. 
Congress would have all the discretionary power of a king, and 
the American people would be reduced to its subjects.
    In essence, the mandate's defenders claims that because 
Congress has the power to draft you into the military, it has 
the power to make you do anything less than that, including 
mandating that you to send your money to a private company and 
do business with it for the rest of your life. This simply does 
not follow. The greater power does not include the lesser.
    No one claims that the individual mandate is justified by 
the original meaning of the Commerce Clause or the Necessary 
and Proper Clause. Instead, the Government and those law 
professors who support the mandate rest their arguments 
exclusively on Supreme Court decisions. But given that economic 
mandates have never before been imposed on the American people 
by Congress, there cannot possibly be any Supreme Court case 
expressly upholding such a power.
    In my written testimony and a forthcoming article, I 
explain why nothing in current Supreme Court doctrine on the 
tax power, the Commerce Clause, or the Necessary and Proper 
Clause justifies the individual insurance mandate. To summarize 
that, rather than impose a tax on the American people, Congress 
decided instead to invoke its regulatory powers under the 
Commerce Clause. But because the commerce power has never been 
construed to include the power to mandate that persons must 
engage in economic activity, in litigation the government has 
been forced to rely heavily on the Necessary and Proper Clause.
    But the individual mandate is neither necessary nor proper. 
First, it exceeds the limits currently placed on the exercise 
of the Necessary and Proper Clause provided by the Supreme 
Court in the Lopez, Morrison, and Raich decisions. Second, the 
individual mandate is not necessary to ``carry into execution'' 
the regulations being imposed on the insurance companies. 
Instead, it is being imposed to ameliorate the free rider 
effects created by the Act itself. Congress cannot bootstrap 
its powers this way.
    In my written testimony, I also explain why the individual 
mandate is improper because it commandeers the people in 
violation of the 10th Amendment that reserves all powers not 
delegated to Congress by the Constitution ``to the States 
respectively, or to the people.'' The 10th Amendment protects 
popular sovereignty as well as the States.
    But wholly apart from what the Supreme Court has said about 
Congress' power, each Senator and Representative takes his or 
her own oath to uphold the Constitution, and each must reach 
his or her own judgment about the scope of Congressional 
powers. After the Supreme Court relied on the Necessary and 
Proper Clause to uphold the constitutionality of the Second 
National Bank in McCulloch v. Maryland, a case you are going to 
hear a lot about today, President Andrew Jackson vetoed the 
renewal of the bank because he viewed the bank as both 
unnecessary and improper. And, therefore, he found it to be 
unconstitutional. He wrote, ``If our power over means is so 
absolute that the Supreme Court will not call in question the 
constitutionality of an act of Congress the subject of 
which''--and then he quotes McCulloch--`` `is not prohibited, 
and is really calculated to effect any of the objects intrusted 
to the Government,'. . . it becomes us to proceed in our 
legislation with the utmost caution.''
    Therefore, regardless of how the Supreme Court may 
eventually rule, each of you must decide for yourself whether 
the mandate is truly necessary to provide, for example, for the 
portability of insurance if one changes jobs or moves to 
another State. Each of you must decide if commandeering that 
Americans enter into contractual relations with a private 
company for the rest of their lives is a proper exercise of the 
commerce power. If you conclude that the mandate is either 
unnecessary or improper, then, like President Jackson, you are 
obligated to conclude that it is unconstitutional and to 
support its repeal.
    But even if you do not find that the mandate is 
unconstitutional, this week's ruling in Florida suggests that 
there is a good chance that the Supreme Court will. So you 
might want to consider constitutional alternatives to the 
individual mandate sooner rather than later.
    Thank you.
    [The prepared statement of Mr. Barnett appears as a 
submission for the record.]
    Senator Durbin. Thank you very much, Professor Barnett.
    And now our final witness is Walter Dellinger. Professor 
Dellinger is the Douglas B. Maggs Professor Emeritus of Law at 
Duke University Law School. He is a partner and chair of the 
appellate practice at the law firm of O'Melveny Myers. He 
served as Acting Solicitor General under President Clinton from 
1996 to 1997. He also was Assistant Attorney General and head 
of the Justice Department's Office of Legal Counsel from 1993 
to 1997. He is a graduate of the University of North Carolina 
at Chapel Hill and Yale Law School.
    Professor Dellinger, we are glad you are here today. Please 
proceed.

   STATEMENT OF WALTER DELLINGER, DOUGLAS B. MAGGS PROFESSOR 
 EMERITUS OF LAW, DUKE UNIVERSITY SCHOOL OF LAW, DURHAM, NORTH 
                            CAROLINA

    Mr. Dellinger. Thank you very much, Senator.
    The coming together of the American colonies into a single 
Nation was more difficult than we can easily now imagine. But 
come together they did in the summer of 1787, and they created 
the greatest common market, continental in scope, that the 
world had ever seen.
    John Marshall characterized the power to regulate the 
commerce of that Nation as the power to regulate that commerce 
which concerns more States than one. The notion put forward by 
those who have brought these lawsuits that it is beyond the 
power of Congress to regulate the markets and to make efficient 
the markets in health care and health insurance that comprise 
one-sixth of the national economy is a truly extraordinary, 
astonishing proposition.
    The arguments that are made are essentially that it is 
novel and has not been done before, and that crazy things will 
be done if it is accepted. Neither of those arguments pass 
muster. Each of them are exactly the arguments that were made 
when the challenge was brought to the Social Security Act of 
1935, first accepted by the lower courts and then rejected by 
the Supreme Court.
    First of all, this is a regulation unlike those in the 
cases of Morrison and Lopez of local non-economic matters. This 
is a regulation of economic matters, as Solicitor General Fried 
has put it so well. Moreover, it is a regulation that is 
critical to the provision that prohibits insurance companies 
from denying coverage to Americans because of pre-existing 
conditions or because a child is born with a birth defect.
    Now, a lawyer is said to be someone who can think about one 
thing that is inextricably related to another thing without 
thinking about the other thing. And the excellent challengers 
to this legislation want to do that. There is no dispute over 
the proposition that Congress can regulate insurance contracts 
to say you cannot turn down people who have pre-existing 
conditions, you cannot turn down people because their children 
are born with a birth defect.
    That being the case and the fact that Judge Vinson himself 
agrees that it is necessary and essential for the Act to 
operate to also provide a financial incentive for people to 
maintain coverage generally, those two provisions are 
inextricably interlinked. My good friend Mr. Carvin says that 
the provision that prohibits insurance companies from denying 
coverage for people who have pre-existing conditions, he calls 
that a ``Congressional distortion.'' I think most Americans 
that are now assured that when they change jobs they will not 
lose their insurance, who are now assured that if they have a 
child born with a defect they will not lose their insurance, do 
not think of that as a distortion. They think of it as a 
regulation of the market, which Congress has ample authority to 
make sure works effectively.
    Now, the fact that something is within the commerce power 
does not mean that it is permissible. Is this so intrusive that 
it should be carved out of the commerce power? And the answer 
is it is really rather unremarkable. It is no more intrusive 
than Social Security and Medicare. Only if you go to work and 
earn taxable income do the penalty provisions apply to you that 
require coverage. So if you go to work and earn taxable income, 
one of the things you find out is that the Government takes 7.5 
percent from you and your employer for Social Security, 15 
percent if you are self-employed. They take additional lesser 
taxes for Medicare. And then for coverage after you are 65, for 
coverage before you are 65, and for your family they provide a 
2.5-percent financial penalty if you do not maintain coverage. 
It is extraordinary to think that something that gives you more 
choice, that allows you access to the market, is somehow so 
intrusive of liberty that it has to be carved out from the 
scope of the Commerce Clause.
    Of course, it has not been done before. As Justice Story 
noted, every new act of Congress is something that has not been 
done before, and that mode of reasoning he said is found by all 
persons to be indefensible.
    Will it lead to some extraordinary, expansive Congressional 
power? It will not. The limiting principle is clear. The 
Liberty Clauses prevent anyone from forcing Americans to eat 
certain vegetables or go to the gym. Whether it is State 
governments or the Federal Government, those are precluded.
    And what about the fact that this is something that 
provides an incentive to buy products in the private market? I 
never thought I would hear conservatives say that there is 
something more intrusive about buying products in the private 
market than there is about having a single governmental 
provider. But that is essentially their argument. And is it a 
precedent for doing that for any product? Not at all, because 
this product is, if not unique, it has characteristics which 
would limit the application simply because, one, it is a market 
which no one can be assured that they will not enter. You never 
know when you are going to get hit by a truck and impose 
countless thousands of dollars of expenses in medical care 
which you are guaranteed to be provided by the Emergency 
Medical Treatment Act. That is not true of flat screen 
televisions. If my team makes the Super Bowl and I have not 
thought that they would and have not provided for a flat screen 
television, I cannot show up and have someone provide it to me. 
But with health care, no one can be assured that they will not 
need it, and when they do need it, it is often the case that 
the cost is transferred to other people. Ninety-four percent of 
the long-term uninsured have used medical care.
    So at the end of the day, it is absolutely unremarkable 
that this market is one where Congress is using a market 
mechanism to encourage participation. The attacks against it 
are fully reminiscent of the attacks made against Social 
Security. In the Supreme Court, it was argued that if Congress 
could set a retirement age at 65, they could set it at 30 and, 
therefore, it must be unconstitutional to have Social Security 
at all. The Supreme Court rejected that. It was said that if 
Congress can set a minimum wage of $10, they could set a 
minimum wage of $5,000. That did not stop the Court from 
sustaining the minimum wage law.
    So at the end of the day, I think this challenge to the 
legitimacy of judicial review is one that we have seen before. 
And even a more conservative court than we have ever seen in 
1937 stepped back from that precipice and said, ``We are not 
going to stand in the way of Social Security.'' And I think at 
the end of the day the Supreme Court will not stand in the way 
of something which is less intrusive, which respects the 
autonomy of Americans, and corrects the functioning of a 
national market.
    Thank you.
    [The prepared statement of Mr. Dellinger appears as a 
submission for the record.]
    Senator Durbin. Thanks very much, Professor Dellinger.
    We have been joined by the Chairman of the Committee, 
Senator Patrick Leahy. I would like to give him an opportunity 
if he would like to make an opening statement or submit it for 
the record.
    Chairman Leahy. Thank you very much.
    One, I thank Senator Durbin for holding this hearing. When 
he first asked about that, I thought it was an extremely 
important one and obviously very timely. I must say that I have 
no doubt Congress acted within the bounds of its constitutional 
authority.
    Professor Barnett from the law school that both Senator 
Durbin and I attended says we should look at our oath of 
office. We do. I have been sworn into the Senate seven times, 
and I can remember vividly each time taking that oath. And I 
repeat it to myself all the time. I think most of us do.
    But we had arguments on the constitutional issue. In fact, 
during the Senate debate, I talked about those arguments. I 
responded to them. And the Senate voted on the constitutional 
issue. The Senate formally rejected a constitutional point of 
order claiming that the individual responsibility requirement 
was unconstitutional. It is not as though it was not 
considered. We voted on it. We voted that the Act was 
constitutional.
    Now, two courts have ruled it is not. Two courts have ruled 
that it is. We all know that ultimately it is going to go to 
the Supreme Court to be decided. As I was coming in here, I 
heard Professor Fried, who has testified before this 
Committee--as Professor Dellinger has, and we have all profited 
by such testimony--saying that it was not going to go into 
questions about the policy but about the constitutionality. And 
I appreciate that. The Act was neither novel nor unprecedented. 
I believe it rested on what has been a century's work of 
building on our safety net in this country.
    The opponents sought to continue their political battle by 
challenging the law minutes after--it seemed almost minutes 
after President Obama signed it into law. It was actually 
within a few days. They want to achieve in courts what they 
were unable to achieve in Congress. This was debated for over a 
year or most of the year, countless hearings, countless 
debates, on and off the floor. And many Americans now have 
access to health care today because of the Affordable Care Act. 
Parents who have children in school, in college, will be able 
to keep them on their policy until they are 26 years old. If 
you have a child with juvenile diabetes, they cannot be 
refused; if you have got a pre-existing condition, you cannot.
    There are a whole lot of things. It eliminates 
discriminatory practices by health insurers, making sure that a 
patient's gender was no longer a pre-existing condition. Just 
think about that. In the 21st century, some were talking about 
gender being a pre-existing condition. We have added important 
tools to help law enforcement recover taxpayer dollars lost to 
fraud and abuse in the health care system. While Senator 
Grassley and I may have disagreed about the health care bill 
itself, we agreed on going after fraud and abuse in the system. 
A lot of our Nation's senior citizens will now pay less for 
their prescription drugs.
    I realize that some want the courts to deliver a victory 
that they could not secure in the Congress. Over the course of 
this country, that has happened many, many times, people from 
both sides on issues. But I would hope that the independent 
judiciary will act as an independent judiciary and will be as 
mindful as Justice Cardozo was when he upheld 75 years ago the 
constitutionality of Social Security. He wrote: ``[W]hether 
wisdom or unwisdom resides in the scheme of benefits set forth. 
. . it is not for us to say. The answer to such inquiries must 
come from Congress, not the courts.'' I agree with that. I hope 
the Court will follow his wise example.
    Mr. Chairman, I will have some questions for the record. I 
have another hearing, but I compliment you for doing this. I 
think this is as important a hearing as being held in the 
Congress at this time.
    [The questions of Chairman Leahy appears under questions 
and answer.]
    Senator Durbin. Thanks a lot, Chairman Leahy. We appreciate 
that very much.
    As I would not invite my former law school professors to 
stand in judgment of my performance as a Senator, I will not 
ask Professor Fried to issue another grade to Professor 
Barnett. He had that chance once before. But I would like to 
ask you to comment, Professor Fried, if you would, about one of 
the statements made by Professor Barnett, and it relates to the 
question of whether this is a unique situation where we are, in 
fact, imposing a duty on citizens to either purchase something 
in the private sector or face a tax penalty. And I would like 
to ask you to comment on that generally, but specifically, if 
you can, I am trying to go back to the case involving this 
famous man, Roscoe Filburn. Mr. Filburn objected to a federal 
law which imposed a penalty on him if he grew too much wheat, 
and he argued before the Court that this wheat was being 
consumed by him and by his chickens, and that as a result, the 
law went too far. I think the net result of the law is that he 
either faced a penalty or complied with the allotment 
requirement and then had to make a purchase in the open market 
to feed his chickens.
    Is there an analogy here? Would you like to comment on this 
general notion that this is unique in that the law requires a 
purchase in the private market?
    Mr. Fried. I taught Professor Barnett torts, not 
constitutional law.
    [Laughter.]
    Chairman Leahy. Maybe he thinks it is a tort.
    Mr. Fried. The Filburn case can be distinguished only if 
you say, ``After all, Mr. Filburn did not have to eat, and his 
chickens did not have to eat.'' And that is an absurd argument, 
and I think Mr. Dellinger pointed that out. That is like saying 
that if you could make a commitment that you will never use 
health care, that you will never visit an emergency room, that 
you will never seek the ministrations of a doctor, then you 
should be free not to enter this system. That is silly. That is 
the first point of non-distinction in Wickard.
    There is another point which is made, and I get a little 
hot under the collar when I hear it, and that is that this 
turns us from citizens into being subjects. And Judge Vinson 
also said that those who threw the tea into Boston harbor would 
be horrified at this.
    Let me remind you that the citizens of the earlier United 
States were well acquainted with many taxes. Remember the 
Whiskey Rebellion. The reason they threw that tea in the harbor 
was taxation without representation. A parliament which they 
had not elected did this to them.
    Well, the people elected the Congress, and in 2010, they 
changed the Congress, and that is why we are not subjects, why 
we are citizens.
    Senator Durbin. Professor Barnett, you and Mr. Carvin have 
alluded to this activity and inactivity distinction. Tell me 
what case you look to for precedent or what part of the 
Constitution you refer to to come up with this approach.
    Mr. Barnett. Thank you, Senator. Well, there is nothing in 
the Constitution that says that Congress has the power to 
regulate economic matters, which is what Professor Dellinger 
referred to; and there is nothing in the Constitution that even 
says that Congress has the power to regulate activity that has 
a substantial effect on interstate commerce. That latter 
doctrine--there is no former doctrine. There is no economic 
matters doctrine in the Constitution. As for the substantial 
effects doctrine, that is given to us by the Supreme Court, not 
the Constitution itself.
    So I have been operating--my testimony is based entirely on 
what the Supreme Court has said, and the Supreme Court has time 
and time again referred to the Congress' power and authorized 
Congress to exercise its power to regulate activity, economic 
activity. That is what it says. In fact, in Justice Scalia's 
concurring opinion in Raich, which the plaintiffs--the 
government in this case--relies heavily on--Justice Scalia uses 
the word ``activity'' or ``activities'' 42 times. That is a 
lot.
    So that is what we are looking to, and what we notice is 
that the Court has never said that Congress has the power to 
regulate economic matters, economic decisions, nor economic 
inactivity. It has simply said the Congress can go this far, 
economic activity, and has never said the Congress can go 
farther.
    Now, it could say that, Senator. It is free, next time it 
hears a case like this one, to say it can go farther. Of 
course, we know that. It just has not done so up until now.
    Senator Durbin. For the record, I think the other four 
witnesses have acknowledged explicitly that the health care 
industry is part of commerce. Do you accept that?
    Mr. Barnett. Yes, I do, absolutely.
    Senator Durbin. All right. General Kroger, how would you 
respond to this comment: We are talking about the inactivity of 
a citizen, not the overt act of a citizen?
    Mr. Kroger. I would say two things, Senator. First of all, 
most of the case law does speak repeatedly of activities 
because most bills are regulating activities. But the Supreme 
Court has certainly never limited the Commerce Clause to a 
formal category of activities and prohibited Congress from 
acting otherwise.
    The Wickard case itself specifically cites the language in 
Carter v. Carter Coal, which says that the proper test is not 
just whether there is an activity but whether there is a 
condition that can be regulated. And so I think this somewhat 
artificial attempt to restrict the Congress to only regulating 
activities as opposed to conditions falls short. It simply does 
not make sense under the case law.
    Senator Durbin. And I would like to ask Professor 
Dellinger--I just have a minute left here. Judge Vinson 
basically said, ``Since I found this one section to be 
unconstitutional, I am going to basically say that the entire 
Act is unconstitutional, virtually unconstitutional.'' And then 
there is a question as to what the operative effect of his 
decision is on that particular district, that State, and the 
Nation.
    Would you comment on those two aspects of his decision?
    Mr. Dellinger. Well, I think that Judge Vinson's decision 
sweeps far beyond where it was necessary to go and takes down 
completely unrelated provisions. And I think that the fact that 
two other federal district courts have upheld the 
constitutionality of the law will indicate that his opinion 
will not have a necessary effect at this moment.
    The Department of Justice, I think, is considering whether 
to seek an appeal, even though he issued no order, to 
nonetheless clarify that only the individual mandate is at 
stake. And, of course, everyone agrees that what is also at 
stake is the provision that prohibits insurance companies from 
denying coverage for pre-existing conditions. Those two are 
linked, and I think that aspect of it is indisputable.
    Senator Durbin. Thank you very much.
    Senator Grassley.
    Senator Grassley. Professor Fried, you have made very clear 
that you are convinced that there is no doubt that the mandate 
in the health law is constitutional. So would you see any need 
for Congress to make any changes to the mandate in order to 
increase the chances that it would be found to be 
constitutional, make more certain it was constitutional?
    Mr. Fried. I see no need for it because it seems so clearly 
constitutional. You are wearing a belt. Maybe you want to put 
on some suspenders as well. I do not know. But I think it is 
not necessary. I suppose it would be proper.
    Senator Grassley. Okay. Then to any of the witnesses, some 
of you have discussed the Supreme Court's decision that has 
given Congress broad authority under the Commerce Clause. That 
is the whole point here. But Congress has never before passed a 
law that requires people who are not already engaged in an 
activity, commercial or otherwise, to affirmatively purchase a 
product or service. Could the Supreme Court strike down such a 
novel provision as the individual mandate without overturning a 
single one of its precedents?
    Mr. Carvin. Yes, Senator, that is clearly true. It is the 
defenders of the Act who are seeking to extend the Court's 
Commerce Clause jurisprudence past what it currently is. Again, 
as Professor Barnett has pointed out, they have only suggested 
that activities that affect interstate commerce can be 
regulated under the Commerce Clause. They have never suggested 
that Congress can compel people to engage in certain activities 
to offset the economic effects of another part of the law.
    To get back to Senator Durbin's question, they have never 
suggested that they could compel Mr. Filburn to grow wheat. 
They have never suggested, again, as I pointed out in my 
testimony, that they could require Mr. Filburn's neighbors to 
buy some other of his crops to counteract the negative economic 
effects on limiting the amount of wheat that he could grow. 
Contrary to my good friend Charles Fried, I think those 
distinctions are hardly lawyerly semantics. I would think they 
are relatively obvious to most people.
    Senator Grassley. If you want to add, Professor Dellinger.
    Mr. Dellinger. Yes, Senator Grassley. I think the very 
notion that what is involved here is ``inactivity'' can be 
called into question. If you are sitting alone in the woods 
doing nothing, the tax penalty does not apply to you. You have 
to go out and enter the national economy, earn $18,000 for a 
couple in order to be required to file an income tax return. 
Only then do you have to pay a 2.5-percent penalty if you do 
not maintain insurance coverage. And since no one can be 
assured they are not going to need health care, they are going 
to be active participants in the health care markets. So in 
both of those ways, this is in that sense by no means a pure 
regulation of inactivity. And I believe there is no case ever 
that has come close to holding that Congress cannot impose 
affirmative obligations when doing so carries out its 
regulatory authority over an important part of the national 
economy.
    Mr. Barnett. If I can just add, the penalty might not apply 
to everyone, but the mandate does apply to everyone. It is the 
penalty that is enforcing the mandate that might not apply to 
everyone, but the mandate that says every American has to have 
health insurance, has to obtain or procure health insurance, 
that does, I believe, apply to everyone.
    Mr. Fried. If I might just add, the Supreme Court precedent 
which I have always thought was very relevant is the 1905 
decision in Jacobson v. Commonwealth of Massachusetts. 
Massachusetts said every citizen had to obtain a smallpox 
vaccination. Jacobson thought this was an attack on his 
liberty. He was fined $5, and the Supreme Court said, ``Pay the 
fine.''
    Mr. Carvin. That illustrates the distinction that I am 
talking about. Massachusetts acted to stop the spread of an 
infectious disease pursuant to its power to protect the health 
and welfare of the State's citizens. Congress does not have 
that plenary power. Under Mr. Fried's analysis, Congress could 
tomorrow require everyone to buy vitamins or vaccinations 
because in another part of the law they have required doctors, 
for perfectly charitable reasons, to provide free vitamins and 
vaccinations to others. And this would be an offsetting effect 
just like the individual mandate is an offsetting effect. If 
Congress can do that--than I think we all agree Congress can do 
everything that State governments can do today, subject to the 
restrictions of the Liberty Clause. And if that is true, then 
there is no distinction between the commerce power and the 
police power. And, again, I think we would all agree that the 
Court has made clear that if there is no such distinction, that 
means the commerce power has been exceeded.
    Senator Grassley. I want to go on to ask for a comment on a 
quote from the Center for American Progress critical of Judge 
Vinson: ``If Judge Vinson were to have his way, insurance 
companies will yet again be able to deny you coverage because 
you have a pre-existing condition, drop your coverage when you 
get sick, limit the amount of care you receive, take more of 
your premium dollars from their profits.''
    I think that this group shares the same thoughts that many 
of the supporters of this legislation have used as a basis for 
the law as well as a basis for this hearing, that there seems 
to be no difference between law and politics. And, of course, I 
think the supporters of that view think that the judge who 
rules that a law is unconstitutional must oppose the policies 
as contained in the law.
    Obviously, I take a different view. I believe that a judge 
is obligated to make sure that the laws that Congress passes 
comply with the Constitution. If Congress passes a law that is 
beyond the constitutional power to enact no matter how popular 
or desirable the provisions of that law are for some people, 
the courts have an obligation to strike it down.
    Number one--and, by the way, I wanted to direct this to the 
three people on the left.
    [Laughter.]
    Senator Grassley. I am sorry. General Kroger, Professor 
Fried, and Professor Dellinger. Do you think it is appropriate 
to personally attack a judge's ruling striking down a law by 
saying that the judge must prefer particular policy results 
that the critic opposes?
    Mr. Fried. No, it is not proper.
    Senator Grassley. Okay. And anybody can add if they want 
to, but let me go on to the next one. Is it fair to say that 
Judge Vinson's decision aims to take away benefits that 
millions of Americans are already seeing and putting insurance 
companies back in charge of your health care?
    Mr. Fried. It will have that effect. Quite possibly he 
greatly regrets it.
    Senator Grassley. And do you think that judges should 
decide cases based on their best understanding of the meaning 
of the Constitution or on whether they think their rulings 
would have good or bad policy consequences?
    Mr. Fried. The former.
    Senator Grassley. Obviously, it is good to have that 
understanding, that we are a society based upon law and not 
upon what judges just happen to think it might be.
    You are right. My time is up.
    Senator Durbin. Senator Leahy.
    Chairman Leahy. I always have to watch out for these tough 
chairmen. Actually, on that last question, Professor Fried, do 
you know anybody who disagrees with that, whether the left or 
the right?
    Mr. Fried. Yes, I am afraid I do.
    [Laughter.]
    Chairman Leahy. But do you know anybody who should disagree 
with it?
    Mr. Fried. Not a soul.
    Chairman Leahy. I thought you might go that way.
    Mr. Kroger, it is good to have you here. We always like 
having Attorneys General here. We are fortunate to have two 
former Attorneys General on this Committee--Senator Blumenthal 
and Senator Whitehouse. You represent the State of Oregon, and 
you said that Oregon is a sovereign State--I am trying to 
summarize your testimony--and is charged with protecting and 
promoting the health and welfare of its citizens. Do you have 
any concern about the constitutionality of the requirement that 
individuals purchase health insurance?
    Mr. Kroger. None whatsoever.
    Chairman Leahy. Thank you.
    Now, as Attorney General, were you asked to or did you on 
your own review the legal basis for the Affordable Care Act?
    Mr. Kroger. Yes, I have, Senator.
    Chairman Leahy. Do you think it intrudes on Oregon's 
responsibility to protect the health and welfare of its 
citizens?
    Mr. Kroger. Senator, I think it greatly assists the ability 
of the State of Oregon to protect its citizens.
    Chairman Leahy. Thank you.
    Professor Fried, you know, having been here actually from 
the time of President Ford, when you were Solicitor General for 
President Reagan, I still almost feel like I--that is when I 
think I first met you. I almost feel I should call you 
``Solicitor General.'' But do you believe that the requirement 
in the Affordable Care Act that individuals purchase health 
insurance represents an unprecedented extension of Congress' 
authority to regulate insurance under the Commerce Clause?
    Mr. Fried. It is a new requirement. I do not think it is 
unprecedented. I think the language which I quoted to you from 
Chief Justice Marshall at the beginning of our Nation amply 
covers it.
    Chairman Leahy. You say that it is a different one. Let me 
just explore that a little bit further. Do you believe that 
there have been new limitations on the Commerce Clause by the 
current Court or other courts that give you concern that the 
Affordable Care Act is not a constitutional----
    Mr. Fried. There have been--excuse me, Senator.
    Chairman Leahy. No. Go ahead.
    Mr. Fried. There have been limitations. I sat at counsel 
table with the prevailing argument in United States v. Morrison 
because I believed that the relevant provisions of the Violence 
Against Women Act were unconstitutional, and the Court so held. 
But that was because the Court found, correctly, that, as 
despicable and criminal as it is for a man to beat up his 
girlfriend, it is not commerce. Well, there is no doubt health 
insurance is commerce.
    Chairman Leahy. And on the Violence Against Women Act, did 
not the Congress go back and redraft it based on the ruling in 
Morrison?
    Mr. Fried. I believe they did, but----
    Chairman Leahy. Or a version of it.
    Mr. Fried. I believe they did, but I cannot swear to that, 
and I have sworn to my testimony.
    Chairman Leahy. Thank you. Again, one of the reasons why I 
enjoyed your tenure as Solicitor General with President Reagan.
    Does anybody want to add to this? Mr. Carvin, here is your 
chance to disagree with Professor Fried.
    Mr. Carvin. I never pass up a chance to disagree with 
Charles.
    [Laughter.]
    Mr. Carvin. It rarely happens. Again, Senator, I do think 
there is a fundamental difference in two respects. You are 
compelling people to engage in commerce, and what is the 
rationale? Is it that by not contracting with insurance 
companies that somehow acts as an impediment to commerce? No. 
What it does do is prevent this free rider problem that 
Congress created by imposing the pre-existing condition. Now, I 
call that a distortion of commerce. I did not suggest that in a 
normative sense. Congress interferes in the private market all 
the time, and what they have done is impose certain 
restrictions on insurance companies and they are, therefore, 
compelling people to ameliorate that problem. So the individual 
mandate does not carry into execution the regulation of 
commerce. It corrects a distorting effect of the regulation of 
commerce. And it seems to me that that distinction is critical 
because, otherwise, again, if Congress decides to limit what 
banks can do with mortgages or credit cards or car companies, 
then obviously they could conscript the citizenry to offset 
that.
    Chairman Leahy. Which is a repeating of your earlier 
argument, and I am only cutting you off because my time is 
running out.
    Mr. Carvin. I was about finished. Thank you.
    Chairman Leahy. Plus your time is running out.
    Professor Barnett and Professor Dellinger, if you can very 
briefly----
    Mr. Barnett. All I would say, Senator, is--I wanted to talk 
about the two quotes that Professor Fried mentioned, one from 
McCulloch, which refers to Congress' power to use any ordinary 
means of execution. A mandate is not an ordinary means of 
execution. It is extraordinary.
    Second, in Gibbons v. Ogden, Justice Marshall said that 
Congress may prescribe the rule by which commerce is to be 
governed. Nobody up here thinks that the failure to buy health 
insurance is itself commerce. That is not what anybody here 
thinks. So that does not fall under this language either.
    So neither one of those quotations directly apply to the 
situation we currently face.
    Chairman Leahy. Professor Dellinger.
    Mr. Dellinger. Yes, I would like to respond, I think, to 
what is one of Michael Carvin's best points. I disagree that 
this matter would stand for the proposition that, where 
Congress imposes costs on companies, it could then make up for 
that, fix that by going out and making people buy that 
company's products. That is not true because in this instance, 
Congress is dealing with a dysfunction and an important 
national market caused by the fact that companies have an 
incentive to deny coverage to people with pre-existing 
conditions; as a result of that, they are not covered. In order 
to make that market work efficiently, you need to encourage 
people to join the market so that they do not wait and order up 
their health insurance on their cell phone in the ambulance on 
the way to the hospital. That is a market problem that Congress 
can address and fix.
    It is unprecedented, quote-unquote, but only in the sense 
that the Affordable Care Act uses a market-based system giving 
people more choices than has been our previous custom of 
providing a single governmental payer, as we did under Social 
Security and largely do under Medicare. So the idea that this 
is unprecedented is only one that it is a new use of a market-
based approach, less intrusive, providing more choice.
    Chairman Leahy. Thank you.
    Thank you, Mr. Chairman.
    Senator Durbin. Thanks a lot, Mr. Chairman.
    Senator Cornyn.
    Senator Cornyn. Thank you, Senator Durbin, and thanks to 
all the witnesses for being here. I feel like I am back in law 
school, but we appreciate the fact that each of you are giving 
us the benefit of your expertise and your opinions on a very 
important issue, no doubt.
    I was tempted to say, Mr. Chairman, that I wish we had done 
this before the law was passed, which we did not, as opposed to 
now. But I think, Professor Barnett, you make a very important 
point, that Congress' duty with regard to a law like this does 
not end when it passes a law. Indeed, if, in fact, we are of 
the opinion that it exceeds either the prudential or 
constitutional bounds of Congressional power under the Commerce 
Clause, we can repeal it. And I would just say to my friend who 
is chairing the Committee, Senator Durbin, I know it was 
suggested earlier that it is either this or nothing. I think 
they call that the fallacy of a false dichotomy. There are not 
just two choices. There are many other choices that are 
available to Congress if this were to be repealed and replaced, 
and I am sure we will talk about that a lot more.
    But let me just say--I went back to look at the Federalist 
Papers where in Federalist 45 James Madison talked about the 
powers of the Federal Government being enumerated and specific 
and the power of the State being broad. And, indeed, the 
heading for the Federalist 45 is ``Alleged Danger From the 
Powers of the Union to the State Governments Considered.'' It 
was exactly this sort of relationship between the State 
government and State power and individual citizens and the 
Federal Government that I think is causing the most concern 
here, because my own view is that the individual mandate is an 
unprecedented overreach of the Federal Government's limited and 
enumerated powers. And I know lawyers can disagree, and we do 
disagree, and we usually do so in a civil and dignified way, 
and that is great.
    By the way, Mr. Chairman, I would ask unanimous consent to 
introduce a letter from the Attorney General of Texas, Greg 
Abbott. He was one of the 26 Attorneys General who were 
successful in the litigation recently concluded in the district 
court in Florida.
    Senator Durbin. Without objection.
    Senator Cornyn. I thank the Chair.
    [The letter appears as a submission for the record.]
    Senator Cornyn. So really I think what worries people more 
than anything else, whether they articulate it quite this way 
or not, is that I think a lot of people feel like the 
fundamental relationship between the Federal Government and the 
American people has somehow been altered in a basic and 
sweeping way. And whether they can say, well, that is a 
violation of the 10th Amendment or it is a violation of the 
Commerce Clause or the Necessary and Proper Clause or whatever, 
I think it depends on the individual and their background and 
expertise.
    But I just want to ask whether you agree--let me ask 
Professor Fried this question. Jonathan Turley, a law professor 
who testifies occasionally here before us, said that if the 
Supreme Court upholds the individual mandate, it is hard to see 
what is left of federalism. Do you agree or disagree with that?
    Mr. Fried. I disagree with that. I recall in the Violence 
Against Women Act there must have been Attorneys General from 
52 States arguing that that Act was constitutional, and it was 
thrown out anyway because it was not commerce, and that was a 
correct decision. I supported it. I helped procure it, indeed. 
But that was because what the act covered was not commerce. 
This is as I recall, the great debate in the Senate was between 
this device and something called the government option. And the 
government option was described as being something akin to 
socialism. And I think there is a bit of a point to that. But 
what is striking, Senator, is that I do not think anybody in 
the world could argue that the government option or, indeed, a 
single-payer federal alternative would have been 
unconstitutional. It would have been deplorable. It would have 
been regrettable. It would have been Western if not Eastern 
European.
    [Laughter.]
    Mr. Fried. But it would not have been unconstitutional. And 
it is odd that this, which is an attempt to keep health 
coverage in the private market, is now being attacked that way.
    Senator Cornyn. You made a very good case that Congress can 
pass some very bad laws that are still constitutional.
    Mr. Fried. Yes, sir.
    Senator Cornyn. Because time is running short--and I hope 
we will have a chance for a second round because seven minutes 
does not give us enough time. But I did want to explore. 
Professor Fried, you did say that while you are not troubled by 
the individual mandate, you are troubled by this huge unfunded 
mandate imposed on the States by the Medicaid expansion. 
Indeed, there is a whole body of law that you are no doubt 
expert in that talks about the Federal Government's coercing 
the States and commandeering the States to pursue a federal 
policy that is beyond the Federal Government's authority to do. 
And I will have to tell you that one of the consequences of 
this in my State is a $27 billion unfunded mandate over the 
next 10 years for the Medicaid expansion, which is crowding out 
spending at the State level for education and transportation 
and other important priorities.
    I just want to ask you to expand briefly on your concerns 
in this area.
    Mr. Fried. The case that comes to mind is South Dakota v. 
Dole which required the States--and that was not even a funding 
mandate--to alter the drinking age and threatened them with the 
withdrawal of five percent of highway funds if they did not 
comply. And the Supreme Court said, Well, five percent is so 
little that it is not that much of a threat. Implicit in that 
is, Would you believe 10 percent? How about 50 percent? And the 
unfunded mandate here is huge, and that is why I said to 
Senator Grassley that I think there really is a constitutional 
worry about that.
    Senator Cornyn. If I could just conclude by saying that was 
one of the bases for the Texas challenge, and I believe the 
other Attorneys General in the Florida case--I do not believe 
that the judge got to that issue because--I may stand corrected 
here, but although we are focusing on the individual mandate, I 
am interested in your testimony with regard to the coercion or 
commandeering of State authorities and State budgets.
    Thank you. My time is up for now. I hope to come back.
    Senator Durbin. Thanks, Senator Cornyn.
    Senator Franken.
    Senator Franken. Well, I feel like I am back in law school.
    I did not go to law school.
    [Laughter.]
    Senator Franken. Attorney General Kroger, Mr. Carvin said 
and then repeated essentially this in his testimony: A decision 
not to buy health insurance does not affect commerce. Is that 
an accurate quote?
    Mr. Carvin. Absent the pre-existing condition ban, true. In 
other words, if you took the pre-existing condition ban out of 
the law, the insurance company would be able to contract with 
its patients, and the fact that some stranger to that 
transaction sat at home would not affect that contractual 
relationship. The argument I am making is that the pre-existing 
condition ban is what enables Congress to reach out and bring 
that stranger to the transaction in.
    Senator Franken. Well, without the mandate, you could not 
have the pre-existing condition; it would not work in the law. 
But this is a question for Attorney General Kroger. A decision 
not to buy health insurance does not affect commerce. Mr. 
Kroger, when the uninsured in your State go to emergency rooms 
and cannot pay their bills, how much does that cost Oregon 
hospitals every year?
    Mr. Kroger. You know, Senator, I have spoken to the CEOs of 
various hospitals around the State. The amount of charitable 
care, care of persons who do not have insurance, varies from 
hospital, between three and in some cases as high as 12 percent 
of the amount of care that they are providing. The idea that 
being uninsured does not affect commerce is just factually 
incorrect. Every American pays higher insurance premiums to 
cover those costs.
    Senator Franken. I understand it costs about $1.1 billion 
every year for Oregon hospitals. Do you know how much that 
costs insured Oregonians in terms of higher premiums?
    Mr. Kroger. Senator, the different studies show somewhere 
between $450 in higher insurance premiums for individuals, up 
to about $1,500 for families who are required to help carry 
that cost of the uninsured.
    Senator Franken. So this basically sounds to me like 
insured Oregonians are subsidizing uninsured Oregonians.
    Mr. Kroger. That is correct, Senator.
    Senator Franken. So would you agree with the statement that 
a decision not to buy health insurance does not affect 
commerce?
    Mr. Kroger. It clearly does affect commerce, Senator.
    Senator Franken. OK. Thank you.
    Professor Dellinger, my understanding is that when the 
Supreme Court decides cases, they are interpreting the 
Constitution, or if they are ruling based on precedent, they 
are ruling based on previous Supreme Court interpretations of 
the Constitution. Is that correct?
    Mr. Dellinger. Yes, sir.
    Senator Franken. Okay. I have to say that I am confused--
and maybe it is because I did not go to law school--by Mr. 
Barnett's testimony when he says, ``No one claims that the 
individual mandate is justified by the original meaning of 
either the Commerce Clause or Necessary and Proper Clause. 
Instead, the Government and those law professors who support 
the mandate have rested their arguments exclusively on the . . 
. Supreme Court.''
    First of all, I am confused because I know of at least two 
scholars, Jack Balkin and Akhil Amar, who do think the original 
intent of the Commerce Clause supports the constitutionality. 
Are Akhil Amar and Jack Balkin no one? They are pretty 
esteemed, are they not?
    Mr. Dellinger. They are, and so is----
    Senator Franken. So the statement is not actually accurate.
    Mr. Dellinger. And so is Professor Barnett, but you----
    Senator Franken. Okay. Well, but I am sure Akhil Amar and 
Jack Balkin have made ridiculous statements, too. I am sorry. I 
did not mean that.
    Mr. Dellinger. Okay.
    Senator Franken. I did. I did.
    [Laughter.]
    Senator Franken. Anyway, sorry. See, but to me on this--and 
I did not go to law school, but it seems to me that there is a 
transitive property. If A equals B, B equals C, and C equals D, 
A equals D. And since the courts are relying on precedent, they 
are relying on a Supreme Court that was interpreting the 
Constitution. Right? So is it not true that by relying on 
precedent you are really interpreting the intent of the 
Founders?
    Mr. Dellinger. That is true, Senator Franken, but I would 
also be perfectly willing to go back to the original 
understanding and find that this is fully consistent with it in 
the following sense: The Framers did assume in 1787 that there 
would be substantial areas that were matters for local 
regulation only and the national government would be limited to 
regulating only that commerce which concerns more States than 
one.
    What happened over the ensuing two centuries is that the 
category of what affects more States than one has increased 
dramatically because of developments in telecommunications and 
markets, et cetera. We now have a single national market so 
that Congress' authority to regulate that commerce which 
concerns more States than one is greatly vaster than the 
Framers would have imagined, not because of any difference in 
constitutional principle that they adopted, but because of the 
extraordinary developments in technology, communications, and 
other matters which make us a single----
    Senator Franken. Like airplanes.
    Mr. Dellinger. Which have made us a single national 
economy, yes.
    Senator Franken. Senator Cornyn made this 10th Amendment 
point. As I understand it, the way the 10th amendment was 
written, and if you go to the Federalist Papers, it was written 
specifically to exclude the word ``expressly.'' This is the 
10th Amendment: ``The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people.''
    Now, I remember that when they were writing this some South 
Carolina representative wanted to put in ``expressly,'' which 
had been in the Articles of Confederation, and Madison said no. 
And Madison writes in the Federalist Papers that if you put 
``expressly'' in, then every possible power of the Federal 
Government would have to be written in an encyclopedic way into 
the Constitution and that that would be absurd. Is that your 
understanding, is that everybody's understanding of the 10th 
Amendment? Is that history right? Is my history right?
    Mr. Dellinger. It is mine.
    Senator Franken. Thank you.
    Senator Durbin. I would like to welcome to the Judiciary 
Committee Senator Lee of Utah and recognize him at this point.
    Senator Lee. Thank you, Mr. Chairman. I want to thank each 
of our witnesses for coming today. For a law geek like me, it 
is an honor to be here and be able to interact with each of 
you.
    I want to echo something that has been mentioned once or 
twice this morning but emphasize it again. I think it is 
important that we do this as Senators because I believe that 
among the founding generation, the Founding Fathers, there was 
no understanding that was more ubiquitous than the idea that 
what we were creating at the national level was not an all-
purpose national government possessing general police powers 
but a limited-purpose Federal Government. And I think one of 
our jobs as Senators is to make sure that, regardless of what 
the courts say that we can get away with in court, regardless 
of how broadly we may exercise our power without judicial 
interference, we take a second look and say, separate and apart 
from what the court says we can do, should we be doing this? Is 
this consistent with our role as legislators operating within a 
government with decidedly limited powers?
    I also like the quote from Justice Jackson that was pulled 
out a few minutes ago, I think by Mr. Kroger, to the effect 
that certain decisions are wisely left for Congress. The courts 
lack the authority to be a sort of roving commission on all 
things constitutional. We have to make a number of these 
decisions on our own regardless of whether the courts are going 
to do them for us.
    I wanted to ask a few questions of Mr. Dellinger, if that 
is okay, Professor. Do you agree, first of all, with James 
Madison's assessment that Mr. Cornyn quoted a few minutes ago 
that while the powers of the Federal Government are few and 
defined, those that are left to the States are numerous and 
indefinite?
    Mr. Dellinger. I do agree, and I think Senator Cornyn 
correctly cites Federalist 45 for that proposition. And as I 
said, Senator Lee, within the area of Congress' authority to 
regulate national commerce, what has grown is the 
interdependency of national commerce, not our understanding of 
the Constitution.
    Senator Lee. Sure. Sure, it has grown. But they had 
interstate commerce then. They were interconnected. In fact, 
that was the whole reason why we need to be a union in the 
first place, right?
    Mr. Dellinger. Correct.
    Senator Lee. We could not survive. So they understood this 
interconnectedness. This is not new. It has been facilitated by 
jet airplanes and by the Internet, but----
    Mr. Dellinger. That is right. But if you get sick in North 
Carolina in 1787, it had no effect in Utah.
    Senator Lee. Well, Utah then was part of Mexico.
    [Laughter.]
    Senator Lee. Still a lovely place, but----
    Mr. Dellinger. It had no effect in Pennsylvania, if I may 
clarify my remarks.
    Senator Lee. Okay, okay. But they were interconnected, so 
perhaps the changes that we have had have been changes of 
degree. Perhaps we were more interdependent then than we are 
now, but you would still agree that it is still accurate to say 
the powers of the Federal Government are few and defined, 
whereas those reserved to the States are numerous and 
indefinite.
    Mr. Dellinger. Yes.
    Senator Lee. And yet if this law is upheld, if this law is 
within Congress' limited power to regulate commerce among the 
States--notice it did not say ``commerce.'' It says ``commerce 
among the several States and with foreign nations.'' If this is 
within Congress' power, wouldn't it also be within Congress' 
power to tell every American, including you and me and 
everything in this room, that we must eat four servings of 
green leafy vegetables each day?
    Mr. Dellinger. No.
    Senator Lee. Why is that? What is the distinction?
    Mr. Dellinger. The distinction is that a regulation of 
commerce to be constitutional has to be a permissible 
regulation of commerce, and something which intrudes into the 
area of personal autonomy does not meet that standard.
    Senator Lee. Like, say, deciding where to go to the doctor 
and how to pay for it. I am trying to understand the difference 
between the personal autonomy at issue there and that presented 
by this law.
    Mr. Dellinger. Well, the case about broccoli is a case that 
is covered both by Lopez and Morrison; that is, you are 
regulating a local non-economic matter, what you eat and 
whether you exercise. And it is also governed as well--it is 
doubly unconstitutional because it is governed as well by the 
principle in cases like Luxburg and Vacco and Cruzan that say 
that an individual has the right to refuse unwanted medical 
treatment. You have a constitutional right to refuse it, and 
I----
    Senator Lee. Please understand, Professor, I am talking 
about the Commerce Clause here. I am not talking about----
    Mr. Dellinger. I understand that, but I----
    Senator Lee. Let us keep our discussion limited to the 
Commerce Clause.
    Mr. Dellinger [continuing]. Think if you talk about whether 
Congress could require people to buy other products--what would 
be Congress' legitimate reason for doing so? I think there 
would be many constitutional objections?
    Senator Lee. Oh, I can come up with one right now. I mean, 
look, if we are going to make sure that everybody has got 
health insurance and that the Government is going to pick up 
the slack behind, then Congress could assemble a panel of 
experts--let us say your functional equivalence from the 
dietary council industry who would come and tell us that if you 
eat four servings of green leafy vegetables every single day, 
you are 50 percent less likely to suffer from heart disease, 
cancer, stroke, or a whole host of other ailments. That is 
going to cost the government less money. So there is a pretty 
tight nexus there.
    Mr. Dellinger. Yes, but as the Court said in Gonzalez v. 
Raich, that is a Morrison and Lopez problem of dealing with 
non-economic matters, and the Court said in Gonzalez where the 
act under review is ``a statute that directly regulates 
economic, commercial activity, our opinion in Morrison casts no 
doubt on its constitutionality.'' This is a direct regulation 
of a commercial activity, not something that merely affects a 
commercial activity.
    Senator Lee. Okay. Let us change the hypothetical just 
slightly then. Instead of saying you must eat them, it would 
say you must take the first $200 out of each month's earnings 
and purchase the equivalent of four servings of green leafy 
vegetables to eat per day. This all of a sudden is economic 
activity. This is not Lopez, where we are talking about bare, 
non-commercial, intrastate possession of a firearm within a 
school zone, or about Morrison, where you are talking about 
non-economic intrastate acts of violence.
    Mr. Dellinger. Okay. It seems to me that there are two 
responses to the argument that upholding this would stand for 
the proposition that Congress can force people to buy anything.
    The first is that this is a requirement that you make 
provision to buy something which you cannot ever be assured you 
will not use and cannot be assured you will not transfer the 
cost to others. So I think it is distinguishable.
    But, second, the very form of that argument was used to 
attack the minimum wage and Social Security.
    Senator Lee. Social Security was----
    Mr. Dellinger [continuing]. Minimum wage, your question to 
be--if the issue were the constitutionality of the minimum wage 
law and it were 1937, you would be asking me, is it a 
regulation of commerce for Congress to have a minimum wage of 
$5,000 an hour? And that has never been a legitimate--is it a 
regulation of commerce to say that if you buy one car, you have 
to buy three cars? That form of argument, I think, was used 
against Social Security and used against Medicare, and Congress 
has, in fact, never abused that. It has never set the 
retirement age at 25 as the opponents of the Social Security 
Act said would be possible if you upheld a retirement plan for 
people over 65. So the very form of the argument, I think, 
deflects attention from what is basically a completely 
unremarkable regulation of an important national market.
    Senator Lee. Mr. Chairman, I see my time has expired. I 
have got one very brief follow-up question. Could I just ask 
that? Then I will be finished.
    I was pleased to see in your written testimony that you 
have become such a huge fan of Justice Scalia's jurisprudence. 
He is also one of my favorite Justices on the Court. You quote 
him repeatedly as a source for the Court's post-Wickard v. 
Filburn jurisprudence under the Commerce Clause. Is it the case 
that that necessarily reflects his view as an original matter, 
as a matter of first principles? Or are those views made in 
recognition of the fact that he is bound by stare decisis?
    Mr. Dellinger. That is a good question, Senator, and I do 
not know the answer to that. It could well be that he is 
reflecting stare decisis, and I do admire him, because I 
believe that in the case that you and I are arguing against 
each other, he cast the critical vote for the position that 
sustained my argument and not yours.
    [Laughter.]
    Senator Lee. And he could not have been more wrong, could 
he?
    Thank you.
    Senator Durbin. Thank you, Senator Lee.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman.
    I am going to take a little different tack than Mr. Lee in 
terms of the practicality of these decisions as you look at 
people who--I think Mr. Kroger is well aware of this--already 
small business is taking advantage of the discounts that they 
are getting and the fact that you have got people who are--kids 
who are getting to keep their insurance that have pre-existing 
conditions and States who are now struggling to figure out what 
they are going to do in light of these decisions. And so my 
question--I know Senator Durbin asked this of Professor 
Dellinger, but maybe a few of the other witnesses want to chime 
in. What is the practical, immediate outcome of the decision in 
Florida on Monday? And I understand that some State Attorneys 
General are telling people they do not need to do the work to 
comply with the law since Judge Vinson did not stay his ruling 
pending the government's appeal. Other States think it would be 
irresponsible not to continue making preparations for 
implementation of the Act in case Judge Vinson's opinion is 
overruled at higher levels.
    I guess I would start quickly with you, Mr. Kroger. Just 
from the practical level, what are you telling your State what 
they should do in light of the Florida ruling?
    Mr. Kroger. Well, Senator, I hate to sound like a lawyer as 
a practical matter, if I----
    Senator Klobuchar. Aren't you a lawyer?
    Mr. Kroger. Yes. If I was giving advice to State 
government, it would be covered by attorney-client privilege--
--
    Senator Klobuchar. Oh, okay.
    Mr. Kroger.--and I would not be prepared to share it with 
you here.
    Senator Klobuchar. OK.
    Mr. Kroger. I can say, generally, that I think it would be 
a huge mistake for a State to pretend that this is the final 
word. Obviously, we have decisions on both sides that have come 
out. They are only district court opinions. And so, you know, 
my sense is that it would be an enormous mistake for a State 
not to continue on with implementation of the Act.
    Senator Klobuchar. Professor Fried.
    Mr. Fried. I do not have a judgment on that. It seems to me 
odd that one judge in Florida could govern the Nation. So----
    Senator Klobuchar. If they were in Minnesota, that might be 
different.
    Mr. Fried. Not to me, it would not.
    [Laughter.]
    Mr. Fried. But I cannot really speculate. I had not thought 
that one through.
    Senator Klobuchar. The next two, Mr. Carvin, Professor 
Barnett.
    Mr. Carvin. I will join Professor Fried's agnostic 
response. I am not really sure.
    Mr. Barnett. I have been asked this, too, Senator, and I do 
not think I know the answer. But I can say without violating 
attorney-client privilege that I saw Attorney General Abbott 
from Texas on the news last night, and he said himself that he 
was counseling the Texas legislature that they should continue 
to act pursuant to the law until it is ruled upon by above. So 
I do not know if he is right, but I do know that he is someone 
whose opinion I respect, and that is the advice he is giving 
his own State legislature.
    Senator Klobuchar. Okay. Along these same lines, Judge 
Vinson struck the entire Affordable Care Act down because he 
found that the individual mandate was unconstitutional. That is 
a step that an earlier decision, which also found problems with 
the Act from the Eastern District of Virginia, did not take. Do 
you think the constitutionality of the whole law is contingent 
on the individual mandate? And then I guess a secondary 
question was how important it is to you that there was not a 
severability clause included in the bill. We will start with 
you, Professor Dellinger. Do you want to----
    Mr. Dellinger. I think it strikes me as far too sweeping, 
and I will pass that question on to my colleagues.
    Senator Klobuchar. Professor Fried, and then we will go----
    Mr. Fried. I do not believe that Judge Vinson said that the 
other parts of the statute were unconstitutional. What he said 
was because there is no severability clause and because the 
rest of the Act becomes unworkable without the mandate, which 
is something, of course, that many of us have been arguing, 
therefore, in striking the mandate, he is really in effect 
striking the rest of the statute because the rest of the 
statute becomes unworkable. But he is not saying that it is 
unconstitutional.
    Senator Klobuchar. Right.
    Mr. Fried. If I read him correctly.
    Senator Klobuchar. Okay. I just meant it more broadly. So 
do you think it matters that there is not a severability 
clause?
    Mr. Barnett. A severability clause, Senator, would not be 
dispositive. It would help the Court in discerning what the 
intent of Congress was. So in the absence of a severability 
clause, the judge must try to figure out what the intent of 
Congress was, and the government, even in its brief, said that 
the insurance regulations imposed on the insurance companies 
were not severable from the mandate. Then the only question was 
for the judge--and that seemed pretty obvious--whether he could 
go into the bill, the 2,700-page bill, and look at all the 
provisions that were not regulations of insurance companies, 
sort of like the 1099 requirement, let us say, and say, Well, 
those could stand independently of these. And he said that is 
just not something he thinks the judge ought to be able to do, 
to go inside a bill and just find the ones that he thinks can 
work and not work. So he just said, ``It is outside my purview, 
and I am just going to have to go with the whole thing.''
    Senator Klobuchar. All right. Professor Dellinger stated 
that the minimum coverage requirement in the Affordable Care 
Act is no more intrusive than Social Security or Medicare. What 
do you think about that statement, Professor Fried?
    Mr. Fried. It is distinguishable because, after all, the 
argument is being made you do not have to buy insurance, you 
can pretend that you will never get sick and so on and so 
forth. But with Social Security, you only get into that system 
if you earn money, if you have a job, if you make a living. 
Well, for goodness sake.
    Senator Klobuchar. Professor Dellinger.
    Mr. Dellinger. Although the mandate applies to everyone who 
is not exempted because they already have Medicare, their 
income is too low, et cetera, like Social Security, the penalty 
provision only applies if you enter the market and earn money. 
And so what strikes me as so remarkable about the attack on 
this law is that it seems to me to be in two ways everything 
conservatives should abhor.
    First of all, it seeks to establish the principle that 
Congress can address a major national economic problem only by 
providing a monolithic government solution and is precluded 
from using a more choice-friendly----
    Senator Klobuchar. You are saying the argument would lead 
you to believe that under their argument that would be 
constitutional.
    Mr. Dellinger. Yes. And I know Professor Barnett, I 
believe, acknowledges that. I think Mr. Carvin does, too. You 
could have--and so if the only way Congress can address a 
market problem is by having the government step in and be the 
exclusive provider, that strikes me as an odd position for 
conservatives to take, which is why the idea of using the 
market and creating a financial incentive has always been more 
or less a conservative idea, a Republican idea. It is very akin 
to what the previous President Bush wanted to do with parts of 
Social Security: give people a financial incentive to go into 
the private market. That private market approach was adopted 
here, so it seems odd to attack that and say you can only use a 
government approach. And it also seems odd to say that five 
Justices sitting in Washington should decide a matter of 
economic regulation for the whole country. Both of those seem 
to me approaches that ought to be anathema to anyone who 
marches under the banner of conservatism.
    Senator Klobuchar. Thank you very much.
    Senator Durbin. Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman. I first want 
to ask consent to place a few items in the record. I have a 
statement for myself and one submitted by our Attorney General 
of our great State, Mark Shurtleff.
    Senator Durbin. Without objection.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    [The prepared statement of Mr. Shurtleff appears as a 
submission for the record.]
    Senator Hatch. Now, Utah is an original plaintiff in this 
multi-State lawsuit, and of course, Judge Vinson singled out 
Utah as having standing as well. Attorney General Shurtleff has 
been at the head of the pack in finding for individual liberty 
and State sovereignty, and I am very proud of Utah's role in 
this. So I ask consent for Judge Vinson's opinion to be part of 
the record as well as the friend-of-the-court brief filed in 
that case by 32 Senators, including several members of this 
Committee.
    [The information referred to appears as a submission for 
the record.]
    Senator Hatch. And, finally, I ask consent that a few of 
the articles that I published on this subject in newspapers 
such as the Wall Street Journal and Chicago Tribune and the 
Regent Journal of Law and Public Policy, if I could have those 
in the record as well, Mr. Chairman.
    Senator Durbin. Without objection.
    [The information referred to appears as a submission for 
the record.]
    Senator Hatch. Now, it has already been said that the 
distinction between activity and inactivity is not in the text 
of the Constitution. I think most all of you have said that. 
Ah, a textualist is born. But neither are words such as 
``substantial effects'' or ``broader regulatory scheme'' or 
anything else the Supreme Court has come up with that defenders 
of ObamaCare rely on. And there is no ``intrusiveness'' 
standard in the Constitution either. Would you agree with that, 
Professor Barnett?
    Mr. Barnett. Of course. That is not a constitutional 
standard or doctrine that I am aware of.
    Senator Hatch. Well, none of them are.
    Mr. Carvin.
    Mr. Carvin. Right, no. Obviously, things that substantially 
affect commerce is something that the Court says is within the 
Commerce Clause, but as has been pointed out, there are a 
number of things that affect commerce--violence against women, 
possessing guns--which the Court has said, no, no, those do not 
come within the ambit. And I would argue that economic 
inactivity is far more afield from the commerce power than 
things like buying and possessing guns.
    Senator Hatch. I am very grateful to have Professor Fried 
here--he is a grand old friend--and Professor Dellinger is an 
old friend, both of whom I admire greatly. I do not know you, 
Mr. Kroger, but I am sure you are just fine.
    [Laughter.]
    Senator Hatch. Now, the Congressional Budget Office, in the 
past, has said that requiring individuals to purchase a 
particular good or service was ``unprecedented.'' Now, that is 
the Congressional Budget Office. The Congressional Research 
Service recently concluded that, ``It is a novel issue whether 
Congress may use the Commerce Clause to require an individual 
to purchase a good or a service.'' I think it is a novel issue, 
I submit, because Congress has never done it before.
    Now, I will throw this question to each of our witnesses 
and hope I get straight answers. Can you give me an actual 
example other than ObamaCare of Congress requiring individuals 
to purchase a particular good or service?
    Mr. Kroger. Senator, if I may, my parents own a small 
business. They are constituents of Senator Cornyn's. And if you 
told them that the government had never required them to buy a 
good or service, they would be astounded. The federal OSHA law 
and regulations require all kinds of sole proprietors and small 
business people to go out and buy equipment, whether it is 
orange cones or hard hats or a fire disposal system in a 
restaurant. The environmental laws require a huge range of 
small business owners to buy air filters up to, you know, 
sulfur oxide scrubbers.
    The reason small business people tend not to like 
government regulation, and particularly federal regulation, is 
because it does require them to spend money on goods and 
services. And so I think those are----
    Senator Hatch. Only as a condition of being in business.
    Mr. Kroger. You know, Senator, the----
    Senator Hatch. I mean, these people are not trying to get 
into business.
    Mr. Kroger. It is true that my parents could close down 
their business. All people could close down their business.
    Senator Hatch. Well, they do not have to because they can 
go into business. But as a condition of going into it, they 
have to meet certain laws, right?
    Mr. Kroger. Yes, I----
    Senator Hatch. In this particular case, we have an 
inactivity of people--if you want to use that word. I do not 
find it the greatest word in the world. But we have an 
inactivity here that they do not want to do. And they would 
make their choice not to do it.
    Let me go to you, Professor Fried.
    Mr. Fried. I think the idea that one can make a choice not 
to seek health care throughout one's life is simply not 
realistic and cannot be the basis for an attack on the 
constitutionality.
    Senator Hatch. It is not right. I have to concede that 
point. But that still begs the question of whether it should be 
mandated.
    Mr. Fried. Well, I think once you have taken the first step 
and you have made that first concession, the rest follows.
    Senator Hatch. Okay.
    Mr. Fried. And it has brought to mind the various things 
that were considered in the Senate and which the previous 
President, I think, very wisely suggested as an alternative to 
Social Security. And as an alternative, it was suggested that 
you could buy mutual funds from Vanguard, from Fidelity, and 
you would not have to buy it from the Government. And maybe one 
would say that, well, you do not have to work. You can simply, 
you know, sit on a corner and say, ``Spare change,'' and then 
you would not have to pay Social Security. But I think that is 
unrealistic as well.
    Senator Hatch. Let me go to Mr. Carvin. I only have a few 
seconds left.
    Mr. Carvin. No, they have never done it before, and if you 
buy any of the analogies that have been just agreed to, then 
there is no limit on Congress. The notion that health care is 
unique because you have to buy the goods is factually 
incorrect. You have to buy transportation, clothes, housing, 
shelter, food. The notion that health insurance is somehow a 
core requirement is kind of silly. And, of course, if you 
started drawing these distinctions between transportation and 
health care, you get back into the sort of unprincipled 
distinctions that bedeviled Commerce Clause jurisprudence prior 
to at least the 1930s.
    Senator Hatch. Mr. Barnett.
    Mr. Barnett. It has never been done before, Senator, and 
the fact is that even though everyone might be said to one day 
need health care, the bill itself exempts people from buying 
health--health insurance is not the same thing as health care. 
Everyone does not go into the insurance market, and the bill 
exempts people for religious reasons from having to obtain 
health insurance. So, clearly, even Congress recognized that 
not everyone has to obtain health insurance just because they 
may or may not one day seek medical care. So the fact that 
medical care is an inevitability--which it is not for everyone. 
But to the extent that it is likely, it does not mean 
insurance. A completely different product is an inevitability.
    Senator Hatch. Walter.
    Mr. Dellinger. Senator, my understanding is that the very 
first Congress required every adult free male to purchase and 
equip themselves with muskets, with ammunition, even certain 
forms of dress to carry the weapons and equipage with them. It 
is true that----
    Senator Hatch. But you have got to admit that the----
    Mr. Dellinger. That has been a long----
    Senator Hatch [continuing]. Provides guidance for that.
    Mr. Dellinger. It has been a long time since then. Yes, you 
can say when something has not been done before that it is 
novel or unprecedented, but no matter how much one italicizes 
those words, it does not amount to a constitutional argument. 
This is novel in the sense that Congress has decided to use a 
market approach, and it has used it with regard to the purchase 
of a commodity that truly is unlike others. There is nothing 
else in our economy where an individual who has made no 
preparation for the expense could go in and get a million 
dollars' worth of goods and services provided to them, the cost 
of which is passed on to others. There is nothing like that. So 
in that truly unique market, an incentive for people to make 
provision through insurance seems unremarkable.
    Senator Hatch. One reason I raised it is for the purpose of 
showing that it has never been done before, and I think there 
are good reasons why it has never been done before. But I have 
asked the distinguished Chairman if he would just let me make a 
couple more remarks. I have a lot of other things I would like 
to ask, but my time is up. If you will indulge me, I would 
appreciate that.
    You know, because no Commerce Clause cases involve Congress 
regulating decisions rather than an activities, that renders 
this case as a case of first impression, which is my point. 
ObamaCare backers cite mandates that derive from different 
enumerated powers. They argue, for example, as some of you have 
argued here--I have been very interested in these arguments--
that Congress has imposed mandates on individuals before such 
as jury service and military draft or Social Security. 
Professor Fried has made this argument. And simply because one 
provision of the Constitution allows Congress to require that 
someone do something cannot mean that the Commerce Clause 
allows the Congress to impose an individual insurance mandate.
    Jury duty, for example, as been mentioned, has multiple 
layers of exceptions that make it far less compulsory for most 
people. It is also ``necessary and proper'' in order to 
exercise Congress' power to establish lower courts and to 
implement the Sixth Amendment right to trial by an impartial 
jury.
    Congress may impose a military draft, which, again, has 
layers of exceptions, pursuant to enumerated powers to raise 
and support armies, and they can clothe them and ask them to 
have guns as well and maintain a navy.
    And the Social Security system, which has been raised here, 
is, unlike this insurance mandate, unequivocally an exercise of 
Congress' power to tax and spend for the general welfare. It is 
a completely different issue, as far as I am concerned.
    Now, each of these examples stands clearly within 
enumerated power. The insurance mandate does not. And I think, 
great scholars that you are, I think you have to admit that. If 
Congress could impose--now, that does not say that I am right 
and you are wrong, but it does make it more clear. If Congress 
could impose any mandate on an individual because it may impose 
a particular mandate on certain individuals, there would be no 
limits to federal power at all. And that is where I have a lot 
of difficulty here and have had a lot of difficulty as I have 
studied this matter.
    Now, I have got to say, I respect all of you, and I respect 
the differences in points of view. But for the life of me--
Professor Fried, I have a great regard for you, but I am really 
amazed at some of your arguments here today. Great man that you 
are. Now, I expected them from Walter Dellinger.
    [Laughter.]
    Mr. Dellinger. Thank goodness I have General Fried with me.
    Mr. Fried. It is wonderful not to lose one's power to 
surprise.
    [Laughter.]
    Senator Hatch. Well, you have never lost that power. I have 
to say that I probably agree with you much more on many other 
issues than I do here, but I have really enjoyed this. I really 
appreciate it. You have taken the time here. This is a very, 
very important issue.
    And, Walter, Professor Dellinger, I want you to at least 
realize that the liberal part of you should be protecting our 
rights, not necessarily broadening them in the sense of making 
us have to buy health insurance.
    Mr. Dellinger. Senator, just a brief comment. I think you 
make obviously a very good point that most legislation, State--
--
    Senator Hatch. I thought they were points.
    Mr. Dellinger. Well, you made one that I thought was----
    Senator Hatch. Okay, one.
    [Laughter.]
    Mr. Dellinger. And that is that most legislation, State and 
federal, prohibits individuals from doing things. But there has 
always been some legislation, State and federal, that imposes 
affirmative obligations.
    Senator Hatch. No question.
    Mr. Dellinger. That does not mean that--in that sense, it 
is unremarkable to impose affirmative obligations, though I 
think our----
    Senator Hatch. You can find those in the Constitution, is 
my point.
    Mr. Dellinger. I think I--well, but it is also true under--
it is the commerce power that Congress uses to build interstate 
highways and tells people that they have to move and take a 
check from the government. It is the commerce power that does 
that. So there are lots of affirmative obligations.
    Now, I think we should be very attentive. Affirmative 
obligations can be more intrusive, and, therefore, we have to 
take a careful look to make sure that they do not transcend any 
limits. This to me it seems easily does not.
    Senator Hatch. Well, I have transcended my limits, and I 
apologize to the distinguished Chairman, but I appreciate him 
giving me this little leeway because I have to leave, and I 
just want to thank each one of you for coming.
    Senator Durbin. Thanks very much, Senator Hatch.
    If any members of the panel would like us to take a break 
for a few minutes here before we proceed, just kind of give a 
high sign. Should we just keep----
    Mr. Fried. I need to get back to Boston if I possibly can, 
but that is a two o'clock train.
    Senator Durbin. Well, I swear that we will get you to the 
station on time.
    We are honored to have as a new Member of the Senate 
Judiciary Committee Senator Blumenthal of Connecticut, who is a 
former Attorney General of that State. Welcome, Senator 
Blumenthal. Please proceed.
    Senator Blumenthal. Thank you, Mr. Chairman, and thank you 
to the panel.
    I have to make clear at the very beginning I do not feel 
like I am back in law school. If law school had been this 
interesting and enlightening, I would have gone to more 
classes.
    [Laughter.]
    Senator Blumenthal. I just want to join Senator Hatch and 
other Members of the Committee in thanking you for spending the 
time with us today and giving us the benefit of some very 
important testimony.
    I want to say particularly to General Kroger that I 
appreciate your being here and your having the courage to do 
what you have done in declining to join what may be a popular 
stance in some quarters in challenging the lawsuit. I declined 
as Attorney General to join in that challenge, partly because 
this new Act actually saves money for many, many States, 
including Connecticut. It saves Connecticut some $53 million 
through September 2011 and perhaps does the same for Oregon and 
other States, but also because I believe that the lawsuit is 
without merit. And I think that the two opinions we have to the 
contrary from Judge Hudson and Judge Vinson show clearly that 
it is without merit, and partly because of this distinction 
made out of non-cloth, non-constitutional cloth, between 
inactivity and activity, which is nowhere present in any 
previous case of the United States Supreme Court, but also 
because I think they give very, very inadequate attention and 
weight to the doctrine that laws should be presumed 
constitutional.
    Judge Hudson, in effect, rejects the idea because of a 
footnote in City of Chicago v. Morales. Judge Vinson considers 
it almost not at all. In fact, he says that, as I recall, ``I 
can consider''--``I assume that I can consider the 
constitutionality instead of I presume that it is 
constitutional.''
    So I want to direct this question to you, General Kroger, 
and also perhaps to the other members of the panel. Aren't you 
troubled by the lack of weight given to this presumption, which 
is so fundamental to the work that you and other Attorneys 
General and the Attorney General of the United States does day 
in and day out in defending statutes against constitutional 
attack?
    Mr. Kroger. Senator, I would simply agree with you that the 
presumption of constitutionality is extraordinarily important, 
and that deference is shown to the democratically elected 
officials in the State to craft the right policy that will 
govern the country. And I think probably both of those could 
use greater emphasis in the decisions that go forward.
    Senator Blumenthal. And would you agree that one of the 
reasons that this presumption should have stronger and special 
weight in this case is that, in fact, the U.S. Congress, as 
Senator Leahy pointed out earlier, considered these 
constitutional issues in deliberating and debating this law? So 
it is not as if the courts have discovered this issue or the 
plaintiffs have discovered it. Congress considered it, and a 
co-equal branch of government is entitled to that respect.
    Mr. Kroger. Senator, I think ultimately, of course, it is 
the Court's province to declare whether the law is 
constitutional or unconstitutional, and as someone who appears 
in front of courts all the time, I would hate to in any way 
imply that they do not have that responsibility. But I do think 
closer attention to precedent would make a big difference in 
these cases going forward.
    Senator Blumenthal. Let me ask Mr. Carvin, and Professor 
Barnett perhaps, your views on this issue and whether you are 
not troubled by the overreaching--and I do not use that word 
lightly--the judicial overreaching that very plausibly could be 
seen in this disregard for the presumption of 
constitutionality.
    Mr. Carvin. I certainly think the presumption of 
constitutionality is important, and I think the Congress has 
very broad discretion in its Commerce Clause regulation. But I 
think the key thing to focus on both under the Necessary and 
Proper Clause and the Commerce Clause is Congress was given 
broad discretion in terms, broad means to achieve a legitimate 
end. This comes from McCulloch v. Maryland. And for reasons 
that I will not repeat, I think Congress is seeking to achieve 
an illegitimate end in this context.
    I would also caution that it is unfair to label activities 
which strike down laws as unfair judicial activism. Judicial 
activism to me is striking down a law that is constitutional 
because you think it is bad policy. I think it would be equally 
wrong to uphold a law that you believe is unconstitutional 
because you think it is good policy. In both instances, the 
judge is not doing what I think we all agree judges should do, 
is look at the law and not be influenced by the desirability of 
the policy.
    Mr. Barnett. Senator, I am confident that you are not 
impugning Judge Vinson's integrity in ruling the way he did, 
but I know people----
    Senator Blumenthal. Not at all.
    Mr. Barnett. I know you are not, but some people outside 
this room are. And in light of your question, I just want to 
point out that this very same Judge Vinson who held that the 
individual mandate was unconstitutional turned away the State 
AG's challenge to the Medicaid requirements under their 
interpretation of South Dakota v. Dole. That is the very same 
judge in the very same case upholding an act of Congress, 
although it, too, is being challenged by 26 Attorneys General 
while he--as he turns away their challenge. He upholds the law 
while he finds another part of the law unsatisfactory. I think 
that should be added to the record in defense of Judge Vinson's 
integrity in respecting a co-equal branch of government.
    Senator Blumenthal. Thank you very much.
    Thank you, Mr. Chairman.
    Senator Durbin. Thanks a lot. I am going to recognize 
Senator Sessions for the last Senator to ask in the first 
round. We will have a second round, but I have asked my 
colleagues if they have questions; let us do it in a shorter 
period of time and try our best to accommodate the schedules of 
our kind panel.
    Senator Sessions.
    Senator Sessions. Thank you.
    I would like to offer for the record the written testimony 
of Florida Attorney General Pam Bondi for this, and I also will 
be offering for the record a statement from Alabama's Attorney 
General Luther Strange, who would be also of the belief that--
both of them are of the belief that the Act is 
unconstitutional.
    [The statements appears as a submission for the record.]
    Senator Sessions. The U.S. Government is a government of 
limited powers. I mean, this is how it was created, and there 
are explicit grants of power to the Federal Government, and 
there are certain powers that were not given to the Federal 
Government. In recent years, there has been a feeling about in 
our country that the Federal Government can do anything it 
desires to do on any subject, and I think the rulings attacking 
this statute are refreshing to me in that it causes our Nation 
to once again enter into a discussion about what it means to be 
a government of limited powers.
    I would just suggest how far we have gotten from these 
issues when there are explicit constitutional provisions, the 
right to keep and bear arms, whereas we have four members of 
the Court who want to read that out of the Constitution. It has 
a specific provision that provides individuals the right to not 
have their property taken except for public use. It has 
specific provisions that allow free and robust debate and the 
ability to speak out in public forums. Those things are 
individual rights that our courts somehow have gotten to the 
point that they are not very important anymore. I think in 
those cases the State either won or almost won that would 
diminish individual rights as opposed to the State. So I just 
think this is a fundamental point that we ought to know.
    We did not have hearings in this Committee on the health 
care bill, the constitutionality of it. When people raised it 
on the floor of the Senate, as quite a number did, they were 
ignored for the most part, and it was dismissed out of hand. We 
also had a Congressman I saw on television basically saying, 
What has the Constitution got to do with this? You know, it was 
a disrespectful approach to the Constitution entirely. So 
Congress did not do such a good job, frankly. We did not 
seriously engage in a debate about whether this power was 
legitimately granted to the Federal Government.
    And, of course, the comment was made about States and the 
money. I would just note that my Governor, Governor Riley, has 
told me he is stunned by the economic impact that this health 
care bill would have on State budgets. It is a stunning thing. 
Senator Cornyn tells me that Texas expects a $27 billion hit on 
Medicaid requirements for the State under this. So it is huge.
    Mr. Carvin, if the courts were to allow the individual 
mandate to stand and thereby grant the Federal Government 
authority to compel private citizens to purchase goods or 
services to promote some broader government policy, can you 
identify any limiting principle that would prevent the 
government from mandating the purchase of anything or 
everything?
    Mr. Carvin. I cannot, and there have been a few efforts to 
try and identify them today. If Congress can require you to 
subsidize a corporation because of burdens the Federal 
Government has imposed on that corporation, I do not see any 
limit in terms of requiring you to purchase--I think everyone 
agrees--commercial goods, credit card contracts, cars, things 
like that.
    Mr. Dellinger, whom I greatly respect, has suggested that 
maybe there is some restriction in terms of requiring you to 
purchase health care because that involves personal autonomy. 
But I would think that most people would think that purchasing 
health insurance and deciding how you pay for it and what 
doctor you go to would implicate personal autonomy.
    I would also point out there is disagreement between my 
brother Dellinger and my brother Fried on this point. Professor 
Fried thinks that it is perfectly okay to require you to 
purchase a vaccination citing the Jacobson case, and Professor 
Dellinger apparently would think that would implicate the 
Liberty Clause.
    At the end of the day, all that can be agreed on in terms 
of a limiting principle is, well, Congress cannot do anything 
under the Commerce Clause that is unconstitutional. Well, 
Congress can never do anything that is unconstitutional, so it 
makes the limitations in the Commerce Clause utterly 
irrelevant, because all it means is they cannot violate the 
Bill of Rights. Well, that would be true if you gave to 
Congress absolute plenary power. They still could not violate 
the Bill of Rights.
    So I would argue that all of these so-called limiting 
principles are, A, very difficult to understand and, B, 
meaningless, particularly the one that suggests that, gee, 
health insurance is something you have got to buy and it is 
different than every other product. Well, I have got to buy 
food and transportation and housing and clothing every day, and 
I think people feel much more of a compulsion to buy those 
products than health insurance, particularly a healthy 27-year-
old who may well honestly, and quite rationally, think, I am 
not going to go to the doctor except rarely for the next 20 
years, and I can maybe make a much better deal for myself than 
being compelled into this, what everyone agrees is an 
extraordinarily overpriced health insurance market.
    Senator Sessions. Thank you. I believe that is a very 
important point. It basically says that at some level, if we 
eviscerate the logic of Commerce Clause, which, as I understand 
it, was designed to regulate commerce between States and 
fundamentally it has been broadened and broadened, but I do 
believe there is a limit to it.
    Mr. Carvin, I hear you make a reference to the judicial 
activism question. I believe the President said, or one of his 
spokespersons, that this judicial ruling was judicial activism. 
I strongly believe and have stated repeatedly that a decision 
that invalidates an act of Congress, if that act of Congress is 
unconstitutional, is not activism. Is that what you would 
agree?
    Mr. Carvin. I think everyone agrees that activism is 
striking down acts of Congress even though there is nothing in 
the Constitution that prevents it. If there is something in the 
Constitution that prevents it, then obviously you need to 
strike it down. No one on this panel is going to tell you it 
would be judicial activism that strikes down a law that denies 
women the vote, because we can all look at the Constitution and 
realize that that is blatantly unconstitutional. I think these 
labels are sometimes thrown around in a very pejorative manner 
that is unfair to judges that are trying to grapple with what 
at least I think everyone on the panel would agree is a very 
nuanced and difficult constitutional question.
    Mr. Fried. I agree with that.
    Senator Sessions. Thank you, Mr. Fried. Good to see you 
again.
    Thank you, Mr. Chairman. I am sorry to have been late. I 
have the Budget Committee and will have to return. Thank you.
    Senator Durbin. Thank you, Senator Sessions.
    I would like, if I could, to enter into the record the 
Congressional Record for December 23, 2009. In this section 
which I am entering, Senator Hutchison of Texas raised a 
constitutional point of order concerning the Affordable Care 
Act, and in stating her constitutional point of order, she said 
that she objected to it, believing it was unconstitutional 
because it violated the 10th Amendment, and she specifically 
referred to the mandate that it was impose on Texas to buy 
health insurance for teachers and employees. And it was then 
considered and voted on by the Senate on December 23, 2009, and 
the roll call vote was yes sustaining the point of order and 60 
votes against the point of order. So there was a constitutional 
question raised specifically on the floor during the course of 
the debate.
    [The information referred to appears as a submission for 
the record.]
    Senator Durbin. I would like to ask Professor Fried--the 
point raised by Senator Lee, the ``buy your vegetables, eat 
your vegetables'' point--I would like to ask you to comment on 
that, because that is the one I am hearing most often by people 
who are saying, Well, if the government can require me to buy 
health insurance, can it require me to have a membership at a 
gym or eat vegetables? We have heard from Professor Dellinger 
on that point. Would you like to comment?
    Mr. Fried. Yes. We hear that point quite a lot. It was put 
by Judge Vinson, and I think it was put by Professor Barnett in 
terms of eating your vegetables. And for reasons I set out in 
my testimony, it would be a violation of the Fifth and the 14th 
Amendment to force you to eat something. But to force you to 
pay for something--I do not see why not. It may not be a good 
idea. I do not see why it is unconstitutional.
    I suppose that under the food stamp program there are all 
kinds of regulations which distinguish between healthy and 
unhealthy foods, and if there are not, perhaps there ought to 
be. And in any case, if there were, it would not be 
unconstitutional. And that is a situation where you are going 
to get your money only to buy your broccoli. That is all we are 
going to give you money for.
    Now, you can say, well, you do not need food stamps. A lot 
of people do not need food stamps. But some people do. And 
those kinds of mandates, I think, are all over the law. The 
mandate that you eat your vegetables, that you go to the gym, I 
would be willing to--I would love to argue that case, the 
unconstitutionality of that, before any court in the country 
and up to the Supreme Court, but on liberty grounds.
    Senator Durbin. Professor Barnett, my last question relates 
to a section of your testimony which may be taken out of 
context or misconstrued, and I want to give you an opportunity 
to clarify it.
    When you close your testimony, you make reference to 
McCulloch v. Maryland and the national bank and the decision by 
President Jackson that he viewed the bank as unnecessary, 
improper, unconstitutional. And you say in your concluding 
second-to-last paragraph, ``In short, just because the Supreme 
Court defers to you does not mean the Constitution lets you do 
anything you like.''
    I want to make sure I understand and give you an 
opportunity to state. If the law of the land is a Supreme Court 
decision, whether I agree with it or not, whether I think it is 
constitutional or not, it is, in fact, the law of the land and 
I have to follow it, correct?
    Mr. Barnett. Absolutely. May I expand just a bit?
    Senator Durbin. Sure, of course.
    Mr. Barnett. The point I am trying to make and that I think 
is really important is that much of Supreme Court doctrine, 
getting back to Senator Blumenthal's question, involves a 
presumption of constitutionality in which they defer to the 
Congress' judgment upon the scope of its own powers. And 
President Jackson is saying, if the Court is going to defer to 
us, if that is what McCulloch v. Maryland stands for--which he 
is commenting on that specific case--then it is incumbent upon 
us to independently assess whether we think something is 
unnecessary, improper, and also unconstitutional. So he thought 
he was respecting the Supreme Court decision in McCulloch v. 
Maryland by holding the act unconstitutional, the bank, which 
the Supreme Court had itself found to be constitutional.
    Senator Durbin. But the law of the land until the President 
acted was clear. The decision of the Court was controlling. 
Whether I happen to agree with it as an individual citizen----
    Mr. Barnett. You are absolutely right, Senator, and nothing 
in that statement was meant to imply anything to the contrary. 
I appreciate the opportunity to clarify that.
    Mr. Fried. May I add to that, Senator?
    Senator Durbin. Of course.
    Mr. Fried. I think there is a great difference between the 
Congress deliberately passing a statute which the Court said 
violates the Constitution and refusing to pass a statute which 
the Congress thinks is unconstitutional even though the Court 
has said it is not unconstitutional. I think there is a big 
difference between those two things, and I think that is what 
President Jackson was talking about. And I think that the 
renowned citizen of Illinois, Abraham Lincoln, made much the 
same point in his debates in respect to Dred Scott.
    So there is a difference, and I think Professor Barnett is 
dead right about that. You have an independent judgment. You 
have no leeway to violate what the Court has said violates the 
Constitution. But you are not bound to say that if they say it 
is constitutional, I guess it must be. No, I think he is right 
about that.
    Mr. Dellinger. Can I add, Senator, that I also agree that 
he is clearly right that Members of Congress have an 
independent obligation to make constitutional decisions. I 
would just like to clarify a point where I think Charles Fried 
and I may differ.
    We both agree that one can easily dismiss hypotheticals 
about laws requiring you to go to the gym or eat broccoli 
because they implicate liberty interests that are invalid.
    With respect to incentives to buy commercial products, I 
think I disagree or may disagree that I think the Court need 
not go anywhere near having to hold that it would be acceptable 
to require people to buy commercial products outside the well-
defined context that presents itself here where virtually 
everyone has no choice but to participate in the health care 
market, where $45 billion is transferred from people who are 
underinsured to others, where 94 percent of the long-term 
uninsured have actually accessed that health care market, and 
where Congress is curing a dysfunction. Those elements are 
unlikely ever to be presented again, and, therefore, I think 
that this unremarkable financial incentive to have insurance is 
not going to be a predicate for a parade of horribles marching 
through the city of Washington.
    Senator Durbin. Thank you.
    Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman.
    I had a chance to ask Professor Fried and Professor 
Dellinger about this, but I would like to give Mr. Carvin and 
Professor Barnett a shot at it. I asked about Professor 
Turley's comment that if the Supreme Court upholds the 
individual mandate, it is hard to see what is left of 
federalism. And let me ask you to consider this in your answers 
as well.
    It sounds to me like Professor Fried is arguing there are 
no limits on Congress' power to require an individual to buy 
insurance. And the argument, it sounds like, the distinction--
and I may be missing something--with regard to broccoli and 
other leafy vegetables is you cannot require them to eat it. 
But you might be able to require them to buy it under the 
Commerce Clause.
    So I would just like to ask Professor Barnett and Mr. 
Carvin to consider this: The health care costs imposed by 
diabetes, which is really a ticking time bomb in terms of our 
health care costs and especially children who are obese and 
because they get seriously ill and have a premature end to 
their lives, some of them, as a result, I do not really 
understand how if you concede that requiring the purchase of 
health insurance because of the costs on taxpayers of 
uncompensated care, how that is different if you look at the 
costs of diabetes and what that imposes on taxpayers, and why, 
if you say, well, you can require them to buy insurance, you 
cannot say, well, you are required to buy a gym membership, you 
are required to buy fruits and vegetables. It sounds to me like 
they are saying you cannot make them eat them, but you can 
require them to buy them. That sounds very strange to me. Would 
you care to respond, please?
    Mr. Carvin. I think everyone agrees that the skyrocketing 
health care costs are more attributable to the rising costs of 
health care than these distortions in the insurance market that 
have been talked about. So if you want to reduce health care 
costs, not only would it be appropriate if the Court upholds 
this; it would attack the problem much more directly. Your 
diabetes example is an excellent one. I assume even Walter 
would agree that they could require you to attend smoking 
cessation programs if you are a smoker and all these other 
kinds of unhealthy habits. I cannot imagine why they could not 
go at it.
    And then to respond to Walter's larger point that this is 
some unique system--and to Senator Franken's point that, look, 
we have so regulated and subsidized this market, these people 
who decide to live their own lives are really becoming these 
sorts of free riders, means that you will always have an excuse 
to force people to engage in purchasing insurance the more that 
the government has regulated the particular area. That was the 
point that Judge Vinson made yesterday. It has this very 
perverse bootstrapping effect that the more the Federal 
Government encroaches on markets in local areas, then it gives 
them a greater power under the Commerce Clause to get at all 
these people who are so-called free riders because of this 
subsidy issue. So it literally builds on itself such that the 
distinction between local and national is quite literally 
obliterated.
    Senator Cornyn. Professor Barnett.
    Mr. Barnett. First, as to Professor Turley's point about it 
would be the end of federalism, whether or not it would be the 
end of federalism, it would be the functional end of the 
enumerated powers scheme that is one of the central features of 
federalism. Federalism is based not only on States having 
independent rights or powers, but it is based on Congress 
having limited and enumerated powers. And if, after this, there 
is not justiciable limit on Congress' power, then that part of 
the constitutional scheme is gone, and the Supreme Court has 
said repeatedly that that is an essential part--that any ruling 
that would lead to that outcome cannot be a correct ruling. 
That is a reductio ad absurdum of any argument that would lead 
to that outcome.
    And the only other point I would make is that, you know, I 
think Professor Fried in his testimony and again today, he has 
basically conceded the basic claim that if Congress can make 
you buy this, then they can make you buy anything. Now, he has 
not conceded the claim that they can make you eat anything that 
you buy. But in his testimony, he says--and he affirmed it 
again today--that they can make you buy a gym membership. They 
cannot make you go to the gym.
    Well, that may not be everything because they cannot make 
you go to the gym, but it is a whole heck of a lot, and I think 
that people would really be surprised that Congress--that there 
is nothing improper under the Commerce Clause--that the--let me 
get back to first principles here: that the power of Congress 
to regulate commerce among the several States that takes place 
between one State and another goes all the way down to make 
you, the individual person, buy a gym membership at your gym, 
that that includes that power. That is a stretch, and that is a 
stretch that would end the doctrine of enumerated powers.
    Senator Cornyn. If I may ask one more question, then I 
would be glad to have other witnesses who want to respond 
subject to the Chairman's time limits here. I just want to ask 
one specific question, Mr. Carvin, because you have talked 
about the police power and the power of the States relative to 
the Federal Government. I think some people are confused by the 
fact that States like my State require an individual who drives 
to buy liability insurance and why there is a different 
argument when it comes to the power of the Federal Government. 
Would you care to respond to that?
    Mr. Carvin. Right. Obviously, the States can play a 
relatively paternalistic role in protecting the health and 
welfare of others. I am not an expert on the car insurance 
laws, but I think even there they are not requiring you to 
insure yourself. They are requiring you to have insurance if 
you run into somebody else. But presumably the States, unlike 
the Federal Government, might require you insure yourselves 
like they can require you to wear a motorcycle helmet. But I do 
not think anyone would think that that is part of the commerce 
power, but I may be wrong even on that.
    And the other two obvious points are that it is a condition 
of access to the highways as well. Again, it does not get at 
somebody sitting in their home, which distinguishes it from 
this, and Randy----
    Mr. Barnett. Yes. No State requires you to buy a car and 
operate a car. Only if you choose to buy and operate a car do 
you have to buy insurance. And, in fact, I do not think there 
are any States that require you to buy insurance if you only 
operate a car on private property and do not go out into the 
public highways.
    So this gets back to an earlier line of questioning. It is 
absolutely garden variety regulation to tell you, to tell a 
citizen that if you are going to do something, here is how you 
have to do it. That is just something that the government does. 
And that is a fundamentally different proposition than telling 
the citizen they must do this thing--not if they are going to 
do it, here is how you do it, but they must do the thing 
itself. And that is the line that this bill crosses that 
Congress under the commerce power has never crossed before.
    Senator Cornyn. Professor Dellinger, I know you want to 
respond.
    Mr. Dellinger. I do. I want to say two things.
    One, it is similar to automobile liability insurance in the 
following sense: If you are going to drive, the States say you 
have to have liability insurance. And here it says if you are 
going to use health care, you need to have health care 
insurance. And since this is a product which everyone will use 
or at least no one can be assured that they will not wind up at 
the hospital, in that sense it seems quite similar. I may say I 
am never going to use a flat screen TV, and you hold it to me, 
you do not have to buy me one.
    Now, I do not agree with Michael Carvin's suggestion that, 
in my view, upholding this legislation would mean that it would 
be constitutional for Congress to require anything that would 
reduce the national health bill like exercise or smoking 
cessation. What is different about this is that it is a 
regulation, as Charles Fried noted, that since 1944 the Court 
has clearly held the regulation itself is of the commercial 
transaction of purchasing health insurance. And I think that 
distinguishes it from all other of the hypotheticals.
    Senator Cornyn. Mr. Dellinger, Professor Dellinger, the 
only point I was trying to make--and perhaps I did not make it 
very well--is that the power of the State to legislate is quite 
broad under the police powers because of anything having to do 
with health, safety, and welfare. But that is not to say, just 
because a State can legislate on an issue, that the Federal 
Government cannot because of the doctrine of federalism that we 
have talked about, the 10th Amendment, and the power of the 
Federal Government is different than the power of the State 
government.
    Mr. Dellinger. I wholly agree, and I think there is nothing 
in the defense of the Constitution under this bill that calls 
into question decisions like United States v. Morrison and 
United States v. Lopez where the Supreme Court held that when 
Congress tries to regulate crime, local crime, because of its 
supposed effects on commerce, that the Court will draw a line 
there because it is a regulation of matters that are local and 
non-economic. Here is a regulation that is part and parcel of 
national economic regulation and, therefore, does, I think, 
call into question those limits.
    Senator Durbin. Thank you, Senator.
    Senator Blumenthal, you have the last question.
    Senator Blumenthal. Yes, thank you again. I will resolve to 
ask this question very simply, and it may be sort of a follow-
up to Senator Cornyn's excellent line of questioning. Tax or 
penalty. A lot of discussion outside this room, almost none 
here that I can recall. Is it a tax or a penalty? Does it make 
a difference? And maybe it makes no difference, and, therefore, 
we do not----
    Mr. Fried. Well, if the Congress had frankly enacted a tax 
on everybody which they would then remit to those people who 
bought private health insurance, it is hard for me to imagine 
that we would be having this discussion. But Congress did not 
so enact. It did not do so for political reasons. It did not 
want to have this viewed as a tax. And I think they are now 
paying the price in the fact that they have got to confront 
this discussion.
    But it was not, for better or worse, put as a tax, although 
the penalty is something that is collected by the Internal 
Revenue Service, I believe. But it is not viewed--it was not 
enacted as a tax, because if it had been, as Senator Cornyn 
pointed out, the power to tax for the general welfare and spend 
for the general welfare is pretty plenary. But that is not how 
Congress chose to enact this, so it has left us with this 
debate that we are having.
    Senator Durbin. Professor Barnett, last word.
    Mr. Barnett. I do want to agree with the other thing that 
Professor Fried just said about that. That is my assessment as 
well.
    The only thing I would add to it is that if you actually 
try to justify what was done as a tax, then essentially it 
does--here is the sense in which, Senator, it does not matter 
because, again, it would be an unprecedented proposition that 
Congress can require American citizens to do whatever it 
chooses to require, and then enact a monetary penalty under its 
tax power to penalize them for not doing that. That is really 
no different than the debate we just had two hours about 
whether this exceeds Congress' power or not. In other words, 
whether you call a fine a tax or a fine, it would still give 
Congress the unlimited power to order and command that citizens 
do anything, and that has never been done before. The tax power 
has never been used for that before. So that is the only thing 
I would add to what Professor Fried has said.
    Mr. Dellinger. Senator Blumenthal, it is relevant in the 
following sense: There is a misimpression out there that under 
this law, I think. Federal agents arrive in black helicopters, 
dressed in fully equipped armed Ninja costumes, kick down your 
bedroom door, and drag you off at the point of bayonets to an 
insurance agency. In fact, all that happens is that for those 
who are not otherwise exempted and when they are filling out 
their federal income tax return, if you are not maintaining 
minimum coverage, you have to pay an additional 2.5 percent, 
much less than Social Security. That is all that happens. So in 
that sense, this great intrusion on liberty does not approach 
any slippery slope or exceed any understood limits in our legal 
culture.
    Senator Durbin. Thank you very much to the panel that has 
joined us. I think this has been an excellent hearing. 
Professor Dellinger, Professor Barnett, Mr. Carvin, Professor 
Fried, and Attorney General Kroger, it is an honor that you all 
joined us for this important consideration of this major 
legislation. Many organizations have submitted testimony, and 
it will be added to the record: the California Attorney General 
Kamala Harris, AARP, a hundred legal scholars who happen to 
agree with the constitutionality of the Act, the Small Business 
Majority, Constitution Action Center, the National Senior 
Citizens Law Center, and the Center for American Progress 
Action Fund, and without objection, they will be placed in the 
record.
    [The statements appears as a submission for the record.]
    Senator Durbin. I would just say that it is possible that 
written questions may come your way in the next week or two, 
which I hope you would respond to in a timely fashion. It would 
be greatly appreciated.
    Again, thank you all very much. This hearing stands 
adjourned----
    Mr. Fried. Senator, as a citizen, not a subject, may I say 
that what the Senate has shown and this Committee has shown is 
our government at its best. And it was a privilege to 
participate in it.
    Senator Durbin. And you can make your train.
    [Laughter.]
    Senator Durbin. Thank you.
    [Whereupon, at 12:41 p.m., the Committee was adjourned.]






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