[Congressional Record Volume 158, Number 49 (Monday, March 26, 2012)]
[Senate]
[Pages S2015-S2017]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
HEALTH CARE
Mr. KYL. Mr. President, as we know, today the Supreme Court began
hearing arguments about the constitutionality of the affordable care
act. It is one of the most critically important Supreme Court cases of
our time. A Wall Street Journal editorial noted last Friday:
Few legal cases in the modern era are as consequential, or
as defining, as the challenges to [this law]. . . . The
powers that the Obama administration is claiming change the
structure of the American government as it has existed for
225 years. . . . The Constitutional questions the Affordable
Care Act poses are great, novel, and grave.
The editorial, entitled ``Liberty and ObamaCare,'' lays out the
constitutional problems with the affordable health care act and focuses
on the bill's centerpiece: the individual mandate to purchase health
insurance. As the editorial notes, the case against this provision is
anchored in ample constitutional precedent, and I quote their
conclusion:
The Commerce Clause that the government invokes to defend
such regulation has always applied to commercial and economic
transactions, not to individuals as members of society. . . .
The Court has never held that the Commerce Clause is an ad
hoc license for anything the government wants to do.
I urge my colleagues to read this article, and I ask unanimous
consent that it be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[The Wall Street Journal, Mar. 22, 2012]
Liberty and ObamaCare
Few legal cases in the modern era are as consequential, or
as defining, as the challenges to the Patient Protection and
Affordable Care Act that the Supreme Court hears beginning
Monday. The powers that the Obama Administration is claiming
change the structure of the American government as it has
existed for 225 years. Thus has the health-care law provoked
an unprecedented and unnecessary constitutional showdown that
endangers individual liberty.
It is a remarkable moment. The High Court has scheduled the
longest oral arguments in nearly a half-century: five and a
half hours, spread over three days. Yet Democrats, the
liberal legal establishment and the press corps spent most of
2010 and 2011 deriding the government of limited and
enumerated powers of Article I as a quaint artifact of the
18th century. Now even President Obama and his staff seem to
grasp their constitutional gamble.
Consider a White House strategy memo that leaked this
month, revealing that senior Administration officials are
coordinating with liberal advocacy groups to pressure the
Court. ``Frame the Supreme Court oral arguments in terms of
real people and real benefits that would be lost if the law
were overturned,'' the memo notes, rather than ``the
individual responsibility piece of the law and the legal
precedence [sic].'' Those nonpolitical details are merely
what ``lawyers will be talking about.''
The White House is even organizing demonstrations during
the proceedings, including a `` `prayerful witness'
encircling the Supreme Court.'' The executive branch is
supposed to speak to the Court through the Solicitor General,
not agitprop and crowds in the streets.
The Supreme Court will not be ruling about matters of
partisan conviction, or the President's re-election campaign,
or even about health care at all. The lawsuit filed by 26
states and the National Federation of Independent Business is
about the outer
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boundaries of federal power and the architecture of the U.S.
political system.
The argument against the individual mandate--the
requirement that everyone buy health insurance or pay a
penalty--is carefully anchored in constitutional precedent
and American history. The Commerce Clause that the government
invokes to defend such regulation has always applied to
commercial and economic transactions, not to individuals as
members of society.
This distinction is crucial. The health-care and health-
insurance markets are classic interstate commerce. The
federal government can regulate broadly--though not without
limit--and it has. It could even mandate that people use
insurance to purchase the services of doctors and hospitals,
because then it would be regulating market participation. But
with ObamaCare the government is asserting for the first time
that it can compel people to enter those markets, and only
then to regulate how they consume health care and health
insurance. In a word, the government is claiming it can
create commerce so it has something to regulate.
This is another way of describing plenary police powers--
regulations of private behavior to advance public order and
welfare. The problem is that with two explicit exceptions
(military conscription and jury duty) the Constitution
withholds such power from a central government and vests that
authority in the states. It is a black-letter axiom: Congress
and the President can make rules for actions and objects;
states can make rules for citizens.
The framers feared arbitrary and centralized power, so they
designed the federalist system--which predates the Bill of
Rights--to diffuse and limit power and to guarantee
accountability. Upholding the ObamaCare mandate requires a
vision on the Commerce Clause so broad that it would erase
dual sovereignty and extend the new reach of federal general
police powers into every sphere of what used to be individual
autonomy.
These federalist protections have endured despite the
shifting definition and scope of interstate commerce and
activities that substantially affect it. The Commerce Clause
was initially seen as a modest power, meant to eliminate the
interstate tariffs that prevailed under the Articles of
Confederation. James Madison noted in Federalist No. 45 that
it was ``an addition which few oppose, and from which no
apprehensions are entertained.'' The Father of the
Constitution also noted that the powers of the states are
``numerous and infinite'' while the federal government's are
``few and defined.''
That view changed in the New Deal era as the Supreme Court
blessed the expansive powers of federal economic regulation
understood today. A famous 1942 ruling, Wickard v. Filburn,
held that Congress could regulate growing wheat for personal
consumption because in the aggregate such farming would
affect interstate wheat prices. The Court reaffirmed that
precedent as recently as 2005, in Gonzales v. Raich,
regarding homegrown marijuana.
The Court, however, has never held that the Commerce Clause
is an ad hoc license for anything the government wants to do.
In 1995, in Lopez, it gave the clause more definition by
striking down a Congressional ban on carrying guns near
schools, which didn't rise to the level of influencing
interstate commerce. It did the same in 2000, in Morrison,
about a federal violence against women statute.
A thread that runs through all these cases is that the
Court has always required some limiting principle that is
meaningful and can be enforced by the legal system. As the
Affordable Care Act suits have ascended through the courts,
the Justice Department has been repeatedly asked to
articulate some benchmark that distinguishes this specific
individual mandate from some other purchase mandate that
would be unconstitutional. Justice has tried and failed,
because a limiting principle does not exist.
The best the government can do is to claim that health care
is unique. It is not. Other industries also have high costs
that mean buyers and sellers risk potentially catastrophic
expenses--think of housing, or credit-card debt. Health costs
are unpredictable--but all markets are inherently
unpredictable. The uninsured can make insurance pools more
expensive and transfer their costs to those with coverage--
though then again, similar cost-shifting is the foundation of
bankruptcy law.
The reality is that every decision not to buy some good or
service has some effect on the interstate market for that
good or service. The government is asserting that because
there are ultimate economic consequences it has the power to
control the most basic decisions about how people spend their
own money in their day-to-day lives. The next stops on this
outbound train could be mortgages, college tuition, credit,
investment, saving for retirement, Treasurys, and who knows
what else.
Confronted with these concerns, the Administration has
echoed Nancy Pelosi when she was asked if the individual
mandate was constitutional: ``Are you serious?'' The
political class, the Administration says, would never abuse
police powers to create the proverbial broccoli mandate or
force people to buy a U.S.-made car.
But who could have predicted that the government would pass
a health plan mandate that is opposed by two of three voters?
The argument is self-refuting, and it shows why upholding the
rule of law and defending the structural checks and balances
of the separation of powers is more vital than ever.
Another Administration fallback is the Constitution's
Necessary and Proper Clause, which says Congress can pass
laws to execute its other powers. Yet the Court has never
hesitated to strike down laws that are not based on an
enumerated power even if they're part of an otherwise proper
scheme. This clause isn't some ticket to justify inherently
unconstitutional actions.
In this context, the Administration says the individual
mandate is necessary so that the Affordable Care Act's other
regulations ``work.'' Those regulations make insurance more
expensive. So the younger and healthier must buy insurance
that they may not need or want to cross-subsidize the older
and sicker who are likely to need costly care. But that
doesn't make the other regulations more ``effective.'' The
individual mandate is meant to offset their intended
financial effects.
Some good-faith critics have also warned that overturning
the law would amount to conservative ``judicial activism,''
saying that the dispute is only political. This is reductive
reasoning. Laws obey the Constitution or they don't. The
courts ought to defer to the will of lawmakers who pass bills
and the Presidents who sign them, except when those bills
violate the founding document.
As for respect of the democratic process, there are plenty
of ordinary, perfectly constitutional ways the Obama
Democrats could have reformed health care and achieved the
same result. They could have raised taxes to fund national
health care or to make direct cross-subsidy transfers to sick
people. They chose not to avail themselves of those options
because they'd be politically unpopular. The individual
mandate was in that sense a deliberate evasion of the
accountability the Constitution's separation of powers is
meant to protect.
Meanwhile, some on the right are treating this case as a
libertarian seminar and rooting for the end of the New Deal
precedents. But the Court need not abridge stare decisis and
the plaintiffs are not asking it to do so. The Great
Depression farmer in Wickard, Roscoe Filburn, was prohibited
from growing wheat, and that ban, however unwise, could be
reinstated today. Even during the New Deal the government
never claimed that nonconsumers of wheat were affecting
interstate wheat prices, or contemplated forcing everyone to
buy wheat in order to do so.
The crux of the matter is that by arrogating to itself
plenary police powers, the government crossed a line that
Justice Anthony Kennedy drew in his Lopez concurrence. The
``federal balance,'' he wrote, ``is too essential a part of
our constitutional structure and plays too vital a role in
securing freedom for us to admit inability to intervene when
one or the other level of government has tipped the scale too
far.''
The constitutional questions the Affordable Care Act poses
are great, novel and grave, as much today as they were when
they were first posed in an op-ed on these pages by the
Washington lawyers David Rivkin and Lee Casey on September
18, 2009. The appellate circuits are split, as are legal
experts of all interpretative persuasions.
The Obama Administration and its allies are already
planning to attack the Court's credibility and legitimacy if
it overturns the Affordable Care Act. They will claim it is a
purely political decision, but this should not sway the
Justices any more than should the law's unpopularity with the
public.
The stakes are much larger than one law or one President.
It is not an exaggeration to say that the Supreme Court's
answers may constitute a hinge in the history of American
liberty and limited and enumerated government. The Justices
must decide if those principles still mean something.
Mr. KYL. Finally, continuing on the point about the argument on
ObamaCare and referring to a different piece that appeared in the Wall
Street Journal, I wanted to talk just a little bit in more detail about
the justification of this mandate to purchase health insurance, the
requirement that every individual in the United States be the recipient
of a specifically defined policy by the U.S. Government.
The rationale the government has provided is that if we do not do
this, then free riders or people who do not have insurance but might
get sick will end up shifting all of the burden of their care onto the
rest of us, and therefore the government needs to regulate that by
forcing everybody to buy insurance. On March 20 the Journal published a
piece by Douglas Holtz-Eakin and Vernon Smith, a former CBO Director
and an economics professor, respectively, which I think really debunks
this argument on the merits. It explains the real reason this mandate,
as well as a dramatic expansion of Medicaid, is unconstitutional. I
just wanted to highlight the points they make.
First, Holtz-Eakin and Smith address this individual mandate
question. States, of course, have general police power to regulate the
conduct of their citizens, but Federal power, by contrast, is very
limited over individuals.
The authors make the important point that heath care policy has
traditionally been a State function. Health
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care needs relate to individuals and vary from person to person and
region to region. As a policy matter, States have a better
understanding of what kind of improvements to health care access are
needed.
Here is what they wrote:
The administration's attempt to fashion a singular,
universal solution is not necessary to deal with the
variegated issues arising in these markets. States have taken
the lead in past reform efforts. They should be an integral
part of improving the functioning of health-care and health-
insurance markets.
If the States have the legal power to address health issues and are
better equipped to do so, then where does the justification for Federal
jurisdiction come from? The authors note that the administration's
argument is that the Federal Government mandate is needed to address
the cost-shifting, the thing I talked about before. But they note that
this is a red herring. ``In reality,'' the authors write, ``the mandate
has almost nothing to do with cost-shifting.'' That is because, in
actuality, the young and the healthy--the people who are not buying
health insurance--aren't imposing much of a burden on the system
because they do not get sick that often. They do not need as much
insurance because they do not need as much health care. The authors say
that ``the insurance mandate cannot reasonably be justified on the
ground that it remedies costs imposed on the system by the voluntarily
uninsured.'' In other words, as I said, there is not that much free-
riding going on.
The authors conclude that the real purpose of the mandate is not to
decrease the costs of uncompensated care, it is meant to force the
young and the healthy to buy health insurance at rates far above the
amount and scope of coverage they actually need because they are
generally healthy individuals. But this extra money will help fund
health insurance companies and therefore offset the huge increased
costs imposed upon them by ObamaCare's many new regulations. This is
the real reason for the individual mandate. In fact, as an amicus brief
by over 100 economists points out, ``The [Affordable Care] Act is
projected to impose total net costs of $360 billion on health insurance
companies from 2012 to 2021.'' With the mandates, however, ``insurance
companies can be expected to essentially break even.'' This is no
coincidence.
If this is the real justification for the mandate to purchase health
care, I submit it should have been done through an enumerated power--
perhaps under the tax power of the Federal Government, which is at
least one of the powers the Constitution explicitly provides.
In any event, this individual mandate cannot be justified to regulate
interstate commerce. The supporters of the mandate have therefore
introduced a second argument. They say health care is just different
from all other commerce. It is bigger. Everybody has to have health
care--as if they did not have to have food on the table or shelter over
their head or clothes on their back and so on. In any event, they say
health care is different and somehow this difference gives Congress the
right to force people to buy government-mandated health insurance under
its power to regulate interstate commerce. But the argument that ``this
particular market is just different'' is beside the point even if it
were true because it does not articulate a constitutional limitation
that is judicially enforceable.
The question before the Court is whether there is any limit to
Congress's power to regulate commerce. Obviously, the Framers would
never have countenanced a Federal requirement to purchase a product so
that the government could then regulate it. So what limit on
constitutional power is suggested by the health care market? None. That
is precisely the point. The government cannot draw a line, and, as a
result, it would have to argue that there is no limit to its powers,
and that, of course, would run counter to the reason the Framers put
limitations into the Constitution.
The individual mandate is not the only provision in ObamaCare that is
constitutionally impermissible. The Medicaid expansion is also
violative. While Congress has well-established power to use its purse
strings to encourage the States to adopt certain Federal policies, it
cannot force them or compel them to do so. ObamaCare's Medicaid
expansion essentially coerces the States into complying with new
Medicaid policies.
This occurs in two different ways. First, if a State does not comply
with the ObamaCare eligibility expansion, it would lose all of its
Federal Medicaid funds--even for patient populations that the State had
already covered long before ObamaCare was passed. Few if any States
would be able to continue their existing Medicaid Programs if they lost
all of this Federal funding.
An amicus brief signed by over 100 economists examined Medicaid data
to determine the economic impact of States losing all of their Medicaid
funds, and it found that if States were forced to absorb Federal
Medicaid expenditures into their own State budgets, ``the State's total
budgetary expenditures would jump by 22.5 percent.'' In other words,
there is no real choice. The options for States are to do as the
Federal Government says or leave Medicaid, which by now is so engrained
in the care for the indigent that unwinding it, in effect,
disentangling it from existing Federal-State relationships, would be
virtually impossible and would obviously jeopardize care for the
population without other health coverage. This is coercion, plain and
simple. It is unconstitutional.
Second, ObamaCare expands Medicaid eligibility to everyone under 138
percent of the Federal poverty level. For individuals who make less
than 138 percent of the poverty level, ObamaCare provides no means for
complying with the individual mandate other than enrolling in Medicaid.
In their brief to the Supreme Court, the States suing over the Medicaid
expansion said it best:
When Congress mandates that Medicaid-eligible individuals
maintain insurance, but provides no alternative means for
them to obtain it, it is impossible to label the States'
participation in Medicaid voluntary.
If it is the only way someone can get it, it is not voluntary.
Well, ObamaCare, as a whole, cannot survive without these
unconstitutional provisions, and these are the reasons I believe it
will and can be struck down as unconstitutional.
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