Mr. President, in a little while, I will be making a constitutional point of order against the substitute amendment. I won't make that now because we are working on an agreement on when we can have that vote. I want to start talking about…
Mr. President, in a little while, I will be making a constitutional point of order against the substitute amendment. I won't make that now because we are working on an agreement on when we can have that vote.
I want to start talking about the reason I believe this substitute amendment is unconstitutional--the individual mandate contained in it. I will be speaking for about 10 minutes now, and then I will resume my remarks at 9:30, after one of the Democrats comes down and uses their 15 minutes.
If this constitutional point of order is rejected and the health care reform bill is passed, I believe the Court should reject it on constitutional grounds.
Some of my colleagues may not be aware of the Finance Committee's debate on the constitutionality of this health care reform bill. During the committee markup of its version of the bill, Senator Hatch raised some thought-provoking constitutional questions. He offered an amendment, which I supported, to provide a process for the courts to promptly consider any constitutional challenge to the Finance Committee bill. He chose the same language that was put into the bipartisan Campaign Reform Act. Unfortunately, the amendment was deemed nongermane.
I am seriously concerned that the Democrats' health care reform bill violates the Constitution of these United States. As part of comprehensive health care reform, the Democrats would require every single American citizen to purchase health insurance. Americans who fail to buy health insurance that meets the minimum requirements would be subject to a financial penalty. This provision can be found in section 1501 of the Democrats' health care reform bill. It is called the ``requirement to maintain minimal essential coverage.''
While this is a constitutional point of order, I feel it is important to note that in the Declaration of Independence, America's Founding Fathers provided that:
We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with
certain unalienable rights, that among these are life,
liberty, and the pursuit of happiness.
What happened to life, liberty, and the pursuit of happiness? I guess Americans can only have them if they comply with this new bill and buy a bronze, silver, gold, or platinum health insurance program.
America's Founders and subsequent generations fought dearly for the freedoms we have today.
I question the appropriateness of this bill and specifically the constitutionality of this individual mandate. Is it really constitutional for this body to tell all Americans they must buy health insurance coverage? If so, what is next? What personal liberty or property will Congress seek to take away from Americans next? Will we consider legislation in the future requiring every American to buy a car, to buy a house, or to do something else the Federal Government wants?
My friend and colleague, Senator Hatch, raised similar questions during the debate in the Finance Committee. In fact, he raised the following question:
If we have the power simply to order Americans to buy
certain products, why did we need a cash for clunkers
program, or the upcoming program providing rebates for
purchasing energy efficient appliances? We can simply require
Americans to buy certain cars, dishwashers, or refrigerators.
Where do we draw the line? Will we even draw one at all? The Constitution draws that line. It is called the enumerated powers. I don't think Congress has ever required Americans to buy a product or service, such as health insurance, under penalty of law. I doubt Congress has the power to do that in the first place.
As the CBO explained during the 1990s:
A mandate requiring all individuals to purchase health
insurance would be an unprecedented form of Federal action.
The government has never required people to buy any good or
service as a condition of lawful residence in the United
States.
Yet that is exactly what this health care bill would do. This bill would require Americans to buy a product many of them do not want or simply cannot afford.
Some individuals have raised the example of car insurance in the context of this debate. But requiring someone to have car insurance for the privilege of being able to drive is much different from requiring someone to have health insurance. As Senator Hatch pointed out, people who do not drive do not have to buy car insurance. Senator Hatch is right. If you live in New York City, you probably rely on subways or some other form of mass transit. You probably do not own a car, so you have no reason to buy car insurance and you are not forced to do so. Yet this health care reform bill requires Americans to buy health insurance whether or not they ever visit a doctor, get a prescription, or have an operation.
Under this bill, if you do not buy health insurance coverage, you will be subject to a penalty. Let's call this penalty what it really is--a tax. Even worse, this penalty operates more like a taking than an ordinary tax. If an American chooses not to buy minimal essential health coverage, he or she will face rapidly increasing taxes--up to $750 or 2 percent of taxable income, whichever is greater, by the year 2016. There is no penalty for Americans who qualify for hardship or religious exemptions. There is also no penalty for illegal immigrants or prisoners.
Americans typically pay taxes on a product or service they buy or on income they earn. For example, if you fill up your car at the pump, you pay a gas tax. If you earn income, you pay an income tax. Yet this bill creates a new tax on Americans who choose not to buy a service. It is very counterintuitive. This bill taxes Americans for not doing anything at all, other than just existing. This penalty is assessed through the Internal Revenue Code.
Senator Hatch made the following statement:
If this is a tax at all, it is certainly not an excise tax.
Instead, it is a direct tax. While the Constitution requires
that excise taxes must be uniform throughout the United
States, it requires that direct taxes must be apportioned
among the States by population. Just as the excise tax on
high premiums is not uniform, this direct tax on individuals
who do not purchase health insurance is not apportioned.
I recognize that the authors of this health reform bill included an individual mandate in this bill based on the idea that health care costs would be spread among all Americans and would ultimately reduce their health insurance costs. The claim is, insurance costs will be lowered because cost shifting will be reduced. This cost shift arguably takes place because health care providers--doctors and hospitals--who provide free or uncompensated care to the uninsured, shift the cost to the insured or paying patients. The hospital or doctor then shifts the cost of that unpaid care to the insured patient in the form of higher charges in order to cover the cost of uninsured patients.
I understand this concept, but I am incredibly concerned that the individual mandate provision takes away too much freedom and choice from Nevadans and from Americans across the country.
I have read and studied multiple articles by scholars on the constitutionality of the individual mandate. I believe the individual mandate provision in this health care reform bill calls into question several provisions of the Constitution. I think the Congress does not have the authority, under the enumerated powers, to enact such a mandate.
I know the supporters of the individual mandate have claimed the commerce clause and the taxes and general welfare clause in article I, section 8 of the Constitution provide authority for Congress to enact such a mandate. I wholeheartedly disagree with that assessment.
According to the Constitution, the Federal Government only has limited powers. Although the Supreme Court has upheld some far-reaching regulations of economic activity--most notably in Wickard v. Filburn and Gonzales v. Raich--neither case supports enacting the independent health insurance mandate based on the commerce clause. In these cases, the court held that Congress was allowed to regulate intrastate economic activity as a means to regulate interstate commerce in fungible goods. The mandate to purchase health insurance, however, is not proposed as a means to regulate interstate commerce, nor does it regulate or prohibit activity in either the health insurance or the health care industry.
The mandate to purchase health insurance does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. Instead, the individual mandate provision regulates no action. It purports to regulate inactivity by converting the inactivity of not buying insurance into commercial activity. In effect, advocates of the individual mandate contend that under congressional power to ``regulate commerce . . . among the several states'' Congress may reach the doing of nothing at all.
In recent years, the Supreme Court has invalidated two congressional statutes that attempted to regulate noneconomic activities. To uphold the individual mandate based on the commerce clause, the Supreme Court would have to concede that the commerce clause provides unlimited authority to regulate. This is a position that the Supreme Court has never affirmed and that it rejected in recent cases.
Congress lacks the authority to regulate the individual's decision not to purchase a service or enter into a contract. Similarly, Congress cannot rely on its power to tax to justify imposing the individual mandate.
In addition to being beyond the scope of Congress' enumerated powers, this individual mandate also amounts to a taking under the fifth amendment takings clause. I would like to take a moment to read the relevant parts of the fifth amendment. It says in part:
No person shall be . . . deprived of life, liberty, or
property, without due process of law; nor shall private
property be taken for public use, without just compensation.
Let me repeat the part of the fifth amendment that applies to the issue at hand. It says:
. . . nor shall private property be taken for public use,
without just compensation.
The bill before us today would require an American citizen to devote a portion of income--his or her private property--to health insurance coverage. There is an exception, of course, for religious reasons and for financial hardships.
If one of my constituents in Nevada does not want to spend his or her hard-earned income on health insurance coverage and would prefer to spend it on something else, such as rent or a car payment, this requirement could be a taking of private property under the fifth amendment.
As noted in a recent article coauthored by Dennis Smith and the former Deputy General Counsel of the Department of Health and Human Services, Peter Urbanowicz, requiring a citizen to purchase health insurance ``could be considered an arbitrary and capricious `taking' no matter how many hardship exemptions the federal government might dispense.''
Some of my colleagues may also be familiar with David B. Rivkin and Lee A. Casey. They are attorneys, based in Washington, DC, who served in the Department of Justice during the Reagan and Bush administrations. In September, Rivkin and Casey published an op-ed in the Wall Street Journal entitled: ``Mandatory Insurance is Unconstitutional.'' I urge my colleagues to read this article and many others I will be submitting for the Record.
Mr. President, I ask unanimous consent to have printed in the Record at the conclusion of my remarks this Wall Street Journal by David B. Rivkin, Jr., and Lee A. Casey.
In the op-ed, Rivkin and Casey argue that the health insurance mandate:
. . . would expand the federal government's authority over
individual Americans to an unprecedented degree. It is also
profoundly unconstitutional.
Continuing the quote:
Making healthy young adults pay billions of dollars in
premiums into the national health-care market is the only way
to fund universal coverage without raising substantial new
taxes.
In effect, this mandate would be one more giant, cross-
generational subsidy--imposed on generations who are already
stuck with the bill for the federal government's prior
spending sprees.
A ``tax'' that falls exclusively on anyone who is uninsured
is a penalty beyond Congress's authority. If the rule were
otherwise, Congress could evade all constitutional limits by
``taxing'' anyone who doesn't follow an order of any kind.
As the fourth Chief Justice of the Supreme Court, John Marshall, stated:
The power to tax involves the power to destroy.
Unfortunately, this could certainly be true in the context of this health bill.
We in Congress must zealously defend our citizens' rights and prevent this from happening. I believe the legislation before us violates the greatest political document in the history of the world, the Constitution of the United States.
I urge my colleagues to think very carefully about the constitutional issues I have raised. I know most people around here do not like to talk about whether something is constitutional. We just want to do what feels good because we think we are helping people. But our Founders set forth in the enumerated powers limits on what this body and this Federal Government could do.
As Members of Congress, one of our most important responsibilities is to protect, to defend, and preserve the Constitution of the United States. In that light, it is not only appropriate but essential for this body to question whether it is constitutional for the Federal Government to require Americans to buy health insurance coverage.
We should also question whether it is constitutional for the Federal Government to tell Americans what kind of health insurance coverage they have to purchase. So not only does this bill tell them they have to buy health insurance, it tells Americans what kind of health insurance must be purchased.
Americans also deserve to know how the bill will impact their ability to choose the health insurance coverage that best fits their needs. That is exactly why I will raise this constitutional point of order. Freedom and choice are very precious rights. Let's not bury our heads in the sand and take away freedom and choice from American citizens. We need to think about this individual mandate very carefully.
I have several articles, and I would like to read a couple of quotes from these articles. The first one is from the Washington Post. The article is entitled, ``Illegal Health Reform.'' It is written by David Rivkin and Lee A. Casey. It says:
The otherwise uninsured would be required to buy coverage,
not because they were even tangentially engaged in the
``production, distribution or consumption of commodities,''
but for no other reason than people without health insurance
exist. The federal government does not have the power to
regulate Americans simply because they are there.
Significantly, in two cases, United States v. Lopez (1995)
and United States v. Morrison (2000), the Supreme Court
specifically rejected the proposition that the commerce
clause allowed Congress to regulate noneconomic activities
merely because, through a chain of causal effects, they might
have an economic impact. These decisions reflect judicial
recognition that the commerce clause is not infinitely
elastic and that, by enumerating its powers, the framers
denied Congress the type of general police power that is
freely exercised by the states.
Mr. President, to read further from the article in the Washington Post:
Like the commerce power, the power to tax is the Federal
Government's vast authority over the public, and it is well
settled that Congress can impose a tax for regulatory rather
than purely revenue-raising purposes. Yet Congress cannot use
its power to tax solely as a means of controlling conduct
that it could not otherwise reach through the commerce clause
or any other constitutional provision. In the 1922 case
Bailey v. Drexel Furniture, the Supreme Court ruled that
Congress could not impose a ``tax'' to penalize conduct (the
utilization of child labor) it could not also regulate under
the commerce clause. Although the court's interpretation of
the commerce power's breadth has changed since that time, it
has not repudiated the fundamental principle that Congress
cannot use a tax to regulate conduct that is otherwise
indisputably beyond its regulatory power.
Of course, these constitutional impediments can be avoided
if Congress is willing to raise corporate and/or income taxes
enough to fund fully a new national health system. Absent
this politically dangerous--and therefore unlikely--scenario,
advocates of universal health coverage must accept Congress'
power, like that of the other branches, has limits. These
limits apply regardless of how important the issue may be,
and neither Congress nor the president can take
constitutional short cuts. The genius of our system is that,
no matter how convinced our elected officials may be that
certain measures are in the public interest, their goals can
be accomplished only in accord with the powers and processes
the Constitution mandates, processes that inevitably make
them accountable to the American people.
I want to read from another article that was written by Randy Barnett, Nathaniel Stewart, and Todd Gaziano. This article is entitled, ``Why the Personal Mandate to Buy Health Insurance is Unprecedented and Unconstitutional.''
Members of Congress have the responsibility, pursuant to
their oath, to determine the constitutionality of legislation
independently of how the Supreme Court has ruled or may rule
in the future. But Senators and Representatives also should
know that, despite what they have been told, the health
insurance mandate is highly vulnerable to challenge because
it is, in truth, unconstitutional. And all other
considerations aside, the highest obligation of each Member
of Congress is fidelity to the Constitution.
I ask unanimous consent to have printed in the Record, following my remarks, the articles I have before me.
Continuing to quote, Mr. President, from the Barnett, Stewart, and Gaziano article:
A long line of Supreme Court cases establishes that
Congress may regulate three categories of activity pursuant
to the commerce power. These categories were first summarized
in Perez v. United States, and most recently reaffirmed in
Gonzalez v. Raich. First, Congress may regulate the channels
of interstate or foreign commerce such as the regulation of
steamship, railroad, highway or aircraft transportation or
prevent them from being misused, as, for example, the
shipment of stolen goods or of persons who have been
kidnapped. Second, the commerce power extends to protecting
``the instrumentalities of interstate commerce,'' as, for
example, the destruction of an aircraft, or persons or things
in commerce, as, for example, thefts from interstate
shipments. Third, Congress may regulate economic activities
that ``substantially affect interstate commerce.''
Under the first prong of its Commerce Clause analysis, the
Court asks whether the class of activities regulated by the
statute falls within one or more of these categories. Since
an individual health insurance mandate is not even arguably a
regulation of a channel or instrumentality of interstate
commerce, it must either fit in the third category or none at
all. . . . The Senate bill asserts (erroneously) that:
``[t]he individual responsibility requirement . . . is
commercial and economic in nature, and substantially affects
interstate commerce. . . . The requirement regulates activity
that is commercial and economic in nature: economic and
financial decisions about how and when health care is paid
for, and when health insurance is purchased.''
That is within the bill.
Continuing to quote:
The second prong of the Court's Commerce Clause analysis
requires a determination that a petitioner has in fact
engaged in the regulated activity, making him or her a member
of the regulated class. In its modern Commerce Clause cases,
the Supreme Court rejects the argument that a petitioner's
own conduct or participation in the activity is, by itself,
either too local or too trivial to have a substantial effect
on interstate commerce. Rather, the Court has made clear
that, ``where the class of activities is regulated and that
class is within the reach of federal power, the courts have
no powers `to excise, as trivial, individual instances' of
the class.'' Thus, for example, a potential challenger of the
proposed mandate could not argue that because her own
decision not to purchase the required insurance would have
little or no effect on the broader market, the regulation
could not be constitutionally applied to her. The Court will
consider the effect of the relevant ``class of activity,''
not that of any individual member of the class.
To assess the constitutionality of a claim of power under
the Commerce Clause, the primary question becomes, ``what
class of activity is Congress seeking to regulate?'' Only
when this question is answered can the Court assess whether
that class of activity substantially affects interstate
commerce. Significantly, the mandate imposed by the pending
bills does not regulate or prohibit the economic activity of
providing or administering health insurance. Nor does it
regulate or prohibit the economic activity of providing
health care, whether by doctors, hospitals, pharmaceutical
companies, or other entities engaged in the business of
providing a medical good or service. Indeed, the health care
mandate does not purport to regulate or prohibit activity of
any kind, whether economic or noneconomic. To the contrary,
it purports to ``regulate'' inactivity.
In other words, not buying health insurance. Continuing once again:
Proponents of the individual mandate are contending that,
under its power to ``regulate commerce . . . among the
several states,'' Congress may regulate the doing of nothing
at all! In other words, the statute purports to convert
inactivity into a class of activity. By its own plain terms,
the individual mandate provision regulates the absence of
action. To uphold this power under its existing doctrine, the
Court must conclude that an individual's failure to enter
into a contract for health insurance is an activity that is
``economic'' in nature--that is, it is part of a ``class of
activity'' that ``substantially affects interstate
commerce.''
Never in this Nation's history has the commerce power been
used to require a person who does nothing to engage in
economic activity.
Let me repeat that. ``Never in this Nation's history has the commerce power been used to require a person who does nothing to engage in economic activity.''
Let me close with this because I see the senior Senator from Utah is on the Senate floor, and he has argued eloquently on the unconstitutionality of this particular provision.
Again, I am quoting:
Today, even voting is not constitutionally mandated. But if
this precedent is established--
That is the precedent in this bill is established--
Congress would have the unlimited power to regulate,
prohibit, or mandate any or all activities in the United
States. Such a doctrine would abolish any limit on federal
power and alter the fundamental relationship of the national
government to the states and the people. For this reason it
is highly doubtful that the Supreme Court will uphold this
assertion of power.
Mr. President, I reserve the remainder of my time, and I yield to the senior Senator from Utah.
Exhibit 1
[From the Wall Street Journal, Sept. 18, 2009]
Mandatory Insurance Is Unconstitutional
(By David B. Rivkin, Jr. and Lee A. Casey)
Federal legislation requiring that every American have
health insurance is part of all the major health-care reform
plans now being considered in Washington. Such a mandate,
however, would expand the federal government's authority over
individual Americans to an unprecedented degree. It is also
profoundly unconstitutional.
An individual mandate has been a hardy perennial of health-
care reform proposals since HillaryCare in the early 1990s.
President Barack Obama defended its merits before Congress
last week, claiming that uninsured people still use medical
services and impose the costs on everyone else. But the
reality is far different. Certainly some uninsured use
emergency rooms in lieu of primary care physicians, but the
majority are young people who forgo insurance precisely
because they do not expect to need much medical care. When
they do, these uninsured pay full freight, often at premium
rates, thereby actually subsidizing insured Americans.
The mandate's real justifications are far more cynical and
political. Making healthy young adults pay billions of
dollars in premiums into the national health-care market is
the only way to fund universal coverage without raising
substantial new taxes. In effect, this mandate would be one
more giant, cross-generational subsidy--imposed on
generations who are already stuck with the bill for the
federal government's prior spending sprees.
Politically, of course, the mandate is essential to winning
insurance industry support for the legislation and acceptance
of heavy federal regulations. Millions of new customers will
be driven into insurance-company arms. Moreover, without the
mandate, the entire thrust of the new regulatory scheme--
requiring insurance companies to cover pre-existing
conditions and to accept standardized premiums--would produce
dysfunctional consequences. It would make little sense for
anyone, young or old, to buy insurance before he actually got
sick. Such a socialization of costs also happens to be an
essential step toward the single payer, national health
system, still stridently supported by large parts of the
president's base.
The elephant in the room is the Constitution. As every
civics class once taught, the federal government is a
government of limited, enumerated powers, with the states
retaining broad regulatory authority. As James Madison
explained in the Federalist Papers: ``[I]n 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
objects.'' Congress, in other words, cannot regulate simply
because it sees a problem to be fixed. Federal law must be
grounded in one of the specific grants of authority found in
the Constitution.
These are mostly found in Article I, Section 8, which among
other things gives Congress the power to tax, borrow and
spend money, raise and support armies, declare war, establish
post offices and regulate commerce. It is the authority to
regulate foreign and interstate commerce that--in one way or
another--supports most of the elaborate federal regulatory
system. If the federal government has any right to reform,
revise or remake the American health-care system, it must be
found in this all-important provision. This is especially
true of any mandate that every American obtain health-care
insurance or face a penalty.
The Supreme Court construes the commerce power broadly. In
the most recent Commerce Clause case, Gonzales v. Raich
(2005), the court ruled that Congress can even regulate the
cultivation of marijuana for personal use so long as there is
a rational basis to believe that such ``activities, taken in
the aggregate, substantially affect interstate commerce.''
But there are important limits. In United States v. Lopez
(1995), for example, the Court invalidated the Gun Free
School Zones Act because that law made it a crime simply to
possess a gun near a school. It did not ``regulate any
economic activity and did not contain any requirement that
the possession of a gun have any connection to past
interstate activity or a predictable impact on future
commercial activity.'' Of course, a health-care mandate would
not regulate any ``activity,'' such as employment or growing
pot in the bathroom, at all. Simply being an American would
trigger it.
Health-care backers understand this and--like Lewis
Carroll's Red Queen insisting that some hills are valleys--
have framed the mandate as a ``tax'' rather than a
regulation. Under Sen. Max Baucus's (D., Mont.) most recent
plan, people who do not maintain health insurance for
themselves and their families would be forced to pay an
``excise tax'' of up to $1,500 per year--roughly comparable
to the cost of insurance coverage under the new plan.
But Congress cannot so simply avoid the constitutional
limits on its power. Taxation can favor one industry or
course of action over another, but a ``tax'' that falls
exclusively on anyone who is uninsured is a penalty beyond
Congress's authority. If the rule were otherwise, Congress
could evade all constitutional limits by ``taxing'' anyone
who doesn't follow an order of any kind--whether to obtain
health-care insurance, or to join a health club, or exercise
regularly, or even eat your vegetables.
This type of congressional trickery is bad for our
democracy and has implications far beyond the health-care
debate. The Constitution's Framers divided power between the
federal government and states--just as they did among the
three federal branches of government--for a reason. They
viewed these structural limitations on governmental power as
the most reliable means of protecting individual liberty--
more important even than the Bill of Rights.
Yet if that imperative is insufficient to prompt
reconsideration of the mandate (and the approach to reform it
supports), then the inevitable judicial challenges should.
Since the 1930s, the Supreme Court has been reluctant to
invalidate ``regulatory'' taxes. However, a tax that is so
clearly a penalty for failing to comply with requirements
otherwise beyond Congress's constitutional power will present
the question whether there are any limits on Congress's power
to regulate individual Americans. The Supreme Court has never
accepted such a proposition, and it is unlikely to accept it
now, even in an area as important as health care.
Exhibit 2
[From the Washington Post, Aug. 22, 2009]
Illegal Health Reform
(By David B. Rivkin, Jr. and Lee A. Casey)
President Obama has called for a serious and reasoned
debate about his plans to overhaul the health-care system.
Any such debate must include the question of whether it is
constitutional for the federal government to adopt and
implement the president's proposals. Consider one element
known as the ``individual mandate,'' which would require
every American to have health insurance, if not through an
employer then by individual purchase. This requirement would
particularly affect young adults, who often choose to save
the expense and go without coverage. Without the young to
subsidize the old, a comprehensive national health system
will not work. But can Congress require every American to buy
health insurance?
In short, no. The Constitution assigns only limited,
enumerated powers to Congress and none, including the power
to regulate interstate commerce or to impose taxes, would
support a federal mandate requiring anyone who is otherwise
without health insurance to buy it.
Although the Supreme Court has interpreted Congress's
commerce power expansively, this type of mandate would not
pass muster even under the most aggressive commerce clause
cases. In Wickard v. Filburn (1942), the court upheld a
federal law regulating the national wheat markets. The law
was drawn so broadly that wheat grown for consumption on
individual farms also was regulated. Even though this rule
reached purely local (rather than interstate) activity, the
court reasoned that the consumption of homegrown wheat by
individual farms would, in the aggregate, have a substantial
economic effect on interstate commerce, and so was within
Congress's reach.
The court reaffirmed this rationale in 2005 in Gonzales v.
Raich, when it validated Congress's authority to regulate the
home cultivation of marijuana for personal use. In doing so,
however, the justices emphasized that--as in the wheat case--
``the activities
regulated by the [Controlled Substances Act] are
quintessentially economic.'' That simply would not be true
with regard to an individual health insurance mandate.
The otherwise uninsured would be required to buy coverage,
not because they were even tangentially engaged in the
``production, distribution or consumption of commodities,''
but for no other reason than that people without health
insurance exist. The federal government does not have the
power to regulate Americans simply because they are there.
Significantly, in two key cases, United States v. Lopez
(1995) and United States v. Morrison (2000), the Supreme
Court specifically rejected the proposition that the commerce
clause allowed Congress to regulate noneconomic activities
merely because, through a chain of causal effects, they might
have an economic impact. These decisions reflect judicial
recognition that the commerce clause is not infinitely
elastic and that, by enumerating its powers, the framers
denied Congress the type of general police power that is
freely exercised by the states.
This leaves mandate supporters with few palatable options.
Congress could attempt to condition some federal benefit on
the acquisition of insurance. States, for example, usually
condition issuance of a car registration on proof of
automobile insurance, or on a sizable payment into an
uninsured motorist fund. Even this, however, cannot achieve
universal health coverage. No federal program or entitlement
applies to the entire population, and it is difficult to
conceive of a ``benefit'' that some part of the population
would not choose to eschew.
The other obvious alternative is to use Congress's power to
tax and spend. In an effort, perhaps, to anchor this mandate
in that power, the Senate version of the individual mandate
envisions that failure to comply would be met with a penalty,
to be collected by the IRS. This arrangement, however, is not
constitutional either.
Like the commerce power, the power to tax gives the federal
government vast authority over the public, and it is well
settled that Congress can impose a tax for regulatory rather
than purely revenue-raising purposes. Yet Congress cannot use
its power to tax solely as a means of controlling conduct
that it could not otherwise reach through the commerce clause
or any other constitutional provision. In the 1922 case
Bailey v. Drexel Furniture, the Supreme Court ruled that
Congress could not impose a ``tax'' to penalize conduct (the
utilization of child labor) it could not also regulate under
the commerce clause. Although the court's interpretation of
the commerce power's breadth has changed since that time, it
has not repudiated the fundamental principle that Congress
cannot use a tax to regulate conduct that is otherwise
indisputably beyond its regulatory power.
Of course, these constitutional impediments can be avoided
if Congress is willing to raise corporate and/or income taxes
enough to fund fully a new national health system. Absent
this politically dangerous--and therefore unlikely--scenario,
advocates of universal health coverage must accept that
Congress's power, like that of the other branches, has
limits. These limits apply regardless of how important the
issue may be, and neither Congress nor the president can take
constitutional short cuts. The genius of our system is that,
no matter how convinced our elected officials may be that
certain measures are in the public interest, their goals can
be accomplished only in accord with the powers and processes
the Constitution mandates, processes that inevitably make
them accountable to the American people.
Mr. President, I know we are waiting for the chairman of the Finance Committee to come. I ask unanimous consent to speak in the meantime, in these few seconds.
I thank the senior Senator from Utah. He is one of the best constitutional scholars we have here in the Senate. I appreciate his words and analysis on why this bill is unconstitutional. I think his words this morning were eloquent. I appreciate his support as I raise this constitutional point of order.
I yield to the Senator from Montana, the chairman of the Finance Committee.
Mr. President, I rise to make a constitutional point of order against this bill on the grounds that it violates Congress' enumerated powers in article I, section 8 and that it violates the fifth amendment of the Constitution. I ask for the yeas and nays.
Mr. President, I suggest the absence of a quorum.