[Congressional Record Volume 158, Number 48 (Thursday, March 22, 2012)]
[Senate]
[Pages S1996-S1997]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              HEALTH CARE

  Mr. HATCH. Madam President, in defending the Constitution and arguing 
for its ratification, Alexander Hamilton stated plainly in the first of 
the Federalist Papers the challenge and the promise of American 
democracy.
  He explained:

       It has been frequently remarked that it seems to have been 
     reserved to the people of this country, by their conduct and 
     example, to decide the important question, whether societies 
     of men are really capable or not of establishing good 
     government from reflection and choice, or whether they are 
     forever destined to depend for their political constitutions 
     on accident and force.

  The challenge identified by Hamilton and our Founding Fathers remains 
with us today.
  Will American citizens and will our political institutions maintain 
our Constitution and adhere to the rule of law or will we succumb to 
force and the whims of the moment?
  Will the law be supreme and will the Constitution endure or will 
politics prevail?
  This is a choice that Americans and public officials face every day.
  But some moments present this choice in bolder terms. And the legal 
challenge to the President's health care law is one of those moments 
that present a stark choice.
  Will we support the Constitution or will we throw in with the passing 
wishes of temporary majorities?
  That is the choice that we as Americans face and that the Supreme 
Court will face when it hears oral arguments on this case next week.
  There are a number of issues before the Court, but at the top of the 
list is the constitutionality of the individual mandate.
  Like many critical constitutional questions that come before the 
American people, particularly those of first impression, it often takes 
some time for a consensus to emerge.
  The answer is not always immediately clear. But through public 
dialogue and argument, the constitutionality of these actions comes 
into greater focus.
  That is what happened with ObamaCare's individual mandate. As the 
implications of this sweeping exercise of Federal power became clear, 
the American people's initial hesitation about this provision 
solidified into an enduring bipartisan consensus that this mandate 
violates our constitutional commitment to limited government.
  The American people came to understand that if the individual mandate 
is permissible, then anything is permissible.
  If the individual mandate is allowed to stand, then there are no 
effective limits on the Federal Government.
  And if there are no limits on the Federal Government, then our 
constitutional liberties are in jeopardy.
  The American people came to understand that the question about the 
individual mandate runs far deeper than any debate about health care. 
They understand that the mandate presents us with a pivotal question.
  Will we maintain the Constitution as our supreme law, one which puts 
effective limits on the powers of the Federal Government, or will we 
abandon the Constitution bequeathed to us by our Founding Fathers and, 
instead, accept a new constitutional order where the only restraints on 
the Federal Government are those it deigns to place on itself?
  The American people--and certainly the people of Utah--have made 
clear at every opportunity their deep skepticism about the individual 
mandate.
  Presidential candidate Barack Obama understood these concerns about 
the individual mandate. The media noted during the Presidential

[[Page S1997]]

campaign that while then-Senator Hillary Clinton's plan would require 
all Americans to purchase health insurance, then-Senator Obama declined 
to go down that road.
  One writer predicted that an economic mandate requiring Americans to 
purchase a particular product ``would give the inevitable conservative 
opposition a nice fat target to rally around.''
  That nice fat target was an historically unprecedented expansion of 
Federal power in violation of the Constitution's commitment to limited 
government.
  Unfortunately, President Obama put the politics of health care reform 
over any concerns about the constitutionality of the individual 
mandate.
  This is how the journalist Ron Suskind explained the President's 
conversion:

       Obama, never much for the mandate, was concerned about 
     legal challenges to it but was impressed by DeParle's 
     coverage numbers. Without the mandate, the still-sketchy 
     Obama plan would leave twenty-eight million Americans 
     uninsured; with the mandate, the estimates of the number left 
     uninsured were well below ten million.

  And so he made his decision.
  The President of the United States takes an oath to support and 
defend the Constitution. As a candidate, and as President, it appears 
that President Obama was aware of the constitutional concerns with the 
individual mandate.
  But like his progressive forebears, he put his policy desires before 
the long-term integrity of our Constitution.
  Fortunately, the American people were not so quick to put the 
Constitution second.
  Along with a number of my colleagues here in the Senate, I made the 
case for the mandate's unconstitutionality a priority.
  On the first day of the Senate Finance Committee's markup of what 
would become ObamaCare, I raised doubts about the constitutionality of 
the individual mandate.
  Those doubts were dismissed.
  I offered an amendment that would have provided for expedited 
judicial review of any constitutional challenges to the legislation.
  That amendment was ruled out of order.
  But the constitutional concerns with this mandate would not be 
buried.
  The people of this country would get their say on this sweeping 
assertion of Federal power, one far in excess of anything the Founders 
contemplated.
  My State of Utah helped to lead the way, signing on as an original 
plaintiff in the litigation that is now before the Supreme Court. And I 
was honored to work with the Republican leader, my friend and 
colleague, Senator McConnell, in developing friend-of-the-court briefs 
filed at the trial level, at the initial appellate level, and now 
before the Supreme Court.
  Putting aside all of the precedents, this really is a matter of 
simple logic and common sense.
  Our Constitution is one of limited powers. The powers of Congress are 
few and enumerated. Yet if this mandate is allowed to stand, then there 
are effectively no limits on the Constitution any longer.
  Something has to give.
  Either this mandate will stand or our Constitution will stand.
  But both cannot survive this litigation.
  The Eleventh Circuit got it right in its analysis of this law. This 
is what they concluded:

       Economic mandates such as the one contained in the Act are 
     so unprecedented, however, that the government has been 
     unable, either in its briefs or at oral argument, to point 
     this Court to Supreme Court precedent that addresses their 
     constitutionality. Nor does out independent review reveal 
     such a precedent.

  The partisan supporters of ObamaCare will say that this is just the 
opinion of a conservative court.
  But it is also the opinion voiced by the liberal writer Timothy Noah 
as far back as 2007.
  And there is some evidence that it was the opinion of Senator Obama 
when he declined to endorse a sweeping individual mandate when running 
for President.
  But once elected, President Obama put politics first. In the interest 
of supercharging the welfare state and passing his signature 
legislative initiative, he put aside any concerns with the individual 
mandate and endorsed this unprecedented regulation of individual 
decisionmaking.
  The President should have stuck with his original position.
  Those who defend the constitutionality of the individual mandate make 
an astounding claim--that the decision not to buy something, in the 
aggregate, substantially affects interstate commerce. Those who defend 
this position stand for the proposition that the Federal Government can 
regulate your decision not to do something, that it can regulate not 
just economic activity but economic inactivity, and that Congress can 
regulate not just physical activity but mental activity.
  If Congress can do these things, Congress has no limits.
  A Constitution that creates a limited Federal Government has been 
transformed into a Constitution that gives plenary, and unconstrained, 
power to the Federal Government.
  This is not only something that the American Founders worked hard to 
prevent, but it is something that contemporary Americans continue to 
reject.
  There are many reasons to oppose ObamaCare. Today, the 
administration's allies are touting the benefits of the law for small 
business. This is laughable.
  The administration promised that ObamaCare's small business credit 
would help more than 4 million small businesses. This was a pretty 
paltry concession to the businesses that would be harmed by the 
employer mandate, new regulations, and half a trillion dollars in taxes 
and penalties imposed by ObamaCare.
  And as could be expected from such a top-down, Washington-centered 
approach, businesses have been less than eager to take up this complex 
credit. The administration claimed that 4 million small businesses 
would use this credit. Yet according to a report from the Treasury 
Inspector General, after 2 years, only 309,000 taxpayers, or 7 percent 
of qualified entities, have claimed this credit.
  But as bad as ObamaCare's policies are--confusing benefits, 
heavyhanded mandates, and enormous economic costs for families and 
businesses--it is the profound unconstitutionality of the law that 
remains paramount in the minds of most Americans.
  Next week, almost 2 years to the day after ObamaCare became law, the 
Supreme Court will consider arguments in this historic case.
  I am confident that when the dust settles, our Constitution will 
emerge standing and strong.
  And I am equally confident that the American people will have the 
last word on those politicians who chose to look the other way, rather 
than acknowledge the deep constitutional shortcomings of this 
unprecedented intrusion on the liberty of America's citizens and 
taxpayers.

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