[Congressional Record (Bound Edition), Volume 156 (2010), Part 1]
[House]
[Pages 213-220]
[From the U.S. Government Publishing Office, www.gpo.gov]




             UNCONSTITUTIONALITY OF HEALTH CARE LEGISLATION

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 6, 2009, the gentleman from New Jersey (Mr. Garrett) is 
recognized for 60 minutes as the designee of the minority leader.
  Mr. GARRETT of New Jersey. I can tell by looking at the proverbial 
clock on the wall at 8:30 that an important election that was just held 
today with the voting booths now closed just one half hour ago and the 
ballots all being collected in their boxes and brought to the 
appropriate places for counting, and we will see--potentially during 
the course of the next 60 minutes--just how that election should turn 
out.
  Just as an aside, for those who are with us here this evening taking 
part in this discussion on the constitutionality, or the lack thereof, 
the unconstitutionality of the health care legislation that's about to 
come before this House again, we will be interspersing some of the 
election results so we can keep everyone apprised of just how those 
elections are turning out.
  I mentioned the fact that the election was held today, and I'm sure 
there will be pundits on the air tonight talking about exactly what do 
the election results mean up in the State of Massachusetts, not just 
for the State of Massachusetts, but for the country as a whole; and a 
number of them will be saying what I have said before, that it's not so 
much just looking at those two individual candidates, but what their 
respective parties stand for, and more specifically, what the President 
of the United States and this administration has stood for over these 
last 12 months and what his seminal program, his major issue, has been, 
and that of course is this health care, so-called ``reform,'' the 
imposition of new mandates and taxes and totally changing the health 
care configuration and how the delivery of it is done in this country.
  Some would make the case that what the election that just closed now 
32 minutes ago in Massachusetts is about is whether or not the American 
public agrees with what the Obama administration has put forth as their 
major proposal is changing the health care delivery system in the 
United States or not. We will see the results, if not in the next 60 
minutes, at least sometime tonight.
  More importantly, though, than what the outcome of that one election 
will be is what will Congress be doing with that legislation here in 
the House and in the Senate this week or next week or whenever they 
decide to bring back that issue for a vote, and we anticipate that they 
will.
  The fundamental issue, though--this is the one that we'll be 
discussing in here--is not some of the minutia of that health care 
legislation, not some of the small language that is buried within--
first in the thousand pages that came before this House that I would 
hazard a guess that probably just about no one on the other side of the 
aisle read thoroughly and had a complete comprehension of what they 
were voting on when they voted ``yes,'' nor clearly in the 2,000 pages 
that came forth in the Senate variation and version of that health care 
bill.
  It's not some of the minutia, not some of the small language, and not 
so much the details that should be the first question that any Member 
of Congress should be asking themselves when they're about to vote on 
that bill; but it's rather the fundamental issue of whether that piece 
of legislation is constitutional at all.
  In my pocket here is my wallet, and in my wallet is my voting card--
actually, I have it over here because we just finished voting a little 
while ago. And as you know, Madam Speaker, every time we vote, we put 
it in one of these little slots here before we vote red, green, or 
yellow.
  I always suggest to my colleagues that before they vote on whatever 
the legislation is, they should be asking themselves one fundamental 
question: Is the bill that they're about to vote on constitutional or 
not? Does the Constitution of the United States give us, as Members of 
this body, the authority to pass that law that we're about to vote on?
  We are all required, when we become new Congresspeople every 2-year 
terms, to raise our hands and to say that we support and defend the 
Constitution of the United States. As a matter of fact, I was just in 
New Jersey earlier today where now-Governor Chris Christie did the same 
thing, raised his hand and said that he is supporting and defending not 
only the Constitution of New Jersey, but also the Constitution of the 
United States as well. We, as Members of this body, of the House of 
Representatives, do that every 2 years when we have the honor and 
privilege of being elected by our constituents at home; we come to 
Washington and say we will support and defend the Constitution.
  As an aside, there is one member of our delegation from Texas who has 
suggested that it should be a requirement that every Member of Congress 
and their staffs should read the Constitution at least once each term. 
Well, I'm

[[Page 214]]

not going to say that we have to mandate that; I think it would not be 
a bad thing for each Member to do it each term. I go through the 
Constitution on a regular basis, and I hope that other Members would as 
well. But we have all held up our hands and said that we are going to 
uphold it, so that is why I suggest to each Member that before they 
vote on any bill, that they ask themselves is that bill constitutional.
  Now, the health care bill that we're talking about here is far more 
sweeping than just about any other piece of legislation that I have 
ever dealt with in my short term here in Congress. And I think it is 
far more devastating and sweeping than any other legislation that we 
have seen in generations. It would impact upwards of one-sixth of our 
economic activity of this country. But far more important than that, it 
would impact our very fundamental liberties that our Founding Fathers 
intended that our Constitution was designed to protect.
  And so that is what our discussion is going to be tonight. And we 
will eagerly await the outcome of the election in the State of 
Massachusetts to see what the voters of that State would like to have 
their voices come in on. But I think the voices of that State will say, 
whether they support the nature or some aspects of this health care 
bill or not, I think all of those citizens of Massachusetts, as with 
the citizens of the great State of New Jersey would also agree with me, 
that whatever we do on health care in this country should at the very 
least be constitutional.
  Now, one of the primary aspects of this bill that I would suggest has 
a flaw in it with regard to the constitutionality of it is the health 
care mandate. And what is that? In the bill, for the first time ever, I 
would suggest, in the history of the United States, Congress is going 
to suggest that we are not going to try to be regulating activity, but 
we are going to try to regulate inactivity.
  For a long time now--well, basically, you can go back to the 1930s 
and the New Deal courts and FDR and the like--Congress has grown in its 
authority and had the Federal Government grow in its size as far as its 
reach of regulation and taxation of economic activity in this country. 
And so now you can see just about every aspect of your life in one way, 
shape or form having a little bit of a reach of the Federal Government 
into it as the Federal Government tries to regulate in one way, shape 
or form.
  But that is always in the area of activity. If you're in interstate 
commerce some how or other, if you're a trucking firm, the Federal 
Government is going to reach out and regulate your activity. If you're 
selling some sort of product either in your State or outside of your 
State, the Federal Government is going to try to come in and regulate 
that form of activity. If you're in any other form of business, in 
State or out of State, the Federal Government is going to try and step 
in in some way, shape or form, I would suggest, and try to regulate 
that activity.
  But never before since our Constitution was first created in 1787 has 
the Federal Government said we are now going to regulate inactivity. We 
are going to start regulating you even if you do absolutely nothing. 
Even if you just stay home, don't buy anything, don't do anything, we 
are now going to regulate your activity. And we're going to do that 
regulation in a more personal and profound nature than any other aspect 
that we've been talking about here on the floor in the last several 
months or years, and that is your health care and your health 
insurance.
  So in this legislation that the administration has proposed that has 
passed out of this House, that has passed in the Senate, and now is in 
some area of compromise on the other side of the aisle, the Federal 
Government, this administration says, can regulate inactivity. They can 
step into your house and say, because you are not doing something that 
the Federal Government believes you should be doing--what is that? 
buying insurance--we're going to penalize you and we're going to do 
that with a tax. We have never seen this before. And I would suggest 
that that is an overreach, a far overreach of what the Founding Fathers 
ever intended for this government, this Federal Government to be able 
to do.
  It is, therefore, a fundamental flaw, an unconstitutional flaw in 
this legislation. It is one of the main reasons why I voted against it 
when it came in this House, and it will be a continuing reason why I 
will vote against it if ever it comes back on the floor of this House 
again.
  Now, I see I have been joined by some of my colleagues from the floor 
who have spoken on the difficulties or the problems or the demerits of 
the health care bill in the past. As I said in my opening comments, 
there are a number of those areas that we can talk about with regard to 
the taxation aspect or with regard to the fact that you're putting the 
government--and I'm looking at a doctor now--between you and your 
doctor and other problems with this bill as well. There are a whole 
host of reasons why this legislation is bad as it impacts upon us as 
individuals and our health quality in this country. But as I said at 
the beginning, the most profound aspect of it is that it's 
unconstitutional, and it's unconstitutional because of this mandate.
  With that, I am pleased to be joined by Ms. Foxx, who would like to 
speak on this topic as well.

                              {time}  2045

  Ms. FOXX. Well, thank you, Mr. Garrett. I appreciate your taking the 
lead in organizing this Special Order tonight to give us an opportunity 
to talk about the health care bill that has been proposed by President 
Obama and Speaker Pelosi. It has certainly gotten a good bit of news in 
the last few months.
  In the news that I watch on a regular basis, particularly in the last 
few days, we have heard a lot about the health care bill and, as you 
indicated, about the impact or the possible impact on the election that 
is being held in Massachusetts today to fill a vacant Senate seat. I 
think it is very important that we continue this debate, even though 
there may not be many people watching this, because generally people 
who are watching C-SPAN, I think, are very interested in what is going 
on politically in the country, and probably most people are watching 
what is happening with the outcome of the election in Massachusetts. It 
has been about 45 minutes now since the polls closed, and I know, when 
I was watching, just before I came to the floor, the comment was made 
that it probably won't take long to get the results of the election as 
Massachusetts is a rather small State, and they have good reporting 
mechanisms. So we will probably hear, and I think, for months, will 
continue to debate whether this very, very ill-advised bill that has 
been proposed has had an impact.
  I speak often to groups, school groups, and I always like to talk 
about the Constitution because it is so important to our country and to 
why we are the country that we are. No other country in the world has 
had such an endearing and enduring Constitution as we have had. If you 
type out the Constitution on 8\1/2\-by-11 paper, double spaced, like 
you would a term paper, it only turns out to be about 18 pages long. 
It's rather short as constitutions go. Many countries have 
constitutions that are thousands and thousands of pages. I think one of 
the geniuses of our Founders was that they were able to write a very 
short Constitution that has stood us in good stead for over 200 years, 
and it continues to stand us in good stead.
  One of the things I always point out to the students when I talk to 
them is the first three words of the Constitution. I wish I had a 
poster, but I don't. Even in the original document, these three words 
were written larger than the other words: ``We the People.'' The 
Founders wanted the people of this country to be in charge of our 
government. They knew about the tyranny of a king, and they knew about 
the tyranny of a parliament. They never wanted those tyrannies to be 
visited upon the American people again, so they wrote a preamble that 
started that way: ``We the People of the United States.'' That's what 
we need to focus on here in the Congress all the time.
  I agree with my distinguished colleague from New Jersey (Mr. 
Garrett),

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which is that, every time we vote, we should ask ourselves: Is my vote 
going to be a vote that supports the Constitution as I swore an oath to 
do? I think that is very, very important.
  I also think that the 10th Amendment to the Constitution doesn't get 
nearly the kind of attention that it deserves. The First Amendment gets 
a tremendous amount of attention, as it should; but all of our 
amendments are extremely important, and I think it's worthy to point 
out that in the over 200 years since the Constitution was adopted that 
we have only had 27 amendments to the Constitution, and we haven't 
needed a lot of amendments to the Constitution. We've had opportunities 
to adopt other amendments, and we haven't done so. I want to point out 
the 10th Amendment and read it, because I think, again, it's so 
important to this discussion that we're having on why the proposed 
health care bill is unconstitutional.
  The 10th Amendment says, ``The powers not delegated to the United 
States by the Constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people.''
  The Founders did enumerate certain things that the House should do, 
that the Senate should do, that the President should do, and those 
things that are not enumerated by the Constitution are left to the 
people and are left to the States. Nowhere in the Constitution do we 
read the words: The government shall provide for health care. Nowhere. 
In fact, the words ``health care'' are nowhere in the Constitution. In 
fact, the Constitution says in the preamble that the people are ``to 
provide for the common defence, promote the general welfare.'' Well, 
the main job of the Federal Government is to provide for the common 
defense. Unfortunately, we have gotten far, far away from that notion.
  Most of the things that have been done by the Federal Government 
which are unconstitutional, in my opinion, have been done for good 
reasons. They're not malevolent reasons, but they're wrong. We should 
not be funding education, for example, and some of us who are here 
tonight have talked about that in the past. We certainly, I don't 
think, should be mandating that individuals in this country purchase 
health insurance on penalty of being put in prison. It is ridiculous 
that we have people contemplating that in this country. It is a 
tremendous overreach of power.
  I want to point out something that my good colleague has pointed out, 
which is the issue of our being penalized for the absence of something 
as opposed to actions. Not buying health insurance will get a citizen 
in trouble in this country. Never before has that happened.
  I want to point out something that the President has said and that 
our colleagues on the other side of the aisle who are pushing this 
terrible bill have said.
  They said, Oh, when the American people understand what's in this 
bill, then they will like it. Well, that in itself, to me, is a 
condemnation of the bill. The bill that has been voted on in the Senate 
they didn't have a chance to read, and what's being negotiated now 
between the House and the Senate is being done behind closed doors by a 
very small group of people--all in secret. Well, if the bill were put 
out there now, the American people could decide: Do they like the bill 
or not like the bill? They're saying, from what they know and from what 
we know and from what had been proposed in the bills in the House, we 
know that the bills have bad elements in them, and that's what the 
American people are reacting to--the elements that we know which are 
bad.
  The additional sad situation that we face is that there is a lot that 
has been agreed to by four or five or six people that nobody knows 
anything about. That is not the way to operate in a republic. That is 
not the way this Congress should be operating nor should our President 
be a part of that.
  We have ample evidence from good constitutional scholars that this is 
not good.

              [From the Wall Street Journal, Jan. 2, 2010]

             Why the Health-Care Bills Are Unconstitutional


  If the government can mandate the purchase of insurance, it can do 
                                anything

   (By Orrin G. Hatch, J. Kenneth Blackwell and Kenneth A. Klukowski)

       President Obama's health-care bill is now moving toward 
     final passage. The policy issues may be coming to an end, but 
     the legal issues are certain to continue because key 
     provisions of this dangerous legislation are 
     unconstitutional. Legally speaking, this legislation creates 
     a target-rich environment. We will focus on three of its more 
     glaring constitutional defects.
       First, the Constitution does not give Congress the power to 
     require that Americans purchase health insurance. Congress 
     must be able to point to at least one of its powers listed in 
     the Constitution as the basis of any legislation it passes. 
     None of those powers justifies the individual insurance 
     mandate. Congress's powers to tax and spend do not apply 
     because the mandate neither taxes nor spends. The only other 
     option is Congress's power to regulate interstate commerce.
       Congress has many times stretched this power to the 
     breaking point, exceeding even the expanded version of the 
     commerce power established by the Supreme Court since the 
     Great Depression. It is one thing, however, for Congress to 
     regulate economic activity in which individuals choose to 
     engage; it is another to require that individuals engage in 
     such activity. That is not a difference in degree, but 
     instead a difference in kind. It is a line that Congress has 
     never crossed and the courts have never sanctioned.
       In fact, the Supreme Court in United States v. Lopez (1995) 
     rejected a version of the commerce power so expansive that it 
     would leave virtually no activities by individuals that 
     Congress could not regulate. By requiring Americans to use 
     their own money to purchase a particular good or service, 
     Congress would be doing exactly what the court said it could 
     not do.
       Some have argued that Congress may pass any legislation 
     that it believes will serve the ``general welfare.'' Those 
     words appear in Article I of the Constitution, but they do 
     not create a free-floating power for Congress simply to go 
     forth and legislate well. Rather, the general welfare clause 
     identifies the purpose for which Congress may spend money. 
     The individual mandate tells Americans how they must spend 
     the money Congress has not taken from them and has nothing to 
     do with congressional spending.
       A second constitutional defect of the Reid bill passed in 
     the Senate involves the deals he cut to secure the votes of 
     individual senators. Some of those deals do involve spending 
     programs because they waive certain states' obligation to 
     contribute to the Medicaid program. This selective spending 
     targeted at certain states runs afoul of the general welfare 
     clause. The welfare it serves is instead very specific and 
     has been dubbed ``cash for cloture'' because it secured the 
     60 votes the majority needed to end debate and pass this 
     legislation.
       A third constitutional defect in this ObamaCare legislation 
     is its command that states establish such things as benefit 
     exchanges, which will require state legislation and 
     regulations. This is not a condition for receiving federal 
     funds, which would still leave some kind of choice to the 
     states. No, this legislation requires states to establish 
     these exchanges or says that the Secretary of Health and 
     Human Services will step in and do it for them. It renders 
     states little more than subdivisions of the federal 
     government.
       This violates the letter, the spirit, and the 
     interpretation of our federal-state form of government. Some 
     may have come to consider federalism an archaic annoyance, 
     perhaps an amusing topic for law-school seminars but 
     certainly not a substantive rule for structuring government. 
     But in New York v. United States (1992) and Printz v. United 
     States (1997), the Supreme Court struck down two laws on the 
     grounds that the Constitution forbids the federal government 
     from commandeering any branch of state government to 
     administer a federal program. That is, by drafting and by 
     deliberate design, exactly what this legislation would do.
       The federal government may exercise only the powers granted 
     to it or denied to the states. The states may do everything 
     else. This is why, for example, states may have authority to 
     require individuals to purchase health insurance but the 
     federal government does not. It is also the reason states may 
     require that individuals purchase car insurance before 
     choosing to drive a car, but the federal government may not 
     require all individuals to purchase health insurance.
       This hardly exhausts the list of constitutional problems 
     with this legislation, which would take the federal 
     government into uncharted political and legal territory. 
     Analysts, scholars and litigators are just beginning to 
     examine the issues we have raised and other issues that may 
     well lead to future litigation.
       America's founders intended the federal government to have 
     limited powers and that the states have an independent 
     sovereign place in our system of government. The Obama/Reid/
     Pelosi legislation to take control of the American health-
     care system is the most sweeping and intrusive federal 
     program ever devised. If the federal government

[[Page 216]]

     can do this, then it can do anything, and the limits on 
     government power that our liberty requires will be more myth 
     than reality.

  With that, I would like to yield back to my colleague from New Jersey 
(Mr. Garrett).
  Mr. GARRETT of New Jersey. I thank the gentlelady for joining us on 
the floor this evening and for her remarks for the last several minutes 
on this very most important issue. As the gentlelady who has come to 
the floor on numerous occasions in the past to speak to this most 
profound and fundamental issue, the protecting of our constitutional 
rights, I once again thank her.
  With that, I will now just turn to the gentleman from Georgia, who is 
familiar, I'm sure, with James Madison and ``The Federalist Papers'' 
where Mr. Madison said, ``In the first place, it is to be remembered 
that the general government is not to be charged with the whole power 
of making and administering laws. Its jurisdiction is limited to 
certain enumerated powers.'' Congress, in other words, was not set 
forth free by our Founding Fathers to have unlimited grants of 
authority but, rather, certain prescribed ones.
  With that, perhaps you could help enumerate and share on that point 
on which Madison was so eloquently quoted 200 years ago. The gentleman 
from Georgia.
  Mr. BROUN of Georgia. Thank you, Mr. Garrett. I appreciate your 
yielding this evening.
  In Hosea 4:6, God tells us, ``My people are destroyed for a lack of 
knowledge.'' Unfortunately, people all over this country have a 
tremendous lack of knowledge about how much liberty and freedom we've 
lost in this country. Now, I differentiate between freedom and liberty. 
I talk more about liberty than freedom. A wild dog is free. Let me 
define for the American people what ``liberty'' is. ``Liberty'' is 
freedom bridled by morality.
  We have things going on here in this Congress, and we've had things 
going on in Congress after Congress under both Democratic as well as 
Republican leadership. We've had things going on with the executive 
branch under both Republican and Democrat Presidents, and we even have 
things going on in the Federal court system, all the way up to the U.S. 
Supreme Court, where rulings are handed down where the American people 
are losing their liberty.
  I am a strict original intent constitutionalist. In fact, I carry a 
copy of the Constitution in my pocket at all times, and it's in every 
one of my suits. On my desk, there is a tremendous document. It's 
called ``The Federalist Papers in Modern Language,'' which is a 
transliteration of ``The Federalist Papers,'' which are very difficult 
to read because they're in old-style English. This is in modern-type 
English. It's not an interpretation. It's just a transliteration. It 
goes from one form of English into another.
  So I highly encourage the American people to get these documents. I 
give copies of the Constitution to anyone who walks into my office here 
in Washington, D.C., and I give my constituents copies of the 
Constitution out of our district offices. Every Congressman can do the 
same. The American people need to become knowledgeable about how much 
liberty we've lost.
  One of the greatest attacks upon liberty is what's going on here in 
Congress today where the leadership in this House, where the leadership 
in the Senate, and where the leadership down Pennsylvania Avenue, in 
the White House, want to take away your liberty to see your doctor and 
for that doctor and you to make the decisions that you need to have 
made so that you have the best quality health care.
  Now, Ms. Foxx was talking about the 10th Amendment. I'll go back and 
read it just to help educate the people because you may have not 
listened to Ms. Foxx, but listen up, please, Madam Speaker, to what the 
10th Amendment says.
  It says, ``The powers not delegated to the United States by the 
Constitution--'' in other words, those powers specifically given to 
Congress, the President and the courts ``--nor prohibited by it to the 
States.'' Those are such things as minting money and having armies and 
things like that. ``The powers not delegated to the United States by 
the Constitution, nor prohibited by it to the States, are reserved to 
the States respectively, or to the people.''
  So we in Congress can only technically constitutionally pass laws 
that are specifically given to us by the powers of this document. 
Article I, section 8 actually lists the things that Congress can pass 
laws about.
  Madam Speaker, this is just a little booklet which contains the 
Constitution, the Declaration of Independence, and every single 
amendment. It's just this little bitty booklet, not the thousands of 
pages that PelosiCare and ReidCare and ObamaCare entail. Madam Speaker, 
it starts right here, and it goes to right here. It's 1\3/4\ pages in 
this little booklet. It's just 18 things. It says, ``The Congress shall 
have power to lay and collect taxes, duties, imposts and excises, to 
pay the debts and provide for the common defence and general welfare of 
the United States.''

                              {time}  2100

  Now, Madison was very specific, and Mr. Garrett was talking about 
that. If you read the Federalist papers, the general welfare, which one 
of the clauses that has been perverted by Democrats and Republicans, 
courts, Presidents, and Congress alike, means the general welfare. Not 
direct welfare, but the general welfare of the Nation.
  So we have the ability to collect taxes and pay the debts.
  To borrow money on the credit of the United States.
  To regulate commerce with foreign nations and among the several 
States and with the Indian tribes.
  Now, Mr. Garrett was just talking a few minutes ago about this 
commerce clause being utilized to make folks do something because the 
leadership here thinks that we have to mandate every person in this 
country to buy health care insurance whether you want to or not. That 
has never been done, and it is totally unconstitutional, as Mr. Garrett 
was saying.
  Actually, this commerce clause is one of the three that have been 
perverted, also. The original intent of that is that we don't lockbox 
trade within State borders. And we have done that on health insurance, 
which is unconstitutional in itself.
  Republicans over and over again have suggested, and in fact in my 
comprehensive health care reform bill that I introduced, H.R. 3889, it 
would allow people in Georgia to buy health insurance in Alabama, which 
is cheaper, for the same Blue Cross-Blue Shield policy. Why shouldn't 
we be able to do that? This commerce clause under the original intent 
should allow us to do so. Republicans have proposed that. Democrats 
have fought against that.
  Going on. To establish a uniformed rule of naturalization, and 
uniform laws on the subject of bankruptcies throughout the United 
States. So we should have naturalization and bankruptcy laws.
  To coin money, to regulate the value thereof, and of foreign coin, 
and to fix the standard of weights and measures.
  To provide for the punishment of counterfeiting the securities and 
current coin of the United States. In fact, this is one of the few 
constitutional criminal justice things that the Federal Government is 
supposed to be doing. Most of the criminal justice laws that the 
Federal Government has on its books are unconstitutional because we 
don't have the authority to do them.
  To establish post offices and post roads. Post roads during the 
Founders' time were the highway system. So we do have constitutional 
authority for Federal roads.
  To promote the progress of science and useful arts, by securing for 
limited times to authors and inventors the exclusive right to their 
respective writings and discoveries. That means patent laws. So we have 
constitutional authority for patents.
  To constitute tribunals inferior to the Supreme Court.
  Folks, there is only one Federal court that is established in this 
document, and that is the U.S. Supreme

[[Page 217]]

Court. Every single Federal court, every single Federal judge serves at 
the pleasure of the Congress. We need to start putting checks on these 
dudes, and ladies, around this country who have actually broken their 
oath of office when they swear to uphold the Constitution. In fact, 
every one of us, when we are sworn in, every Congress swears to uphold 
the Constitution against enemies, both foreign and domestic. Madam 
Speaker, we have a lot of enemies that are domestic, enemies of the 
Constitution. This House is overrun by many domestic enemies of the 
Constitution, and the Senate is full of a bunch of them also. The 
courts are full of a bunch of them likewise.
  To define and punish piracies and felonies committed on the high 
seas, and offenses against the law of nations. That is another one of 
the few criminal defense laws of the Federal Government.
  To declare war, grant letters of marque and reprisal, and make rules 
concerning captures on lands and water.
  To raise and support armies.
  To provide and maintain a navy.
  To make rules for the government and regulation of the land and naval 
forces. That is for the Army and the Navy, and the Marine Corps. I am a 
Marine, by the way--Semper Fi.
  To provide and call forth the militia.
  To provide for organizing, arming, and disciplining the militia.
  To exercise exclusive legislation in all cases over the District of 
Columbia. So when the District of Columbia decides that they want to 
have homosexual marriage recognized in the District of Columbia, we in 
Congress are supposed to tell them no. In fact, I have got a House 
Resolution that says that.
  To make all laws that should be necessary and proper for carrying 
into execution the foregoing powers.
  That is it, folks. That is it. The 18 things that we have the 
authority here in Congress to pass laws about. There is absolutely 
nothing in this document that gives Congress the authority to take over 
the health care system in this country. None.
  And when we see PelosiCare on this floor or when we see ReidCare, 
ObamaCare on this floor, there is absolutely zero constitutional 
authority.
  Now, God says in his Word, with the multitude of counselors there is 
safety. And I make a challenge to the Democrats. One Democrat in this 
House. If one Democrat in this House or one Democrat in the U.S. Senate 
were to show me in this document where Congress has the authority to 
pass a bill that takes over the health care system in America and sets 
forth socialized medicine, as they are trying to do under ObamaCare, I 
will vote for it. If one person in this House or the Senate shows me 
where in this document that we have the constitutional authority to do 
that, I will vote for it.
  I make a pledge to my Lord God, my Lord Jesus Christ up above, to the 
people of the United States, I pledge to vote for it if one, just one 
House member or Senate member will show me in this document where we 
have the authority to do so. I am not worried about that pledge, 
because there is none.
  Pelosicare, Reidcare, Obamacare, secret--well, they are all secret 
bills. They are all in secret, with no transparency we have been 
promised by the Speaker as well as by the President. There is nothing 
in this document to give the Federal Government the authority.
  Mr. Garrett was talking about that one mandate on individuals which 
in itself is unconstitutional. There are so many things in this thing--
in fact, in the Senate bill, Mr. Garrett, Madam Speaker, they say we, 
the next Congress, can't pass laws regarding that bill to overturn it, 
to amend it, or to withdraw it, appeal it. That in itself is 
unconstitutional. We in this Congress can't make a law that subjugates 
the next Congress to what we pass. That is unconstitutional. It doesn't 
pass the smell test, either.
  The American people, Madam Speaker, are being destroyed for a 
tremendous lack of knowledge of this document and how much liberty we 
are losing.
  Madam Speaker, it is up to the American people to rise up and say no 
to Obamacare. To say no to whatever bill.
  I understand that the Majority Leader, Mr. Hoyer, today said that, 
``The Senate bill is better than nothing.'' So I am expecting with that 
comment that they are going to try to force down the throats of this 
House the Senate bill. I pray and hope to God, Lord Jesus Christ, 
please help us to not pass that bill. It is in the name of Jesus that I 
pray that. But I just hope and pray that we don't pass any bill that is 
being presented here.
  I have challenged Democrats, many of them individually, to introduce 
a bill. I will give them the legislative language. And it is totally 
constitutional, Mr. Garrett, Mr. Speaker--it has gone from Madam 
Speaker to Mr. Speaker. Welcome. We are glad to have you tonight--to do 
four things.
  One is have cross-state purchasing of insurance for individuals and 
businesses, which is constitutional under the commerce clause. And we 
should be doing that under the commerce clause.
  To have associations so that associations could be developed. I am a 
Rotarian. We could have a Rotary International pool. I am a graduate of 
the University of Georgia, Medical College of Georgia. We could have a 
University of Georgia system pool. We could have any kind of pool. We 
could have a construction pool. We could have a college graduate pool. 
We could have all these pools that anybody in the country could join 
and have multiple options to buy many different kinds of policies, and 
it would put a whole lot of market forces into the system to lower the 
cost.
  The third thing is to stimulate the States to set up high-risk pools 
for those who can't buy insurance because of preexisting conditions.
  And, fourth, to have 100 percent tax deductibility for every single 
person in this country for all health care expenses. There are a lot of 
people that are left out, and you can't deduct your health care 
expenses.
  Four simple things, all constitutional. I've had many Democrats, Mr. 
Speaker, tell me they would love to introduce this bill. I will be the 
first cosponsor, and we could pass that, I believe, in this House. That 
would put some market forces in the system and would literally lower 
the cost of health care.
  Mr. Speaker, I am a medical doctor. In my medical practice as a 
family practitioner I have seen how government intrusion in the health 
care system has markedly run up the cost of health care. A couple of 
quick examples. I don't want to hog the time, Mr. Garrett, but let me 
just give this story right quick like.
  I was in a solo practice down in rural southwest Georgia, and I had a 
small automated lab with quality controls to make sure that the results 
were correct for my patients. Most doctors, if not almost all doctors, 
want to have good lab results. Many doctors across the country had 
these small automated labs with quality control. Congress passed a bill 
called CLIA, the Clinical Laboratory Improvement Act. It was signed 
into law. It shut down my lab and every single doctor's lab in this 
country.
  Prior to CLIA, if a patient came in with a sore throat, running a 
fever, I would do a CBC, a complete blood count, to see if they had a 
bacterial infection and thus needed antibiotics, or a viral infection 
that is not helped by antibiotics. They don't need to spend their money 
or even be exposed to antibiotics. I charged $12 for that test. It took 
5 minutes to do it. CLIA shut my lab down. I had to send patients 
across the way to the hospital. It took 2 to 3 hours, cost $75 for one 
test.
  Mr. Speaker, what do you think that did to the cost of health care 
across this country? What do you think that did to the cost of 
insurance across the country? It ran it up for everybody.
  Congress a few years ago passed HIPAA. That has cost the health care 
industry billions, with a B, billions of dollars, and has not paid for 
the first aspirin to treat the headaches that it has created. It was 
totally unneeded.
  It is government regulation in the health care system, Mr. Speaker, 
that

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has run the cost up so that it is just outrageous. The Federal 
Government has no business regulating what I do with my patients. It 
has no constitutional authority to do so.
  We have to go back to the drawing boards and work on a constitutional 
basis and present in a step-by-step approach and a constitutional 
approach ways of getting the Federal Government out of regulating the 
health care system. Let the marketplace regulate it. Because I know 
without a question that the marketplace, unencumbered by taxes and 
regulations, is the best control of quality, quantity, and cost of all 
goods and services, including my services as a medical doctor.
  But, again, I challenge one Democrat in this House or in the Senate 
to show me where it is constitutional for us to pass PelosiCare, 
ReidCare, ObamaCare, and I will vote for bill. They can't do it because 
it is unconstitutional. Thank you, Mr. Garrett.
  Mr. GARRETT of New Jersey. I thank the gentleman from Georgia for his 
passionate statements and litany of facts with regard to the 
unconstitutionality of this underlying bill. And within all that, there 
is the question of: What does that mean to me? The unconstitutionality.
  What it comes right down to is this: That the Founders were profound 
and wise in their thinking in establishing the Constitution, and to do 
so not for their generation but for posterity as well, so that our 
rights and our liberties would be protected. And I think that is the 
case you were making.
  Mr. BROUN of Georgia. If the gentleman would yield for 30 seconds. 
And I thank you for doing so, because we have some other speakers, and 
I have taken a long time. I apologize to the other speakers for taking 
so long.
  But you are right. What does it mean to the American citizen about 
this bill? Not only that it is unconstitutional, which it is. But if 
you have private insurance, the cost is going to go up.
  We have been told by our President: If you like your health 
insurance, you can keep it. But it is going to be more expensive if 
this is passed than it is today, and it is going to go up a lot faster, 
higher. Your doctor and you can't make decisions. Some government 
bureaucrat in Washington is going to be making those decisions for you.
  Medicare people are going to have the Medicare money cut, the pot 
that is available for Medicare to be cut markedly so there is going to 
be more rationing of care. There already is some, but it is going to be 
worse. I as a doctor am already regulated and told who I can put in the 
hospital and how long they can stay there. That is going to get a whole 
lot worse. So it is going to affect the quality of care.
  The American people need to understand: The cost of your health 
insurance is going up. The quality of care that your doctor can give 
you is going down. Markedly going down. And you are going to be 
mandated to be--basically, it is a process of transferring everybody 
into a single-payer health care system. Socialized medicine. That is 
what our President said. That is their objective. And so it is going to 
be disastrous for everybody.

                              {time}  2115

  Mr. GARRETT of New Jersey. I thank the gentleman for laying it out so 
clearly to us. I will yield in just one moment to the gentleman from 
Utah. But before that, I think I'll be yielding to the gentleman from 
Texas, because at the beginning of this hour I promised we would bring 
periodic updates as to how this very important vote is occurring in the 
State of Massachusetts.
  Mr. GOHMERT. Well, in hearing the discussion about what is 
constitutional and what isn't, the American people are not stupid. In 
Massachusetts, with over 68 percent of the precincts reporting, the 
Republican, Brown, has about a hundred thousand votes more--53, moving 
towards 54 percent, to 46. Massachusetts was not fooled. They looked at 
the candidates, they looked at what the candidates themselves were 
saying to the people in Massachusetts, and Brown made clear he wasn't 
voting for the health care bill. And he is doing the unthinkable: he's 
running away with this at this point. It's not even close. It's not 
even close enough that legal action and all those types of things that 
have been tried in other places were going to help.
  The people have made clear, and I couldn't help but think about a 
comment of one of our Democratic colleagues down the hall when he said, 
You know, the further we go, the more difficult it is to pass laws that 
the American people don't want passed. That is the way it's supposed to 
be. This body is not supposed to come in here and pass laws that the 
American people do not want passed. They are not supposed to. That is 
the way it was designed.
  I love what Justice Scalia said not long ago when someone asked, Is 
the Bill of Rights really what has made this country the greatest 
country of liberty in history, and he said, No; the Soviet Union had a 
better Bill of Rights than we do. It was because the Founders did not 
trust government, and they wanted to make it as difficult as they could 
to pass a law to put upon the people. So they created not one body, but 
two bodies, and created it to where either body could cancel out the 
other body.
  And that wasn't good enough. They said, We need an executive. But we 
don't want a prime minister that is elected by the legislature. Oh, no. 
We want an executive elected separately, and then he can veto what 
those bodies do. Even if they don't cancel out each other, he can 
cancel them out. And that's not good enough. We want a judicial branch 
that will make it even more difficult to create laws that are crammed 
down the throats of the American people. He said, That is what actually 
has done more to preserve the rights of Americans, because it was so 
difficult to get laws passed.
  And what we have seen the last year in here is just a complete 
usurpation of all of those checks and balances that were provided by 
the Founders, the complete, actually, elimination of them, as we saw 
the White House have an auto task force in secret. Cram down laws that 
were in violation of what were passed here regarding bankruptcy. We had 
a bankruptcy judge willing to just sign an order that was given to him 
that was in clear violation of the laws that were passed, and then a 
Supreme Court that didn't do anything about it. To her credit, Ruth 
Bader Ginsburg put a 24-hour hold, but then that was withdrawn. And so 
the Constitution was turned upside down; the laws were turned upside 
down. And now the American people have had enough. And we are seeing it 
in Massachusetts.
  Who would have thought that a Senator in California would have a 
close race, much less a Senator in Massachusetts have a close race. And 
now it's turned out it wasn't even close. You have a Republican in 
Massachusetts that appears well on his way to being sworn in as the 
next Senator from Massachusetts. I know that those in power in 
Massachusetts would not be exceedingly hypocritical and delay swearing 
Senator Brown in. Surely they would not be that hypocritical. He ought 
to be sworn in just as quickly as the interim Senator was sworn in to 
avoid being labeled eternally as the hypocrites of the decade. So I'm 
sure they won't allow that to happen. They will swear in Senator Brown 
just as quickly as they can do that. This should spell the end, as we 
are told, of health care. But, here again, we have people in the House, 
people in the Senate, that say, Forget what the American people want, 
forget what the Constitution says.
  It should be pointed out, as my friends have been talking about the 
Constitution, when you lay it out, I don't see how this could be held 
constitutional. And so we've tried to get a fast track in there to go 
straight to the Supreme Court. Here and in the Senate they don't want 
it in there because they know it'll be held unconstitutional.
  I appreciate my friend for yielding. But it appears Massachusetts is 
speaking very loudly.
  Mr. GARRETT of New Jersey. I appreciate the gentleman from Texas for 
the update, for your comments; and just as you're all hoping, as we 
are,

[[Page 219]]

that they will move quickly with the appointment, so too we hope that 
the rest of the Massachusetts congressional delegation will listen to 
the voters from the State of Massachusetts and do the right thing when 
the votes come here in the House.
  With that, I am very pleased now to turn the floor over to the 
gentleman from Utah, a gentleman who is on the floor frequently 
speaking about constitutional issues, the gentleman who helped found 
the Constitutional Caucus here in the House, the gentleman from Utah.
  Mr. BISHOP of Utah. I thank the gentleman from New Jersey for this. 
You know, we are talking about a potential health care bill which, 
whether it is the Senate or House version, is an enormous expansion of 
the government. Not only is it an enormous expansion of the government 
in the cost for it, but it's also an enormous expansion in the amount 
of power.
  Now, both bills are based on the commerce clause of giving them their 
authority to implement this program. The commerce clause, as we know, 
over the last 70 years has been so expanded, its shape has basically 
been lost. But notwithstanding even when the courts have ruled on 
commerce clause issues, they have two thresholds that must be 
maintained before something has usually been declared constitutional 
for them.
  One is the activity has to have a significant impact on interstate 
commerce. I think you can argue this bill will. But the second is the 
willing participant threshold that must be met, which means the 
commerce clause has said Congress can do that which will stop an 
activity; but never, never have they said the commerce clause can be 
used to forbid inactivity or force individuals to pay a fine not only 
for doing nothing, but for doing the wrong kind of thing according to 
the Federal Government.
  Now that is the problem this piece of legislation has, because if you 
can force people to go through this to have a certain kind of health 
insurance, they can force Americans to do anything at any given time. 
The Constitution simply says commercial activity in which people choose 
to engage, but cannot require that they engage in those commercial 
activities. So it's one of those simple concepts. Let me give an 
example.
  We passed a Cash for Clunkers bill, which gave incentives for people 
to go and get a certain kind of car. We still allow people that choice 
and option. If you use that same program with the principles within 
this health care monstrosity, we don't have a Cash for Clunkers 
program; we simply have a clunker program, which will then have the 
government establish a bureaucracy, an organization not only to tell 
you what to buy, but when to buy it and give you the opportunity to pay 
for it yourself or be fined by the Federal Government.
  Now that is not the way it's supposed to be. In Mack v. The United 
States, the Supreme Court said, The Constitution protects us against 
our better instincts because it divides power to help us so that we do 
not succumb to the temptation of concentrating power in one location as 
an expedient solution for crisis of the day. And that is indeed what 
this particular bill would do.
  Mr. GARRETT of New Jersey. With that, I will just have an update from 
the Cloakroom that on the Massachusetts race that the Republican 
candidate Brown has won and the Democrat has conceded with 53 to 46 
percent on the votes. Thank you.
  Mr. BISHOP of Utah. That news, if I can get the time from the 
gentleman from New Jersey, is as amazing as the potential harm that 
this bill could do to all Americans that are there. We've spoken many 
times on the floor about the concept of the general welfare clause, 
which was not an expansion of opportunity for Congress. It was supposed 
to be a limitation. And I did at one time get a call--we spoke once on 
what was the interpretation of the general welfare clause--I got a call 
from a lady from Alabama after that, saying it was very eloquent, but 
these are all the things I like the government doing. And then she gave 
me a list of stuff.
  I said, Ma'am, you basically missed our intent. It was not the 
government can do these things; it is which level of government should 
do these things. Not every issue has to rise to the importance that 
Congress needs to do it, which would lead to another element of the 
Constitution that I think this Obama health care-Democrat-Reid-Pelosi, 
whatever you want to call it, is violating, which is Federalism.
  But before I do that, I would yield back to the gentleman from New 
Jersey to allow him to at least give some comments upon this particular 
issue, and then if we want to go back into Federalism--you don't have a 
whole lot of time--I'd be more than happy to pick that up at some later 
date. But I'd like to yield back to the gentleman first and at least 
give you a shot at this thing.
  Mr. GARRETT of New Jersey. My shot is just to be able to bring this 
issue to the floor and to the American public and to Members of 
Congress as well. As my opening comment was the importance of looking 
at the constitutionality of any legislation, or particularly this 
legislation--you probably recall this--I was not the first one to bring 
this issue up. Reporters were actually the ones who brought this up to 
our leadership here in the House and to the White House as well. I 
wasn't there when it happened. All I know is what I read in the paper.
  But when the issue of the constitutionality, whether it was the 
mandate provision that we are talking about principally here or the 
other aspects as well, my understanding from what I read in the press 
is when the reporter asked Speaker Pelosi about, Did you consider the 
constitutionality of this legislation, she just laughed it off and 
said, Of course not. We are not looking at that.
  My understanding is, likewise, when that question was posed to the 
administration, Did you consider the constitutionality of the health 
care bill, their answer was even more emphatic: no, we didn't look at 
that at all. That is so profound of an answer, to think that the 
administration would not look at the constitutionality of a piece of 
legislation that is going to impact upon personal choices of the health 
decisions of Americans and one-sixth of the economy as well.
  The Founders understood this issue as far as protecting our freedoms 
and our liberties and that you need a document in order to do so. One 
of our first Chief Justices, Chief Justice Marshall, famously observed 
that the powers of the legislature, here in the Congress, are defined 
and limited, as the gentleman from Georgia just enumerated the 18 
powers in it, and that those limits may not be mistaken or forgotten in 
the Constitution as written.
  What he said was that the Constitution--I have a copy over here--was 
written because we want to put down the limitations on the power of the 
government to go and exercise authority over the public to a limited 
factor so the public still has some freedom and liberty at the end of 
the day. He continued on with that by saying, Should Congress, under 
the pretext of executing its powers, pass laws for the accomplishments 
of objects not entrusted--perhaps some of those list of requirements or 
ideas that this lady who called you from Alabama, was it--that she 
would like somebody to take care of her for her--should Congress under 
the pretext of executing its powers pass laws via accomplishment of 
objects not entrusted to the national government--this is where I yield 
back to you on the Federalism issue--it would become the painful duty 
of this tribunal--that meaning the U.S. Supreme Court--should a case 
requiring such a decision come before it, to say that such an act was 
not the law of the land.
  What does that mean? That means that Congress does not have the 
ability to say that something is constitutional just because we say it 
is. Congress does not have the ability of saying that something is 
necessary and proper just because we say it is. Congress does not have 
the ability to say something is providing the good and general welfare 
for the country and therefore is constitutional just because we say it 
is.
  We have a Constitution that is a contract entered into by the people 
of this

[[Page 220]]

country with their government defining what the authority is on the 
various levels of government, and we here as Members of Congress must 
live within the terms of that contract. We cannot go outside of the 
terms of the contract any more than any one of us can go outside the 
terms of a contract that we entered into when we buy a house or buy a 
car or enter a contract with some store or what have you.
  We are limited by what the Constitution does and says. That is what 
we are trying to ask that this administration keep in mind and what we 
are asking the Speaker to keep in mind as well when they bring forth a 
bill to the floor trying to do something that we all agree needs to be 
done, and that is to reform the health care delivery system in this 
country. But we would suggest that it be done in a way that is 
constitutional and protects the freedoms and liberties of the American 
people.
  And with that, I yield to the gentleman whatever time remains.

                              {time}  2130

  Mr. BISHOP of Utah. I appreciate you yielding again on this.
  Let me just say that there are several concepts that we have talked 
about here. One, does it meet the threshold of the commerce clause 
according to the courts? I do not think it does. You have also 
mentioned several other concepts, that just because Congress says this 
is a necessary and proper act doesn't necessarily mean it is a 
necessary and proper act.
  It also bothers me that we forget the very essence of federalism upon 
which this country was founded, which means simply, it is not essential 
for the Federal Government to have to solve every problem. In fact, 
sometimes it is better if the Federal Government does not. I have used 
that example many times before about records. When I was younger, if I 
wanted a song, I had to buy the entire record. Now there is an iPod 
that my kid can download the song that I want, too. If I want vanilla, 
Ben and Jerry's still has 34 flavors from which I can choose.
  Every part of our lives is now based on the concept of choice and 
options for American people, except the government. The Federal 
Government is still the last bastion of one-size-fits-allism, where we 
tell people what they ought to be doing rather than allowing them to 
have choices and options. I say this because some people said, Well, if 
we don't do this, we have nothing. That is not true. States are moving 
forward. My State already has implemented a process that gives people 
66 options based on the demographics of my State, and everything we are 
doing in Utah is stopped dead. If this Federal bill passes, they 
succeed, they now dictate everything that will happen.
  States are different. Massachusetts has a program they seem to like. 
It would not work in Utah. The demographics of Utah would not allow our 
program to be successful in Massachusetts. But that is why there is the 
brilliance of federalism, so there can be 50 different innovative ideas 
and people have the chance to experiment and try and prove and find 
something that works for their particular area. In a nutshell, that is 
a very brief problem. This destroys the concept of federalism.
  I will yield back to the gentleman from New Jersey.
  Mr. GARRETT of New Jersey. I am trying to think of the quote. You can 
try to help me out here. ``States were created as the----''
  Mr. BISHOP of Utah. ``Laboratory of democracy.''
  Mr. GARRETT of New Jersey. ``--laboratory of democracy'' so all of 
those experiments could go on. Instead, what we have are the States 
becoming the guinea pigs for the democracy because the States are being 
controlled by the Federal Government in a way that is not the way the 
American public would like to see it.
  So I thank the gentleman from Utah for, once again, joining us on the 
floor in an eloquent and educational format, as you always do. I 
appreciate that in a commonsense way that we can all understand it as 
well.

                          ____________________