[Congressional Record Volume 158, Number 51 (Wednesday, March 28, 2012)]
[Senate]
[Pages S2160-S2162]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
AFFORDABLE CARE ACT
Mr. LEAHY. Mr. President, earlier today, the Supreme Court concluded
three days of oral arguments about the affordable care act, the law
Congress passed 2 years ago to provide millions of Americans with
access to affordable health care while bringing the spiraling costs in
this area under control.
I was fortunate to be able to attend yesterday's argument about the
constitutionality of the provision requiring individuals to take
personal responsibility for paying for their health care, and to watch
in person and in real time. Hundreds of thousands of Vermonters and
millions of Americans across the country who benefit from the
affordable care act did not have that access. The Supreme Court's
decision in this landmark case will affect every American. I think
every American should have had a chance to see it and the Supreme Court
should open its proceedings to television and radio.
Americans are already beginning to see some of the benefits of
insurance reform. Seniors on Medicare who have high-cost prescriptions
are starting to receive help when trapped within a coverage gap known
as the ``doughnut hole.'' The affordable care act completely closes the
coverage gap by 2020, and the new law makes it easier for seniors to
afford prescription drugs in the meantime. In 2010, more than 7,000
Vermonters received a $250 rebate to help cover the cost of their
prescription drugs when they hit the doughnut hole. Last year, nearly
6,800 Vermonters with Medicare received a 50-percent discount on their
covered brandname prescriptions, resulting in an average savings of
$714 per person. Since the affordable care act was signed into law,
more than 4,000 young adults in Vermont have gained health insurance
coverage under these reforms, which allow young adults to stay on their
parents' plans until their 26th birthdays. The improvements we are
seeing in Vermont go on and on: 81,649 Vermonters on Medicare and more
than 100,000 Vermonters with private insurance gained access to and
received preventative screening coverage with no deductible or copay.
These are just a few of the dozens of consumer protections included in
the law that are benefiting Vermonters and all Americans every day.
Now that the law is in effect, many of the essential
antidiscrimination and consumer protections of the affordable care act
are being implemented, allowing consumers to take control of their own
health care decisions. Going forward, insurance plans can no longer
deny children coverage because of a preexisting health condition;
insurance plans are barred from dropping beneficiaries from coverage
simply because of an illness; dozens of preventative care services must
be covered at no cost and with no copay; and Americans will have access
to an easier appeals process for private medical claims that are
denied.
I attended Tuesday's argument with Senator Grassley, the ranking
member of the Judiciary Committee. He and I disagreed about the
affordable care act when we debated it extensively in the Senate and
passed it 2 years ago. But we both respect the important role the Court
plays in our constitutional system. I hope that as the Supreme Court
considers its decision in the coming weeks, it respects the important
role of Congress, the elected representatives of the American people.
For years, we have heard Republican and Democratic Senators
rightfully say that judges should not make law from the bench. For the
sake of the health and security of our nation, the Supreme Court should
not cast aside this landmark law and Congress' time-honored ability to
protect the American people.
After watching the arguments and following the debate closely, it is
as clear to me now as it was when Congress debated and passed the law
more than 2 years ago. The Supreme Court should uphold the affordable
care act. Looking at Article I of the Constitution and a long line of
Supreme Court precedents dating back to the Nation's earliest days,
there is no question Congress acted well within its time-honored
ability to protect the American people.
Every Member of Congress takes an oath of office to ``support and
defend the Constitution of the United States.'' We take this oath
seriously. As Justice Scalia said at a Judiciary Committee hearing last
year, we take the same oath that the Justices take.
During the course of Congress' extensive consideration of the
affordable care act, we considered untold numbers of amendments in
committees and before the Senate. That is what Congress is supposed to
do. We consider legislation, debate it, vote on it, and act in our best
judgment to promote the general welfare. Some Senators agreed and some
disagreed, but this was a matter decided by the democratically elected
Congress.
Among the arguments expressly considered and rejected by Congress
before passing the affordable care act were arguments that the law was
not constitutional. We considered and rejected arguments that the part
of the law now being challenged in the Court--the individual mandate--
is not constitutional. In fact, those arguments were considered on the
Senate floor when Senator Hatch raised and the Senate formally rejected
a constitutional point of order claiming that the individual
responsibility requirement was unconstitutional. During the Senate
debate on the affordable care act, I responded, publicly and on the
record, to arguments about the constitutionality of this requirement.
No Justice could say Congress did not consider the constitutionality of
the affordable care act.
The individual mandate is about personal responsibility. Throwing out
this requirement that Americans be responsible for their necessary
health care costs will result in tossing aside the provision that bans
insurance companies from denying Americans coverage based on pre-
existing conditions. The personal responsibility requirement is
necessary to ensure that Americans who do have health insurance are not
stuck with paying the $43 billion in health care costs incurred by
millions of Americans who do not buy health insurance, instead relying
on expensive emergency health care when inevitably faced with medical
problems. Congress concluded this after extensive study and debate.
I joined with congressional leaders in filing an amicus brief
defending the affordable care act in the case now being considered by
the Court because I am convinced that Congress acted well within the
limits of the Constitution in acting to secure affordable health care
for all Americans. I believe we must defend the enumerated powers given
to Congress by the Constitution so that our ability to help protect
hardworking American workers, families and consumers is not wrongly
curtailed by the courts.
Partisan opponents of the affordable care act want judges to override
these legislative decisions properly made by Congress, the elected
representatives of the American people. They want to challenge the
wisdom understood by generations of Supreme Court justices from the
great Chief Justice John Marshall in upholding the constitutionality of
the national bank nearly 200 years ago to Justice Cardozo in finding
Social Security constitutional early in the last century.
The difference between the role of Congress and of the courts is not
a partisan one or a controversial one. In his opinion upholding the
affordable care act, Jeffrey Sutton, a conservative, President George
W. Bush's appointee to the Sixth Circuit, understood the importance of
courts not substituting
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their policy preferences for those of Congress. He wrote: ``Time
assuredly will bring to light the policy strengths and weaknesses of
using the individual mandate as part of this national legislation,
allowing the peoples' political representatives, rather than their
judges, to have the primary say over its utility.''
Professor Charles Fried, who was Solicitor General under President
Reagan, testified at a Senate Judiciary Committee hearing a year ago on
the constitutionality of the affordable care act. When Senator Grassley
asked him if there needs to be changes to the part of the law requiring
that individuals purchase health insurance to make it constitutional,
Professor Fried answered: ``I see no need for it because it seems so
clearly constitutional.'' I agree with him and I do not think it is a
close call.
The provisions of the affordable care act are firmly rooted in what
previous Congresses enacted over the last century to protect hard-
working Americans. Working Americans have long been required to pay for
Social Security and Medicare by the deduction of taxes reflected on
their paychecks every month. It is not novel for Congress to pass laws
affecting a health care market that makes up one-sixth of the U.S.
economy, the key to satisfying the test for constitutionality under the
Commerce Clause.
What is telling about the partisan nature of these challenges is that
many of those who now claim that the requirement that Americans have
health insurance or face a tax penalty is unconstitutional are the very
ones who proposed it. Republican Senators such as Orrin Hatch, the
former chairman of the Judiciary Committee, and John McCain proposed
and supported a health insurance requirement when President Clinton was
trying to increase access to health care. They proposed the individual
mandate as an alternative when they opposed President Clinton's plan.
This requirement was also a part of health care reform in Massachusetts
supported by former Governor Mitt Romney and by Scott Brown, now a
Republican Senator from Massachusetts.
All of these opponents were for ensuring personal responsibility with
an individual mandate until President Obama was for it, and now they
are against it. Their views may have changed, but the Constitution has
not.
I ask unanimous consent to have printed in the Record at the
conclusion of my remarks a March 24 column in The Washington Post by
Ezra Klein, ``Why Ryancare and Obamacare look so similar,'' questioning
Republican opposition to the individual mandate they once championed.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. LEAHY. When I hear partisan critics attacking the affordable care
act, I wonder what law they are looking at. The affordable care act
will protect some of our most vulnerable citizens. The law eliminates
discriminatory practices by health insurers, ensuring that a patient's
gender is no longer a pre-existing condition, reduces the cost of
prescription drugs for our Nation's senior citizens, and helps parents
continue to cover their kids on their health insurance until they are
26. The law also provides necessary resources to help law enforcement
recover millions of taxpayer dollars lost to fraud and abuse in the
health care system.
If the Supreme Court overturns the affordable care act now, it will
be devastating to kids, families, and senior citizens. I hope the Court
does not undo the progress we have made. Doing so depends on legal
theories so extreme they would turn back the clock even farther to the
hardships of the Great Depression and strike down principles that have
helped us build the social safety net over the last century with Social
Security, Medicare, and Medicaid.
The affordable care act builds on some of the cornerstones of
American economic security built over the last century. I believed when
it passed, and still believe today, that Congress acted within its
constitutional authority to enact laws to help protect all Americans, I
hope the Court does not overstep the judiciary's role by substituting
its own policy preferences and denying a century of progress.
Exhibit 1
[From the Washington Post, Mar. 24, 2012]
Why Ryancare and Obamacare Look so Similar
(By Ezra Klein)
Let's play a game. I'll describe a health-care bill to you.
Then you tell me if I'm describing President Obama's
Affordable Care Act or the budget released this week by Rep.
Paul Ryan (R Wis.).
The bill works like this: The federal government subsidizes
Americans to participate in health insurance markets known as
``exchanges.'' Inside these exchanges, insurers can't
discriminate based on pre-existing conditions. Individuals
can choose to go without insurance, but if they do so, they
pay a penalty. To keep premium costs down, the government
ties the size of the subsidy to the second-least-expensive
plan in the market--a process known as ``competitive
bidding,'' which encourages consumers to choose cheaper
plans.
This is, of course, a trick question. That paragraph
describes both the Affordable Care Act and Ryan's proposed
Medicare reforms. The insurance markets in both plans are
essentially identical. And for good reason.
The Affordable Care Act was based on two decades of
Republican thinking about health care. The basic structure
was first proposed by the conservative Heritage Foundation in
1989, first written into a bill by Senate Republicans in
1993, and first passed into law by a Republican governor by
the name of Mitt Romney in 2005.
About 2008, Democrats decided they could live with a system
based on private health insurers, federal subsidies and an
individual mandate as long as it produced universal coverage.
A year later, Republicans decided they couldn't live with
such a system, at least not if a Democratic president was
proposing it.
The problem for the Republicans, however, is that they
don't have a better--or even alternative--idea. Since the
passage of the Affordable Care Act, ``repeal and replace''
has been a reliable applause line at tea party rallies and an
oft-uttered incantation on the floor of the House of
Representatives. But while Republicans have united around
``repeal'' of health-care reform, they haven't managed to
come up with a policy for ``replace.''
Instead, they've opted to apply their old policy
framework--the one the Democrats stole--to Medicare. That has
left the two parties in a somewhat odd position: Democrats
support the Republicans' old idea for the under-65 set but
oppose it for the over-65 set. Republicans support the
Democrats' new idea for the over-65 set but oppose it for the
under-65 set.
This isn't quite as incoherent as it seems. Democrats say
they would prefer Medicare-for-All for the under-65 set, but
they'll take whatever steps toward universal health insurance
they can get. Republicans say they would prefer a more free-
market approach for the over-65 set but that a seniors'
version of ``Obamacare'' is nevertheless a step in the right
direction. For both parties, it's the direction of the
policy, rather than the policy itself, that matters.
There's an added complication for Republicans. They have
assumed huge savings from applying the exchange-and-subsidies
model to Medicare. But they don't assume--in fact they
vehemently deny--that those same savings would result from
the identical policy mechanism in the Affordable Care Act.
The Democrats haven't assumed significant savings from the
exchange-and-subsidies model in either case.
If the concept works as well as Ryan says it will, then the
Affordable Care Act will cost far, far less than is currently
projected. There's no compelling reason to believe
competitive bidding will cuts costs for seniors but fail
among younger, healthier consumers who, if anything, are in a
better position to change plans every few years and therefore
pressure insurers to cut costs.
The discrepancy highlights another difference between
Republicans and Democrats right now. Republicans have put all
their eggs in the competitive-bidding basket. If that doesn't
work to control costs--and versions of it have failed in the
past--they're sunk.
Democrats, on the other hand, are promoting a slew of
delivery-system reforms in the Affordable Care Act. They're
hoping competitive bidding works, but they're also trying
comparative-effectiveness review, pay-for-quality,
accountable-care organizations, electronic health records,
penalties for excessive readmissions and medical errors, and
a host of other experiments to determine which treatments and
processes actually work and how to reward the doctors and
hospitals that adopt them.
It's unlikely that the model in the Republican budget will
prove sustainable. That legislation would repeal the
Affordable Care Act, cut Medicaid by a third and adopt
competitive bidding for Medicare. The likely result? The
nation's uninsured population would soar. In the long run,
and quite possibly in the short run, that will increase the
pressure for a universal system. Because Republicans don't
really have an idea for creating one, Democrats will step
into the void.
As a result, Republicans' long-term interests are probably
best served by Democratic success. If the Affordable Care Act
is repealed by the next president or rejected by the Supreme
Court, Democrats will probably retrench, pursuing a strategy
to expand Medicare and Medicaid on the way toward a single-
payer system. That approach has, for
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them, two advantages that will loom quite large after the
experience of the Affordable Care Act: It can be passed with
51 votes in the Senate through the budget reconciliation
process, and it's indisputably constitutional.
Conversely, if the Affordable Care Act not only survives
but also succeeds, then Republicans have a good chance of
exporting its private-insurers-and-exchanges model to
Medicare and Medicaid, which would entrench the private
health-insurance system in America.
That's not the strategy Republicans are pursuing. Instead,
they're stuck fighting a war against a plan that they helped
to conceive and, on a philosophical level, still believe in.
No one has been more confounded by this turn of events than
Alice Rivlin, the former White House budget director who
supports the Affordable Care Act and helped Ryan design an
early version of his Medicare premium-support proposal.
``I could never understand why Ryan didn't support the
exchanges in the Affordable Care Act,'' Rivlin says. ``In
fact, I think he does, and he just doesn't want to say so.''
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