[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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