[Congressional Record Volume 157, Number 14 (Tuesday, February 1, 2011)]
[Senate]
[Pages S373-S377]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
AFFORDABLE CARE ACT
Mr. HATCH. Mr. President, we have come a long way in 1 year.
On December 24, 2009--1 day before Christmas--this body passed a
radical overhaul of our Nation's health care system. That is right. The
majority passed ObamaCare on Christmas Eve.
It was not this body's finest moment. It was not the administration's
finest moment. And I expect that this debate will go down in history
for its persistent lack of attention to the considered views of
ordinary Americans--Americans who rejected ObamaCare's giant new
entitlement expansions and the job-killing taxes haphazardly cobbled
together to pay for them.
It did not have to be this way. In the midst of the greatest fiscal
collapse since the Great Depression, Americans wanted Democrats, who
controlled all of the levers of power in Washington, to focus on job
creation. Instead, like teenagers set loose when mom and dad leave
town, they did what they wanted to, and focused on a government
takeover of the Nation's health care system.
Surprising only the most ideologically driven, support for ObamaCare
cratered during the townhall meetings of August 2009. The message was
loud and clear. Our health care system, and in particular the
government policies that contribute to unsustainable inflation in the
health care sector, might be in need of reform. But the solution to our
problems is not additional government regulation and control of health
care delivery by Washington bureaucrats. And the solution is most
definitely not to be found in the billions of dollars in new taxes,
most of which will be passed through to American families in the form
of higher premiums.
For those who did not deliberately put on blinders, the wishes of
their constituents were obvious.
Stop the push for ObamaCare and move onto fixing the economy.
But the Senate did not listen.
Instead, prodded ahead by an administration that saw the great
liberal dream of government-run health care slipping, the long march
continued.
First, the Democratic majority cut short the Finance Committee's
bipartisan negotiations.
Then, heads down, the majority plowed forward on the floor, allowing
virtually no meaningful amendments.
And before going home for Christmas, it passed the most sweeping
reform of the Nation's economy in over 70 years without a single
Republican vote.
Every Democratic senator supported the bill.
Not one Republican did.
When ObamaCare passed the Senate, its proponents assumed it was on
the
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glidepath to enactment. But the American people had a different idea.
Our national unemployment rate was 10.2 percent--the highest in 26
years.
The American people understood that at a moment of historic economic
challenges, the last thing the country needed was another budget-
busting entitlement and sky-high taxes.
And just about 1 month later, this message was delivered again. In a
new shot heard across the world, our colleague, the junior Senator from
Massachusetts, Scott Brown, was elected in a very clear referendum on
the Democrats' health care bill.
The verdict of the American people, if the previous summer's
townhalls left any doubt, was now crystal clear.
The push for ObamaCare must end.
Yet, the administration refused to yield.
They thought the people would eventually come to embrace the elegance
of ObamaCare. If only the messaging was better, Americans would
appreciate all of the good things that Washington politicians and
bureaucrats had to offer them.
So after taking time to regroup and weigh their options, Democrats
decided to defy the American people yet again.
A little over a year ago, the President hosted a summit at the White
House and began his final push for his federalizing of American health
care.
The resulting display was ugly. Americans, already revolted by the
deals cut in this Chamber to secure the bare number of votes needed to
pass the bill, now witnessed historic arm twisting and desperate
efforts in the House to deny the obvious--that ObamaCare represented an
unprecedented intrusion of the Federal government into the lives of
citizens and clearly was a massive burden on taxpayers.
And so it passed.
And ObamaCare became law.
And the administration set about writing the thousands of pages of
regulations that would govern how American businesses provide health
benefits to their employees.
Fast forward to November of 2010.
The American people did not forget their snubbing by self-proclaimed
progressive Democrats who in fact ignored the will of the people at
every opportunity during the ObamaCare debate.
At voting booths across the country, they made clear to those
congressmen and Senators who provided the votes for this job-destroying
health care bill that such high-handed, illiberal behavior was not
acceptable in a democratic republic.
Fast forward one more time.
Yesterday, barely 13 months after ObamaCare passed the Senate, and
less than one year since it became law, the entire scheme was struck
down in Federal court.
In a triumph for both personal liberty and the American Constitution,
the individual mandate was found unconstitutional and ObamaCare was
struck down.
Not part of ObamaCare.
All of ObamaCare.
Not surprisingly, the administration and its special interest allies
responded with the same derision toward ordinary American citizens that
has been on display throughout this debate. Instead of acknowledging
the obvious--that ObamaCare represents a massive departure from any
traditional understanding of limited government--White House officials
went on the attack, calling the decision outside of the mainstream and
ridiculing its reasoning.
Really?
Millions and millions of Americans believe that provisions essential
to the operation of ObamaCare are unconstitutional intrusions on
personal liberty that vastly expand the power of the Federal
government.
They understand that the justification for the individual mandate by
ObamaCare's proponents essentially removes any limits on the power of
the Federal government to regulate personal and economic decisions.
Twenty-six states participated in this challenge to ObamaCare.
Thirty-two Members of this body, including myself, signed an amicus
brief challenging the constitutionality of ObamaCare.
But, according to the administration's narrative, we are the ones who
are out of the mainstream.
This administration came into office buoyed by the good will of the
American people and carrying banners of bipartisanship.
Two years later, after the politically disastrous decision to
overhaul one-seventh of the Nation's economy with virtually no
Republican support, they are blaming the victim.
After a Federal judge looked at this tough issue and determined that
key elements of ObamaCare represented an unprecedented and
unconstitutional expansion of the national government, the problem
remains--as it always is for liberals--the people.
Their views are just not sophisticated enough to grasp ObamaCare's
consistency with a government of limited and enumerated powers.
The Democrats continue to think that if only they focus group
ObamaCare better, they will get the messaging right.
The American people will learn to love it.
I don't think so.
The American people get it. I know my constituents in Utah do.
In an article yesterday in ``Politico'', Patrick Caddell and Douglas
Schoen highlighted the reasons for the public's deepening disdain for
ObamaCare. According to them, it is possible that no major piece of
legislation ``has created the continued, vehement public opposition
that health care has provoked since the Kansas-Nebraska Act of 1854.''
In their view, ``[t]here is one big underlying factor that continues
to cause many Americans to oppose the health care bill: Its passage was
anti-democratic. If the Republicans' campaign slogan of 1854 was the
Crime Against Kansas, in 2010 it would be the Crime Against
Democracy.''
Americans know that the Senate bill was 2,074 pages long.
They know it authorized 70 government programs.
They know it delegated regulatory power to the Obama administration
1,697 times.
They know it cut $465 billion from Medicare at a time when it already
faced a $38 trillion unfunded liability.
They know the bill took from one already unsustainable entitlement to
pay for a brand new entitlement.
They know it raised taxes by over $550 billion, repeatedly violating
the President's pledge not to raise taxes on middle class families.
They know ObamaCare will destroy 695,000 American jobs at a time when
millions of Americans are looking for work.
They know the Medicaid expansions threaten to bankrupt the States,
with CBO estimating that the Medicaid expansion will cost American
taxpayers $435 billion over 10 years.
They know the total cost of ObamaCare is $2.6 trillion.
And they know we can not afford it.
To borrow from Justice Scalia, the American people despise ObamaCare
because the American people love democracy and the American people are
not fools. They know that this law was enacted in a totally partisan
manner, and over the loud opposition of a majority of Americans.
And they know that the partisans promoting ObamaCare were not, and
are not, forthright when they say it is budget neutral.
ObamaCare cuts $155 billion from hospitals.
It cuts $202 billion from 11 million seniors on Medicare Advantage.
It cuts nearly $15 billion from nursing homes.
It cuts nearly $40 billion from home health agencies.
It cuts nearly $7 billion from hospices.
But these cuts don't go toward strengthening Medicare, a program with
catastrophic unfunded liabilities. Rather, Democrats poured the savings
from these cuts back into a brand new entitlement program.
Furthermore, so-called comprehensive health care reform managed to
neglect the pressing need for a permanent doc fix. Yet, CBO's most
recent estimate is that a long-term doc fix freezing Medicare payment
rates at 2011 levels would raise the deficit by $249 billion, not
counting an additional $53 billion in debt service obligations.
Not surprisingly, an Associated Press fact check of the President's
State of the Union address concluded: ``the idea that Obama's health
care law saves money for the government is based on some arguable
assumptions.''
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That might qualify for the understatement of the year so far.
The likelihood that ObamaCare will not, as its advocates claimed,
save the government money was confirmed again at a hearing last week by
the CMS Chief Actuary Richard Foster. He testified that the law will
not likely hold costs down, and that contrary to the President's
mantra, everyone will not be able to keep their insurance coverage if
they like it.
In response, the White House political operation attacked the
Administration's own nonpartisan professional expert, stating in a blog
post: ``Once again, we disagree . . . History shows that it is possible
to implement measures that will save money for Medicare and the Federal
government.''
Who are you going to believe?
The chief actuary at CMS or a White House political operative?
The average American citizen might not have a Ph.D. in economics. But
Americans do understand that massive new entitlement programs do not
save money. In their guts, they know that former CBO director Doug
Holtz-Eakin is right when he concludes that repeal of this flawed law
would actually reduce the deficit by $300 billion.
Ultimately, all we want is a vote on repeal.
Last week, some of my Democratic colleagues came to the floor to
advocate for rules changes that would have substantially limited the
rights of the minority to debate.
The filibuster, they insisted, is an affront to democracy and
majority rule.
Well, let them put their money where their mouths are.
All we are asking for is an up or down vote on repeal of ObamaCare.
This is what the people want.
Ultimately, you have to ask why the Democratic majority would deny us
this vote.
I think I know the answer. It has a great deal to do with members of
the caucus who know their constituents hate this law. Yet, these
Members are torn between two masters. On the one hand are their
conservative constituents. And on the other are the liberal interest
groups who supported the government takeover of the Nation's health
care system.
Unfortunately, the people again stand to lose in this calculus.
I understand that the conventional wisdom is that my colleagues and I
are pursuing a symbolic act.
The guardians of the conventional wisdom opine that attempts to
repeal ObamaCare might make for good theatre, but are senseless
exercises.
In my view, this attitude demonstrates a profound lack of respect for
the citizens of a democratic republic.
Over time, given the power of ideas and an engaged citizenry,
initially symbolic acts have a way of becoming law. It might not happen
overnight, but citizens--exercising their constitutional rights of
petition and redress--have a way of reminding even the most hardened of
partisan politicians that their job is to represent their constituents.
I have no doubt that some scoff at our efforts to repeal this bill.
But I rest easy knowing that I am standing with my fellow Utahans and
the people of this country whose distrust of ObamaCare grows as they
learn more about it.
I look forward to the day when ObamaCare is finally repealed. It may
not be next month. It may not be next year, but it will be repealed. If
we are smart, we will make it next month or in the very near future.
When it is, it will be a triumph for our Constitution, a triumph for
personal liberty and, most importantly, it will be a triumph for the
American people to persevere in their resistance to this law.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DURBIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. Madam President, it is interesting that we face one of
the toughest economic recessions in modern history and a world in
turmoil, as many countries are challenging their leadership and
assessing the future, and the focal point of the Republican legislative
effort appears to be the repeal of health care reform.
If you look at what the American people think about this, they don't
agree. They think that if there are ways to improve the bill, we should
do it; that if there are changes we can make in the bill to make it
more effective, we should. But the notion that we would repeal this law
and walk away from the basic provisions in it is not acceptable by the
majority of the people.
The House Republicans, new to the majority this year, decided they
needed to keep faith with their followers and repeal health care reform
as their highest priority. As the whip in the Senate who counts votes
on this side of the aisle, I sense that we are not going to repeal this
law, nor do I think we should.
It appears Republicans want us to spend some time debating whether
health care reform is good for America. I welcome that debate because,
as you know, when we reflect on what we have achieved so far, in a
little over 1 year, with this health care reform and what is to follow,
it strikes me as unusual that there are people who want to walk away
from all that. The important starting point in this debate is
government-administered health care. If you listen to the other side--
the Republicans--the issue they object to the most is the fact that the
government has some hand in this health insurance industry. They call
it government-run health care. Those who would take the time to read
the bill--and I have--will realize that at the end of the day, the only
entities offering health insurance in America are private companies,
aside from Medicare and Medicaid. So what the Republicans are objecting
to is a government effort to extend the availability of private health
insurance to more and more Americans.
I know every single Republican and Democratic Senator is protecting
their own families with government-administered private health
insurance. The very thing they are condemning in the health care reform
bill is the source of their own personal health insurance for their
families. You see, Members of Congress are part of the Federal
Employees Health Benefits Program, a program that covers 8 million
Federal employees and their families. My wife and I, each year, have an
open enrollment where we can choose from nine different private health
insurance companies in Illinois. We pick the plan we like the best. At
our point in life, we have more coverage than younger people might, and
more money is taken out of my paycheck because of that decision, but it
is our decision to pick this private insurance company in a plan
administered by the Federal Government.
As the Republicans stand and criticize the notion of extending this
availability of options to more Americans, they are criticizing the
same insurance plan they are using to protect their own families. If it
is good enough for a Member of the Senate, should it not be good enough
for most Americans? The insurance exchanges we are creating will offer
the option for people to choose from private health insurance plans in
the future. That, to me, is a good thing. It has certainly been good
for my family, in terms of the Federal Employees Health Benefits
Program.
There are other parts of the health care reform bill the Republicans
want to repeal, which I know the American people think are very
valuable. Right now, young adults up to the age of 26 would lose their
insurance coverage through their parents' health plans if the
Republicans prevail. This would affect 47,200 people in Illinois and
1.2 million nationally. Who are these young people, age 25? They are
graduates of college looking for jobs. They are finished with their
education and maybe had student health insurance and they are looking
for a job and maybe the first one they find doesn't offer benefits. So
mom and dad say: Don't worry. We still have you under the family health
insurance plan.
That is part of the health care reform bill these people--the
Republican side of the aisle--want to repeal. I remember going through
this with our kids, as I am sure others do. You called them after
college and said: Jennifer, how are you doing?
I am fine.
Do you have health insurance?
Dad, I don't need that yet; I will get it later. At which point you
say: Girl,
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you have to have it, even if we have to pay for it. We know we are just
one diagnosis or accident away from needing health insurance. That
worry is relieved for those through the age of 25 under health care
reform and would be repealed by the Republicans.
How about lifetime limits? People with private insurance coverage, if
the Republicans have their way and repeal this measure, would find
themselves suddenly vulnerable again to having lifetime limits placed
on how much insurance companies will spend on their health care. This
affects 7\1/2\ million people in Illinois and 165 million nationally.
I talked to a retired firefighter in Chicago. He happened to be a man
who volunteered and went to New York on 9/11. He came down with
leukemia. I said: How are you doing?
He said: I'm feeling good. I'm getting a lot of treatment, and it's
working, but I'm worried. I'm not old enough to qualify for Medicare
yet, and I have a $1 million limit. I had no idea I would come down
with cancer, and I have already spent $150,000. If I need additional
medical care, it will be taken out of my savings if I go past this
limit.
We eliminate the limits on health insurance policies. Repeal of the
law will reestablish those limits.
How about rescissions? Insurance companies, if the Republicans have
their way and repeal our Affordable Health Care Act, would once again
be allowed to cut off someone's coverage unexpectedly when they are in
an accident or become sick because of a simple mistake on their
application. That would leave 612,000 people in Illinois and 15.9
million nationally at the risk of losing their insurance at the moment
they need it the most. One of the worst abuses of the insurance
industry would become legal again if the Republicans have their way and
repeal affordable health care.
How does this work? Well, I can tell you what happens. We have seen
it. People have contacted our office. The most notorious example was a
woman who said when she needed coverage for a surgery, the health
insurance company went through her application and said: You failed to
disclose a preexisting condition. We rescind the policy.
She asked: What preexisting condition?
You had acne as a teenager.
Think about it. Would you ever put that down as a preexisting
condition when you are applying for health insurance? It was enough for
the health insurance company to turn her loose and refuse to cover her.
Also, nearly 7.5 million residents in Illinois and 165 million
nationally would not know if they are receiving value for their health
insurance premium dollars because the Republican repeal of health care
would remove the requirement that insurers spend at least 80 to 85
percent of premium dollars on actual health care--not on bonuses, not
on salaries, not on advertising, and not on administrative expenses but
actually on health care. It is an effort to have the States monitor
these health insurance companies and make sure when the rates go up the
money being collected is actually going to health care. That would be
eliminated if the Republicans have their way in repealing the
Affordable Health Care Act.
How about preventive care? Nearly 1.8 million seniors in Illinois who
have Medicare coverage and 44 million nationally would be forced to pay
a copay to receive important preventive services such as mammograms and
colonoscopies, and they wouldn't receive a free annual wellness visit.
We know what happens when a person doesn't have a lot of money and is
in their senior status and they are faced with the possibility of
getting a test. They put it off. The longer you put it off,
unfortunately, it is more likely something bad will occur. The
Republican repeal of health care would mean that this preventive care
currently offered under the bill for Medicare recipients would be
eliminated.
Then there is the doughnut hole, or the gap in coverage, for Medicare
prescription drugs for which 109,421 seniors in Illinois and 2.7
million nationally would see significantly higher prescription drug
costs if the Republicans are successful in repealing health care. Last
year, these beneficiaries received a one-time, tax-free $250 rebate to
help fill the gap for prescription drugs in the doughnut hole coverage
gap.
Medicare beneficiaries who fall into the doughnut hole in 2011 will
be eligible for 50 percent discounts on covered brand-name prescription
drugs. Without this law, the burden of high prescription drug costs
will hurt millions of Medicare beneficiaries across the country. That
is the reality.
What the Republicans would do with the repeal of health care is to
say to seniors on fixed incomes: Turn to your savings; pull more out of
your savings for the prescription drugs your doctor tells you that you
need to stay well. We are filling that gap, that hole. They want to go
back to the old days when seniors were on their own.
There is the Early Retiree Reinsurance Program, where 279 employers
in my State and 4,748 nationally wouldn't receive help from this
program. It is a program that provides businesses, schools, unions,
State and local governments and nonprofits much needed financial relief
to help early retirees and their families continue to have quality
affordable health care coverage.
Who are these people? One was in my family. My brother retired from
working for a major corporation before he reached the age of 65. He had
a heart attack and needed surgery and couldn't get insured. He had to
wait until he was qualified for Medicare. This plan allows early
retirees to find insurance before they qualify for Medicare and
provides an incentive for that to happen. The repeal of this law by the
Republicans would basically eliminate that program.
So when they stand before us and tell us they are just doing the
right thing--what Americans really want--I am afraid that isn't the
case. Most Americans want us to keep health care reform--change it,
modify it, if necessary, but not repeal it--because when we repeal it,
these basic things I have described will be in trouble.
What about this court case yesterday in Florida? It is getting a lot
of attention today. A judge in Florida issued a decision in a case
filed by 25 Republican attorneys general and Governors striking down
the Affordable Health Care Act. This ruling is out of the mainstream of
judicial reasoning in its treatment of precedent and in the type of
analysis employed. I don't think it is likely to be upheld.
Twelve Federal judges have already dismissed challenges to the
constitutionality of the health reform bill, and two judges in the
Eastern District of Michigan and Western District of Virginia have
upheld the law. In one other case, a Federal judge in the Eastern
District of Virginia issued a very narrow ruling on the
constitutionality of the health reform law's individual responsibility
provision and upheld the rest of the law.
The ruling yesterday in Florida issued by Judge Vinson in the
Northern District is a plain case of judicial overreaching. The judge
declared the entire law was null and void, even though the only
provision he found unconstitutional related to the individual
responsibility provision. This decision is at odds with decades of
established Supreme Court law which has consistently found that courts
have a constitutional obligation to preserve as much of a statute as
can be preserved.
Under this view of the law, the estimated 4 million seniors who fall
into the Medicare prescription drug coverage gap I mentioned earlier
will pay higher prices for prescription drugs. If the judge from
Florida has his way, 44 million seniors on Medicare will be denied
access to preventive care, up to 4 million small businesses will not be
eligible for tax credits to make health care more affordable, and new
provisions that prevent insurance companies from denying coverage and
the like will not become part of the law.
History is on our side when it comes to this measure, Madam
President. Tomorrow, the Senate Judiciary Committee, at my request, is
going to hold a hearing on the constitutionality of the Health Care
Reform Act. It is the first congressional hearing on this issue. As a
person who is aspiring to be the chairman of the Constitution
Subcommittee, I asked this be the first subject we take up. The reason
I am still aspiring is we haven't closed all of the negotiations about
funding of committees, so nothing has become formal yet, but it is
likely to occur.
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What we will look at tomorrow is article I, section 8 of the
Constitution. That is the article that specifically cites the powers
that Congress--the Senate and the House--have. It is spelled out. In
the course of spelling it out, it cites, among other things, that we
have the power to tax, and we have the power related to provisions
relating to commerce. It came to be viewed in the courts as interstate
commerce--commerce between the States or between the United States and
other nations.
Those who are arguing that the health care reform bill is
unconstitutional first argue that the health care insurance industry is
not commerce. If the health care insurance industry--which offers
industry across State lines to millions of Americans--is not commerce,
and it affects 18 percent of our economy, then I don't know what
commerce might be. I think that position is particularly weak.
When it comes to the individual responsibility, or individual mandate
system that is in the bill, the question is being asked of the court:
Why is this necessary? Well, here is why it is necessary. If we say to
insurance companies they don't have to insure anyone with a preexisting
condition, then of course they are going to exclude people. But if we
tell them they have to insure everybody, even those with preexisting
conditions, then the obvious question is, when will a person buy
insurance?
If we don't have a responsibility on individuals to buy insurance,
two things will occur: They will wait until they are sick to buy
insurance, which completely destroys the risk model that insurance
companies use, or they will present themselves, as they do today, to
many hospitals for coverage and care, the cost of which is passed on to
other people. So the individual responsibility section says: If you
don't have insurance coverage, then you have to pay a tax penalty. And
that is what many are objecting to. You cannot eliminate exclusions for
preexisting conditions and not move more and more people into the risk
pool at an earlier stage. If people can wait until the last minute to
get into the risk pool, then the insurance model is destroyed. That is
why it is in there.
I think we will find, ultimately--and I hope we do--from the Supreme
Court that what we have passed is entirely consistent with the
regulations or powers given to Congress under article I, section 8 of
the Constitution to deal with issues of commerce. Secondly, I think we
will find that the imposition of a tax in this health care reform bill
is clearly enumerated in the powers given to Congress to levy taxes,
and what we have done is necessary and proper to reach the goal where
we eliminate discrimination because of preexisting conditions in health
insurance plans.
That debate is ahead of us, but it is a debate we need to take up. I
am happy to talk about the health care reform bill because I think it
is moving in the right direction. It is not perfect--it can be
improved--but if the Republicans want to repeal it, they are in for a
fight because the important provisions we have to protect families and
businesses need to be protected.
What we want to bring up as soon as we can--when we get beyond this
debate on health care repeal--is the reauthorization of the Federal
Aviation Administration. We have been struggling with this issue for a
long time, and we believe this bill, which our majority leader Harry
Reid has asked to bring to the floor, creates and protects more than
280,000 jobs by modernizing the air travel infrastructure and reducing
costly delays. I think this is an important step forward not just to
create jobs--and we need them very badly--but also to make certain our
airplanes and airliners and all those who are serving us at the
airports have a safer environment, establishing new standards for
safety when it comes to the operation of our airlines.
I think this is a critical issue, and I hope we can move to it soon.
I am sorry we are going to be diverted into a debate on health care
reform. But as I said, I think it is a welcome debate. It is time we
brought some of these facts before the American people so they
understand health care reform has real value to families and businesses
across the United States, making health care insurance more affordable
and more accessible.
Madam President, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. BOXER. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________