[Congressional Record Volume 157, Number 41 (Thursday, March 17, 2011)]
[House]
[Pages H1985-H1986]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

           By Mr. GOSAR:
       H.R. 1150.
       Congress has the power to enact this legislation pursuant 
     to the following:
       Article I, Section 8, Clause 3. ``The Congress shall have 
     Power * * * To regulate Commerce with foreign Nations, and 
     among the several States, and with the Indian Tribes.'' 
     Further, pursuant to the Supreme Court ruling in United 
     States v. South-Eastern Underwriters Association, 322 U.S. 
     533, 552-53 (U.S. 1944), insurance is constitutionally 
     subject to Congressional regulation. As set forth by the 
     Court:

     Our basic responsibility in interpreting the Commerce Clause 
     is to make certain that the power to govern intercourse among 
     the states remains where the Constitution placed it. That 
     power, as held by this Court from the beginning, is vested in 
     the Congress, available to be exercised for the national 
     welfare as Congress shall deem necessary. No commercial 
     enterprise of any kind which conducts its activities across 
     state lines has been held to be wholly beyond the regulatory 
     power of Congress under the Commerce Clause. We cannot make 
     an exception of the business of insurance.
       Speaking directly on the power of Congress to regulate 
     insurance, or to exempt the insurance industry from 
     monopolistic practices under the Sherman Act, the Court 
     explained:

     Whether competition is a good thing for the insurance 
     business is not for us to consider. Having power to enact the 
     Sherman Act, Congress did so; if exceptions are to be written 
     into the Act, they must come from the Congress, not this 
     Court.
       United States v. South-Eastern Underwriters Association, 
     322 U.S. 533, 561 (U.S. 1944). This bill eliminates the 
     exemption created by Congress, under powers expressly 
     enumerated in the Constitution. As for the proscription on 
     class action suits based on antitrust legal theories against 
     insurers, the Constitution does not guarantee the right to a 
     class action lawsuit. Rather, individuals are simply 
     guaranteed an individual jury trial under the Seventh 
     Amendment. There is no collective right to a civil legal 
     remedy. This act preserves private rights of action brought 
     by aggrieved individuals and therefore comports with the 
     Seventh Amendment and maintains enforcement of the public 
     goals by the appropriate public entities, the states or the 
     federal government.
       That the Interstate Commerce Clause has been construed to 
     grant Congress the power to regulate unfair or 
     anticompetitive business practices that harm interstate 
     commerce, was recently commented upon by the U.S. Supreme 
     Court in Gonzales v. Raich, 545 U.S. 1 (2005):

     The Commerce Clause emerged as the Framers' response to the 
     central problem giving rise to the Constitution itself: the 
     absence of any federal commerce power under the Articles of 
     Confederation. For the first century of our history, the 
     primary use of the Clause was to preclude the kind of 
     discriminatory state legislation that had once been 
     permissible. Then, in response to rapid industrial

[[Page H1986]]

     development and an increasingly interdependent national 
     economy, Congress ``ushered in a new era of federal 
     regulation under the commerce power,'' beginning with the 
     enactment of the Interstate Commerce Act in 1887 and the 
     Sherman Antitrust Act in 1890.
       Gonzales v. Raich, 545 U.S. 1 (2005). Finally, this Bill 
     respects the Tenth Amendment and preserves the rights of each 
     state to establish and enforce their own anti-trust or unfair 
     competition statutes, and it narrowly construes the 
     Interstate Commerce Clause to actions that involve actual 
     commerce, a product that is purchased and sold, administered 
     and utilized across state lines, and has a clear effect on 
     national commerce. In this manner, this Act would satisfy 
     even Justice Thomas' concurring view of the Interstate 
     Commerce Clause, set forth in United States v. Lopez, 514 
     U.S. 549, 586-87 (1995), that the Commerce Clause empowers 
     Congress only to regulate the buying and selling of goods and 
     services trafficked across state lines. Modern class action 
     lawsuits typically seek out class members from multiple 
     jurisdictions, advertise nationwide, and predominate 
     interstate issues to such a degree courts of multi-district 
     jurisdiction are sometimes appointed. In this regard, class 
     action lawsuits also engage in commerce across state lines 
     and have been subjected to Congressional regulation, 
     including the Class Action Fairness Act of 2005.
       The Interstate Commerce Clause does not, as some have 
     suggested, contain federal powers that are ``unlimited'' and 
     indeed, the original application of this clause was quite 
     narrow, as most aptly described in Federalist No. 42. In that 
     tract, James Madison explains that the purpose undergirding 
     the regulation of commerce among the States was to prevent 
     each state from imposing taxes, duties or tariffs on goods 
     from another state that would in effect limit trade among the 
     states and create animus that ``would nourish unceasing 
     animosities, and not improbably terminate in serious 
     interruptions of the public tranquility.'' We follow here 
     today, however, an accepted and long standing interpretation 
     of the Commerce Clause that is not broad in that it regulates 
     actual commerce involved between or transacted across state 
     lines.