[Congressional Record Volume 158, Number 68 (Monday, May 14, 2012)]
[Senate]
[Pages S3124-S3126]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SUPREME COURT REVIEW
Mr. LEAHY. Madam President, I was fortunate to be able to attend the
argument before the U.S. Supreme Court on the constitutionality of the
provision in the affordable care act providing that individuals should
take personal responsibility for paying for their health care by
obtaining health insurance or pay a fine. I have watched a lot of
arguments in the Supreme Court. Obviously, as the chairman of the
Judiciary Committee I pay close attention--as do all Members--to what
goes on there. I heard a great deal of instant analysis from
commentators after the argument, including their predictions on how the
Court will rule. I didn't hear much devoted to the role of the Chief
Justice of the United States.
When I watched the arguments, I saw a Chief Justice that day who I
thought seemed well aware of the significance of this decision. Chief
Justice Roberts had not been appointed when the Court intervened in the
Presidential election of 2000, but he certainly saw the reaction to
that decision in Bush v. Gore, a 5-to-4 decision that the country
viewed as partisan. In fact, many in the country felt that five people
on the Supreme Court decided a Presidential election that was actually
for the person who got less votes than the one they said lost. That
decision was unprecedented. In a shocking admission, the Court itself
said that it should never be considered precedent or cited in the
future. That decision shook the confidence of the American people in
the Supreme Court and, as Justice Stevens observed at the time, the
loser in that decision was ``the Nation's confidence in the judge as an
impartial guardian of the rule of law.'' That activism undermined the
reputation of the Court as fair and impartial.
But the Chief Justice did participate in the Court's recent 5-to-4
decision in Citizens United that divided along ideological lines and
continues to engender a significant backlash. That decision was one in
which the Supreme Court reached out to decide a matter not argued
initially and in which it made a broad constitutional ruling that
reversed nearly 100 years of progress in the country to control the
corrupting influence of money in our elections and politics. That
decision led directly to the super PACs and campaign excesses that are
now plaguing our Democratic elections, and actually plagued this year's
Republican Presidential primaries. As bad as its effect is on both
Republicans and Democrats and elected offices, I believe it has
contributed to the further erosion of the public's confidence in the
Supreme Court to be an independent arbiter.
The constitutional challenge to the affordable care act is the
current instance in which narrow ideology and partisanship are
pressuring the Supreme Court to intervene where it should not, to
override the law and constitutional legal understandings that have been
settled since the Great Depression, and also to overturn the actions of
the people who are elected to represent all Americans in both the House
and the Senate. I was struck by how little respect some of the Justices
showed to Congress and of how dismissive they were to the months of
work that included dozens of hearings, or the committee actions and the
debate of amendments and motions and points of order on the Senate and
House floors before the measure was enacted, how that was almost
summarily dismissed by some.
Their actions will not help restore Americans' confidence in the
Court to fairly apply the law. According to a recent poll, half of all
Americans expect the justices to decide the challenge to the affordable
care act mainly based on their ``partisan political views,'' while only
40 percent expect them to decide the case ``on the basis of the law.''
That has contributed to the historically low percentage of Americans,
fewer than half, that said in a recent poll that they approve of the
Supreme Court.
I am not going to be offended if some of the Justices don't like us
personally or disagree with the policy judgments reflected in the law
as individuals, as citizens, or as human beings; they are entitled to
their personal views just as we are. But as Justices, they are supposed
to put those petty personal views and feelings aside. They are supposed
to begin their inquiry by respecting the will of the people as
reflected in the work of Congress and to defer to Congress unless the
laws we pass violate the Constitution. However, during the argument, it
seemed that the Justices were second guessing the policy judgments that
were made during the extended legislative process. That is not the
purpose or proper exercise of judicial review. Acting out based on
their personal views in this matter would be the height of conservative
judicial activism. Let me repeat that. Acting out based on their
personal views in this matter would be the height of conservative
judicial activism.
The Chief Justice seemed to understand that deference to the elected
branch is fundamental to the proper exercise of judicial review. I was
struck that more than once he commented on the extreme arguments coming
from other Justices by noting they were not being fair. Chief Justice
Roberts was right in that regard.
I thought I saw--at least the day I watched--a Chief Justice who
understands the importance of this case to all Americans, including
those millions who would otherwise continue without health care
insurance and access to affordable health care--the kind of health care
insurance and access to affordable health care each one of us in this
Chamber has and each member of the Supreme Court has. This case is also
significant because of the impact it will have on the American people's
view of the Supreme Court.
We all remember when the Chief Justice was nominated, and he
testified that if confirmed, he would act with judicial modesty, he
would honor precedent, and he would acknowledge the
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limited role of the judiciary and seek to bring the Court together.
When I voted to confirm Chief Justice Roberts as Chief Justice of the
United States--and many of my Democratic colleagues voted the other
way, and I respect them for that--I said that I was voting with hope
and faith. I credited his testimony. I trusted that he would act to
fulfill his responsibilities in accordance with the testimony he gave
to the Senate.
I said then that if I thought he ``would easily reject precedent'' or
``use his position on the Supreme Court as a bulwark for activism,'' I
would not have supported his confirmation. I contrasted the technical
reasoning and unjust holding of Chief Justice Taney in the Dred Scott
case with the leadership that Chief Justice Warren provided in the
unanimous decision in Brown v. Board of Education. I spoke about the
need to curtail the current activism of the Supreme Court and for
appropriate deference to congressional action taken by the people's
elected representatives, which is precisely what should happen in the
matter currently before the Supreme Court.
I was encouraged by the assurances he gave during the confirmation
process that he would respect congressional authority. Well, this case
is a fundamental test. After all, he relied heavily during the hearing
on the recent Gonzales v. Raich decision as controlling precedent in
upholding congressional authority to act under the Commerce Clause. He
also assured us that despite his previous record of advocacy, as Chief
Justice he would not continue to urge additional restrictions on
Congress's Spending Clause powers.
I trust that he will be a Chief Justice for all of us and that he has
a strong institutional sense of the proper role of the judicial branch.
It is the Supreme Court of the United States, not the Supreme Court of
the Democratic Party or the Republican Party; not the Supreme Court of
liberals or conservatives but the Supreme Court of the United States.
And the Chief Justice is the Chief Justice of the United States, all
320 million of us. The conservative activism of recent years has not
been good for the Court.
Given the ideological challenge to the Affordable Care Act and the
extensive, supportive precedent, it would be extraordinary for the
Supreme Court not to defer to Congress in this matter that so clearly
affects interstate commerce. This case should not become an instance in
which a conservative, activist majority on the Supreme Court intervenes
by way of another 5 4 decision driven by ideology to rewrite the law.
The law is consistent with the understanding of the Constitution the
Court and the American people have had for the better part of a
century, and should be upheld. To do otherwise would undoubtedly
further erode the reputation and legitimacy of the Supreme Court.
Last month's Supreme Court argument gave me reason to hope the
Supreme Court will do the right thing. The authority of Congress to
enact the Affordable Care Act is firmly rooted in what previous
Congresses enacted and the Supreme Court has upheld as constitutional
over the last century to protect hardworking Americans. Working
Americans have long been required to pay for Social Security and
Medicare by the deduction of taxes reflected in their paychecks every
month. I said at the time that, after all, if they could overturn the
Affordable Care Act, why couldn't they overturn Social Security or
Medicare? There would be just as much reason to overturn those.
The key to the test for constitutionality under the Commerce Clause
is whether the law substantially affects interstate commerce. That is
the long-established constitutional test supported time and time again
by the Supreme Court. As a law passed by Congress passed to regulate a
market that makes up one-sixth of the U.S. economy, the Affordable Care
Act is well within the limits set by the Supreme Court's own precedent
on Congress's Commerce Clause power.
The personal responsibility requirement that is the focus of the
legal challenge is necessary to ensure that Americans who have paid for
their health care by buying 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 and then must rely on expensive
emergency health care when inevitably faced with medical problems. That
is what Congress concluded after extensive study and debate and what we
included in the text of the law itself. There is no question this act
by Congress regulates matters undeniably affecting interstate commerce.
Even though this law easily meets the tests established by the
Supreme Court's own precedent on the limits of the Commerce Clause,
partisan opponents of President Obama 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 outlandish examples of hypothetical laws Congress has not passed
reduce these matters to ridiculous absurdities. That may be popular in
Federalist Society circles or on political blogs or to those who want
to bind the Constitution enough to be on a bumper sticker slogan, but
they have no place in the Supreme Court's determination. There may come
a time when Congress passes a law that is law at the edge of its
authority, when the boundary of what should be seen as affecting
commerce needs to be more closely considered. That time may come. I
hope it doesn't. That time may come, but this is not the time and this
is not the case. The Affordable Care Act is squarely within
longstanding constitutional lawmaking to deal with an important
national problem.
For years, we have heard Republican Senators say that they do not
want judges making law from the bench. That is precisely what they are
asking the Supreme Court to do in this case. Republican opponents lost
in Congress. Their opposition and obstruction delayed but did not
prevent enactment of the Affordable Care Act. Now they want
conservative activists on the Supreme Court to intervene and turn their
policy disagreements into law by reading them into the Constitution.
That is wrong.
In his efforts to reach out to Republicans, the President adopted a
model Republicans proposed in the 1990s so as not to replace private
insurance with a program of Government insurance like Medicare, but to
rely on personal responsibility to obtain private insurance in the
marketplace or pay a tax penalty. What is telling about the partisan
nature of these challenges is that many of those who now claim that
this is unconstitutional are the very ones who proposed it. Senate
Republicans were in favor of ensuring personal responsibility with an
individual mandate until President Obama was for it, and now they are
against it. Their views may have changed, their partisan interests may
have shifted, but the Constitution has not.
Americans are already beginning to see some of the benefits of the
Affordable Care Act. Seniors on Medicare who have high-cost
prescriptions are starting to receive help when trapped within a
coverage gap known as the ``donut hole.'' Since the Affordable Care Act
was signed into law, young adults in Vermont and around the country
have gained health insurance coverage by being able to stay on their
parents' health insurance plans until their 26th birthdays. Americans
are receiving preventative screening coverage with no deductible or co-
pay. The law is making possible more and better care while controlling
costs.
The Affordable Care Act builds on some of the cornerstones of
American economic security built over the last century. I believed that
when it passed, and I still believe it today, that Congress acted
within its constitutional authority to enact laws to help protect all
Americans. Just as some in this country disagreed when Congress passed
Social Security, the Court agreed that we acted within our authority to
do so. One may agree or disagree with parts of the Affordable Care Act,
but the fact is that Congress acted within its authority. I hope and
have faith that the Supreme Court will not overstep the judiciary's
role by substituting policy preferences for the legislative
determinations of Congress.
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