[Congressional Record Volume 157, Number 181 (Tuesday, November 29, 2011)]
[Senate]
[Pages S7987-S7988]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              HEALTH CARE

  Mr. GRASSLEY. Mr. President, when the Congress passed the health care 
law, it imposed a mandate on individuals who lacked health insurance to 
purchase it. Since then, a number of courts have held that the 
individual mandate exceeds the power of Congress to regulate interstate 
commerce.
  The Supreme Court will soon hear a case on this question.
  The Supreme Court, which usually gives a case 1 hour of oral 
argument, is giving the various issues in this case 5\1/2\ hours. This 
is a modern record.
  The Supreme Court should exercise its powers of judicial review 
carefully. One of its major principles of judicial restraint is that an 
act of Congress is presumed to be constitutional. But this is a 
presumption that can be rebutted. It derives from the respect that one 
branch of government gives when reviewing the actions of another.
  If Congress has made a determination that a statute is 
constitutional, the Supreme Court should give that finding some level 
of deference.
  But the presumption rests on a premise that Congress has made a 
considered judgment on the constitutionality of the laws it passes. In 
the case of the health care bill, this did not happen. Republicans 
raised a constitutional challenge to the individual mandate that was 
brushed aside by Democrats who favored the bill as a policy matter, and 
were not going to let a serious constitutional issue get in the way of 
passing the law.
  In fact, we know that there was no Congressional consideration of the 
constitutionality of this unprecedented restriction of the freedom of 
American citizens.
  I mean unprecedented literally. Congress has never before discovered 
or exercised this power in more than 200 years of this country's 
history. And since Congress has never before imposed a requirement to 
purchase a product, no Supreme Court precedent has ever found that 
Congress may do so.
  Instead, apart from the regulation of items such as navigable 
waterways or communication lines, the Supreme Court has always 
discussed the subjects that Congress may regulate under the Commerce 
Clause as ``activities.'' The Court has never held that Congress can 
use its Commerce Clause power to regulate inactivity--or require people 
to engage in commerce. The Court has found that Congress cannot 
regulate intrastate economic activities that in combination do not 
affect commerce. And Congress cannot regulate non-economic activities, 
such as carrying a gun in a school zone.
  So it should be clear that Congress cannot regulate inactivity--such 
as a thought or a decision not to purchase health insurance.
  Congress has great power under the Commerce Clause to reduce 
individual freedom. In 1942, the Court ruled in Wickard v. Filburn that 
a farmer could be penalized for exceeding a quota on the amount of 
wheat he could produce, even when the excess went for providing food 
for his own farm and its livestock.
  And that Commerce Clause decision has allowed Congress to pass many 
significant regulatory laws, such as environmental laws, drug laws, and 
the public accommodation provisions of the civil rights laws.
  But in every such case, the regulated person retained the freedom to 
avoid being regulated. A person who did not want to comply with 
environmental laws could stop engaging in the activity that fell under 
the environmental laws. A person who did not want to be subject to the 
drug laws could avoid transporting drugs.
  And a person who did not want to adhere to the public accommodation 
laws could leave the public accommodation business.
  The individual mandate is different. The mandate requires action. And 
there is no escape. A person cannot opt out of the activity that 
triggers the regulation because the mandate applies even to inactivity. 
If the person is alive, then he or she has to buy health insurance. 
That is a serious and novel threat to individual freedom.
  Congress has offered incentives to change people's behavior.
  But it is hard to see why Congress would do that if it had the power 
it now claims to force people to buy particular goods and services. 
Under this logic, Congress could require people to buy new GM cars, so 
it would not have enacted Cash for Clunkers. Similarly, this supposed 
power would allow Congress to order people to pay money to third 
parties rather than raising taxes. And a decision upholding the mandate 
would permit Congress to keep beef prices high by requiring vegetarians 
to buy beef.
  Members of Congress could use this supposed Commerce Clause power to 
entrench themselves in office. They could require people to buy houses 
or cars or other products in areas where their political party has its 
base of support.
  Despite the arguments of the Obama Administration, the power it 
claims that Congress can use to compel people to buy goods and services 
is not unique to health care. The judges who are honest recognize that 
if Congress can force people to buy insurance, Congress can force the 
purchase of any product or service.
  It can regulate inactivity because that can affect interstate 
commerce.
  This conclusion is consistent with the opinion of the Congressional 
Budget Office. In a 1994 memo, CBO wrote that ``a mandate-issuing 
government'' could lead ``in the extreme'' ``to a command econom[y] in 
which the President and the Congress dictated how much each individual 
and family spent on all goods and services.''
  In June of this year, the Supreme Court unanimously decided in the 
Bond case that an individual--not only a State--could challenge the 
constitutionality of a Federal statute as exceeding the power of 
Congress to enact under the 10th Amendment. The Court wrote, ``By 
denying any one government complete jurisdiction over all the concerns 
of public life, federalism protects the liberty of the individual from 
arbitrary power. When government acts in excess of its lawful powers, 
that liberty is at stake.''
  The case now before the Supreme Court raises first principles about 
our republic. The people are the sovereign in our country. The 
government serves the people, not the other way around. That is 
enforced through a Constitution that gives the Congress limited powers. 
In the Federalist Papers, James Madison wrote that the powers of the 
Federal Government are few and defined, and the powers of the States 
are many and undefined. Although there is much more interstate commerce 
in today's economy than there was in 1787, the power is still limited.
  If Congress can require Americans to purchase goods and services that 
Congress chooses, without a limiting principle, then there is no 
limited Federal Government. There would be no issue that Congress could 
not address at the

[[Page S7988]]

Federal level. There would be no range of State powers that the Federal 
Government cannot usurp. The 10th Amendment would be a dead letter, as 
there would be no powers reserved to the States.
  Congress exceeded its enumerated powers in passing the individual 
mandate.
  It attempted to create an all-powerful Federal Government that posed 
a threat to liberty that the Supreme Court unanimously warned against 
in the Bond case. All the Supreme Court need do to strike down the 
mandate is to adhere to its position in Bond. If it departs from that 
view and upholds the mandate, then our hopes for liberty may depend on 
a new President charting the course contained in Judge Kavanaugh's 
dissenting opinion in the D.C. Circuit case. Judge Kavanaugh wrote that 
a President is not required to enforce a statute that regulates private 
individuals that the President believes is unconstitutional.
  This is true even when a court has held the statute to be 
constitutional.
  Mr. President, the upcoming Supreme Court decision on the 
constitutionality of the individual mandate is important not only for 
the fate of that provision, but for its effect on the powers of the 
Federal Government and the very survival of individual economic 
liberty.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Udall of Colorado). The clerk will call 
the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BROWN of Ohio. Mr. President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN of OHIO. Mr. President, I ask unanimous consent to speak as 
in morning business for up to 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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