[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

[[Page S2161]]

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

[[Page S2162]]

     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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