the democrat from illinois, will preside over this. witnesses will include the attorney general from the state of oregon, also a georgetown law professor, and others including a professor of law at harvard law school. we will head to that now.

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>> this hearing of the senate judiciary committee will come together. i want to thank chairman leahy for allowing me to convene this meeting. he will join us shortly. the title is the constitutional ality of the affordable care act. this is the first hearing on whether it complies with the

constitution. i would like to thank my friend and the ranking member of the senate judiciary committee, senator chuck grassley of iowa who will make an opening statement after i have completed my own. we will then turn to the witnesses in seven-minute rounds. when judge benson of the northern district of florida issued a ruling on monday striking down the affordable care act, it caused concern across america. many americans who are counting on the provisions of that health care a lot are in doubt about its future i am certain that many parents of children with pre-existing conditions wonder if they will be able to buy insurance at this lot is stricken. -- if this lot is stricken. senior citizens were hoping that we would close the doughnut hole. they will wonder what it means and whether they have to return the checks that were sent to them for the next check will be

sent in the future. doubt. those who are 25 years old and eligible to be covered by their parents' family health care plan may have questions. cancer patients may have doubts as well. small businesses who fought tax credit for coming their way may be asking members of congress what this means. i want those millions of americans to know that they should not despair. they should reflect on the simple history of major legislation in america. this is not the first major law that has been challenged in the courts or even challenged successfully in the lower courts as to its constitutionality. the social security act, the civil rights act of 1964, and the federal minimum wage law, all of those were successfully challenge and lower courts but unanimously, ultimately, up held by the supreme court.

i think the same thing will happen with the affordable care act. for those who are keeping score as to the challenges in federal courts to this law, make certain that you know the numbers. 12 federal district court judges have dismissed challenges to this law. two have found below to be constitutional and two have reached the opposite conclusion how is it possible that these federal judges, 16 different ones, not only studied the constitution but swear to uphold it have come to such different conclusions? those of us on the judiciary committee understand that many people can read that constitution and come to different conclusions. it is unlikely we will produce a national consensus in this room. maybe we won't even get an agreement but if we serve the congress and the nation by fairly laying out the case on both sides, i think this is a worthy undertaking by the senate judiciary committee. at the heart of the issue is

article 1, section 8 which enumerate the only powers delegated to congress. one side argues that with the passage of the affordable care act, congress went beyond that constitutional authority. the other includes those who voted for the law, disagreed. one constitutional scholar says this is the plainest in the constitution, the power to regulate commerce. is the health-care market commerce? the answer is obvious . the supreme court will ultimately decide. whether it was roscoe filburn growing wheat to feed his chickens in 1941 or angel rae treating her chronic illness with marijuana, justices have

netted clear that congress has broad power to regulate private behavior where there is any rational basis to conclude it substantially affects interstate commerce. the role of the lower courts is to apply those precedents to the facts. sometimes, lower court judges, many might be characterized as activists by their critics, and try to make new law. this has happened in florida and virginia. as judges, i believe, they created a new legal test distinguishing activity from inactivity. that is a distinction that cannot be found anywhere in the constitution or supreme court precedent. this is an historic room. i have four opportunities and senator grassley has probably had more, to meet in this room an interview prospective nominees to serve on the supreme court. they stand with the photographers and hold up their hands and take the oath.

then they said an answer questions many times for days. time and again, the questions asked of them is whether or not they will follow the constitution and precedents or whether they will be judicial activists. that is the standard that should be applied as we consider the future of the affordable health care act. i believe that the justices of the supreme court applied the precedents, look at the meeting of the constitution, they will find this law unconstitutional. when the affordable care act comes before the supreme court, i am confident that they will recognize that congress can regulate the market for health care and it can regulate insurance which is the primary means of payment for health care services. the political question focuses primarily on one section -- even if congress has the enumerated powers under section 82 tax and pass laws affecting the health care market, did it go too far in requiring that individuals who do not buy health insurance

coverage face a tax penalty? returning to article 1, section 8 which allows congress to make all laws necessary and proper for carrying into execution the foregoing powers, the supreme court last year said the necessary and proper clause makes clear that the constitution was granted of specific legislative authority is accompanied by a broad power to enact laws that are convenient or useful or conducive to the authorities beneficial exercise. the test is whether the means is rationally related to the implementation of a constitutionally enumerated powers. is an individual mandate rationally enumerated? it is clear to me that private health insurance companies could not function if people only

bought coverage when they faced a serious illness. it is worth noting that many who argue that affordable care is unconstitutional are the same people who are critics of judicial activism. they are pushing the supreme court to strike down this law because they could not defeated in congress and they are losing the argument in the court of public opinion where four of the five americans oppose repeal. why is public sentiment law -- not lining up? because a strong majority of americans do not believe their children should be denied health insurance because of pre- existing conditions. they want to cover their young adult children. they believe small businesses should be given tax credits. they oppose caps on coverage and the health industry's cancellation of coverage when people needed most. we should never forget that the strength of our constitution lies in our fellow citizens who

put their faith in its values and trust the president, congress, and the courts to set aside the politics of the moment and fairly applied 18th-century rhetoric to 21st century reality. i want to recognize senator grassley, the ranking member of the committee for his opening statement. >> thank you and i appreciate my colleagues discussion of the constitutional issues that are here. i also appreciated his discussion of some of the policy issues within this legislation whether you agree with parts of this bill that are good or parts are very bad, things should be thrown out, things that ought to be put into it that maybe aren't in there, are all legitimate issues. the real issue for us today is on the constitutionality of it. i think we are very fortunate in this country to be under the rule of law under that constitution. i think we're very fortunate to be probably the only country on

the globe that agrees to the principle of limited government. that is something that we not only appreciate, it is something we should worship and should be considered that the american people are very special for that reason. i look forward to the constitutional issues. we agree if the issue was constitutional, we move forward and it is not, we start over again all the policies that are in dispute that my colleague mentioned would be continued if this is constitutional. if it is not, we will debate those issues once again. the florida judge who ruled on the constitutionality of the new health law this monday compared the government's argument to alice in wonderland. that same reference applies equally to the hearing today. things are getting curiouser and curiouser.

under our system of limited and enumerated powers, the sensible process would have been to have held a hearing on the la paz constitutionality before the bill passed, not after. instead, the congress is examining the constitutionality of the health care law after the ship has sale. like alice in wonderland, sentence first, verdict afterwards. what has gotten us to this point? early in debate, republicans and democrats agreed that the health care system had problems that needed to be fixed. i was part of the bipartisan group of senators on the finance committee who were trying to reach an agreement on comprehensive health reform. however, before we could address some of the key issues, some democratic senators and the administration ended the negotiations and the majority took their discussions behind closed doors. what emerged was a bill that i

feel has major problems. beyond constitutionality republicans argue that instead of forcing it through the senate, republicans and democrats should return to the negotiating table to find common sense solutions that both parties could support. of course, the plea went unanswered and a majority passed the health care law without a single republican vote. in fact, when republicans identify specific concerns such as the constitutionality of the individual mandate, we were told that our arguments were pure messaging and obstructionism. throughout the debate, the majority argued that the individual mandate was essential for health reform to work. there are many constitutional questions about the individual mandate. is it valid regulation of interstate commerce? is it a tax? the reality is that no one can say for certain. the nonpartisan congressional research people now it is unprecedented for congress to

require all americans to purchase a particular service work good. the supreme court has stated that the commerce laws allow regulation of a host of economic activities that substantially affect interstate commerce. it has never been before allowed congress to regulate in activity by forcing people to act. what is clear is that this law is constitutional, congress can make americans buy anything that congress wants to force you to buy. the individual mandate is at the heart of the bill. my friend, senator baucus, chairman of the finance committee, said at that markup back in september, 2009, the absence of a requirement of a shared responsibility for individuals to buy health insurance guts the health care reform bill. if the supreme court to strike

down the individual mandate, it is not clear that the rest of law can survive. there are individual mandate is the reason that the new law bars insurance companies for denying coverage on pre-existing conditions. sponsors made the mandate the basis for nearly every provision of the law. ruling that all must be struck and reflects the importance of the mandate to the overall outcome. then there is the medicaid issue before us. does the new law amount to coercion of the states? states have the choice to drop out of medicare/medicaid programs. some of my colleagues and the other side of the aisle may make the case today that even though don't and they are

really promoting that as a viable option for the states, if a state drops out of medicaid, the new health law states clearly that none of the state's citizens would be eligible for tax credits because people with incomes at medicaid eligibility levels can't be eligible for tax credits. the idea that the federal government through the medicaid program could drive the single largest share of every state budget seems very inconsistent with the objectives of a federal system of government. at this point, mr. chairman and senator durbin, i ask that a statement from the virginia attorney general be placed in the record and i am interested in hearing from the witnesses today but ultimately, we all know that the subject of this hearing is finally going to be determined by the supreme court. thank you very much without objection, that statement will

be made part of the hearing. >> would the democratic members like to fill these seats? with this panel of witnesses please stand and take the oath? please raise your right hand. do you swear or affirm the testimony you are about to give will be the truth, the whole truth, and nothing but the truth so help you god. ? all the witnesses have entered in the affirmative. they will be given five minutes of opening statements and we will have seven-minute rounds where senators will ask questions. we have senator john -- we have attorney general kroger from the state of oregon. he was nominated by the republican and democratic parties. he is a bipartisan attorney- general.

help file a brief in support of the four -- affordable care act constitutionality. he served as the united states marine, a lofor flip -- a law professor. he served on numerous response team that investigated the 9/11 attacks. attorney general kroger received his bachelor's and master's degree from yale university and his law degree from harvard. >> [inaudible] thank you, my name is john kroeber and i'm the attorney- general of oregon. i have taken an oath to defend the constitution as the united states marine and federal prosecutor and attorney-general of my state. i take that obligation seriously. i am confident that the affordable care act is constitutional and will ultimately be judged constitutional.

the reason is simple. there have been four primary argument raised in litigation challenging the bill. i believe all four arguments are merit last. less. the first argument is that the commerce clause, by its own terms, only regulate commerce. the argument is that declining to get health insurance is not comers but refusing to engage in commerce and that falls outside the power of congress to regulate. this argument is extraordinarily weak because it was explicitly rejected in gonzales obverses rage. in that case, the court said that congress can regulate purely intrastate activities that is not in itself commercial. that belief was stated in the majority opinion but also in the concurrence from justice scalia.

the argument is dangerous. the gonzales opinion provides the constitutional foundation for federal criminalization of our laws banning the home production and home use of child pornography and dangerous drugs like methamphetamine. as a prosecutor, overturning this would be a disaster. the second argument raised is based on the so-called activity/inactivity distinction. in perez versus the united states, the supreme court spoke of the commerce clause regulating activities. opponents have used this language to raise a novel argument, that the constitution prohibits the regulation of that activity. the litigants also claim that declining to buy insurance is not an activity but in activity and thus constitutionally protected. the inactivity is less an activity distinction has no

basis in the text of the constitution. the court recognized in two decisions that congress can regulate not only activities but conditions. i believe that would apply to the condition of being without health care. people collect insurance because businesses don't offer to their employees, insurance companies declined to a extended for pre-existing conditions, or individuals faile to pay for it. all of these are actions with real world and often very tragic consequences. the constitutional faith of a great nation cannot be decided by semantics and word games that label real-world actions as an activity. -- as inactivity.

the supreme court has never interpreted the constitution to allow congress to force individuals to buy a product. this argument is simply inadequate -- inaccurate. this precise, and was raised in rejected by the claim in one case. in that case, apply to argued that as a result of the agriculture just an act, he would be forced to buy a product, food, on the open market. the claim was that congress was forcing some farmers into the market to buy what they could provide for themselves. this claim is identical to the one raised in the litigation that individuals should not be and cannot be forced to buy health insurance products and they would rather self-insure or pay for the health care themselves. justice jackson rejected the claim, holding that these kind

of questions were wisely left under our system for the resolution by the congress. existing president strongly supports the constitutionality of the affordable care act. finally, critics claim that the personal responsibility mandate interferes with constitutionally protected liberties. i find this argument odd. the constitution does not create or protect the freedom to freeload. right now we have 40 million americans who don't have health care coverage. those 40 million people have the right to go to a hospital emergency room and hospitals are legally required to provide that care. as a result of that, they racked up approximately $40 million -- $40 billion of healthcare fees every year.

the opponents of the bill claim that this cost shifting is constitutionally protected. i would suggest there is no constitutional right to force other people to pay for your own health care when you declined to take responsibility for yourself. thank you very much for your time. >> thank you. our next witness is f arles fried. he served as solicitor general under ronald reagan and worked in the justice to park and as an assistant to the attorney- general. he served as associate justice of the supreme judicial court of the state of massachusetts. he received his b.a. from princeton, a bachelor's from oxford, jd from columbia school of law. please proceed with your statement. >> thank you.

i have two of my former students here, professor barnett and attorney general kroger. [laughter] i come here not as a partisan for this act. i think there are lots of problems with it. i am not sure it is good policy. i am not sure it will make the country any better. i am quite sure that the health care mandate is constitutional. i have my doubts about the part that senator grassley mentioned with the medicare/medicaid compulsion. that is something i worry about. the health care mandate i think really -- i would have said it is a no-brainer but there are many diligent trains going the

other way. clearly, insurance is commerce. that was held by the supreme court in 1944. there was a time when the supreme court did not think it was commerce. it has been ever since and as you look at the mountain of legislation, most noticeably arisssa legislation, the congress and the courts obviously think insurance is commerce. health care surely, health care insurance surely is commerce ensuring something like 18% of the gross national product. if that is so, if health care insurance is commerce, then does congress have the right to regulate health care insurance? of course it does.

my authorities are not recent. they go back to john marshall who sat in the virginia legislature at the time they ratified the constitution and who in 1824 regarding congress's commerce power, what is this power? it is the power to regulate. that is to prescribe the rule by which congress is governed. to my mind, that is the end of the story. the constitutional basis for the mandate. the mandate is a rule. more accurately, it is part of the system of rules by which commerce is to be governed. if that were not enough for you, though it is enough for me, you go back to marshall in 1819 in

maryland where he said the powers given to the government implied the ordinary means of execution. the government has a right to do an act, surely to regulate health insurance, and has imposed on it the duty of performing that fact must, according to the dictates of reason, be allowed to select the me. eans. he ends by saying that it the end is legitimate, the regulation of health insurance, let it be within the scope of the constitution, arissa and all means which are profitappropriae and not prohibited with consistent with the letter and spirit of the constitution and our constitutional. that, to me, is the end of the story.

one thing about judge vincent's o opinion where he said if we strike down the mandate, everything else goes, shows as well as anything could that the mandate is necessary to the accomplishment of that regulation of health insurance. but is it proper? well, there is an intellectual confusion here. something is necessary. this is clearly necessary. it is improper only a fifthbumps up against some specific prohibition in the constitution. the only prohibitions i can think of b thisumps up against is the liberty clause of the 14th and 15th amendment. if that is so, not only is obama

care unconstitutional but the romneycare in massachusetts. that is an example of an argument that proves too much. thank you. >> thank you very much, professor. our next witness is a michaelcarvin. he is a law partner that specializes in litigation against the federal government. he was a deputy assistant attorney general during reagan administration. he was one of the lead lawyers arguing before this florida supreme court on behalf of george w. bush in the 2000 election controversy. thank you for being here today and please proceed. >> thank you for the opportunity, senator. the individual mandate of this the compels citizens to engage and contract with a wealthy

corporation. even though usually it is to the citizen's economic advantage to engage in that contractual health insurance when he is healthy and does not need the insurance. it is agreed that this is unprecedented. congress is never required a citizen before to engage in contractual or commercial activity pursuant to the commerce clause. the debate has been that this difference is immaterial. there is no difference between inactivity and regulating activity. regulating someone who has decided to contract and has entered the commercial marketplace. under this reasoning, that means that because week and tellgm how to contract with its customers when they decide to buy a car or how to contract with its employees in terms of its workplace conditions, since there is no difference, that means we could compel somebody to contract with general motors

to buy a car or enter into an employment contract. this is not some semantic lawyer's trick. this is not something we can up with in response to the health care act. it is a core reference that goes to the basic constitutional freedoms and limits on federal enumerated powers. in the first place, insurance is obviously commerce. that is not the issue. the issue is whether inactivity is commerce. sitting at home and staying out of the commercial marketplace is not commerce. it becomes, as if you leave your house and decide to buy or sell goods or services then you can regulate commerce. the decision of a citizen not to buy health insurance does not affect commerce. the other cases were engaged in commerce. they were providing goods of the

sort that congress was free to regulate under the interstate commerce. the decision to sit at home does not affect the insurance company ability to contract with the citizen. if there was no pre-existing condition mandate in the bill, this would have no effect. the rationale for the individual mandate is not that you are eliminating a barrier to commerce for the rationale is that you are familiar raiding a congressional distortion of commerce. congress told insurance companies that they had to take people with pre-existing conditions. as of this a good for the patient but costly for the insurance company. we are conscripted the american citizens to ameliorate the economic harm that congress has visited on the insurance companies. this is not in any way within the traditional commerce power. congress can tell miss filburn not to grow his wheat but he cannot tell his neighbor that he

has to buy some other crop. this is different in degree in kind. it is literally without a limiting principle. as the court noted in the florida case, the more congress can't distort the commercial marketplace, it can bootstrap the original distortion into regulating all sorts of things, all sorts of contracts from credit cards to cars to mortgages that it could never get that in the first instance. it is also not proper. mr fried suggested as far and to compel people to contract. recently it was said you cannot for coal companies to force insurance for former miners. it forces a citizen to contract with a wealthy corporation to ameliorate the corporations' loss of profit. if that is proper, there is

literally nothing that congress can't do. what is a limiting principle? it is the liberty clause. i used to call at the due process clause which suggests that that will limit congress's power. that is a restriction on the states. as a restriction on state power. they are conceding that the only limitation on the limited and enumerated powers of congress is the same as the limits on the state plenary police power. if the supreme court is clear is that you cannot obliterate the distinction between the limited federal government and the state government. if you do that, that alone shows you it is an abuse of commerce power. thank you. >> thank you very much. our next witness is randy barnett.

he is that the georgetown university law school where he teaches constitutional law and contract. he served as prosecutor in cook county in calumet city. he was a visiting professor at harvard and yale law school. he is a graduate of northwestern university and harvard law school. thank you for coming today and please proceed. >> in 2010, something happened in this country that has never happened before. congress required that every person enter into a contractual relationship with a private company. the federal government does require you to do some things perdue must register for the military and submit a tax form and allow census form and serve on a jury. the existence and nature of these duties illuminates the truly extraordinary and

objectionable major of the individual insurance mandate. each of these duties is inherent in being a citizen of the united states. each is necessary for the operation of the government itself. each has traditionally been recognized. in the united states, sovereignty rests with the people. if congress can mandate that you do anything that is convenient to its regulation of the national economy, that relationship is now reversed. congress would have all the discretionary power of a king and the american people would be reduced to its subject. the mandates defenders claim that because congress has the power to draft to into the military called it has the power to make do anything less than that including mandating that you send your money to a private company and a business with it for the rest of your life. this simply does not follow. the greater power does not include the lesser. no one claims of the individual mandate is justified by the renewal meeting of the commerce clause.

the government and law professors who support the mandate rest their argument explicitly on supreme court decisions. given the economic mandates have never been 04 been imposed on people by congress, there cannot possibly be any supreme court case express the upholding such a power. in my written testimony, i explain why nothing in current supreme court doctrine justifies the individual insurance man day. rather than impose a tax on the american people congress decided to invoke its regulatory powers. because the commerce power has never been construed to include the power to mandate, the government has been forced to rely heavily on unnecessary clause. the individual mandate is neither necessary nor proper. it exceeds the limits currently placed on the exercise of a necessary and proper clause

provided by the supreme court. second, the individual mandate is not necessary to carry into excess -- to carry into execution the regulations being imposed by the insurance companies. it is being imposed to ameliorate the free rider the fact. in my written testimony, also explain why the individual mandate is improper because it commandeers the people in violation of the 10th amendment that reserves all powers not delegated to congress by the constitution to the states respectively or to the people. the 10th amendment protect popular sovereignty as well as the state. apart from what supreme court has said about the power of congress, each senator and representative takes his or her oath to uphold the constitution. each must reach his or her own judgment about the scope of congressional powers.

after the supreme court relied on the improper clause to uphold the constitutionality of the second national bank, president andrew jackson vetoed the renewal of the bank because he viewed the bank as unnecessary and improper. therefore, he founded to be unconstitutional. he wrote that if our power is so absolute that the supreme court will not call and question the constitutionality of an act of congress is not prohibited and calculated to effect any of the objects entrusted to government, it becomes us to proceed in our legislation with the utmost caution. regardless of how the supreme court may eventually rule, each of you must decide for yourselves whether the mandate is truly necessary to provide for the portability of insurance. each of you must decide if

commandeering that americans enter into contractual relations with the company for the rest of their lives is a proper exercise of the commerce power. if you conclude that the mandate is either unnecessary or improper, like president jackson, you are obligated to conclude is unconstitutional and to support its appeal. if you do not find that the mandate is unconstitutional, this week's ruling in florida suggests that there is a good chance that the supreme court will. you might want to consider a constitutional alternative to the individual mandate sooner rather than later. thank you. >> thank you very much, professor. our final witness is a walter dellinger. he is a partner in washington. he served as acting solicitor general under president clinton

from 1996-1997. he also was assistant attorney general and head of the justice department had a legal counsel from 1993-1997 and is a graduate of north carolina chapel hill law school. we are glad you're here today, please proceed. >> thank you very much. coming together of the american colonies as a nation was more difficult than we can imagine. they did come together in the summer of 1787 and they created the greatest common market that the world had ever seen. john marshall characterized the power to regulate the commerce of that nation as a power to regulate that commerce which concerned more states than one. the notion put forward by those who have brought these lawsuits that it is beyond the power of congress to regulate the market and to make the efficient the

market in health care and health insurance that comprise 1/6 of the national economy is a truly extraordinary, astonishing proposition. the arguments made are essentially that it is novel and has not been done before and the crazy things will be done if it is accepted. either of those arguments pass muster and each of them are exactly the arguments that were made when the challenge was brought to the social security act of 1935, first accepted by the lower courts and rejected by the supreme court. this is a regulation on like those others that we mentioned earlier. this is a regulation of economic matters. moreover, this is a regulation that is critical for the provision that prohibits insurance companies from denying

coverage to americans because of pre-existing conditions because a child is born with birth defects. a lawyer is said to be someone who can think about one thing that is inextricably related to another thing without thinking about the other thing. the excellent challengers to this legislation want to do that. there is no dispute over the proposition that congress can regulate insurance and you cannot turn down people who have pre-existing conditions. you can't turn down people because their children were born with a birth defect. judge vincent himself agrees that it is necessary and essential for the act to operate and provide a financial incentive for people to maintain coverage. those two provisions are inextricably interlinked. my good friend of mr.carvin says the provision that

prevents insurance companies from covering those with pre- existing condition, he calls a congressional distortion. people think of this as a regulation of the market which congress has ample authority and give make sure it works effectively. the fact that something is within the commerce power does not mean it is permissible. is this so intrusive that it should be carved out of the commerce power? the answer is, it is really rather unremarkable. it is no more intrusive than social security and medicare. only if you go to work and earn taxable income do the penalty provisions apply to you. the government takes 7.5% of you and your employer for social security and 15% if you are

self-employed. they take lesser taxes for medicare and for coverage after your 65 and coverage before and for your family, they provide 2.5% financial penalty if you don't maintain coverage. it is extraordinary to think that something they give you more choice and allows you access to the market is somehow so intrusive of liberty that has to be carved out from the scope of the commerce law. of course, it has not been done before. every new act of congress is something that has not been done before. that mode of reasoning may be indefensible. would lead to the expense of congressional power? it will not. the limiting principle is clear. the liberty clauses preventing americans to eat certain

vegetables or go to the gym. what about the fact that this is something that provides an incentive to buy products from the private market? i never thought i would hear conservatives say there is something more intrusive about buying products in the private market than there is about having a single governmental provider but that is essentially their argument. is it a precedent for doing that for any product? not at all. this product has characteristics that would limit the application. it is a market which no one can be assured that they will not enter. you never know when you get hit by a truck and impose countless thousands of dollars of expenses. you are guaranteed to be provided by the emergency medical treatment act. that is not true of big screen televisions. my teammates the super bowl and i think they would and have not provided a television, i cannot

show and have someone provided to me. with health care, no one can be assured that they won't need it and when they do need, it is often the case that the cost is transferred to other people. the 94% of the long-term uninsured have used medical care. it is on remarkable that this market is one where congress is using the market mechanism to encourage participation. the attacks against it are fully reminiscent of the attacks made against social security. the supreme court argued that congress could set a retirement age is 65, they could set it at 30. therefore it must be unconstitutional to have social security at all. the supreme court rejected that. they said the supreme -- this said congress could set a minimum wage at any level. at the end of the day, this challenge to the alleged legitimacy of judicial review is one we have seen before. even more conservative court

that we have ever seen in 1937 stepped back from that press of this and said we're not going to stand in the way of social security. at the end of the day, the supreme court will not stand in the way of something that is less interested and corrects the functioning of a national market. thank you. >> thank you very much. we have been joined by the chairman of the committee, senator patrick leahy would you like to make an opening statement? >> thank you very much. thank you for holding this hearing. i thought it was an extremely portent hearing in very timely. i have no doubt that congress acted within the bounds of its constitutional authority. senator durbin and i care in the san law school. they said we should look at our oath of office and we do.

i have been sworn into the senate seven times i can remember specifically each time taking the oath and i repeated to myself. i think most of us do. we had arguments on the constitutional issue. during the senate debate, i talked about those arguments and responded to them. the senate voted on the constitutional issue. they formally rejected a constitutional barrier. this is not as though it was not considered. we voted on it. we voted the act is constitutional two courts have ruled it is not an two courts have ruled it is. it will ultimately go to the supreme court to be decided3 .

we have all profited by the testimony that says there are no questions about the policy or the constitutionality and i appreciate that. the act was not a novel or unprecedented. it was to build on our safety net in this country. the opponents want to continue their political battle by chairman sigoloff read -- by challenging whole lot minutes after obama signed into law, it was actually a few days. they want to achieve in courts what they were not able to achieve in congress. this was debated for over one year. there were countless hearings, countless debates, on and off

the floor. millions of americans have access to health care today because of the affordable care act. parents would have children in college and can keep them on their policy until they are 26 years old. if you have a child with juvenile diabetes, they cannot be refused. if you have a pre-existing condition, you can. yours. there are a whole lot of things that eliminate discriminatory practices by health insurance companies. they made sure that gender was no longer a commission. gender is a pre-existing condition? we have added important tools to help law enforcement to protect taxpayer dollars.

we may have disagreed about the health care bill itself but we agreed and going after fraud and abuse. in the system. the senior citizens would not pay less for their prescription drugs. i realize that some want the courts to, with a victory that they could not secure in the congress. that has happened many, many times in this country. people from both sides have done this. i would hope that the independent judiciary will act as an independent judiciary and will be as mindful as justice cardozo was one he upheld social security. whether wisdom resides in the

scene of benefits, is not for us to say. the answer to such inquiries must come from congress, not the courts. i agree with that. mr. chairman, i will have some questions. but i another hearing have a compliment to you for doing this. this is an important hearing. >> thank you, chairman leahy. i would not invite my former law school professors to stand in judgment of my performance as a senator, i will not ask professor fried to issue another grade to professor barnett. of like to ask you to comment, professor fried, about one of the statements made by professor barnett. it relates to the question of whether this is a unique situation where we are in fact

imposing a duty on citizens to either purchase something in the private sector or face a tax penalty. i like to ask you to comment on a generally but specifically, i am trying to go back to this case involving the tennis man, roscoe filburn. he objected to a federal law which imposed a penalty on him if he grew too much wheat. he argued before the court that this week was being consumed by him and his chickens. as a result, the law went too far. i think the net result l ofaw is that he faced a penalty or complied with the a lot of requirements and had to make a purchase on the open market to feed his chickens. is there an analogy here? would you like to comment on this general notion that this is unique?

>> i taught professor barnett torte, not constitutional law. [laughter] filburn case can be distinguished only if you say, after all, mr. filburn and his chickens did not have to eat. that is an absurd argument. mr.dellenger pointed that out. that is like saying that if you could make a commitment that you will never use health care, that you will never visit an emergency room, the will never seek the ministrations of a doctor, you should be free not to enter this system. that is silly.

that is the first point of non- distinction. there is another point which is made. i get a little hot under the collar when i hear it. that is that this turns us from citizens into being subjects. judge vincent also said that those who through tea into boston harbor would be horrified at this. let me remind you that the citizens of the early united states were well acquainted with many taxes. remember the whiskey rebellion. the reason they 3 tea in the harbor was taxation without representation. it was a parliament they had not elected did this to them. the people elected a congress

and in 2010, they changed the congress, and that is why we are not the subjects. that is why we are citizens. >> professor barnett, you and mr. carvin have alluded to the activity/inactivity disti differences >> . there is nothing in the constitution that says congress has the power to regulate economic matters. there's nothing in the constitution that says that congress has the power to regulate activities that has a substantial effect on interstate commerce. that letter doctrine, there is no former doctrine, that is given to us by the supreme court, not the constitution. my testimony is based entirely on what the supreme court has said they have referred to the

congress's power and authorize congress to exercise its power to regulate the activity, economic activity. that is what it says. justice scalia had a concurring opinion. he used 'the word of activity ' or the court has never said congress can regulate economic matters, nor economic inactivity. congress can go this far. it is not said congress can go farther. it can go farther. it has not done so up to now. >> i think the other four witnesses have acknowledged the health-care industry is part of

commerce. do you except that -- do you accept that? >> absolutely. >> most of the case law does speak of activity. the supreme court is not limited -- has not limited the commerce clause to a formal category of activity. the case itself cites the language in the carter versus carter calleole. whether a condition can be regulated. this is somewhat an artificial attempt to restrict the cars to regulating activities as opposed to conditions. it does not make sense under the case law. >> judge benson said he found a

section to be unconstitutional. the entire act is then virtually unconstitutional. there is a questioned as to what the operative affect of his decision is on that particular district, that state, and the nation. would you comment on that? >> i think judge benson's decision goes far beyond where it was necessary to go. i think that the fact that two other federal district courts have upheld the constitutionality of the law will indicate his opinion will not have the necessary effect at this moment. the department of justice is considering whether to seek an

appeal. everyone agrees what is also at stake is a provision that prohibits insurance companies for denying coverage for pre- existing conditions. i think that aspect is disputable. >> thank you. >> you are convinced there is no doubt the mandate in health law is constitutional. would you see any need for congress to make any changes to the mandate to increase the chances it would be found to be constitutional? >> i see no need for it. it seems so clearly constitutional. you are wearing a belt. maybe you would want to put on

some suspenders, as well. >> to any of the witnesses, some of you have discussed the supreme court's decision which has given broad authority under the commerce clause. congress has not passed a law to purchase a product or service. could the supreme court struck down such a provision such as an individual mandate without overturning a single one of its presidents -- precedents? >> again, they have suggested that activities that affect interstate commerce can be regulated under the commerce clause.

they have not suggested commerce -- congress can engage in activities to offset the economic effects of another part of the law. they have never suggested they could compel mr. filburn to grow wheat. they're not suggested they could require his neighbors to buy some of his crop to counteract the negative effects on limiting the amounts of wheat that he could grow. i think those distinctions are hardly semantics. i would think they are obvious to most people. >> i think the notion that what is involved here is "in activity" can be called into question. you have to go out and enter the national economy, earned $18,000

in order to be required to file an income tax return. all event you have to pay a 2.5% penalty if you do not have health coverage. this is by no means a pure regulation of inactivity. i believe there is no case that comes close to holding -- that congress cannot impose a further obligation. the regulatory authority over the national economy. >> the penalty might not apply to everyone, but the mandate does. every american has to have health insurance has to obtain health insurance, i believe that applies to everyone. >> 1 president -- one precedent

is a decision in jacobson against the commonwealth of massachusetts. massachusetts said every citizen had to obtain a smallpox vaccination. jacobson thought this was an attack on his liberty. he was fined $5 and the court said to pay the fine. >> massachusetts acted to stop the spread of an infectious disease pursuant to the power to protect the health and welfare of the state's citizens. congress does not have that power. congress could tomorrow require ever want to buy vitamins or vaccinations because in another part of the law, they require doctors to provide free vitamins and vaccinations to others. this would be an offsetting the fact -- and offsetting effect.

then congress can do everything state government can do today subject to the restrictions of the liberty clause. i think we all agree the court has made clear if there is no such distinction, the commerce power has been exceeded. >> i want to ask for a comment on a quotation from the senator for american progress, they call -- "if the judge were to have his way and deny your coverage because you have a pre- existing condition, limit the amount of care you receive." i think this group shares the same thoughts that many of the supporters of this legislation have used as a basis for the

plot as well as a basis -- for the law as well as a basis. i think the supporters of that think the judge who ruled that a lot is unconstitutional must oppose the policy as containment law. i believe a judge is obligated to make sure the law complies with the constitution. the provisions of the law, the court has an obligation to strike it down. i want to direct this to the three people on the left. [laughter] not the three people -- >> you can refer to was as --

>> do you think is appropriate to attack a judge's ruling striking down the law by saying the judge must procure the policy result that the critic opposes? >> and no, it is not proper. >> is it fair to say the decision aims to take away benefits of millions of americans that are putting insurance companies back in charge of your health care? >> it will have that effect. quite possibly he greatly regret its it. >> whether they think rulings would have good or bad policy consequences? >> the former. >> we are a society based upon

law and not upon what judges think it might be. >> you are right. [laughter] >> you do not know that. >> we have to watch out for these tough chairmaen. do you know anybody who disagrees with that last question? >> i do. [laughter] >> do you know anybody who should disagree with that? >> not a soul. >> mr. kroger, it is good to have you here. we enjoy having the attorneys general here. we have two former attorneys

general on this committee, senator befall and senator white house -- senator bingaman fall -- blumenthal and senator whitehouse. do you have any concern about the constitutionality of the requirements as an individual purchases health insurance? >> none whatsoever. >> thank you. as attorney general, did you ask on your own review the legal basis for the affordable care act? >> yes i have, senator. >> do you think it is oregon's responsibility to protect the health of the citizens? >> yes. >> thank you.

professor fried, been here since the time of president ford, when you're solicitor general for president reagan, i almost feel like a first match you and i should call you felicity general. -- solicitor general. to think as individuals purchase health insurance and represents is the extension of congress' authority to regulate insurance under the commerce clause? >> i don't think it is unprecedented. i think the language which i quoted from you from chief justice marshall, the beginning of our nation amply covers it. >> let me explore that further. do you believe there have been new limitations on the commerce

clause by either the current court or other courts to give you concerned that the affordable care act is not constitutional? >> there have been limitations. i sat at counsel's table with the prevailing argument in morrison united states v morrison because i believed the relevant provisions of violence against women act were unconstitutional. the court so held. but that was because the court found correctly that as despicable and criminal as is for a man to beat up his girlfriend, it is not commerce. there is no doubt health insurance is commerce. >> did not the congress go back and redraft based on the ruling

in morrison? >> i believe they did. i cannot swear to that. and i have sworn to my testimony. [laughter] >> one of the reasons why i in georgia your tenure as solicitor general under president reagan -- anybody want to add to this -- one of the reasons why i enjoyed your tenure as solicitor general. >> i never pass up an opportunity to disagree with charles. you are compelling people to engage in commerce. is it that by not contract in with insurance companies that sum up acts as an impediment to congress. congress created a problem by

imposing pre-existing conditions. i call that a distortion of congress. congress interferes in the private market all the time. they have to impose certain restrictions on insurance companies and may be compelling people to ameliorate that problem. it corrects a distorting effect of the regulation of congress. that distinction is critical because otherwise, you could -- if congress decides to limit what banks could do with mortgages or credit cards or car companies, then they could conscripts the citizenry to offset that the correct that is a repeat of your earlier argument. my time is running out. professor -- >> i wanted to talk about the

quotations that professor fried mentioned. using any ordinary means of execution. it is extraordinary. justice marshall said congress may prescribe the rule by which congress is to be governed. nobody thinks the failure to buy health insurance -- that is not fall into this language. neither one of those quotations directly applies. >> professor dellinger. >> i would like to respond. by disagreement this matter would stand, where congress calls on companies, it could make up for that by going and making people by that company's product. that is not true. congress is dealing with a importantn in an

national market. there is an incentive. they are not covered to make that market work. you need to encourage people to join the market so they don't wait an order of their health insurance on their cell phones in the ambulance on the way to the hospital. that is a market problem that congress can address and fix. it is unprecedented in the sense that the affordable care act uses a market-based system, giving people more choices. the idea this is unprecedented -- is a new use of a market- based approach and provides more choice. >> thank you. >> thank you, senator durbin.

i feel like i'm bacchant law school -- i feel like i am back in law school. you've given us the benefit of your expertise on an important issue appeared i was tempted to say i wish we had done this before the law was passed. we did not. i think you make an important point. if incongress' duty -- fact we're of the opinion that is -- that it exceeds the constitutional grounds of congressional power, we can repeal it. i would say that my friend, it wasr durbin, i either this or nothing. that is the fallacy of a false

dichotomy. there are many other choices available to congress if this were to be repealed and replaced. the me just -- let me just say that i went back to look at the federalist papers, work federal's 45 james madison talked about the powers of the federal government being enumerated and the power of the state being broad. the heading for the federalist 45, the alleged dangers for the powers of the union to the state's government considered. it was this sort of relationship between the state government and state power and the federal government that i think is causing the most concern here because my own view is that the individual mandate is an unprecedented overreach of the federal government's limited

powers. i know that lawyers can disagree. we usually do so in a civil and dignified way and i think that is great. i would ask unanimous consent to introduce a letter from the attorney general of texas, greg abbott. he was one of the attorney- general of the was successful in district court in florida. >> without objection the quest i thank the chair -- without objection. >> i thank the chair. so now this is been altered in a basic and sweetening way. whether they can say, that is a violation of the 10th amendment or the commerce clause or whatever, i think it depends on the individual and their

background and expertise. i just want to ask whether you agree -- let me ask professor fried this question. jonathan turley is a law professor who testifies on occasion and said if the supreme court upholds the individual mandate, it is heart to see what is left of federalism. -- it is hard to saee. >> i disagree with that. in the violence against women act, their must have been attorneys general from 52 states arguing that that act was constitutional. and it was thrown out anyway because it was not commerce. that was a correct decision. i supported it. i help to procure it, indeed -- i helped procure it indeed.

as i recall, the great debate in the senate was between this device and something called the government option. the government auctioned was described as being something akin to socialism. there is a bit of a point to the fact. but what is striking is that i don't think anybody in the world could argue that the government option or indeed a single-payer federal alternative would have been unconstitutional. it would've been deplorable. it would've been regrettable. was a big western is not eastern european. but it would not have been unconstitutional.

this is an attempt to keep it in the private market and it is being attacked. >> congress can pass some bad laws that are still constitutional. time is running short. i hope we'll have a chance for a second round occurred i do want to explore -- you did say you're not troubled by the individual mandate. you are troubled by this huge unfunded mandate imposed on the states by the medicaid expansion. there's a whole body of law that you're no doubt an expert in and talking about the federal government coercing the states and commandeered the states to pursue a federal policy that is beyond the federal government's authority to do. one of the consequences in my state is a $27 billion unfunded mandate for the medicaid expansion, which is crowding out

spending at the state level and transportation and other important priorities i just want to ask you to expand briefly on your concerns in this area. >> the case the comes to mind is south dakota against dole. that was not a funding mandate. states were required to alter the -- the drinking age. and threading with the withdrawal of 5% of highway funds if they did not comply the supreme court said 5% is so little that it is not that much of a threat. the implicit in that is 10%? how about 50%?

the unfunded mandates is a huge. i said there is a constitutional worry about that. >> that was one of the bases for the texas challenge. i do not believe the judge got to that issue because -- i may stand corrected. we're focusing on the individual mandate. i am interested in your testimony with regard to the coercion or commandeering of state authorities of state budgets. my time is up for now. >> i feel like i'm back in law school. [laughter] i don't go to law school. [laughter] thank you, professor.

it was said and repeated essentially in his testimony that a decision not to buy health insurance does not affect congress. is that an accurate quotation? >> absent the pre-existing ban. if the ticket predestine existing ban -- if he took the pre-existing ban out of the law, it would not affect that contractual relationship. the pre-existing condition ban is what enables congress to that in.bring >> it would not work without the pre-existing mandate.

taking a decision not to buy health insurance does not affect congress. mr. kroger, when the uninsured in your state cannot pay their bills, how much it does that cost oregon hospitals every year? >> the amount of charitable care of persons who don't have insurance varies from hospital between 3% and 4% of the care they are providing. the idea of being uninsured does not affect commerce is factually incorrect. every american pays higher insurance companies. >> i understand it costs $1.1 billion a year for oregon. do you know how much debt costs in short oregonians -- in

sured oregonians? >> up to 50 hundred dollars for families who are asked to carry the cost -- up to $1,500 for families who are asked to carry the cost. >> would you agree that the decision not to buy health insurance does not affect congress -- commerce? >> it clearly does, senator. >> my understanding is when the supreme court decides cases, they are interpreting the constitution. they are rolling based on previous supreme court interpretations of the constitution. is that correct? >> yes, sir. >> i am confused.

no one claims that the individual mandate is justified by the original meaning of the commerce clause. instead, the government and these lopper force-- law professors have rested on the supreme court. i am confused because there are scholars who do think the original intent of the commerce clause supports constitutionality. are they in no one? they are pretty steamed, are they not? >> they are. but you may proceed. >> i am sure they have made ridiculous statements, too. i am sorry, i did not mean that. i did.

[laughter] to me, i did not go to law school, but it seems to me that there is a transitive property. a = b. b = c. c = d. a = d. they are relying on the supreme court that was interpreting the constitution, right? is it not true that by relying on precedent, you really are interpreting the intent of the founders? >> and that is true, but i would also be willing to go back to the original understanding and find this is fully consistent with it. the framers did assume in 1787

there would be substantial areas for local regulation only. the national government would be limited to regulating only that commerce which concerns more states. what happened over the ensuing two centuries, the category of what affects more states than one increased dramatically because of telecommunications, market, etc. we now have a single market. it is greatly vaster than what the framers would have to imagine, not because it and the difference in a constitutional principles but because of the developments in technology, communication, and other matters -- >> yes.

a senator may distance amendment point. as i understand it, the way the 10th amendment was written, and if you go to the federalist papers, it was written specifically to exclude the word "expressly." this is the 10th amendment. now, i remember when they were writing this, some south carolina rep wanted to put in "expressly." madison said no. he writes in the federalist papers that if you put "expressly in, every possible power of the federal government would have to be written in an encyclopedic way into the

constitution, and that would be observed. is that your understanding? is that everybody's understanding of the 10th amendment? >> it is mine. >> thank you. >> i would like to welcome to the judiciary committee senator lee of utah. >> thank you, mr. chairman. i want to thank all of the witnesses for coming today. it is an honor to be here. i want to echo some think that has been mentioned. i think it is important that we do this because i believe that among the founding generation, there was no understanding that it was more ubiquitous than the idea of that what we were creating at the national level was not an all-purpose national government, but a limited- purpose, federal government.

one of our jobs as senators is to make sure that regardless of what the courts say will weaken get away with, regardless of how broadly we may exercise our power without to show an effort -- interference, we take a second look and say separate from what the courts say we should do, should we be doing this? is this consistent with our role as legislators? i also like the quote from jackson pulled out a few minutes ago. certain decisions are when the left for congress. the courts lacked the authority to be a roving commission on all things constitutional. we have to make a number of these decisions on our own. i wanted to ask a few questions of mr. dillon jarrett if that is ok, professor. dillinger if that is ok,

professor. those that are left to the state are -- >> i do agree. i think the senator correctly cites it for that proposition. within the area of congress and its authority to regulate national commerce, what has grown is the interdependency of national commerce, not our understanding of the constitution. >> but they did have interstate commerce. that was the whole reason why we needed it, to be a union in the first place. we could not survive. this is not new. it has been facilitated by jet airplanes and the internet. >> if you got sick in north carolina in 1787, it had no effect in utah. [laughter]

>> still a lovely place. >> it had no effect in pennsylvania. >> ok, ok. but there were interconnected. the changes that we have had have been changes of degree. you would still agree that the powers of the federal government are few and defined while those to the states are numerous and indefinite. >> yes. >> if this lot is upheld -- law is upheld, if this is within congress's power, would it not be within their power to tell every american, including you, me, and everyone in this room, that we must eat four servings of green, leafy vegetables every day. >> the distinction is a regulation of commerce to be

constitutional has to be -- it is something that goes into the area of personal autonomy. i am trying to understand the difference between the personal autonomy issue. >> the case about broccoli is the case covered by -- you are regulating a local, non-economic matter, what you eat and when you exercise. it is doubly unconstitutional because it is governed by various cases at that say an individual has a right to refuse on wanted medical treatment. you have a constitutional right to refuse. >> i am talking about the commerce clause. >> i understand that. if you talk about whether

congress could require people to buy other products -- what would be congress's legitimate reason for doing so? i think it would be many objections. >> i can come up with one right now. if we are going to make sure the government is going to pick up the slack, then congress could assemble a panel of experts. let's say a functional equivalent from the dietary council industry. who would come and tell us if you eat four servings of green, leafy vegetables every day, you are 50% less likely to suffer from a whole host of ailments. that is going to cost the government less money. >> yes, but as the court said, even with non-economic matters -- the court said the act is a statue that directly regulate economic, commercial activity,

our opinion is on the constitutionality. this is a direct regulation of a commercial activity. >> let's change the hypothetical is slightly. let's say you must take the first $200 out of each month's earnings and purchase the equivalent of four servings of green, leafy vegetables to eat every day. this is economic activity. with morrison, you are talking interactive acts. >> the first thing is that this is a requirement that you make provisions to buy something that you cannot ever be assured he will not use a cannot be assured you will transfer the costs of. secondly, the very form of that

argument was used with the minimum wage and social security. if the issue with the constitutionality of the minimum wage block in 1937, you would be asking me is if the regulation of commerce for congress to have a minimum wage? that has never been illegitimate -- if you buy one car, do you have to buy three cars? that argument was used against social security and medicare. a congress has never set the age. it would be possible if you upheld a retirement plan for people over 65. at the very form of the argument i think the flex what is basically a complete a remarkable piece of legislation in the national market. >> i have one very brief follow- up question.

i was pleased to see that you have become such a huge fan of the one of the supreme court justices policies. you have quoted him frequently. is it the case that that necessarily reflect his view as a writ original matter? or are those views made in recognition of the fact that -- >> that is a good question, senator. i don't know the answer to that. it could very well be. i do admire him because i believe in the case that we argued against each other, he cast a critical vote for the position that sustained my argument and not yours. >> and he could not have been more wrong, could he? [laughter] >> thank you very much, mr. chairman.

i am going to take a different tact. i think mr. kroger is well aware of this, small business is taking advantage of the discounts that they are getting and the fact that you have people, kids who are getting to keep their insurance who have pre-existing conditions, and the states who are now struggling to figure out what they are going to do in light of these decisions. maybe a few of the other witnesses want to chime in. what is the practical, in the outcome of the decision in florida on monday? -- what is the practical, the immediate outcome of the decision in florida on monday? other states think it would be responsible not making preparation for implementation of the act in case the opinion is overruled at higher levels. i guess i would start quickly with you, mr. krueger.

what are you telling your state what they should do in light of the florida ruling? >> senator, i hate to sound like a lawyer. >> are you not a lawyer? >> guest. if i was giving advice, it would be covered by attorney-client privilege. i can say that generally, i think it would be a huge mistake for a state to pretend this is the final word. obviously, we have decisions on both sides that have just come out. my sense is that it would be an enormous mistake for a state not to continue on with implementation of the act. >> professor? >> i do not have a judgment on that. it seems to me odd that one judge in florida could governed the nation. >> if they were in minnesota,

that might be different. >> i cannot really speculate. >> the next two? >> i will join the professor was not responding. >> i don't think i know the answer. i can say without violating attorney-client privilege, i saw an attorney general in texas on the news last night. that they shouldh continue with the law until it is ruled upon. i do not know if he is right, someone whose opinion i respect. >> he found the individual mandate was unconstitutional. and that is a step from an

earlier decision that also found problems with the act. do you think the constitutionality of the whole lot is contingent on the individual mandate? i guess a secondary question would be how important to you was that there was no clause included in the bill. >> i think it strikes me as a far too sweeping. i will pass the question on to my colleagues. >> professor? >> i do not believe judge vincent said the other parts of the statute or unconstitutional. what he said was because there was no silver ability clause and because the act becomes unworkable without the mandate, which is something of course we have been arguing, therefore, in

striking the mandate, he is really in effect striking the rest of the statute because the rest of the statutes becomes unworkable. he is not saying that it has become on constitutional. >> i meant more broadly. do you think it matters there is a 7 ability clause? >> it would help the court in discerning what the intent of congress was. in the absence of a cause, the judge must figure out what the intent of congress was. the government said the insurance regulations imposed on companies were not several from the mandate. the only question was for the judge whether he could go into the bill and look at all of the provisions that were not regulations for insurance companies. those could stand independently of these. he said that is something he thinks a judge should not be

able to go inside a bill and do. he said it was outside my purview. >> the professor stated the minimum coverage requirement in the affordable care act is no more interested than social security or medicaid. what do you think about that statement, professor? >> it is it distinguishable bal-- it is distinguishable. you do not have to buy insurance. you can pretend that you will never get sick and so forth, but with social security, you only get into that system if you earn money, have a job, and make a living. for goodness' sake. [laughter] >> also the mandate applies to everyone who is not exempted

because they have medicare, etc., like social security, the provision only applies if you entered the market and earn money. so what strikes me as so remarkable about the attack on this law, it seems to me everything that conservatives should abhor. only by providing a monolithic government solution and is precluded by using a maurer friendly market -- >> under their argument, that would be constitutional. >> yes. d i know professor mark barnett acknowledges that. you could have -- and i know professor barnett and knowledge is that. it strikes me as an odd position

for conservatives to take. the idea of using the market and creating an incentive has always been more or less a conservative idea, a republican idea. it is very akin to what president bush wanted to do with social security. the private market approach is adopted here, so it seems odd to attack that. it also seems odd to say that five justices sitting in washington should decide a matter of economic regulation for the whole country. both of those seem to me approaches -- >> thank you very much. >> thank you, mr. chairman. a want to ask consent to place a few items in the record. i have a statement from myself and one submitted from our attorney general. utah is in the original

plaintiff in this lawsuit. the attorney general has been at the head of the pack for fighting for individual liberties and state sovereignty. i ask consent for judge vincent opinion to be a part of the record. including several members of this committee. finally, i ask consent that a few of the articles i've published on this subject in various newspapers, if that i could have those in the record as well. >> the distinction between activity and inactivity is not in the text of the constitution. i think most all of you have said that. neither are words such as "substantial effects," or

everything else that the supreme court has come up with that obamacare relies on. would you agree with that, professor? >> of course. and that is not a constitutional standard or doctrine that i am aware of the. >> obviously, things that substantially affect commerce is what the court says it is in the clause, but there is a number of things that affect commerce, which the court has said it they do not come within the gambit. i would argue that economic inactivity it is far more fuelled for the congress power and then things like buying and possessing guns. >> i am very grateful to have the professor as an old friend,

both of whom i admire greatly. i do not know you, mr. krueger, but i am sure you are just fine. [laughter] the congressional budget office in the past has said it requiring individuals to purchase a particular good or service was "unprecedented." that is the congressional budget office. "it is a novel issue, whether congress may use the commerce clause to require an individual to purchase a good or service." i think it is a novel issue. congress has never done it before. i will throw this question to each of our witnesses, and i hope i get straight answers. can you give me an actual example of her then obamacare of congress requiring individuals to purchase a particular good or service? >> if i may, my parents own a small business.

if you told them that the government had never require them to buy a good or service, they would be astounded. federal laws and regulations require small business people to go out and buy equipment, whether it is orange cones or hard hats, or a fire disposal system in a restaurant. the environmental laws require a huge range of small-business owners to buy air filters, sulphur oxide scrubbers. the reason small business people tend not to like government regulations is because it does require them to spend money on goods and services. so i do not think -- i think -- >> only as a condition of being in business. >> senator, -- >> these people are trying to get into business.

>> it is true that my parents closed down their businesses. all people could close down their business -- >> de do not have to. as a condition of going into it, they have to meet certain losses. in this particular case, we have the inactivity here that they don't want to do. they would make their choice not to do it. >> i think the idea that one can make a choice not to seek health care throughout one's life is simply not realistic and cannot be the basis for an attack on the constitutionality. >> it is not right, i have to say that point, but it's still begs the question of whether it should be a mandate.

>> i think once you have made the first step in the first concession, the rest follows. by and brought to mind the various things that were considered in the senate -- i am brought to mind the various things that were considered in the senate as an alternative to social security. as an alternative was suggested, you could buy a mutual funds from vanguard, fidelity, and you would not have to buy it from the government. maybe, one could say well, you do not have to work. you could simply sit on the corner and big for spare change, and then you would not have to pay social security. i think that is unrealistic as well. >> i only have a few seconds left. >> no, they have never done it

before. there is no limit on congress. the notion of health care is unique. you have to buy transportation, clothes, housing, food. the notion that health insurance is a core requirement is kind of silly. if you started drawing these distinctions, you get back into the sort of non-principal decisions prior to at least the 1930's. >> it has never been done before, senator. the fact is, even though everyone might be said to one day need health care, the bill itself against people from buying -- health insurance is not the same thing as health care. the bill exempts people for religious reasons from having to obtain health insurance. clearly, congress recognizes

that not everyone has to obtain health insurance just because they may or may not seek medical care. the fact that medical care is an inevitability, it does not mean insurance is an inevitability. >> senator, my understanding is at the very first congress required every adult free male to purchase and he could themselves with muskets, ammunition, even certain forms of address to carry the weapons to equip them. >> you have to admit -- >> it has been a long time since then. yes, you can say that when something has never been done before, it is unprecedented. it does not matter how much you italicized those words, it does not amount to a constitutional

argument. congress has decided to use a market approach with regard to the purchase of a commodity that is truly on like others. there is nothing else in our economy where an individual who has made no preparation for expenses can go in and get $1 million worth of goods and services provided to them, the cost of which is passed onto us. in that truly unique market, and incentive for people to make provisions to insurance seems remarkable. >> the reason i raise is to show the purpose that it is never been done before. i think there is good reason that it is never been done before. let me make a few more remarks. my time is up. if you would indulge me, i would appreciate that. no commerce clause case has

involved congress regulating decisions, rather than activities. rendering -- this renders the case of first impression, which is my point. mandates are cited which derive from different enumerated powers. they argue as some of you have argued here, congress has imposed mandates on individuals before such as professor fried made this argument. one provision of the constitution allows congress allow them to propose jury duty which has been mentioned. there are multiple layers of the exception. they make it compulsory for most

people. it is also necessary and proper in order to exercise the congressional power. that is based on the sixth amendment right to trial by an impartial jury. congress may impose a military draft which has layers of exception. that is pursuant to powers to raise and support armies. it also includes maintaining a navy. and the social security system is on like this insurance mandate. -- is unlike this insurance mandate unequivocally. it is a completely different issue, as far as i'm concerned for each of these examples stance clearly with in enumerated powers. the insurance mandate does not. the great scholars that you are, i think you have to admit to

that. if congress could impose -- that does not say that i'm right and you're wrong but it does make it very -- more clear that congress could impose any mandate on an individual because it may impose a the titular mandate on certain individuals, there would be no limits to federal power at all. that is where i have difficulty here. i have studied this matter i respect all of you. i respect the differences in points of view. for the life of me, professor fried, i have a great regard for you, but i am really amazed at some of your arguments here today. great man that you are. i expect those comments from mr. dellinger. >> thank goodness i have general fried with me. >> it is too bad to lose one's

power to surprise them if you have never lost that power. i probably agree with you much more on many other issues. >> have really enjoyed this. i appreciate you taking the time here. this is a very, very important issue. walter, i want you to at least realize that a different boy did you should be protected my rights, not necessarily broadening them in making us have to buy health insurance. >> i think you make obviously a very good point that most legislation -- >> i thought there were many points that you made one that most legislation state and federal prohibits individuals from doing things. there has always been some legislation that imposes affirmative obligations.

>> no question. >> that does not mean -- in that sense it is a remarkable to impose affirmative obligations. >> you can find those in the constitution. >> but it is also true that is the commerce power that congress uses to build the interstate highways and tells people they have to move and take a check from the government. it is the commerce power the does that. there are lots of affirmative obligations. we should be very attentive. if affirmative obligations can be more intrusive and therefore we have to take a careful look to make sure that they don't transcend any limits. this easily does not. >> i have transit my limits and i apologize to the distinguished chairman. thank you for giving me this leeway. i have to leave and want to thank each one of you for coming. >> thank you very much if any members of the panel would like to take a break before we proceed, give me a high sign. >> i need to get back to boston

if i possibly can. [laughter] that is on the 2:00 train. >> i swear we will get to to the station on time. senator brooke mccaul of connecticut who was of former attorney general of that state, please proceed. -- senator blumenthal. >> i have to make clear that i do not feel like i am back in law school. law school -- if law school had been this interesting, would have gone to more [laughter] ] i want to join senator hatch and other members of the committee in thanking you for spending time with us today and giving us the benefit of some very important testimony. i want to say particularly to saykroger that i preach -- to general kroger for being here and declining to enjoin a popular stance in popular

quarters in challenging a lawsuit. i declined to join in that challenge partly because of this new act saves money for many, many states including connecticut. it could save connecticut some $53 million through 2011 and perhaps does the same for organ and other states. it is also because i believe that the lawsuit is without merit. i think that the two opinions we have to the contrary from judge huson and judge vincent, a show that it is without merit. partly because of this distinction made out of non- constitutional clause between inactivity and activity which is nowhere present in any previous case of united states supreme court but also because they give

it very, very inadequate attention and weight to the doctor about lots should be present constitutional. -- that laws should be constitutional. -- should be presumed constitutional. in one case, judge vincent almost did not consider this. he said that he can consider -- he assumed that he could consider the constitutionality instead of he presumed the it is constitutional. i want to direct this question to you, general kroger and perhaps to the other member of the panel. are you troubled by the lack of weight given to this presumption which is so fundamental to the work that you and other attorneys general and the attorney general of the united states does day in and day out

in defending statutes against constitutional attack? >> senator, i would simply agree with you that the presumption of constitutionality is extraordinarily important. likewise, the deference that is shown to the democratically- elected officials in the state to craft the right policy that will govern the country. both of those could use greater emphasis and the decisions to go for it. >> would you agree that one of the reasons that this presumption should have stronger and special weight in this case is that in fact, the united states congress considered these constitutional issues in deliberating and debating this law? it is not as if the courts have discovered this issue or the plaintiffs have discovered it. congress discovered that and the branch of government is

entitled to that respect. >> i think ultimately it is the court's province to declare whether bill law is constitutional or unconstitutional. someone who appears in front of the court all the time, i would hate to imply that they don't have that responsibility. cedent attention to presid would make a big difference going forward. >> let me ask mr. carvin and professor barnett, perhaps your views on this issue and whether you are not troubled by the over --. reaching that plausibly could be seen in this regard for the resumption of constitutionality? >> the presumption of constitutionality is important. i think congress has a broad

discretion in its commerce clause. the key thing to focus on is that congress is given broad discretion within its means into a legitimate and. end. i think congress is seeking to achieve an illegitimate end in this context. it is unfair to label activities would strike down laws as unfair judicial activism. judicial activism to be a striking down a law that is constitutional because you think it is bad policy. i think it would be equally wrong to strike down a law that you believe is constitutional because you think it is good policy. in both instances, the judge is not doing what we think judges not lookdo which is at the desirability of the policy. >> i am confident that you're not impugning judge vincent's integrity. >> and not at all.

>> some people outside this room are. in light of your question, want to point out that the very same judge vincent held that the individual mandate was unconstitutional turned away the state ag's challenge to the medicaid requirements. that is the very same judge in the same case of holding an act of congress. that is also being challenged by 26 attorneys general. he holds a lot. it buys another part of along unsatisfactory, that should be added to the record in defense of judge vincent's integrity. >> thank you very much. >> i will recognize senator sessions for the last senator to ask in the first round. we will have a second round but i have asked my colleagues if they have questions, let's do it in a shorter period of time and try our best to accommodate the

schedules of our kind panel. >> thank you. "like to offer for the record the written testimony of the florida attorney general for this. i would also like to offer for the record a statement from the alabama attorney general. he is also of the belief that the act is unconstitutional. the u.s. government is a government of limited powers. this is how it was created. there are explicit grants of power to the federal government and there are certain powers that were not given to the federal government. in recent years, there has been a feeling about in our country that the federal government can do anything it desires to do on any subject.

i think the ruling's attacking this statute are refreshing to me in that it causes our nation to once again enter into a discussion about what it means to be a limited government of limited government powers. i would suggest how far we have gotten from these issues when they are an explicit constitutional provisions, the right to keep and bear arms, whereas we had four members of the court who want to take that out of the constitution. it has a specific provision that provides individuals the right to not have their property taken except for public use. it has specific provisions that allow free and robust debate and the ability to speak out in public forum. those things are individual rights that our courts somehow

gotten to the point where they are not very important anymore. in those cases, the state either one or almost one and that would diminish rights as opposed to the state. i think this is a fundamental point. we did not have hearings and this committee on the house care bill, the constitutionality of it, when people raised on the floor of the senate, they were ignored for the most part. it was dismissed out of hand we also had congressman ask what the constitution has to do with this. it was a disrespect for approful approach the constitut. congress did not do such a good job. we did not seriously debate

about whether this power was legitimately granted for the federal government. the comment was made about states and money. i would note that my governor has told me that he is stunned by the economic impact that this health care bill would have on state budgets. senator cornyn tells me that texas expects a $27 billion hit on medicaid requirements for the state. this is a huge mess. if the courts were to allow the individual mandate to stand and thereby grant the federal government authority to compel private citizens to purchase goods or services to promote some broader government policy, can you identify any limiting principle that would prevent the government from mandating the

purchase of anything or everything? >> i can send there has been a few efforts to identify them today. if congress can require you to subsidize a corporation because it burdens the federal government, i don't see any limit in terms of requiring you to purchase -- everyone agrees, commercial goods, commercial contracts, credit cards, anything like that. mr. dellinger has said that maybe there are restrictions in purchasing health care because that involves personal autonomy. most people would think that purchasing health insurance and deciding how to pay for and what dr. you go to would implicate personal autonomy. i would also point out there is disagreement between my brother dellinger and fries. d. professor fried things it's

partly legitimate to purchase a vaccination. at the end of the day, all that can be agreed on in terms of the limiting principle is congress can't do anything under the commerce clause that is unconstitutional. congress can never do anything unconstitutional so it makes the limitation in the commerce clause utterly irrelevant. all it means is that they can violate the bill of rights. that would be true if you gave to congress absolute plenary power. they could not violate the bill of rights. i would argue that all of these so-called limit in principles are very difficult to understand and meaningless particularly the one that suggests that health insurance is something you have to buy and is different than any other product. i have to buy food and transportation and housing and clothing every day. i think people feel much more compulsion to buy those products and health insurance, particularly a healthy 27-year old will make quite rationally think he will not go to the

doctor for the next 20 years. maybe he can make a much better deal for himself than rather on this healthd care structure. >> thank you. that is a very important point. that basically says that at some level, if we he disarray illogic of the commerce clause -- if we thevowa the logic of commerce clause, there is a limit. vin, you talked about judicial activism. i strongly believe and it is stated repeatedly that a decision that invalidated an act

of congress, if that act of congress is unconstitutional, is not activism. is that what you would agree? >> i think everyone agrees that activism is striking down acts of congress because there is nothing in the constitution that prevents it. if there is something that prevents it, you need to strike it down. no on this panel that will tell you that judicial activism strikes down a law that denies women the vote. we can look at the constitution realize that is blatantly unconstitutional these labels are sometimes thrown around that is unfair to judge is trying to grapple with a very nuanced and difficult constitutional question. >> i agree with that theme thank-you mr. freed. thank you mr. chairman. >> i have a budget committee and i will have to return. >> thank you. if i could, i would like to

enter into the record the congressional record for december 23, 2009. in this section, senator hutchison of texas raised a constitutional point of order concerning the affordable health care act. she said she objected to believing it was unconstitutional because it violated the 10th amendment. she specifically referred to the mandate that it would impose on texas to buy health insurance for teachers and employees. it was voted on by the senate on december 23, 2009 and the roll call vote was yes, sustain the point of order and 60 votes against. i would like to ask professor fried -- the point raised by senator leahy to buy your vegetables, he your vegetables,

i would like to ask you to comment on that. that is the one i hear most often. people say if the government can require me to date by health insurance, can require me to have membership at a gym or eat vegetables? we have heard from professor dellinger on this, would you like to comment? >> we hear that quite a lot. it was put by judge vincent. i think it was put by professor barnett in terms of eating your vegetables. that would be a violation of the fifth and the 14th amendment. , to force you to eat something. to force you to pay for something, i don't see why not. it may not be a good idea but i don't see why it is unconstitutional. i suppose under the food stamp

program, there are all kinds of regulations which distinguish between healthy and unhealthy foods. in any case, it would not be unconstitutional. that is a situation where you will get your money only to buy broccoli. you can say that you don't need food stamps. many people don't need them but some people do. those kind of mandates are all over the law. the mandate that to eat your vegetables, that you go to the gym, i would be willing -- i

would love to argue that case, the on constitutionality of that before any court in the country and up to the supreme court. i would argue that of liberty grounds. >> i last question relates to a section of your testimony which may be taken out of context or misconstrued. let me give you an opportunity to clarify. you made reference to mccullough courses maryland and the national bank and the decision by president jackson that the bank is on necessary, improper, and unconstitutional. you said your second to last paragraph, in short, because the supreme court defers to you does not mean the constitution lets you do anything you like. i want to make sure i understand and give you an opportunity to state that if all law of the land is a supreme court decision whether i agree or not, whether right think it is constitutional or not, it is below of the land and i have to follow it, correct? >> absolutely.

the point i try to make is that much of the supreme court doctrine involves the presumption of constitutionality. they defer to the congress is judgment upon the scope of its own powers. president jackson as saying that if the court is going to defer to us then it is incumbent upon us to independently assess whether we think something is on necessary, improper, and unconstitutional. he thought he was respecting the supreme court decision by holding the act unconstitutional. the supreme court had found the bank to be constitutional. >> of the law of the land until the present act was clear. the decision of the court was controlling whether i happen to agree with it as an individual or not. >> you are absolutely right nothing in the statement was meant to me in the contrary but

i think there is a great difference between the congress -- >> i think there is a difference between the congress passing a statute which violates the constitution and refusing to pass a statute which the congress thinks is unconstitutional even though the court has said it is not unconstitutional. i think there is a big difference between those two things. i think that is what president jackson was talking about and i think the renowned citizen of illinois, abraham lincoln, made much the same point in his debates with respect [inaudible] t. you have an independent

judgment. you have no leeway to violate what the court has said violates the constitution. you are not bound to say that if they say it is constitutional, i guess it must be. i think he is right about that. >> i also agree. members of congress have an independent obligation to make constitutional decisions. i would like to clarify a point where i think charles fried and i may differ. we both agree we can dismiss hypothetical about laws requiring you to go to the gym or eat broccoli because they implicate liberty being invalid. with respect to buying commercial products, i think i disagree or may disagree that i think the court need not go anywhere near having to hold that it would be acceptable to require people to buy commercial

products outside the well- designed context that presents itself here were virtually everyone has no choice but to participate in the health-care market. $45 billion is transferred from people who are under insured to others. 94% of the long-term uninsured have access to that health care market and where congress is during a dysfunction. those elements are on likely ever to be presented again and therefore i think this on remarkable financial incentive to have insurance is not going to be a predicate for a parade of horribles marching through the city of washington. >> i had a chance to ask professor fried and professdellinger about this but i want to give mr.carvin a chance on this.

it is hard to see what is left of federalism. let me ask you to consider this in your answer. it sounds like professor fried is arguing there are no limits on the power of congress to require individuals to buy insurance. it sounds like the distinction with regard to broccoli and other leafy vegetables is you cannot require them to eat it but you might be able to require them to buy it. under the commerce clause. i would like to ask professor barnett ca mr.rvin to consider the cost of the health-care costs -- cost having to do with

diabetes which is a ticking time bomb especially with children who are obese and they get seriously ill and have a premature end to their lives as a result, i don't really understand how if you concede that requiring the purchase of health insurance because of the costs on taxpayers and of uncompensated care, how that is different? if you look at the cost of diabetes and what that imposes on taxpayers and why you can require them to buy insurance but you cannot say you are required to buy a gym membership and you are required to buy fruits and vegetables. it sounds like you are saying that you cannot make them eat them but you can require them to buy them. that sounds very strange to me.

would you care to respond? >> i think everyone agrees that the skyrocketing health-care costs are more attributable to the rising cost of health care than these distortions in the insurance market. if you want to reduce health care, it would be appropriate if the court upholds this, it would attack the problem much more directly. your diabetes example is excellent. i assume walter would agree that they could require you to attend walt -- smoking cessation programs. i can't imagine why they could not go at it. the point that this is some unix system -- we have so regulated and subsidized this market, these people who have decided to live their own lives are becoming free riders. that means you will always have an excuse to force people to engage in purchasing insurance

before the government has regulated the particular area. that was the point the judge vinson made yesterday. it has a very perverse boostp straping of fact reported gives them a greater power under the commerce clause. it literally builds on itself such that the distinction between local and national is quite literally obliterated. >> professor barnett? >> whether or not it would be the end of federalism, it would be the functional and of the enumerated powers scheme that is one of the central features of federalism. it is based on states having independent rights or powers but also based on congress having limited and enumerated powers. there is no judicious limit on power.

the supreme court has said that is an essential part to any religion that would lead to that outcome. that cannot be a correct ruling. the only other point i would make is that i think professor fried has conceded the basic claim that congress can make you buy this, they can make you buy anything. you -- he hase not conceded that they can make you eat anything you buy. they can make you buy a gym membership that they cannot make you go to the gym. that may not be everything but it is a whole heck of a lot. people would be surprised that there is nothing improper on to the commerce clause. the power of congress to regulate commerce among the several states that takes place

between one state and another goes all the way down to make you, the individual person, by a gym membership at your gen. that includes that power. that is a stretch. that is a stretch that would end the doctrine of enumerated powers. >> let me ask one more question. i want to ask one specific question, a mr.carvin. you talked about police power and state power. people are confused by the fact that states like my state requires an individual who drives to buy liability insurance. why is there a different argument when it comes to the power of the federal government? would you care to respond to that? >> the state can play relatively paternalistic role in protecting against the health and welfare of others. i'm not an expert on car

insurance laws but i think they are not requiring you to ensure yourself. they require you to have insurance because if you run into somebody else. presumably the state might require you to insure yourself like they can require you to wear a motorcycle helmet nobody would think that is part of the commerce power but i may be wrong on that. it is a condition of access to the highways. it doesn't get at somebody sitting in their home which distinguishes it from this. >> requires you to buy a car and operate a car. only if you choose to, do you need to buy insurance. there arethat you buy insurance if you only operate on private property. it is a garden variety regulation to telesis and that if you're going to do something, this is how you do it. this is something the government does.

that is a fundamentally different proposition than telling the citizens they must do this that not if they are going to do it. they must do the thing itself. that is the line that this bill crosses that congress, under the commerce power, has never crossed before. >> professor dellenger. >> it is similar to liability insurance. if you are going to drive, the state says you have to have liability insurance. if you're going to use health care, you need to have health care insurance. since this is a product that everyone will use or at least no one can be assured that they won't want of a hospital, it seems quite similar. i may say that i will never use a flat screen tv and you told me to it. you don't have to buy me one. i don't agree with the suggestion that of holding this legislation would mean it would be constitutional for congress

to do anything to reduce the national health bill. what is different about this is the regulation that says 1944. the court has held that this is a commercial transaction of purchasing health insurance. this distinguishes it from all other hypothetical. >> the only point i was trying to make and perhaps i did not make it well is the power of the state to legislate is quite broad under police powers. and even do with health, safety, and welfare. that is not to say that because a state can legislate because of the doctrine of federalism. and the power that the federal government is different than the state.

>> i totally agree and there's nothing in the descent of this constitutionality of this bill calls into decisions like the united states vs. morrison or lopez were the supreme court held that when congress tries to regulate local crime because of the supposed effects on commerce that the court will draw a line there. it is a regulation. this is a regulation that is part and parcel of national economic regulation. therefore, it does not call into question those limits. >> senator brooke and paul? >> -- senator brooke mccaul? -- senator blumenthal? >> tax or penalty? the discussion outside this room -- is it a tax or penalty or does it make a difference? >> if the congress had enacted a

tax on everybody which they would then remit to those people who bought private health insurance, it is hard for me to imagine that we would be having this discussion. congress did not so enact. it did not do so for political reasons. it did not want to have this. i think they are now paying the price. in the fact that they have to defer -- confront this discussion. it was not put as a tax although the penalty is something that is collected by the internal revenue service, i believe.

it is not viewed, it was enacted -- it was not enacted as a tax because if it had been the power to tax for the general welfare and spend for the general welfare is pretty plenary. that is not how congress chose to enacted this. it left us with this debate that we are having. >> i want to agree with everything professor fried said about that. the only thing i would add is that if you try to justify what was done as a tax, essentially, it does not matter because it would be an unprecedented proposition that congress can require american citizens to do whatever it chooses to require and enact a monetary penalty under its tax power to penalize them for not doing that. that is no different than the

debate we just had for two hours whether this exceeds the power of congress or not. whether you call the tax are fine, it would still give congress unlimited power to order and command citizens to do anything. that has never been done before. the tax power is never been used for that before. that is the only thing i would add >. >> there is a misimpression out there that under this law federal agents arrived in black helicopters dressed in ninja customs and kicked down your door and drag you off to an insurance agency. what happens is that for those who are not otherwise exempted, when they fill out their federal income tax return, if you are not maintaining minimum coverage, you have to pay additional 2.5% which is less than social security. that is all that happens. in that sense, the great

intrusion on liberty does not approach and a slippery slopes. >> i think this has been an excellent hearing. it is an honor that you will join this for this important consideration of this major legislation. many organizations have submitted testimony and will be added to the record. there are 100 legal scholars that agree with the constitutionality of the act and a small business majority and the action center of the senior citizens law center and the center for action. they will be placed in the record. it is possible the written questions may come your way which i hope you will respond to in a timely fashion. thank you all very much. this hearing stands adjourned. >> as a citizen, not a subject, may i say that once the senate

and this committee has shown his government had our best. it was a privilege to participate. >> you can make short [laughter] train. -- you can make your train. [laughter] >> thank you. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011]

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>> starting shortly is today's

white house briefing with press secretary -- with white house press secretary robert gibbs. he will talk about the anti- government protests in egypt at 1:00 here on c-span. the u.s. senate is in session today. members are continuing work on a measure that we authorizes the federal aviation administration. the senators have offered amendments but since chamber rules allow an amendment offered that is not relative to a bill being considered, we expect to see debates and votes on health care. the house has already passed a measure to repeal that legislation and center's plan to spend most day debating and voting on amendments related to health care. you can see those boats between 5:00 and 6:00 this evening. see the senate live right now talking about health care and the faa program, live on c-span 2. the house continues to be out of session this week and they will

return tuesday, february 8 at 2:00 p.m. you could watch them live on c- span. this weekend, on c-span 3, we will visit the old naval from 1844-1893 in washington, d.c. a professor on the fugitive slave law and how it indirectly resulted in the expansion of the underground railroad and a look at political cartoons of the civil war which now provide insight into the political views of the day. that is all weekend, every weekend on cspan 3. c-span.org go to/history for the schedule. >> sunday, an author and columnist, the founder of the american spectator magazine, has written at a dozen books --

written half a dozen books and his latest book ,"after the hang over." join our three-hour conversation. that is live sunday at noon, eastern on book-tv on c-span 2. >> there is no other way forward. we simply have to learn to work together. as california's first, members of a political party second. >> today, step by step, we are putting ourselves on a better and more sustainable path and pushing ahead on the road to growth than a fine then watch this year's state of the state addresses as well as inaugurals from the nation's governors on line at the cspan video library. and share., clip >> the white house briefing is expected at the top of the hour. until then, a discussion about the anti-government protests

from a today's "washington journal." >> i went to cairo to meet officials of the demonstrations broke out. >host: you have posts on the council of foreign relations website. your chronicling your trip to egypt in what was happening in cairo and suddenly things are changing. guest: there were protests planned for january 25. that is national police day in egypt. annually, the opposition protests against the emergency law and the brutality of the police. there is a sense in the run-up to this that this would be

bigger given the recent events in tunisia. in fact, on january 25, we started to see demonstrations. what happened on that tuesday and the following day and thursday was dwarfed by what we saw since friday with the enormous crowds of people in the streets. nevertheless, it was an exhilarating thing to say. on tuesday, it was a kind of leaderless flash mob demonstration that concern -- converged on the square which is where i ended up tuesday evening between 8:00 p.m. and midnight when they used tear gas.

host: we have a line set up for egyptian-americans. did you have a sense of the typical annual protest happening and that this was more momentous? you mentioned there was heightened energy and attention. at what point did you realize this was something different? guest: by tuesday night, it was clear that people were intending on staying in the streets until mubarak was out. that was the first and last demand, that he be gone and the ruling national democratic be gone and is receiving be gone and people were demanding democracy and freedom. previously, these things have lasted a day at most. the tunisian situation 11 days

earlier in which tunisian protesters ran the president out of the country, a man who presided over a pretty sophisticated police state, gave the protesters in the square a sense of hope that they could potentially dislodge president mubarak. host: how likely is that? guest: he has been on the ropes. this is unprecedented. egyptians are not passive by nature. they have been in revolt almost constantly since the 1990 nationalist revolution. the number of people in the streets is unprecedented. -- since the 1919 nationalist revolution. he has been playing smart strategy. he is trying to play out the clock and survive for another day and organized counter protests and not respond directly to the demand of the

protesters and hope that eventually everybody but the die-hards will eventually get hungry and go home and want stability instead of revolution. that is what they are counting on. whether they can do that is unclear. it is a sense of the momentum shifting in cairo today. host: what was your impression when president mubarak mentioned last night that he will not run again? were you expecting that and will he go farther? guest: i did not think he would go farther. it was clear that he would say that he would not run. he is a wily characters. the egyptian people who did not believe anything he said were quite right in understanding that this is part of his strategy. he announces he will not run and he announces they will undertake reform and then they have mubarak and the people around

him to have eight months to manipulate the political process in a way that either mubarak himself or somebody around him becomes the next president of egypt. host: stephen "is with the council on international relations. he is the author of "ruling, not governing." you are currently writing a book about the egyptian politics? guest: the first draft is finished. the editor and i agree and i tell the other day called," the struggle for egypt" which seems particularly apt at this point. >host: how much of what is happening now will change the tone of your book? guest: there were conditions in tibet make this situation right. when you have a leadership in a

country that illicit control only through violence or the threat of violence, you have the potential for an explosion like we have seen in cairo. host: craig, democratic line, in new york, good morning. caller: anke for taking my call. it seems like there has been a seething under the surface of people wanting to get their freedom. it seems like since 9/11, it seems like the american powers that be have decided to listen and people like osama bin laden said they want the medullary -- what the military out of mecca and medina and it seemed like we have finally begun to listen. this covert type of movement of people may be a little better and it seems like dominoes are falling and maybe the u.s. wants

to redraw the political map of the middle east over time. guest: the obama administration was taken by surprise on the uprising indonesia and taken by surprise on the uprising in egypt. both countries were stable. this is not a function of american machen nations. -- machinations. this is the people taking things into their own hands and writing their own history. united states comes in in the

way that the chechens regard the united states as having supported this authoritarian regime. when this all shakes out, if mubarak coast, there will be a significant turbulence in the u.s./egypt relationship. even if he stays, i don't think the u.s./egypt relations will be as friendly as they have been. host: maryland, our egyptian- american line, good morning. caller: i have a comment. i have a political and legal background. my parents left egypt long ago because of the islamic radical influence in the country. i am fearful that the u.s. is about to make a very dangerous mistake by pandering to the muslim brotherhood and trying to mirror editor our thoughts of democracy and trying to

superimpose that i might country that cannot implement democracy the way we understand it. when they do that and they begin to engage all political groups, they will talk with the moslem brotherhood, open up an opportunity for dialogue with them, and potentially turn the democratic process on its head. they could use that to turn egypt into an iran-style state. what are your thoughts? guest: those are a number of important issues. i think there has been too much dismissing of the potential challenges and dangers of the moslem brotherhood. they have not been at the forefront of these demonstrations. there was really no evidence that this was inspired by the muslim brotherhood. should hosni mubarak and the regime ultimately collapsed,

when there is a messy political situation where people are vying for leadership, the moslem brotherhood is the most organized and prestigious organization and will be able to come to the fore and make a bid for leadership. the notion that egypt will become an islamic theocracy in the way ron is is overstating the case but the caller is right. the democratic credentials of the moslem brotherhood are suspect and they have never reputed their ultimate goal which is the establishment of an islamic state. we should be concerned about this. i don't think the united states has too much leverage here. the obama administration is caught in the difference between the outpouring of the egyptians who desperately want to live in

a more democratic and open political system and a longtime ally in which we have invested considerable sums of money and the concern over the potential rise of the moslem brotherhood. i don't think that we are seeing the emergence of an islamist- style theocracy along the lines of iran in a democratic egypt. what we have seen is a movement and uprising that has been fuelled by liberals and leftists. the course of last five years of egypt has been liberal principles. host: we have been looking at images from aljazeera which are live from the square where protesters are gathering. pro and anti-government supporters are clashing in the square. they are calling for the ouster of president mubarak.