[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
[[Page S2014]]
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
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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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