[Congressional Record Volume 156, Number 47 (Wednesday, March 24, 2010)]
[Senate]
[Pages S2012-S2015]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               PATIENT PROTECTION AND AFFORDABLE CARE ACT

  Mr. LEVIN. Mr. President, I am pleased that the President signed into 
law today the Patient Protection and Affordable Care Act. This bill 
included a provision that would extend Medicare wage index 
reclassifications for hospitals across more than half of the United 
States, including several in my home State.
  The Medicare Modernization Act of 2003 included section 508 which 
reclassified many hospitals' Medicare wage index to appropriately 
reflect the wage index of their area. This provision ensures that 
hospitals are able to compete fairly in that area's labor market. Since 
the MMA was enacted, section 508 has been extended numerous times. Many 
hospitals, including some in Michigan, were left out of these 
subsequent extensions. Consequently, those hospitals, originally 
included in section 508, required technical corrections so they could 
continue to be reclassified along with the other original hospitals 
included in section 508. This is something that we have done in 
previous years and is nothing new. These technical fixes just ensure 
that the original intent of section 508 is maintained.
  Mr. LEAHY. Mr. President, earlier this week, we saw what I have 
called the dawn of a new day of hope for tens of millions of Americans 
who have fallen through the cracks--or who worry with good reason that 
they may fall through the cracks--of our broken health insurance 
system. The signing into law of comprehensive health insurance reform 
by President Barack Obama ranks with the creation of Social Security 
and Medicare as a defining moment and legislative achievement.
  Congress and Presidents from both parties tried to reform the health 
insurance system for decades. Through an arduous process over the last 
year, America rose to meet one of its foremost challenges. This effort 
prevailed through the grueling gauntlet of obstructionism erected by 
defenders of

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the status quo. It took a year of debate, the work of numerous 
committees and both Chambers of Congress to enact health insurance 
reform and to begin to get a handle on costs by having Americans 
covered by health insurance.
  Now that comprehensive health insurance reform is the law of the 
land, the Senate is already working on improvements to this 
legislation. These include making coverage more affordable and creating 
a more equitable distribution of Medicaid reimbursements to States like 
Vermont that acted early and correctly on reform.
  Some are still in denial, and continue to resist the path to reform. 
Some in the Senate resist improvements to the aspects of the new law 
that they had previously criticized. They appear intent on voting 
against improvements and, in effect, in favor of the aspects of the law 
they had said raised concerns. Some opponents of reform continue to 
distort what this reform really means, and continue their misleading 
arguments and spurious attacks. Some appear to see political gain in 
trying to attack health care reform with lawsuits. This is an effort to 
have judges override the legislative decisions of Congress, the elected 
representatives of the American people. This is an effort to repeal 
through the courts what they cannot do in Congress. Regardless, health 
insurance reform is the law of the land.
  Every member of Congress takes an oath of office. Ours is to 
``support and defend the Constitution of the United States.'' I take 
this oath very seriously and always have. We took it seriously during 
the many months of open and public debate of the Patient Protection and 
Affordable Care Act last year. During Senate debate last December, as 
chairman of the Senate Judiciary Committee, I responded to arguments 
about the constitutionality of the bill's requirement that individuals 
purchase health insurance. During that debate, the Senate rejected a 
purported constitutional point of order raised by Republicans claiming 
that the individual responsibility requirement was unconstitutional. 
The Senate's judgment and mine were that the act was constitutional.
  This week the President signed the measure into law. This President 
has studied the Constitution. He has served in the Senate. He has 
taught classes on constitutional law. The oath he took when he became 
President of the United States of America is provided in the 
Constitution. He swore that he would to the best of his ability 
``preserve, protect and defend the Constitution of the United States.'' 
I know President Obama and know that he takes his oath seriously. I 
know that when he signed the Patient Protection and Affordable Care Act 
into law, he understood it to be consistent with the Constitution.
  Despite the overheated rhetoric from opponents, the authority of 
Congress to act is well-established by the text and the spirit of the 
Constitution, by prior acts of Congress like Social Security and 
Medicare, by longstanding precedent established by our courts, and by 
the history of American democracy. These were arguments considered and 
rejected in congressional committees. They were arguments expressly 
considered by the Senate. Indeed the findings adopted and contained in 
the law itself are that the individual responsibility requirement is 
commercial and economic in nature, has a substantial effect on 
interstate commerce and is ``essential to creating effective health 
insurance markets.'' That is the congressional judgment.
  Ironically, the so-called individual mandate has long been a 
Republican proposal. The individual mandate was supported by the senior 
Senator from Arizona, Mr. McCain, when they opposed health care reform 
efforts during the Clinton administration. It was a part of the health 
care reform effort in Massachusetts supported by former Governor Mitt 
Romney, a Republican.
  This individual mandate did not originate with President Obama. In 
fact, when President Obama was a candidate, as a matter of policy he 
did not support the individual mandate requirement as part of his 
initial comprehensive health reform proposal. It was one of the 
hundreds of Republican health care reform ideas he came to support and 
that were included in the law as the bill was drafted, developed, 
debated and passed. Now that the law is enacted, some Republicans have 
changed their tune in order to undercut these reforms by suggesting 
that it is unconstitutional.
  Although the legislative record supports the constitutionality of the 
individual mandate, and expert after expert maintain that there is no 
question about congressional authority, I, again, recall what I set 
forth last December when the Senate considered this issue, made its 
findings and reached its determination.
  The Constitution of the United States begins with a preamble that 
sets forth the purposes for which ``We the People of the United 
States'' ordained and established it. Among the six purposes set forth 
by the Founders was that the Constitution was established to ``promote 
the general Welfare.'' It is hard to imagine an issue more fundamental 
to the general welfare of all Americans than their health.
  The authority and responsibility for taking actions to further this 
purpose is vested in Congress by article I of the Constitution. In 
particular article I, section 8, sets forth several of the core powers 
of Congress, including the ``general welfare clause,'' the ``commerce 
clause'' and the ``necessary and proper clause.'' These clauses form 
the basis for Congress's power, and include authority to reform health 
care by containing spiraling costs and ensuring its availability for 
all Americans.
  Any serious questions about congressional power to take comprehensive 
action to build and secure the social safety net have been settled over 
the past century. According to article I, section 8: ``The Congress 
shall have Power To lay and collect Taxes, Duties, Imposts and Excises, 
to pay the Debts and provide for the common Defense and general Welfare 
of the United States.'' This clause has been the basis for actions by 
Congress to provide for Americans' social and economic security by 
passing Social Security, Medicare and Medicaid. Those landmark laws 
provide the well-established foundation on which Congress builds with 
the Patient Protection and Affordable Care Act.
  As noted by Tom Schaller, enforcing the individual mandate 
requirement by a tax penalty is far from unprecedented, despite the 
claims of critics. Individuals pay for Social Security and Medicare, 
for example, by payroll taxes collected under the Federal Insurance 
Contributions Act, FICA. These FICA payments are typically collected as 
deductions and noted on Americans' paychecks every month. As Professor 
Schaller recently wrote: ``These are the two biggest government-
sponsored insurance programs administered by the [Federal Government], 
and two of the largest line items in the federal budget. These paycheck 
deductions are not optional, and for all but the self-employed they are 
taken out immediately.'' The individual mandate requirement in the 
Patient Protection and Affordable Care Act is hardly revolutionary when 
viewed against the background of Social Security and Medicare that have 
long required individual payments.
  Congress has woven America's social safety net over the last three 
score and 12 years. Congress's authority to use its judgment to promote 
the general welfare cannot now be in doubt. America and all Americans 
are the better for it. Growing old no longer means growing poor. Being 
older or poor no longer means being without medical care. These 
developments are all due to congressional action.
  The Supreme Court settled the debate on the constitutionality of 
Social Security more than 70 years ago in three 1937 decisions. In one 
of those decisions, Helvering v. Davis, Justice Cardozo wrote that the 
discretion to determine whether a matter impacts the general welfare 
``is not confided in the courts'' but falls ``within the wide range of 
discretion permitted to the Congress.'' Turning then to the ``nation-
wide calamity that began in 1929'' of unemployment spreading from state 
to state throughout the Nation, leaving older Americans without jobs 
and security, Justice Cardozo wrote of the Social Security Act: ``The 
hope behind this statute is to save men and women from the rigors of 
the poor house as well as from the haunting fear that such a lot awaits 
them when journey's end is near.''
  The Supreme Court reached its decisions upholding Social Security 
after the first Justice Roberts--Justice

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Owen Roberts in the exercise of good judgment and judicial restraint 
began voting to uphold the key New Deal legislation. He was not alone. 
It was Chief Justice Hughes who wrote the Supreme Court's opinion in 
West Coast Hotel v. Parrish upholding minimum wage requirements as 
reasonable regulation. The Supreme Court also upheld a Federal farm 
bankruptcy law, railroad labor legislation, a regulatory tax on 
firearms and the Wagner Act on labor relations in National Labor 
Relations Board v. Jones & Laughlin Steel Corporation. The Supreme 
Court abandoned its judicially-created veto over congressional action 
with which it disagreed on policy grounds and rightfully deferred to 
Congress's constitutional authority.
  These Supreme Court decisions and the principles underlying them are 
not in question. As Dean Erwin Chemerinsky of the University of 
California Irvine School of Law wrote in an op-ed in the Los Angeles 
Times: ``Congress has broad power to tax and spend for the general 
welfare. In the last 70 years, no federal taxing or spending program 
has been declared to exceed the scope of Congress' power. The ability 
in particular of Congress to tax people to spend money for health 
coverage has been long established with programs such as Medicare and 
Medicaid.'' I included this article in the Congressional Record in 
December.
  The opponents of health insurance reform are now going so far as to 
call into question the constitutionality of America's established 
social safety net. They would leave American workers without the 
protections their lifetime of hard work have earned them. They would 
turn back the clock to the hardships of the Great Depression, and 
thrust modern American back into the conditions of Dickens' novels. 
That path should be rejected again now, just as it was when another 
inspiring President led the effort to confront the economic challenges 
facing Americans 70 years ago. To strike down principles that have been 
settled for nearly three-quarters of a century would be wrong and 
damaging to the Nation, and would stand the Constitution on its head.
  For the past year we debated whether or not to pass health insurance 
reform. Before passing the law, we debated whether to control costs by 
having all Americans be covered by health insurance. We considered 
untold numbers of amendments in committees and before the Senate. That 
is what Congress is supposed to do. We consider legislation, debate it, 
vote on it and act in our best collective judgment to promote the 
general welfare. Some Senators agreed and some disagreed, but it was a 
matter decided by the full Senate. In fact, due to Republican 
obstruction, it took an extraordinary majority of 60 Senators, not a 
simple majority of 51, for the Senate's will to be done.
  The fact that Senate Republicans disagree with the majority's effort 
to help hardworking Americans obtain access to affordable health care 
does not make it unconstitutional. Nor does the fact that some 
partisans seek to make political gains by attacking the health care 
reform we have passed. As Justice Cardozo wrote in upholding Social 
Security: ``[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. Justice 
Cardozo understood the separation of powers enshrined in the 
Constitution and the Supreme Court's precedent.
  As Chief Justice Marshall wrote in his landmark decision in McCulloch 
v. Maryland: ``Let the end be legitimate, let it be within the scope of 
the Constitution, and all means which are appropriate, which are 
plainly adopted to that end, which are not prohibited, but consistent 
with the letter and spirit of the Constitution, are constitutional.'' 
In 1803, our greatest Chief Justice, John Marshall, upheld the 
constitutionality of the Judiciary Act in Stuart v. Laird, and noted 
that ``there are no words in the Constitution to prohibit or restrain 
the exercise of legislation power.'' That is true here, where Congress 
acted to provide for the general welfare of all Americans.
  I believe that Congress was right when it decided that the problems 
of the lack of availability and affordability of health care and of 
health insurance and the rising health care costs that burden the 
American people, is a problem, ``plainly national in area and 
dimensions,'' as Justice Cardozo wrote of the widespread crisis of 
unemployment and insecurity during the Great Depression. I believe that 
it was right for Congress to determine that it is in the general 
welfare of the Nation to ensure that all Americans have access to 
affordable quality health care. But whether other Senators agree or 
disagree with me, none should argue that we should turn back to clock 
to the Great Depression when conservative activist judges prevented 
Congress from exercising its powers to make that determination.
  In seeking to discredit health insurance reform, the other side 
relies on a resurrection of long-discredited legal doctrines used by 
courts a century ago to tie Congress's hands by substituting their own 
views of property to strike down laws such as those guaranteeing a 
minimum wage and outlawing child labor. They have to rely on such cases 
of unbridled conservative judicial activism as Lochner v. New York, 
Shechter Poultry Corporation v. United States, Reagan v. Farmers Loan 
and Trust and the infamous Dred Scott case. Those dark days are long 
gone and better left behind. The Constitution, Supreme Court precedent, 
our history and congressional action all stand on the side of 
Congress's authority to enact health insurance reform legislation.
  Under article I, section 8, Congress has the power ``to regulate 
Commerce with foreign Nations, and among the several States.'' Since at 
least the time of the Great Depression and the New Deal, Congress has 
been understood and acknowledged by the Supreme Court to have power 
pursuant to the commerce clause to regulate matters with a substantial 
effect on interstate commerce. The Supreme Court has long since upheld 
laws like the Fair Labor Standards Act against commerce clause 
challenges, ruling that Congress had the authority to outlaw child 
labor. The days when women and children could not be protected, when 
the public could not be protected from sick chickens infecting them, 
when farmers could not be protected and when any regulation that did 
not guarantee profits to corporations would be voided by the judiciary 
are long past. The reach of Congress' commerce clause authority has 
been long established and well settled.
  Even recent decisions by a Supreme Court dominated by Republican-
appointed justices have affirmed this rule of law. In 2005, the Supreme 
Court ruled in Gonzales v. Raich that Congress had the power under the 
commerce clause to prohibit the use of medical marijuana even though it 
was grown and consumed at home, because of its impact on the national 
market for marijuana. Surely if that law passes constitutional muster, 
Congress' actions to regulate the health care market that makes up one-
sixth of the American economy meets the test of substantially affecting 
commerce. Conservatives cannot have it both ways. Nor can they ignore 
the settled meaning of the Constitution as well as the authority of the 
American people's elected representatives in Congress.
  The regulation of health insurance clearly meets the test from Raich, 
since the activities ``taken in the aggregate, substantially affect 
interstate commerce.'' In fact, when the Senate considered the health 
insurance reform bill in December, it adopted a set of findings related 
to the impact of the individual mandate on interstate commerce. Among 
those findings, now the law, were that ``health insurance and health 
care services are a significant part of the national economy,'' that 
the individual ``requirement regulates activity that is commercial and 
economic in nature: economic and financial decisions about how and when 
health care is paid for, and when health insurance is purchased'' and 
that the ``requirement is essential to creating effective health 
insurance markets.''
  These findings demonstrate that Congress took into account the 
significant cumulative economic effects on the Nation of the rising 
costs of health care, with those costs making up a large percentage of 
our economy and with American businesses struggling to provide benefits 
to their employees. As set forth in a paper by Georgetown University 
and the O'Neill Institute for National and Global Health Law, which I 
discussed in December, the requirement for individuals to purchase 
health

[[Page S2015]]

insurance would address the problem of free riders, millions of 
Americans who refuse to buy health insurance and then rely on expensive 
emergency health care when faced with medical problems. This shifts the 
costs of their health care to people who do have insurance, which in 
turn has a significant effect on the costs of insurance premiums for 
covered Americans and on the economy as a whole. A requirement that all 
Americans have health insurance--like requirements to pay FICA--is 
within congressional power if Congress determines it to be essential to 
controlling spiraling health care costs. In passing health care reform, 
Congress determined that requiring that all Americans to have health 
insurance coverage, and preventing some from depending on expensive 
emergency services in place of regular health care, can and will help 
reduce the cost of health insurance premiums for those who already have 
insurance.
  Addressing these problems is at the core of Congress's powers under 
the commerce clause. In fact, the Supreme Court expressly addressed 
this issue 65 years ago, ruling in 1944 that insurance was interstate 
commerce and subject to Federal regulation. Congress responded to this 
decision in 1945 with the McCarran-Ferguson Act, which gave insurance 
companies an exemption from antitrust laws unless Federal regulation 
was made explicit under Federal law. It is the immunity from Federal 
antitrust law enacted in McCarran-Ferguson that I have been working to 
overcome with the Health Insurance Industry Antitrust Enforcement Act 
of 2009. My proposal would repeal health insurance companies' 
antiquated exemption from the antitrust laws. These are the pro-
competition rules that apply to virtually all other businesses, to help 
promote vibrant markets and consumer choice. Competition and choice 
help lower costs, expand access and improve quality.
  I launched this effort last fall, built a hearing record to examine 
its merits and worked to build bipartisan support. House leaders late 
last year added it to their plan. And last month it became the first 
stand-alone part of the health reform package to pass on its own, in a 
strong bipartisan vote of 406 to 19 in the House. To me this is the 
latest proof that, appearances aside, there is much common ground in 
the health reform plan--more than partisan opponents or the insurance 
industry would have the public believe.
  Why would this exemption have been necessary if insurance was not 
interstate commerce? I strongly believe that the exemption in McCarran-
Ferguson is wrongheaded. But would anyone seriously contend that it is 
unconstitutional? Of course not.
  Now that we have enacted the Patient Protection and Affordable Care 
Act, I hope we will soon turn to this reform by taking up and passing 
the House-passed bill. We should end the health insurance exemption 
from our precompetitive Federal antitrust laws without delay.
  The Constitution contains in article I, section 8, the necessary and 
proper clause. That, too, provides a basis for congressional action. 
This clause gives Congress the power ``to make all Laws which shall be 
necessary and proper for carrying into Execution the foregoing Powers 
and all other Powers vested by his Constitution in the United States.'' 
The Supreme Court settled the meaning of the necessary and proper 
clause 190 years ago in Justice Marshall's landmark decision in 
McCullough v. Maryland, during the dispute over the National Bank. 
Justice Marshall's wrote that ``the clause is placed among the powers 
of Congress, not among the limitations on those powers.'' The necessary 
and proper clause goes hand in hand with the commerce clause to ensure 
congressional authority to regulate activity with a significant 
economic impact.
  Congress has enacted and the President has signed into law the 
Patient Protection and Affordable Care Act. This landmark legislation 
addresses our health care crisis and helps provide health care 
insurance for millions of Americans previously uninsured and seeks to 
encourage lower costs for Americans who are insured. We have acted to 
ensure that Americans not risk bankruptcy and disaster with every 
illness. Americans who work hard their entire lives should not be 
robbed of their family's security because health care is too expensive. 
Americans should not lose their life savings because they have the 
misfortune of losing a job or getting sick. That is not America.
  One of the great American successes of the last century was the 
establishment of a social safety net of which all Americans can be 
grateful and proud. Through Social Security, Medicare and Medicaid, 
Congress established some of the cornerstones of American economic 
security. Comprehensive health insurance reform has now joined them. 
Congress has acted within its constitutional authority to legislate for 
the general welfare of all Americans. No conservative activist court, 
on any level, should overstep the judiciary's role by seeking to turn 
back the clock and deny a century of progress.

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