[Congressional Record (Bound Edition), Volume 158 (2012), Part 8]
[House]
[Pages 10762-10765]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              {time}  1430
                   SUPREME COURT HEALTH CARE DECISION

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 5, 2011, the Chair recognizes the gentleman from Texas (Mr. 
Gohmert) for 30 minutes.
  Mr. GOHMERT. It's always an honor to speak before the House of 
Representatives, a great storied history here, just as the Supreme 
Court has a great storied history. There's some moments in time with 
regard to the United States Supreme Court which show it to have 
consisted of a bastion of strong-willed, determined, principled, 
constitutionally minded Justices. There are other times when the 
Supreme Court has shown itself to consist of some great judges and some 
who are more interested in politics, more interested in feathering 
their friends' nests than they are in doing what was right under the 
Constitution, even though it was easy enough for them to rationalize 
that, gee, if they did what helped their friends, then obviously that 
would make it better for the whole country.
  I think we get some of that rationalization from this administration. 
Gee, if they just throw billions or hundreds of billions of dollars at 
friends, then their friends will do better. And if their friends are 
doing better, surely the rest of the country would. We have also found 
that to be true with regard to things like Solyndra and the massive 
number of other cronies of the administration that have received 
hundreds of billions of dollars over time and also at a time when this 
country is sorely hurting from overspending and running up debt.
  In fact, today we had a bill regarding transportation and a 
conference report. I know my friend John Mica from Florida worked 
exceedingly hard, as had other members of Transportation, trying to 
reach an agreement with the conference report. It looked like the 
Senate got the better end of the deal. But I know these people, I know 
their hearts, and I know they try to do what is right for America when 
it comes to Chairman Mica and those who are assisting him.
  But, nonetheless, we heard our friends across the aisle over and over 
today talk about how critically important infrastructure is, how we 
ought to be spending money, and how just $1 billion added to the 
transportation budget

[[Page 10763]]

could really make a tremendous difference. I hearken back to a year-
and-a-half ago when the President of the United States, Barack Obama, 
had told people that if you will give me basically a trillion--whether 
it's $800 billion, $900 billion, apparently it looked more like a 
trillion dollars by the time it was finished--you just hand me over a 
trillion bucks and we'll get this economy going. If you don't give it 
to me, then it will turn out that we may see as high as 8.5 percent 
unemployment. But if you do give it to me, we'll never see 8.
  Of course, he was wrong that we would never see 8 percent 
unemployment. We've gone for many months--I guess that was 3\1/2\ years 
ago now--that he was telling us about his big stimulus. How quickly 
time flies.
  As the transportation proponents were pushing their bill today and 
talking about what the good infrastructure will do, many of us believed 
that was true back in January of 2009, that it would be good. If we're 
going to spend money on anything, spend it on the things that we really 
need to do: bridges, roads, all these things that need construction, 
need renovation.
  So the President sold America largely on his stimulus because we're 
going to fix all the infrastructure in America. But the last 3\1/2\ 
years have borne out that the President did not spend $800 billion, 
$900 billion on infrastructure. He spent maybe 6 percent of the largest 
giveaway in American history. He surpassed the terrible mistake that 
TARP was--$700 billion. And we haven't been able to get an exact 
number, but of the $700 billion, it may be $450 billion-or-so that his 
administration inherited. So when you get the $800 billion, $900 
billion, trillion-dollar stimulus giveaway--porkulus, as some called 
it--and you combine that with $400 billion, $450 billion, $500 billion 
that he was able to inherit from the TARP fund, you think maybe a 
trillion and a trillion-and-a-half dollars he had to give away.
  And we hear debate over what difference $1 billion would make. He was 
talking about a thousand times that for infrastructure. And he spent a 
tiny fraction on infrastructure, preferring instead to have massive 
grants and giveaways to programs that were his cronies, his pets, that 
are now producing no dividends and in fact are increasing further debt.
  So we hear those things, how wonderful infrastructure would be, and 
yet we know when we as a Congress provided this administration with 
massive amounts of money for infrastructure, they diverted it. They did 
more damage to the country than they did good. And we look at the 
people that this President has surrounded himself with. He had a 
Solicitor General named Elena Kagan. The Solicitor General's job is to 
assist the White House, assist the administration with potential 
legislation that may come to litigation, assist them with litigation. 
As I know from working 30 years ago in the private sector, you can't 
advise people about existing litigation and do your job without 
advising them about the way to avoid future litigation problems that 
you run into.
  So we know that the biggest legislative agenda item for this 
administration was the complete takeover of health care. And as most 
thinking people would understand, if you could control all health care, 
you can pretty well control all people. You get to decide who gets what 
treatments, who can have a new hip, who can have a new knee, who can 
have radiation therapy, who can have the surgery. And as one secretary 
in my hometown pointed out, her mother acquired breast cancer in 
England, and since the English Government's wonderful health care 
system decided how long you had to wait before you could get to have 
diagnostic tests done, before you could have therapeutic activity 
occur, her mother didn't get the diagnostic tests in time to find out 
she had it for sure, didn't get the surgery in time, didn't get the 
treatment in time and she said, My mother died of breast cancer because 
she lived in England and the government was in charge of health care.

                              {time}  1440

  She said I have been found to have cancer since I've been here in the 
U.S., and because the government was not in charge of my health care, I 
got it diagnosed in time. I got treatment in time. I didn't have to 
live by any preconceived requirements of the government. So I'm alive 
because I was in America. My mother is dead because her health care was 
in England.
  Some think the great panacea is government being charged with health 
care. We've heard over and over again that this is for the good of the 
children.
  At this point I would be delighted to yield to my friend from 
Michigan.


                    United Way Celebrates 125 Years

  Mr. CLARKE of Michigan. I want to thank the gentleman from Texas for 
yielding me some time.
  Mr. Speaker, I'm very honored today to commend the United Way on 125 
years of serving our country. In particular, the United Way of 
Southeastern Michigan has done so much good for our region and for our 
people. It has helped provide shelter to the homeless, provide 
education to our young people and training to the unemployed.
  So again, I want to thank the United Way of Southeastern Michigan for 
its service, and also congratulate the United Way on its 125th 
anniversary of outstanding work for our country.
  I thank the gentleman from Texas for yielding me this time.
  Mr. GOHMERT. I thank and greatly appreciate my friend, Mr. Clarke. 
That is obviously an important announcement. I didn't realize that the 
United Way had been around 125 years. They do great work, and I 
appreciate my friend, and I do mean my friend, calling that to our 
attention.
  The Obama administration had an agenda item, getting ObamaCare 
passed. Elena Kagan was Solicitor General, and she continued to be 
Solicitor General even up until after the time when the first lawsuits 
were filed against ObamaCare. Now, she gave testimony before the Senate 
that satisfied them at the time that she was pure as the driven snow 
and she would in no way compromise integrity. That was the feeling that 
was gotten. She got the votes that she needed to be confirmed, and then 
went on to the U.S. Supreme Court.
  But since that time, more questions have arisen. Wait a minute, she 
was there during this, that, and the other. When ObamaCare was being 
drafted, when it was being prepared, and even after it passed and it 
became law, she was the Solicitor General.
  And so now that we see all of these things in perspective, we go, 
wait a minute, could she have been the worst Solicitor General in 
American history that she would never advise the President, her boss--
never advise him--on the litigation that would surely be coming when 
his prize legislation got passed, if it got passed? Because a 
legitimate lawyer, an adviser, a counselor, will tell the client--in 
this case, the President--Look, if you want to have this pass 
constitutional muster, here's what you need to do. Let's get this 
verbiage in one place, let's get this in another.
  Could she have foreseen that perhaps a weakness of the brilliant John 
Roberts would be, if you call something a penalty in a bill and then 
later call it a tax after it's passed, that maybe the Supreme Court 
would buy it? I don't even think that Solicitor General Kagan could 
have foreseen that John Roberts would totally abandon intellectual 
consistency. No matter how intelligent, I don't think she could have 
seen that coming. I certainly didn't.
  But the law regarding judges, Federal judges, is not just a matter of 
ethics--gee, you can have an ethics complaint filed against you as you 
can if you're a practicing attorney or a judge. The law is 28 U.S.C., 
section 455, and it says:
  Any justice, judge, or magistrate judge of the United States shall 
disqualify himself--that's generic for him and her--in any proceeding 
in which his impartiality might reasonably be questioned.
  Well, it is absolutely clear that her impartiality is certainly 
questionable in her boss's most prized legislation: ObamaCare.
  My friend from Alabama, one of the great Senators over at the other 
end of

[[Page 10764]]

the hall, Jeff Sessions, had extended eight questions to Attorney 
General Holder asking for answers, and they were submitted timely under 
the rules so they were part of the hearing and would require answers 
from our Attorney General Holder. And three of them in particular were 
these. These were questions for Attorney General Holder, because as 28 
U.S.C., section 455 is the law and Justice Kagan's impartiality has 
reasonably been questioned, there is potential here for a law violation 
by Justice Kagan, and we need to know more. Since this is with regard 
to the law that the Attorney General is supposed to uphold, fair 
questions. From Jeff Sessions to Attorney General Holder:

       Are you aware of any instances during Justice Kagan's 
     tenure as Solicitor General of the United States in which 
     information related to the Patient Protection and Affordable 
     Care Act and/or litigation related thereto was relayed or 
     provided to her?

  Another question from U.S. Senator Jeff Sessions to Attorney General 
Holder that required an answer:

       When did your staff begin ``removing'' Solicitor General 
     Kagan from meetings in this matter? On what basis did you 
     take this action? In what other matters was such action 
     taken?

  Clearly, Solicitor General Kagan was on the email list for people who 
were talking about the laws that were coming up that the administration 
wanted to get passed, including ObamaCare, so it's a legitimate 
question to know at what point did she stop getting emails regarding 
ObamaCare.
  It's also important to know what she said in those emails, because 
the one email they slipped and let us get a glimpse of was when 
ObamaCare passed. She sent an email something along the lines of: Can 
you believe they got the votes? Sounds like an excited utterance.
  And it's worth noting that under 28 U.S.C., section 455 the law is 
very clear, this is the law. It's not an ethics, an encouraged rule. 
This is the law.

                              {time}  1450

  ``Where he or she has served in government employment''--as Solicitor 
General Kagan had--``and in such capacity participated as counsel, 
adviser or material witness concerning the proceeding or expressed an 
opinion concerning the merits of the particular case in controversy, 
she shall disqualify herself.''
  So, clearly, she is already disqualified because her impartiality is 
certainly reasonably being questioned. But is there even another law--
not rule, but law--in which her impartiality can be questioned? But it 
makes it very clear, if she ever, ever expressed an opinion concerning 
the merits of ObamaCare, she should not have been allowed to sit on 
this case.
  I think history is going to judge this case in a way that Justice 
Roberts never dreamed. He is so brilliant. There's no question that he 
was able to rationalize that coming as part of the majority as he did 
was the thing to do. He has gotten accolades, just as Chief Justice 
Taney did when he came out with the Dred Scott decision. Justice Taney 
got accolades from people, you know, wow. Yes, he got criticism, just 
as Chief Justice Roberts has, but he got some of the same accolades 
he's got: wow, what a brilliant man. He has removed politics from the 
Supreme Court when the truth is just the opposite of what occurred.
  The politics of the White House prevailed. It was pure politics; it 
was nothing but politics. And anyone who honestly reads this opinion 
from an entirely objective standpoint will not be able to say this is a 
beautiful piece of well-reasoned legal logic because it is not. It is a 
hodgepodge of poorly written, poorly thought-out, poorly pieced-
together opinion; and it's an embarrassment. And one day, history will 
record that this Court was possessed of four individuals who had 
political agendas and could not set them aside, and that a Chief 
Justice, who knew better, decided he would try to make the Court look 
less than political, and in doing so became very political.
  We need answers to these questions.
  The third one was:

       Did you ever have a conversation with Justice Kagan 
     regarding her recusal from the matters before the Supreme 
     Court related to the Patient Protection and Affordable Care 
     Act? If so, please describe the circumstances and substance 
     of those conversations.

  Real easy. Now, we know that this Attorney General has significant 
recollection problems. He recalled, under penalty of perjury before our 
Judiciary Committee that he had only learned about Fast and Furious a 
few weeks, he said, a few weeks before the hearing. Within months, we 
found documentation showing that that was a lie. It had been months 
before, at a minimum, that he had learned. Then, when he had that 
presented to him, he said a few weeks, months, what's the difference? 
Highest Justice official in America sees no difference between a few 
weeks and months.
  These questions need to be answered. It's already embarrassing enough 
that a Justice hid behind the refusal to answer questions, the 
avoidance of questions, to be able to sit on this case and participate 
in one of the worst thought-out and thought-through and expressed 
opinions that I've read from the U.S. Supreme Court.
  And it's worth looking at some of them. If you go to the opinion 
itself, first of all, the Supreme Court has to deal with the issue of 
whether the Supreme Court can consider the case because the Anti-
Injunction Act basically, in essence, says: if Congress passes a tax, 
then the Supreme Court does not have any jurisdiction to consider the 
case. No one can file such case in Federal court until the tax is 
actually levied and the individual filing suit has actually had it 
levied on them. Then that individual has standing, can file a lawsuit, 
and the Supreme Court can consider it. But until the Supreme Court 
could decide and determine whether or not the penalty for not buying 
health care insurance was a penalty or a tax--even though the language 
in the act clearly said it was a penalty--well, the Court couldn't go 
forward. So that was the first thing they had to wrestle with. You see 
it particularly highlighted from pages 11 through 15.
  But it's worth noting--this is page 11--the Court says: before 
turning to the merits, we need to be sure we have authority to do so. 
That's Justice Roberts, before turning to the merits, we've got to be 
sure we have authority. He said the Anti-Injunction Act provides:

       No suit for the purpose of restraining the assessment or 
     collection of any tax shall be maintained in any court by any 
     person, whether or not such person is the person against whom 
     such tax was assessed.

  Can't bring the lawsuit, the Supreme Court can't consider it if it's 
a tax, because it won't be 2014 or so before that happens.
  So you look at this decision, page 12, our brilliant Chief Justice--
and he really is brilliant, he just compromised it here:

       Congress's decision to label this exaction a ``penalty'' 
     rather than a ``tax'' is significant because the Affordable 
     Care Act describes many other exactions it creates as 
     ``taxes.''

  Because there are taxes. There are, clearly. There's the medical 
device tax that ObamaCare adds. All these other taxes, they call 
themselves taxes. This doesn't. And Justice Roberts points out, it's a 
penalty. They call it that.
  Justice Roberts says, and this is page 13 of his opinion:

       The Anti-Injunction Act and the Affordable Care Act, 
     however, are creatures of Congress's own creation. How they 
     relate to each other is up to Congress and the best evidence 
     of Congress's intent.

  Get that: best evidence of Congress's intent is the statutory text. 
That's why he goes through and says the text calls it a penalty. On 
page 15, he says:

       The Affordable Care Act does not require that the penalty 
     for failing to comply with the individual mandate be treated 
     as a tax for purposes of the Anti-Injunction Act. The Anti-
     Injunction Act therefore does not apply to this suit, and we 
     may proceed to the merits.

  It's not a tax; it's a penalty. All right. So, page 15, all this 
legal reasoning, it's not a tax, it's a penalty, best evidence of what 
it is is what Congress calls it, Congress calls it a penalty, ergo it's 
a penalty and we can move on. And now we're entitled to consider the 
merits.
  Now, he also adds--this is over at page 39:


[[Page 10765]]

       The joint dissenters argue that we cannot uphold section 
     5000A as a tax because Congress did not frame it as such.

  Now, in fact, the four intellectually honest dissenters have pointed 
out to the Chief Justice--they called it a penalty. You said the best 
evidence of what it was was what Congress called it. Congress calls it 
a penalty, they treat it as a penalty, and that's the best evidence. So 
you can't uphold 5000A as a tax because it was not intended to be one.
  If you look, page 39 is where--and the full sentence says: ``An 
example may illustrate why labels should not control here.'' This is 
the Chief Justice saying these lines. Labels should not control here. 
He just said, in page 11 through 15, labels should control. Congress 
puts the label on what they mean it to be: that should control. Now 
he's saying labels don't control here.
  He goes on to say, and this is at page 44:

       The Affordable Care Act's requirement that certain 
     individuals pay a financial penalty for not obtaining health 
     insurance may reasonably be characterized as a ``tax.''

                              {time}  1500

  I called it a penalty so I'd have jurisdiction to write this opinion, 
but now that I have jurisdiction to write this opinion, now, page 44, 
I'm calling it a tax. Also on 44 he says:

       The statute reads more naturally as a command to buy 
     insurance than as a tax, and I would uphold it as a command 
     if the Constitution allowed it.

  Well, that is the point I guess, that is really strange in an opinion 
because that's in a paragraph marked Capital D that starts with:

       Justice Ginsberg questions the necessity of rejecting the 
     government's commerce power.

  You never put that in, you're not supposed to. In good writing of 
judicial opinions, you don't put that in a majority opinion. You don't 
attack another co-majority signer, and yet he does that a few times in 
his majority opinion.
  But then to add first person, the first person pronoun ``I'' and then 
follow that with a conditional future tense verb ``would'' uphold it as 
a command if the Constitution allowed it, why is that there?
  That looks like that should have been part of a dissenting opinion, 
not, for heaven's sake, the majority opinion by one of the smartest 
lawyers in the country. He sacrificed not only his intellectual 
consistency, he sacrificed his intellectual ability to write as one of 
the best writers we ever had. It's really tragic.
  But the statute reads more naturally as a command to buy insurance. I 
would have allowed it. It makes no sense there in that context.
  One other quote we have down here, it's found at page 57. He says:

       We are confident that Congress would have wanted to 
     preserve the rest of the Act.

  He knows that's not true. He knows that the House version of 
ObamaCare had the severability clause. And the severability clause, 
every good lawyer, even every bad lawyer knows, if you want the whole 
document to be preserved, even if one line is struck out, you better 
put that Mother Hubbard clause in there so that it's all protected. You 
lose one line, you don't lose the whole document.
  And that was in the House version, but the Senate chose to strike it 
out. They didn't want it in there to say, if any of these parts get 
struck down by the Court, it all has to fall. They didn't want that. 
They wanted the bill without the severability clause because if 
anything got struck, everything had to go. That's the way they looked 
at it.
  In fact, that debate was even made. If we don't get this part, we 
don't get that part, then there's no sense even having any of it.
  Well, it's pretty tragic, pretty tragic. But there's been so much 
sacrifice.
  I'm very grateful to Justice Kennedy, Justice Scalia, Justice Thomas, 
Justice Alito for maintaining their consistency. The dissent is very 
well-written, very consistent. They not only didn't sacrifice their 
intellectual integrity, they did not compromise their writing ability.
  It's a dangerous time, and now we know, because of this Supreme Court 
decision, talking to my friend, Allen West this morning, he brought 
this up. I didn't know he'd brought it up already in an interview. But 
since we now know that bringing down the cost of government function is 
a legitimate interest that justifies intrusive legislation, and you can 
now have a tax on people if they don't participate, then we know 
everywhere that concealed guns have been made legal, the crime rates 
have gone down. When the crime rates go down, the costs go down. So we 
need a bill that will require everybody in America to buy a gun, and if 
you don't, you'll be taxed.
  And this Supreme Court, in their intellectual lack of integrity, will 
sustain that bill.
  With that, I yield back the balance of my time.

                          ____________________