of policy developments out of that legislation to ensure this doesn't happen again. the administration believes that we have taken a giant step forward in the passage of that to ensure that the impacts to our economy because of regulatory failures are not something that we see again. .

this hearing is two hours, forty minutes. >> this hearing of the senate judiciary committee will come to order. i want to thank chairman leahy for allowing me to convene this hearing. he is expecting to be sure. the title is "the constitutionality of the affordable health care act." this is the first hearing on whether the law complies with the constitution. i would like to thank the chairman and also my friend, the ranking member of the senate judiciary committee, senator chuck grassley.

after our statements, we will turn to the witnesses in seven- minute rounds. when judge benson of the northern district of florida made a ruling monday striking down the act, it must of caused concern across america. many americans who are counting on the provisions of that law are in doubt about its future. senior citizens were hoping you close the doughnut hole of that gap in medicare prescription drug coverage. they will wonder what it means, whether they need to return checks that were sent to them, or when the next check will be sent in the future. many americans will be in doubt, those who were 25 and eligible to be covered by their parents

and family health care plan may have questions, cancer patients who joined the high-risk pools may have doubts, small businesses who thought tax credits were coming their way might be asking members of congress what it means. i want those millions of americans to know 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 as to its constitutionality. let me mention two or three others. the social security act, the civil rights act of 1964, and the federal minimum wage law, all of those successfully challenged in lower courts but unanimously upheld 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 it to be constitutional. two have reached the opposite conclusion. how is it possible that these federal judges, 16 different judges, who not only studied the constitution but swear to uphold it, can come to different conclusions? i think those on the judiciary committee understand that many people can read the constitution and come to different conclusions. it is not likely we will produce a national consensus in this crime, maybe not even agreement with those in attendance. if we serve the congress by laying out the case on both sides, i think this is a worthy undertaking. at the heart of the issue is article 1, section 8, enumerate in the powers delegated to congress. one side argues that with the passage of the affordable care act, congress would be on that

authority. the other disagree. within those powers as one described by one constitutional scholar as the plainest in the constitution, the power to regulate commerce. the threshold question is, the health care market in america, commerce? i think the answer is obvious. the supreme court will decide. over the course of history, the court has interpreted this plainest of powers through its application of the founder's vision to current times. whether it was roscoe still burn growing wheat to feed his chickens in 1941 or someone using homegrown marijuana to treat chronic illness in 2002, the justices from robert jackson to and in scalia -- anton scalia have made decisions on

precedents for courts. sometimes, lower court judges, many might be characterized as activists by critics, try to make new law. this has happened in florida and virginia. judges have ignored the precedents and created a new legal test distinguishing activity from inactivity, a distinction that cannot be found anywhere in the constitution or supreme court precedent. this is historic. i have had four opportunities to meet in this room and to interview prospective nominees to serve on the u.s. supreme court. they all stand with photographers and the cameras are rolling. they hold up their hands and take the oath. then they sit and answer questions, many times for days. the questions that are asked is whether or not they're going to follow the constitution, or whether they are going to be

judicial activists. that is the standard that should be applied as we consider the future of the affordable health care act. i believe if the justices of the supreme court applied the precedents, look of the clear meaning of the constitution, they will find this constitutional. when the act comes before the supreme court, i am confident they will recognize that congress can regulate the market for health care that we all participate in, and that it can regulate insurance. 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, and 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, allowing congress to make all

laws necessary and proper for carrying into execution the foregoing powers, the supreme court just last year said the necessary and proper clause makes clear that the constitution's grant of specific federal legislative authority are accompanied by broad power to enact laws that are convenient or useful or conducive to that authority's exercise. the test is whether the means is related to the implementation of a constitutionally enumerated powers. is an individual mandate rationally related to congress's goals of making health care more affordable and prohibiting health insurance companies from denying coverage to those with pre-existing conditions? it is clear to me. the 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 the affordable care act 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 defeat it in congress and they're losing the argument in the court of public opinion, were four out of five americans oppose repeal. why is public sentiment not lining up behind the repeal effort? because a strong majority of americans do not believe their children should be denied insurance because of pre- existing conditions. they want to cover their young adult children under family plans. they believe small businesses should be given tax credits to cover insurance for employees. they oppose caps on coverage and cancellation of coverage when people need the most. with many parts of the world in turmoil abridging turmoil today over questions of freedom, we should not forget that the strength of our constitution lies in our fellow citizens to put faith in its values and trust the president, congress, and the court to set aside the politics of the moment and fairly applied 18th-century rhetoric to 21st century

reality. i want to recognize senator grassley. >> thank you. i appreciated it the discussion of some of the policy issues within this legislation. whether you agree parts of this bill are very good, parts are very bad, things that ought to be thrown out, things that ought to be put into it that maybe are not into it, are all legitimate issues, but the real issue for us today is on the constitutionality of it. i think we're very fortunate in this country to be under the rule of law, under that constitution. we are fortunate to be probably the only country out of 190 on the globe that degree in the principle of limited government, and that is something we not only appreciate, it is something we should worship and something that ought to be considered.

the american people are a very special people for that reason. i look forward to those issues. we agreed on the issue, we move forward. if it is not constitutional, we start over. all of the policies that are in dispute that my colleague mentioned would be continued if this is constitutional. if it isn't, then we will debate those issues once again. the florida judge ruled on the constitutionality of the new health loss this monday compared the government's argument to alice in wonderland. that reference applies equally to today's hearing. things are getting curiouser and curiouser. under our system of enumeration powers, the sensible process would have been to hold a hearing on the constitutionality before the bill passed, not

after. instead, the congress is examining the constitutionality of the health care law after the ship had sailed. like alice in wonderland, sentence first, verdict after. 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 in the administration ended these negotiations. the majority took discussions behind closed doors. what emerged was a bill that i feel has major problems beyond constitutionality. republicans argued 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. the plea went unanswered. the majority passed the health care law without a single republican vote. when republicans identified specific concerns, such as the constitutionality of the individual mandate, we were told 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 to regulate interstate commerce? reality is that no one can say for certain. the nonpartisan congressional research noted it was on precedent for congress to require all americans to purchase a particular service for good. the commerce clause allows regulation of a host of economic

activities that substantially affect interstate commerce. no dispute about those decisions. it has never been before allowed congress to regulate in activity by forcing people to act. what is clear is of this law is constitutional, congress can make americans buy anything congress wants to force you to buy. the individual mandate is at the heart of the bill. my friend senator baucus said at that mark-up 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. the supreme court can strike down the individual mandate, it is not clear that the rest of the law can survive. the individual mandate is the reason the new law bars insurance companies from denying

coverage based on pre-existing conditions and the sponsors made the mandate the basis for nearly every provincial law. judge vincent's ruling that the whole law must be stricken reflect the importance of the mandate to that overall outcome. then there is the medicare issue before us. does the new law amount to coercion of the state? some of my colleagues on the other side of the aisle may even make the case today that even though i don't think that there 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 that

state's citizens would be eligible for tax credits, because people with incomes at medicaid eligibility levels can never be eligible for tax credits. the idea that the federal government could, through the medicaid program, 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, i asked that the statement be placed on the record. i'm interested in hearing from the witnesses today. ultimately, we all know the subject of this hearing is finally going to be determined by the supreme court. thank you very much. >> thank you, senator. that statement will be made part of the hearing. i want to invite my colleagues on the democratic side to come closer. i ask now if this panel of witnesses would please stand and

take the oath. please raise your right hand. these where the testimony you're about to give will be the truth, the whole truth, and nothing but the truth, so help you god? thank you. let the record reflect that all the witnesses have answered in the affirmative. there will be given five minutes for an opening statement. we have seven-minute rounds. our first witness is john kroeber of oregon. he was elected in 2008. he has a national distinction in the fact was nominated by both the democratic and republican parties. he is a bipartisan attorney general from the state of oregon. he and others recently filed a brief before the sixth circuit in support of the constitutionality of the act. he served as a u.s. marine, a law professor, a prosecutor, a

member of the justice department's task force. he served in a multi agency emergency response team that investigated the 9/11 attacks. he received his bachelor's and master's -- pastors -- bachelor's and master's degrees. thank you for being here today. [inaudible] >> thank you. i am the attorney general of oregon. over the course of my career, i've taken a note to defend the constitution. i take that obligations seriously. i'm confident that the affordable care act is constitutional and will be judged constitutional. the region for that confidence is simple. there have been four primary arguments raised in litigation challenging the bill. i believe all four are without

merit. want to review the arguments and explain why i think they have no merit. the first is that the commerce clause by its own terms only regulates commerce. the argument is that declining to get health insurance is not commerce, but refusing to engage in commerce, and falls outside the power of congress to regulate. this is extraordinarily weak. it was explicitly rejected in a case where the courts held " congress can regulate purely intrastate activity that is not in itself commercial." that belief was dated and not just the majority opinion, one by justice kennedy, but in the concurrence from justice scalia as well. the argument is dangerous. the gonzales opinion provides the foundation for federal criminalization of our laws banning the home production and home use of child pornography

and dangers of drugs like methamphetamine. the prosecutor overturning it would be a disaster. the second argument that has been raised is based on the activity-inactivity distinction. in peru as verses united states, the supreme court spoke of the clause regulating activities. opponents have used this language to raise a novel argument that the constitution prohibits the regulation of an activity -- inactivity. it claims that declining to buy insurance is inactivity. there are three serious flaws with this argument. the distinction has absolutely no basis in the text of the constitution. second, the court recognized in both the wicker and carter

decisions the congress can regulate activities and conditions. i believe that would also apply to the condition of being without health care. third, people lack insurance because businesses don't offer it to their employees, insurance companies declined to extend it for pre-existing conditions, or individuals failed to select it and pay for it. some lot of choice, some because they cannot. all of these are action with real world and often very tragic consequences. the constitutional fate of a great nation cannot be decided by semantics and word games that label real-world actions as in activity. the third argument, steadied by some litigants and by some courts, is that the supreme court has never interpreted the constitution to allow congress to force individuals to buy a product. this argument is inadequate --

inaccurate. this was raised and rejected by the court in the weaker case. in that case, the. it argued that as the result of an act, he would be forced to buy a product, food, on the open market. mr. justice jackson wrote, "the claim was that congress was "forcing some farmers into the markets to buy what they could provide for themselves." this claim is identical to those raised in litigation. they would rather self-insure and pay themselves. justice jackson rejected the claim, holding that these kind of questions are "wisely left under our system for the resolution by the congress." again, strongly supporting the

constitutionality of the affordable care act. finally, critics claim the personal responsibility mandate interferes with constitutionally protected liberties. i find this argument odd because 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. hospitals are legally required to provide that care. as a result of that, they racked up approximately $40 million -- $40 billion in health care fees every year. the opponents of the bill claim that this cost-shifting is constitutionally protected. i 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, general kroger. our next witness is a professor who is a renowned scholar of constitutional law. he served as solicitor general under ronald reagan from 1985 until 1989. he worked in the reagan administration as special assistant to the attorney general. from 1995 until 1999, he served as associate justice of the supreme judicial court of the state of massachusetts. he received his b.a. from princeton, a master's from oxford. professor, thanks for joining us today. please proceed. >> i should just add to that statement that i have two of my former students here, professor barnett, and attorney general kroger.

i taught him constitutional law. i come here not as a partisan for this act. i think there are lots of problems with it. i'm 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 on the states. that is something to worry about. the health care mandate, i think, really is -- i would have said a no-brainer. such indulge in brains go the other way. clearly, insurance is commerce. that was upheld 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. if you look at the mountain of legislation, most noticeably some legislation, you see that the congress and the courts obviously think insurances commerce. health care, surely health care insurance surely as commerce, insuring 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're

ratified the constitution, and who come in 1824, said regarding congress's commerce power, "what is this power? it is the power to regulate. that is the prescribed rules by which commerce 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, part of a system of rules by which commerce is to be governed. if that weren't enough for you, though it is enough for me, you go back to marshall in 1819, where he said, "the powers given to the government imply the ordinary means of execution. the government which has a right to do enact, surely to regulate

health insurance, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means." that is the necessary and proper clause. the end -- he ends by saying that the regulation of health insurance, let it be within the scope of the constitution and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, our constitutional. that, to me, is the end of the story. i think that one thing about judge vincent's opinion, if we strike on the mandate, everything else goes, shows as well as anything could that the

mandate is necessary to the accomplishment of the regulation of health insurance. is it proper? there is an intellectual confusion here. something is necessary. this is clearly necessary. it is improper only if it bumps up against some specific prohibition in the constitution the only prohibitions' i can think of that this bumps up against are the liberties causes of the fifth and 14th amendments. if that is so, not only as obamacare unconstitutional, but so is romneycare in massachusetts. that is an example of an argument that proves too much.

thank you. >> thank you very much, professor pierre the next witness is a partner in the d.c. office in a law firm, where he specializes in constitution law. he was the deputy assistant attorney general of the dust is rigid justice department's civil rights division. he was one of the lead lawyers in the florida supreme court on behalf of president george w. bush in the recount controversy. he received his b.a. from tulane university. please proceed. >> thank you for the opportunity, senator. the individual mandate compels citizens to engage in -- and contract with a wealthy corporation, even though often, and crabs usually, it is to the citizen's economic disadvantage to engage in that health insurance when he is healthy and

does not need insurance. it is agreed this is unprecedented. congress has never before required a citizen to engage in contractual or commercial activity pursuant to the commerce clause. we have heard today this difference is a material. there's no difference between regulating inactivity and regulating activity. regulating someone who has decided to contract and has entered the commercial marketplace. under this reasoning, that means that because we can tell gm how to contract with its customers when they decide to buy a car, or how to contract with employees in terms of workplace conditions, since there is no difference, we could compel somebody to contract with general motors to buy a car or to enter into an employment contract. the gist of my remarks is this is not some semantic trick, something we came up with in response to the health care act.

it is a core principle that goes to the most basic constitutional freedoms and limits on federally enumerated powers. in the first place, insurance is commerce. that is not the issue. the issue is rather if inactivity is commerce. sitting at home and staying out of the marketplace is not, as. it becomes, as if you leave your house and decide to buy or sell services. then you have congress, which can regulate. the decision not to buy health insurance does not affect commerce, unlike the examples we have heard in terms of the plaintiffs in wicker. they were providing goods that would enter the commercial mainstream. they were providing goods that were the sort that congress was free to regulate under the interstate commerce. the decision to sit at home does not affect the insurance company's ability to contract

with a citizen. the rationale for the individual mandate is not that you're eliminating a barrier to congress. the rationale for the individual mandate is you are ameliorate in a congressional distortion of commerce. congress told insurance companies that they had to take people with pre-existing conditions. that is good for the patient. it is costly for the insurance companies. what we are constructing the american citizens to do is to ameliorate the economic harm that congress has visited on those insurance companies. this is not in any way within the traditional conference power. congress can tell someone not to grow wheat. what it cannot do is tell his neighbor that he has to buy some other crops to ameliorate the harm that congress has put on him by banning is weak. this is different in degree and

kind. it is without limiting principle. in the florida case, the more congress can distort in the first place the commercial marketplace, it can bootstrap that 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 suggests it is fine to compel people to contract. recently, the court said you could not force coal companies to provide health insurance contracts to former miners. it forces citizens to contract with a wealthy corporation to ameliorate the corporations loss of profit. that is proper, there's nothing that congress cannot do. what is the limiting principle that is being suggested here and elsewhere?

i used to call it the due process clause. it suggests that will limit congress's power. that is a restriction on the state's. they concede that the only limitation on congress's enumerated powers is the same as the limits on the state's plenary police power. the supreme court is clear about anything, it is that you cannot to obliterate the distinction between the limited federal government and the state government. if you do that and advantage commerce clause analogy, which eliminates that distinction, that alone shows you it is an abuse of the commerce power. thank you. >> thank you very much, mr. carvin. the next witness is randy barnett from the highly regarded georgetown university law center. he teaches international law. he previously served as prosecute -- prosecutor in cook county.

he has been a visiting professor at harvard law school. of particular relevance, he argued the commerce clause case of gonzales, which we have heard reference to. thanks for coming today. please proceed. >> thank you, senator. 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. it is not as though the federal government never requires you to do anything. you must register for the military. you must submit a tax form, fill out a census form, and served on a jury. of the nature of these few duties illuminates the truly extraordinary and objectionable nature 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 u.s., 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 people would be reduced to its subject. the defendants of the mandate claim that because congress has the power to draft and the military, it has the power to make you do anything less than that, including mandating that you send your money to a private company and do business with it for the rest of your life. this does not follow. the greater power does not include the lesser. no one claims that the individual mandate is justified by the original meaning of the commerce clause. the government and those law professors who support the mandate rest of their arguments exclusively on supreme court decisions. given the economic mandates have never before been imposed on

people by congress, there cannot possibly be any supreme court case expressly upholding such a power. in my testimony in a forthcoming article, i explain my nothing in current supreme court doctrine on the tax power or necessary and proper clause justify the individual insurance mandate. rather than impose a tax on the people, congress decided to invoke its regulatory powers under the commerce clause. because the commerce power has never been construed to include the power to mandate a person must engage in economic activity in litigation, the government has been forced to rely on the necessary and proper 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 in the lopez and morrison decisions. the mandate is not necessary to "carry into execution" the

regulations being imposed on insurance companies. it is being opposed to ameliorate the free ride effect created by the act itself. congress cannot bootstrapped powers this way. in testimony, i explained by the individual mandate is improper because it commandeers the people in violation of the 10th amendment that reserves all powers not delegated to the constitution -- to congress by the constitution "to the states respectively, or to the people." apart from what the supreme court has said about congress's power, each senator and representative takes his or her own nose to uphold the constitution. each must ship -- each must reach his or her own judgment. after the supreme court relied on the necessary and proper clause to uphold the constitutionality of the second national bank in case you will hear a lot about today, president andrew jackson vetoed

the renewal of the bank because he viewed it as unnecessary and improper. therefore, he found it to be unconstitutional. he wrote, "in our power is so absolute that the supreme court will not call into question the constitutionality of an act of congress, the subject of which is not prohibited and is really calculated to affect any of the obstruction to government, it becomes us to proceed in our legislation with the utmost caution." therefore, regardless of how the supreme court may rule, each of you must decide for yourself whether the mandate is truly necessary to provide for the portability of insurance, if one changes jobs or moves. each of you must decide if commandeering that americans enter into contractual relations with the private company for the rest of their lives is a proper exercise. if you conclude that the mandate is either unnecessary or improper, let president jackson

-- like president jackson, you're obligated to conclude it is unconstitutional and support its repeal. even if you do not find that the mandate is unconstitutional, this week's ruling in florida suggests 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 the douglas g. mags professor at duke university law school, a partner in chair of the appellate practice law firm here in washington, he served as acting solicitor under president clinton from 1996 until 1997, and was an assistant attorney general from 1993 until 1997. he is a graduate of the

university of north carolina law school. we're glad you're here today. please proceed. >> thank you very much, senator. the coming together of the american colonies into a single nation was more difficult than we can imagine. come together as they did come in the summer of 1787, they created the greatest common market the world had ever seen. john marshall characterized the power to regulate the commerce of that nation has the power to regulate that commerce which concerned more states than one. the notion put forward by those who have seen these losses as it is beyond the power of congress to regulate the markets and to make efficient the markets in health care and health insurance that comprise 1/6 of the national economy. it is an astonishing

proposition. the arguments are essentially that it is novel and has not been done before, and that crazy things will be done if it is accepted. neither of those arguments pass muster. each of them are the same arguments that were made when the challenge was brought with the social security act of 1935. first, this is a regulation not like those in the cases of morrison and lopez, of local, noneconomic matter. this is of economic matters, as professor fried has put it well. it is a regulation that is critical to the provision that prohibits insurance companies from denying coverage to americans because of pre- existing conditions because a child is born with a birth defect. 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 contracts and say you cannot turn them people with pre-existing conditions. you cannot turn down people because children are born with birth defects. that being the case, and the fact that judge vincent agreed that it is necessary and essential for the act to operate and to provide a financial incentive for people to maintain coverage generally, those provisions are inextricably interlinked. mr. carvin says the provision that prohibits insurance companies from denying people with pre-existing conditions, he calls that a congressional distortion. i think most americans are now assured that when they change jobs, they will not lose insurance.

if they have a child born with the defect, they will lose insurance. they think of that as the regulation of the market, which congress has ample authority to make effectively. the fact that something is within the commerce power is 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 rather on remarkable. -- unremarkable. only if you go to work and earn taxable income to the penalty provisions apply to you. if you go to work, one of the things you find out is the government takes a 7.5% from you and your employer for social security, 15% if you are self- employed. they take additional taxes for medicare. then, for coverage after you're 65, for coverage before you're

65, 2.5% financial penalty if you don't maintain coverage. it is extraordinary to think that something that gives you more choice, that allows you access to the market, is somehow so intrusive that it has to be carved out from the commerce clause. 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 is found to be indefense of. will it lead to an expanse of congressional power? it will not. congress -- the liberty clause as prevent anyone from forcing 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 in the

private market? i never thought i would hear conservatives say there is something intrusive about buying products in the private market and about having a single government provider. that is the sense of their government. is there a precedent for doing that for any product? not at all. this product has characteristics that would limit the application. it is a market that no one can be assured they will not tender. you never know when you're going to be hit by a truck and have thousands of dollars of expenses and medical care, which you're guaranteed to be provided by the act. if my teammates the super bowl and i had not provided for a flat screen television, i cannot show up and expect them to provide it to me. with health care, no one can be sure they won't need it. 94% of the long term money

injured have use medical care. at the end of the day, it does not remarkable that this market is when congress is using a market mechanism to encourage participation. the attacks against -- the attacks against it are reminiscent of those made against social security. the supreme court rejected the idea that if you could set the aged 65, you could set it at 30. at the end of the day, i think what the challenges to judiciary review is one we've seen before. step back from that precipices and say, we will not stand in the way of social security. at the end of the day, i think the supreme court will not stand in the way of something that is

less intrusive and respect the autonomy of america. thank you. >> thanks mary much, professor. we of been joined by senator patrick leahy. i would like to give him an opportunity. >> thank you very much. i think senator durbin for holding this meeting. i thought this was an extremely important one and a very timely. i must say i have no doubt about the constitutional authority. professor barnett, the law school we attended. we should look at our oath of office. we do. i can remember vividly taking that oath. i repeated to myself all the

time. i think most of us do. we had arguments on the constitutional issue. during the senate debate, i talked about those arguments. i responded to them. the senate voted on the constitutional issue. it formally rejected the constitutional point of order. it said the individual requirement was not constitutional. we voted on it. we voted the act was constitutional. two courts have ruled it is not. two have ruled it is. we all know ultimately it will go to the supreme court. professor fried -- we have all profited by the testimony saying that we're not going to question the policy, about the pot --

about the constitution. i appreciate that. it was not novel. it rested on a centuries work of building on our safety net in this country. the opponents continue their political battle by challenging the law minutes after president obama signed it into law, within a few days. they wanted to achieve in courts, but they were unable to achieve in congress. this was debated for over a year -- most of the year, countless hearings, countless debates on and off the floor. millions of americans have access today because of the affordable care act.

parents would have children in school and college they could keep on their policy until there 26 years old. if you have a child with juvenile diabetes, they cannot be reduced because of a pre- existing condition. there are a whole lot of things that eliminate discriminatory practices. making sure a patient's gender was no longer contingent of pre- existing conditions. think about that. we're talking a gender being a pre-existing condition. we have added important tools. taxpayer dollars lost to fraud and abuse in the health care system. senator grassley and i may have disagreed about the health care bill itself. we agreed on going after fraud and abuse in the system.

senior citizens would now pay less for their prescription drugs. i realize there was it -- the realize they're looking for a victory they could not secure in the congress. that is happened many times over the course of this country. i would hope that the independent judiciary will act as an independent judiciary, and will be mindful as the justice was when he upheld the constitutionality of social security 75 years ago. " whether wisdom unwisdom resides 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 for the record. compliments to you for doing this. this is as important a hearing as being done at this time. >> thanks a lot. we appreciate that during much. i would not invite my former professors to ask me to judge my performance as a senator. i will not ask the chairman to issue another grade to professor barnett. he had that chance once before. i would ask you to comment about one of the statements made by professor barnett. it relates to the question of whether this is a unique situation where we are imposing a duty on citizens to either purchase something in the private sector, or face a tax penalty. i would like to ask you to

comment generally. specifically, i'm trying to go back to the case involving roscoe fill burn. he objected to a federal law that imposed a penalty on him if he grew too much wheat. he argued before a court that the wheat was being consumed by him and his chickens. as a result, the law went too far. i think the net result of a law is that he faced a penalty -- or complied with the requirement, and had to make a purchase in the open market to feed his chickens. is there an analogy here? would you like to comment on this notion that it is unique and the law requires a purchase on the private market? >> charles? >> i told professor barnett -- i

taught him constitutional law. that case can be distinguished only if you say, after all, mr. filburn didn't have to eat, and his chickens didn't have to eat. that is an absurd argument. i think mr. dellinger pointed that out. that is like saying, if you could make a commitment that you will never use health care, but you will never visit an emergency room, that you will never seek a doctor, then you should be free not to enter the system. that is silly. that is the first point of non- distinction. there is another point that is made. i get a little hot under the

collar when i hear it. that is that this turns us into -- from citizens into subjects. judge vincent also said that those who threw the 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 threw that tea in the harbor was taxation without representation, in parliament that they had not elected did this to them. well, the people elected a congress. in 2010, the change to the congress. that is why we are not subjects, why we are citizens.

>> professor barnett, you and mr. carvin have alluded to the activity-inactivity distinction. tell me what case you look to for president or what part of the constitution you refer to to come up with this approach. >> there's nothing in the constitution that says congress has the power to regulate economic matters. there's nothing that even says that congress has the power to regulate activity that has a substantial effect on interstate commerce. there is no former doctrine. as for the substantial tax, that is given by the supreme court. i have been operating reading my testimony is based on what the supreme court has said. the supreme court has referred to the congress's power and authorized congress to exercise its power to regulate the activity coming economic activity. that is what it says. justice scalia had a concurring

opinion. he uses the word "activity" or "activities" 42 times. that is a lot. that is what we're looking to. what we notice is the court has never said the congress has the power to regulate economic matters coming economic decisions, -- economic matters, economic decisions, or inactivity. it has never said that congress can go farther. next time and here's a case like this one, it could go farther. we know that. it has not done so until now. >> for the record, the other four witnesses have acknowledged explicitly that the health care industry is part of commerce. do you accept that? >> yes, i do. >> general kroger, how do you respond to the inactivity of the citizen, not the overt act of

the citizen? >> two things. most of the case law does speak repeatedly of activities. most bills are regulating activities. it has never limited the commerce clause to a formal category of activities and prohibited congress from acting otherwise. the case specifically cites the language in carter vs. carter coal. it is not whether there is an activity, but whether there is a condition that can be regulated. .

>> i think judge vincent's decision sweeps far beyond where it was necessary to go and takes on some completely unrelated provisions. and 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 a necessary affect at this moment. the department of justice i think is considering whether to seek an appeal even though he issued no order to nonetheless clarify that only the individual mandate of the state. and of course everyone agrees what is also at stake is a provision that prohibits insurance companies from

denying coverage for preexisting conditions. those two are linked. and i think that aspect of it is indisputable. >> thank you very much. senator? >> professor, you've made it clear you're convinced there's no doubt the mandate and health law is constitutional, so would you see any need for congress to make any changes to the mandate in order to increase the chances that it would be found to be constitutional, make more certain it was constitutional? >> i see no need for it because it seems so clearly constitutional. you're wearing a belt. maybe you want to put on some suspenders as well, i don't know. but i think it's not necessary. i suppose it would be proper. >> ok, then, to any of the witnesses, some of you have discussed the supreme court's decisions that have given

congress broad authority under the commerce clause. that's the whole point here. but congress has never before passed a law that requires people who are not already engaged in an activity, commercial or otherwise, to affirmatively purchase a product or service. could the supreme court strike down such a novel provision as the individual mandate without overturning a single one of its precedents? >> yes, senator, that's clearly true. it is the defenders of the act who are seeking to extend the court's commerce clause jurisprudence passed what it currently is. as professor barnett pointed out, they've only suggested that activities that affect interstate commerce can be regulated under the commerce clause. they've never suggested congress can compel people to engage in certain activities to offset the economic effects of another part of the law. to get back to senator durbin's question, they never suggested

they can compel from feldburn to grow weed. they've never suggested again, as i pointed in my testimony they can require mr. filburn's neighbors to buy his crops to counteract the effects of limiting the wheat he can grow. i think those distinctions are loyally semantics and are relatively obvious to most people. >> unless you want to add. >> senator grassley, i think the very notion what is involved here is, quote, inactivity can be called into question. if you're sitting alone in the woods doing nothing, it doesn't apply to you. you have to go out and enter the national economy, earn $18,000 for a couple in order to be required to file an income tax return. only then do you have to pay a -- 2.5% penalty if you don't maintain insurance coverage and since no concan be insured

they'll need health care they'll be active participants in the health care market. this is in essence by no means a case of no activity. and i believe there's no case yet that's come close to holding the congress can affirm obligations when doing so carries out its regulatory authority over the national economy. >> the penalty may not apply to everyone but the mandate does apply to everyone. it's the penalty enforcing the mandate that might not apply to everyone. but the mandate that says every american has to have health insurance has to obtain or procure health insurance i believe applies to everyone. >> if i might just add one supreme court precedent which i always thought was very relevant is the 1905 decision in jacobson against 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 supreme court said pay the fine. >> that illustrates the distinction that i'm talking about. massachusetts acted to stop the spread of an infectious disease pursuant to its power to protect the health and welfare of the state citizens. congress doesn't have that power. under mr. fried's analysis, congress could tomorrow require everyone to buy vitamins or vaccinations because in another part of the law they've required doctors, through perfectly charitable reasons, to provide free vitamins and vaccinations to others and this would be offsetting the fact just like the individual mandate is an offsetting the fact. if congress can do that, then i think we all agree congress can do everything that state governments can do today subject to the restrictions of the liberty clause. and if that's true, then there is no distinction between the

commerce power and police power. and again, i think we'd all agree the court has made clear that if there is no such distinction that means the commerce power has been exceeded. >> i want to go on to -- ask for a comment on a quote from the senator, center for american progress critical of judge vincent and so, quote, if judge vincent were to have his way, insurance companies will yet again be able to deny your coverage because you have a preexisting condition, drop your coverage when you get sick, limit the amount of care you receive, take more of your premium dollars from their profits, end of quote. i think that this group shares the same thoughts that many of the supporters of this legislation have used as a basis for the law as well as the basis for this hearing. that there seems to be no difference between law and

politics. and of course i think the supporters of that view think that the judge who rules on the law is unconstitutional must impose the policies as contained in the law. obviously i take a different view. i believe that a judge is obligated to make sure the laws that congress passes comply with the constitution. if congress passes a law that's beyond the constitutional power to enact no matter how popular, desirable the provisions of that law are for some people, the courts have an obligation to strike it down. number one -- and by the way, i wanted to direct this to the three people on the left. i'm sorry. not the three people -- jim cruege,, professor reid and dellinger. do you think it's personally attacking the judge saying the judge must prefer particular

policy results that the critic opposes? >> no, it is not proper. >> ok. and anybody can add if they want to but let me go on to the next one, is it fair to say judge vincent's decision aims to take away benefits of millions of americans are already seeing and putting insurance companies back in charge of your health care? >> it will have that effect. quite possibly he greatly regrets it. >> and do you think that judges should decide cases based on their best understanding of the meaning of the constitution or on whether they think their rulings would have good or bad policy consequences? >> the former. >> obviously it's good to have that understanding that we're a society based upon law and not upon what judges just happen to think it might be. >> you're right, it is.

>> always have to watch out for these tough chairmen. actually, on that last question, mr. fried, do you know anybody that disagrees with that, the left or the right? >> yes, i'm afraid i do. [laughter] >> and they don't admit it. >> do you know anybody that should disagree? >> not a soul. >> i thought you might go that way. mr. growinger -- mr. kroger, it's good to have you here. we always like having attorneys general here. we're fortunate to have two former attorneys general on this committee, senator blumenthal and senator white house. you represent the state of oregon. you said that oregon is a sovereign state, i'm trying to summarize your testimony, in

charge of promoting the health and welfare of its citizens. do you have any concern about the constitutionality of the requirement that individuals purchase health insurance? >> none whatsoever. >> thank you. now, as attorney general, were you asked or did you -- on your own review, the legal basis for the affordable care act? >> yes, i have, senator. >> you think it intrudes on oregon's responsibility to protect the health and welfare of its citizens? >> senator, i think it greatly assists the ability of the state of oregon to protect its citizens. >> thank you. and professor fried, having been here actually from the time of president ford, when you were solicitor general for president reagan, i almost feel

like i should call you solicitor general, but do you believe the requirement in the affordable care act individuals purchase health insurance represent unprecedented extension of congress' authority to regulate insurance under the commerce clause? >> it is a new requirement. i don't think it's unprecedented. i think the language which i quoted to you from chief justice marshall at the beginning of our nation amply covers it. >> well, then, let me just explore that a little bit further. do you believe that there have been new limitations on the commerce clause by the current court or other courts that give you concern that the affordable care act is not a

constitutional regulation? >> there have been -- excuse me. >> no, go ahead. >> there have been limitations. i sat at counsel table with the prevailing argument in mother us -- united states v. morrison because i believed the relevant provisions of violence against women act were unconstitutional. and the court so held. but that was because the court found correctly that as despicable and criminal as it is for a man to beat up his girlfriend, it's not commerce. well, there's no doubt health insurance is commerce. >> and on the violence against women's act, did not the congress go back and redraft it based on the ruling in morrison? >> i believe they did but i -- >> or a version of it. >> i believe they did but i can't swear to that and i have sworn to my testimony. >> thank you.

again, one of the reasons why i enjoyed your tenure as solicitor general with president reagan. anybody want to add to this? here's your chance to disagree with mr. fried. >> i never pass up a chance to disyes with charles. it rarely happens. again, senator, i do think there's a fundamental difference in two respects. you are compelling people to engage in commerce. and what's the rationale? is it that by not contracting with insurance companies that somehow acts as impediment to congress? no. what it does -- to commerce, no. what it does do is prevent this free rider problem that congress created by imposing the preexisting condition. i call that a distortion of commerce. i didn't such that in an enormous sense. congress interferes in the private market all the time. what they've done is impose certain restrictions on insurance companies and they

therefore are compelling people to ameliorate that problem, so the individual mandate does not carry into execution the regulation of commerce, it corrects a distorting effect of the regulation of commerce and it seems to me that distinction is critical because otherwise, again, you could -- when you're talking -- if congress skis -- decides to limit what banks can do with mortgages or credit cards or car companies, then obviously they could conscript the citizenry to offset that. >> this is a repeating of your earlier argument. i'm only cutting you off because my time is running out. >> i was about to finish. >> thus your time is running out. and professor dellinger, if you can very briefly -- >> all i wanted to say, senator, i wanted to talk about the two quotes professor fried mentioned, one which refers to congress' pow tore use any ordinary means of execution. a mandate is not an ordinary means of execution, it is

extraordinarily. in gibbons versus ogden, judge marshall said the congress may prescribe the rule by congress to be coverage governed. nobody up here thinks the ability to buy health insurance is itself commerce. that's not what anybody thinks. that doesn't fall under this language either. neither one of those quotations directly apply to the situation we currently face. >> professor dellinger? >> yes, i would like to respond to what i think is one of michael carbon's best point, by disagreeing that this matter would stand for the proposition that where congress imposes costs on companies, it could then make up for that, fix that and going out and telling -- making people buy that company's product. that's not true because in this instance congress is dealing with a dysfunction in an important national market caused by the fact that companies have an incentive to deny coverage to people with preexisting conditions as a result of that they're not covered, in order to make that

market work efficiently, you need to encourage people to join the market so that they don't wait and order up their health insurance on the cell phone in an ambulance on the way to the hospital. that's a market problem congress can address and fix. it is unprecedented, quote, unquote, but only in the sense that the health care -- the affordable care act uses a market-based system giving people more choices than has been our previous custom of providing a single governmental payor as we did under social security and largely did under medicare. so the idea this is unprecedented is only one that it is a new use of the market-based approach, less intrusive, providing more choice. >> thank you. >> thank you, mr. chairman. >> thank you, senator durbin and thanks to all the witnesses for being here. i feel like i'm back in law school. but we appreciate the fact that each of you are giving us the benefit of your expertise and

your opinions on a very important issue, no doubt. i was attempted -- tempted to say, mr. chairman, i wish we had done this before the law was passed, which we did not, as opposed to now but professor barnett you make an important point that congress' duty with a law like this does not end when it passes a law, indeed if in fact we are -- the opinion it does exceed either the prudential or constitutional bounds of congressional power under the commerce clause, we can repeal it. and i would just say to my friend, who's chairing the committee, senator durbin i know suggested earlier it's either this or nothing. i think they call that the fallacy of a false dichotomy. there's not just two choices. there's many other choices that are available to congress if this were to be repealed and replaced and i'm sure we'll talk about that a lot more. but let me just -- let me say,

i was -- went back to look at the federalist papers where federalist 45, james madison talked about the powers of the federal government being enumerated in specific and the power of the state being broad and indeed the heading for the federalist 45 is the alleged danger from the powers of the union to the state's governments considered. it was exactly this sort of relationship between the state government and state power and individual citizens 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 and enumerated powers and i know lawyers can disagree and we do disagree and we usually do so in a civil and dignified way and that's great. by the way, mr. chairman, i would ask unanimous consent to

introduce a letter from the attorney general of texas, greg abbott. he was one of the 26 attorney generals who were successful in the litigation and recently concluded in the district court in florida. >> without objection. >> i thank the chair. so really i think what worries people more than anything else whether they articulate quite this way or not is i think a lot of people feel like the fundamental relationship between the federal government and the american people has somehow been altered in a basic and sweeping way, and whether they can say, well, that's a violation of the 10th amendment or it's a violation of the commerce clause or the necessary and proper clause, whatever, i think it depends on the individual and their background and expertise. but i just want to ask whether you agree -- let me ask professor fried this question. jonathan turley, a law

professor who testifies occasionally here before us said that if the supreme court upholds the individual mandate, it's hard to see what's left of federalism. you agree or disagree with that? >> i disagree with that. i disagree with that. i recall in the violence against women act, there 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 and that was a correct decision. i supported it. i helped procure it, indeed. but i think the scare here is quite inappropriate. as i recall, the great debate in the senate was between this device and something called the

government option. and the government option was described as being something akin to socialism. and i think there's a bit of a point to that. but what is striking, senator, is that i don't think anybody in the world could argue the government option or indeed a single payor federal alternative would have been unconstitutional. it would have been deplorable. it would have been regrettable. it would have been western if not eastern european, but it would not have been unconstitutional. and it's odd this which is an attempt to keep it in the private market is now being attacked that way. >> you made a very good case that congress can pass some very bad laws that are still constitutional. >> yes, sir.

>> because time is running short and i hope we'll have a chance for a second round because seven minutes doesn't give us enough time. but i did want to explore professor fried, you did say while you're not troubled by the individual mandate, you are troubled by this huge unfunded mandate imposed on the states by the medicaid expansion and indeed there's a whole body of law that you are no doubt expert in that talks about the federal government's coercing the states and commandeering the states to pursue a federal policy that is beyond the federal government's authority to do. and i will have to tell you that one of the consequences of this in my state is a $27 billion unfunded mandate over the next 10 years for the medicaid expansion which is crowding out spending at the state level for education and transportation and other important priorities. and i just want to ask you to expand briefly on your concerns in this area.

>> the case that comes to mind is south dakota against dole which required the states, and that wasn't even a funding mandate, required the states to alter the drinking age p. and threatened them with a withdrawal of 5% of highway funds if they didn't comply. and the supreme court said, well, 5% is so little that it's not that much of a threat. implicit in that is, would you believe 10%, how about 50%? and the unfunded mandate here is huge. and that's why i said to senator grassley that i think there really is a constitutional worry about that . >> that was one -- if i can just concluded by saying that

was one of the basis for the texas challenge and i believe the other attorneys general in the florida case. i don't believe the judge got to that issue because -- >> he rejected it. >> i may stand corrected here. but i -- although we're focusing on the individual mandate, i am interested in your testimony with regard to the coercion or commandeering of state authorities and state budgets. thank you. my time's up for now. i hope to come back. >> thanks, senator cornyn. senator franken. >> i feel like i'm back in law school. >> i got it. >> i didn't go to law school. >> thank you, professor. >> attorney general kroger, mr. carbon said and then repeated essentially this in his testimony, a decision not to buy health insurance doesn't affect commerce.

is that inago -- is that an accurate quote? >> in the preexisting band, true. in other words, if you took the preexisting condition ban out of the law, the insurance company would be able to contract with its patients in the fact that some stranger to that transaction sat at home wouldn't affect that contractual relationship. the argument i'm making is that the preexisting ban enables congress to reach out and bring that stranger of the transaction in. >> without the mandate you couldn't have the preexisting condition, it wouldn't work in the law. but this is a question for attorney general kroger. a decision not to buy health insurance doesn't affect commerce. mr. kroger, when the uninsured in your state go to emergency rooms and can't pay their bills, how much does that cost

oregon hospitals every year? >> you know, senator, i've spoken to the c.e.o.'s of various hospitals around the state. the amount of charitable care, care of persons who don't have insurance varies from hospital between 3% and in some cases as high as 12% as the amount of care they're providing. the idea that being uninsured doesn't affect commerce is just factually incorrect. every american pays higher insurance premiums to cover that. >> i under the cost of $1.1 billion every year for oregon hospitals. how much does that -- do you know how much that costs uninsured -- costs insured oregonians in terms of higher premiums? >> senator, the different studies show between $450 in higher individual premiums up to $1,500 for families who are required to help carry that cost of the uninsured.

>> so this basically sounds to me like insured oregonians are subsidizing uninsured oregonians. >> that is correct, senator. >> so would you agree with the decision not to buy health insurance doesn't affect commerce? >> it clearly does affect commerce, senator. >> thank you. professor dellinger, my understanding is that when the supreme court decides cases they are interpreting the constitution, or if they are ruling based on precedent they are ruling based on previous supreme court interpretations of the constitution. is that correct? >> yes, sir. >> ok. i have to say that i'm confused and maybe it's because i didn't go to law school, by mr. barnett's testimony when he says no one claims that the individual mandate is justified by the original meaning of the commerce clause or necessary and proper clause. instead, the government and

these law professors who support the mandate have rested their arguments exclusively on the supreme court. first of all, i'm confused because i know of at least two scholars, jack ballen and akil amar who do think the original intent of the commerce clause supports constitutionality. are akil amar and jack balken no one? >> they're pretty esteemed. and so is professor barnett. but i may proceed. >> well, yeah, i'm sure akil amar and jack balken have made ridiculous statements, too. i'm sorry. i didn't mean that. >> it's ok. >> i did. i did. ok. anyway, see -- but to me, on this -- and i didn't go to law school but it seems to me that

there's a transive property, a equals b and b equals c and c equals d, a equals d. and since the courts are relying on precedence, they're relying on a supreme court that was interpreting the constitution, right? so isn't it true that by relying on precedent you're really interpreting the intent of the founders? >> that is true, senator franken, but i would also be perfectly willing to go back to the original understanding and find that this is fully consistent with it. in the following set, the framers did assume in 1787 that there would be substantial areas that were matters for local regulation only. and the national government would be limited to regulating only that commerce which

concerns more states than one. what happened over the ensuing two centuries is that the category of what affects more states than one has increased dramatically because of developments in telecommunications and markets, etc. we now have a single national market so that congress' authority to regulate that commerce which concerns more states than one is greatly vaster than the framers would have imagined, not because of any difference in constitutional principle that they adopted but because of the extraordinary developments in technology, communications, and other matters. >> like airplanes. >> which have made it common. yes. >> senator cornyn made this 10th amendment point. as i understand it, the 10th -- 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. the powers not delegated to the united states or prohibited by it or reserved to the states respectively or to the people. now, i remember that during -- when they were writing this, some south carolina representative wanted to put in "expressly" which had been in the articles of the confederation and madison says no and madison writes in the federalist papers that if you put "expressly" in then every possible power of the federal government would have to be written in an encyclopedic way into the constitution and then that would be absurd. is that your understanding? is that everybody's understanding of the 10th? is my history right? >> it is mine.

yes. >> thank you. >> i'd like to welcome to the judiciary committee senator lee of utah and recognize him at this point. >> thank you, mr. chairman. i want to thank each of our witnesses for coming today, it's an honor to be here and interact with each of you. i want to oak something that's been -- oako something that's been mentioned but requests it again. i think it's important we do this as senators because i believe among the founding generation, the founding fathers, there was no understanding that was more ubiquitous than the idea what we were creating at the national level was not an all-purpose national government possessing general police powers, but a limited purpose federal government. and i think one of our jobs as senators is to make sure that regardless of what the courts say that we can get away with in court, regardless of how broadly we may exercise our power without judicial

interference that we take a second look and say, separate and apart from what the court says we can do, should we be doing this? is this consistent with our role as legislators operating within a government with decidedly limited powers. i also like the quote from justice jackson that was pulled out a few minutes ago. i think by mr. kroger, to the effect that certain decisions are wisely left for congress. the courts lack the authority to be a sort of roving commission on all things constitutional. we have to make a number of these decisions on our own regardless whether the courts are going to do them for us. i wanted to ask a few questions of mr. dellinger if that's ok, professor. do you agree, first of all, with james madison's assessment that mr. corn inquoted a few minutes ago, that while the powers of the federal government are few and defined, those that are left to the states are numerous and

indefinite? >> i do agree. and i think senator cornyn correctly cites federal list 45 or that proposition. as i said, senator lee, within the area of congress' authority to regulate national commerce, what has grown is the interdependencey of national commerce, not our understanding of the constitution. >> sure, sure, it has grown but they had interstate commerce then. they were interconnected. in fact that was the whole reason why we needed to be a union in the first place, right? >> correct. >> we couldn't survive. so they understood this interconnectiveness. it's not new and been facilitated by jet airplanes and the internet. >> but if you got sick in north carolina in 1787, it had no affect in utah. >> or in mexico. it's still a lovely place. >> it had no affect in pennsylvania. >> ok. but they were interconnected so

perhaps the changes we've had have been changes of degree, perhaps we're nor interdependent then than we are now but you would agree it's still accurate to say the powers of the federal government are few and define and those reserved to the state are numerous and indefinite. >> yes. >> and yet if this law is upheld, if this law is within congress' limited power to regulate commerce among the states, notice it didn't say commerce, it said commerce among the several states and before the nation. if this is within congress' power, wouldn't it also be within congress' power to tell every american, including you and me and everyone in this room that we must eat four servings of green leafy vegetables each day? >> no. >> why is that? what's the distinction? >> the distinction is that a regulation of commerce, to be constitutional, has to be a permissible regulation of commerce. and something which intrudes into the area of personal ataun my doesn't meet the standards. >> like deciding where to go to the doctor and how to pay for

it? i'm trying to understand the between the personal autonomy issue there and that presented by this law. >> the case about broccoli is a case that's covered both by lopez and morrison, that is you're regulating a local, noneconomic matter, what you eat and whether you exercise, and it is also governed as well, it is doubly unconstitutional because if government is well by the principle in cases like looksburg and vacco and cruzan to say an individual has a right to refuse unwanted medical treatment. you have a constitutional right to refuse -- and i think -- >> in that i'm talking about commerce clause. >> i understand that. >> let's keep our discussion limited to the commerce clause. >> if you talk about whether congress could require people to buy other products, what would be congress' legitimate reason for doing so? i think there would be many constitutional objections. >> i can come up with one right now. look, if we are going to make sure everybody has health

insurance and the government is going to pick up the slack behind, then congress could assemble a panel of experts, let's say your 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're 50% less likely to suffer from heart disease, cancer, stroke or a host of other ailments, that will cost the government less money. so it's a pretty tight nexus there. >> yes, but as the court said in gonzalez versus rage, that's a morrison and lopez matter dealing with noneconomic matters and the court said in gonzalez where the act under review is a statute that directly regulates direct economic activity, it casts on morrison's unconstitutionality. it's a direct result of commerce activity, not something that affects a commercial activity. >> let's change the hypothetical slightly.

instead of saying you must eat them, it says 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 per day. this all of a sudden is economic activity. this is not lopez. where we're talking about noncommercial possession of firearm in a school zone or morrison, noner state act of violence. >> it seems there's two responses to the argument that would wholly stand for the proposition that congress can force anybody to buy anything. the first is that this is a requirement that you make a provision to buy something which you cannot ever be assured you will not use and cannot be assured you won't transfer the cost to others. i think it's distinguishable. secondly, the very form of that argument was used to attack the minimum wage and social security. >> social security was an exercise in spending power. >> the question is it the constitutionality of the minimum wage law of 1936 you

would be asking me, is it a regulation of commerce for congress to have a minimum wage of $5,000 an hour? and that has never been a legitimate -- is it a regulation of commerce to say if you buy one car you have to buy three cars? that form of argument, i think, was used against social security and used against medicare and congress in fact never abused that. they never set the retirement age at 25 as the opponents of the social security act said would be possible if you upheld a requirement plan for people over 65. so the very form of the argument i think deflects attention from what is basically a completely unremarkable regulation of an important national market. >> mr. chairman, i see my time has expired and i have a brief follow-up question, can i ask that and be finished? i was pleased to see in your written testimony you've become such a huge fan of justice scalia's jurisprudence and he's also one of my favorite justices on the court. you quote him repeatedly as a

source for the courts wickerby-filburn jurisprudence under the commerce law. is that the case it necessarily reflects his view as an original matter as a matter of first principles or are those views made in recognition of the fact he's bound by stare decises. >> that's a good question and i don't know the answer. it could be he's reflecting stare decises. he cast the critical vote for the position that sustained my argument and not yours. >> he couldn't have been more wrong, could he? >> thank you. >> thank you very much, senator chairman. i'm taking a different tact than mr. lee in terms of the practicality of these decisions. if you look at people who i think mr. kroger is well aware of this who already small businesses taking advantage of the discounts that they're getting and the fact that

you've got people who are -- kids who are getting to keep their insurance that are preexisting conditions and states who are now struggling to figure out what they're going to do in light of these decisions. so my question, i know senator durbin asked this of professor dellinger but maybe a few of the witnesses want to chime in and that's what is the practical immediate outcome of the decision in florida monday? and i understand some state attorneys generals are telling people they don't need to do the work to comply with the law since judge vincent does not stay his ruling pending the government's appeal. other states think it would be irresponsible not to continue making preparations for implementation of the act in case judge vincent's opinion is overruled at higher levels. i guess i'd start quickly with you, mr. kroger, just from a practical level, what are you telling your state what they should do in light of the florida ruling? >> senator, i hate to sound as a lawyer, as a practical matter. >> aren't you a lawyer?

>> yes. if i was giving advice to state government it would be covered by attorney-client privilege and wouldn't be prepared to share it with you here. >> ok. >> i can say generally that i think it would be a huge mistake for a state to pretend that this is the final word. obviously we have decisions on both sides that have come out. they're only district court opinions and so, you know, my sense is it would be an enormous mistake for a state not to continue on with implementation of the act. >> professor fried? >> i don't have a judgment on that. it seems to me odd that one judge in florida could govern the nation. so -- >> if they were in minnesota, that might be different? >> not to me it wouldn't. but i can't really speculate. i hadn't thought that one through. >> the next two, mr. carvin,

professor barnett? >> i'll join professor fried's agnostic response, i'm not really sure. >> i've been asked this, too, senator and don't think i know the answer but can say without violating attorney-client privilege, i saw attorney general abbott from texas on the news last night, and he said, himself, that he was counseling texas, that they -- the legislature, that they should continue to act pursuant to the law until it's ruled upon by above. i don't know if he's right but i do know that he is someone whose opinion i respect and that's the advice he's giving his own state legislature. >> along these same lines, judge vincent struck the entire affordable care act down because he found the individual mandate was unconstitutional. that is a step that an earlier decision which also found problems with the act of an eastern district of virginia did not take. do you think the constitutionality of the whole law is contingent on the individual mandate? and then i guess the secondary

question was how important it is to you there wasn't a severability clause included in the bill. we'll start with you, professor dellinger? >> i think it strikes me as far too sweeping. and i will pass that question on to my colleagues. >> professor fried, then? >> i don't believe that judge vincent said that the other parts of the statute were unconstitutional. what he said was because there was no severability clause and because the rest of the act becomes unworkable without the mandate which is something, of course, that many of us have been arguing, therefore in striking the mandate, he's really in effect striking the rest of the statute because the rest of the statute becomes unworkable. but he's not saying that it's unconstitutional. if i read him correctly.

>> ok. i just meant more broadly. so you think it matters there isn't a severability clause? >> severability clause, senator, would not be dress posstive and help the court -- despotitve and help the court. in the absence of the severability clause the judge must figure out what the intent of congress was and the government said in its brief the insurance regulations imposed on the insurance companies were not severable from the mandate. then the only question was for the judge, and that seemed pretty obvious, whether he could go in the 2,700-page bill and look at all the provisions that weren't regulations of the insurance companies, sort of like the 1099 requirement and say those could stand independently of these and said that's not something he thinks a judge should be able to do and go inside a bill and find the ones he thinks could work or not work and he said it's outside of my purview and i'll have to go with the whole thing. >> all right. professor dellinger stated the

minimum coverage requirement in the affordable care act is no more intrusive than social security or medicaid. what do you think about that statement, professor fried? >> well, it's distinguishable because, after all, the argument is being made, you don't have to buy insurance, you can pretend you'll never get sick and so on and so forth. but with social security, you only get into that system if you earn money, if you have a job, if you make a living. well, for goodness sake. >> professor dellinger? >> although the mandate applies to everyone who's not exempt because they already have medicare, their income is too low, etc. like social security, the penalty provision only applies if you enter the market and earn money. and so what strikes me as so

remarkable about the attack on this law is it seems to me to be in two ways everything conservative should abhor. first of all, it seems to establish the principle that congress can address a major national economic problem only by providing a monolithic government solution and is precluded from using a more choice friendly marketplace. >> you're saying the argument would lead you to believe under their argument it would be constitutional? >> i know professor barnett acknowledges that and mr. carvin does, too. so if the only way congress can address a market problem is by having the government step in and be an exclusive provider strikes me as an odd position which is why the idea of using the market and step in, it's been more a conservative idea and very akin to what the

previous president bush wanted to do with parts of social security is give people a financial incentive to go in the private market. that private market approach was adopted here so it seems odd to attack that and say you can only use the government approach and 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 that ought to be anathema to anyone who marches under the manner -- banner of conservatism. >> thank you very much. senator hatch? >> thank you, mr. chairman. i wanted to place a few items in the record. >> without objection. >> i have a statement of myself and one submitted by mr. schtliff. mr. bennett stated utah as being out of it as well. they stated for individual

liberty and state sovereignty and i'm proud of utah's rule in this. i ask consent of judge vinent's opinion to be part of the record as well as the brief filed in that case by 32 senators, including several members of this committee. and finally, i ask consent a few of the articles i've published on this subject in newspapers such as "the wall street journal" and "chicago tribune" and the recent journal of law and public policy, if i could have those in the record as well. >> that's already been said that the distinction between activity and inactivity is not in the text of the constitution. i think most all of you have said that. a text dsm uralist is born, and neither is broad regulatory scheme or anything else the supreme court came up with that the defender of obama care rely on and there's no quote intrusiveness, unquote, standard in the constitution either. would you agree with that,

professor barnett? >> of course. that's not a constitutional standard or doctrine i'm aware of. >> none of them are. mr. carvin? >> no. obviously things that substantially affect commerce is something the court says are within the commerce clause but has been pointed out is a number of things that affect commerce, violence against women, possessing guns, which the court has said no, no, those don't come within the ambit and i would argue economic inactivity is far more afield from the commerce power than things like buying and possessing guns. >> i'm very grateful to have professor fried here, a grand old friend and professor dellinger is an old friend, both of whom i admire greatly. i don't know you, mr. kroger, but i'm sure you're just fine. now, the congressional budget office in the past has said that requiring individuals to

purchase a particular good or service was, quote, unprecedented, unquote. now, that's a congressional budget office. the congressional research service recently concluded that, quote, it is a novel issue where the congress may use the commerce clause to require an individual to purchase a good or service, unquote. i think it is a novel issue. i submit because congress has never done it before. now, i'll throw this question to each of our witnesses and hope i get straight answers. can you give me an actual example other than obamacare of congress requiring individuals to purchase a particular good or service? >> senator, if i may, my parents own a small business, they're constituents of senator cornyn and if you told them the government had never required them to buy a good or service, they would be astounded. i mean, the federal osha law and regulations require all

kinds of sole appropriators and small business people to go out and buy equipment, whether it's orange cones or hardhats or a fire disposal system in a restaurant. the environmental laws require a huge range of small business owners to buy air filters, up to, you know, sulfur oxide, scrubbers, the reason small business people tend not to like government regulation, particularly federal regulation is because it does require them to extend money on goods and services. so i don't think -- i think those are -- >> only as a condition of being in business. >> you know, senator, the -- >> i mean, these people p are trying to get into business. >> it's true that my parents could close down their business p, all people could close down their business. >> they don't have to because they can go into business. but as a condition to going into it they have to meet certain laws, right?

>> yes. >> in this particular case we have an inactivity of people, if you want to use that word, i don't find it the greatest word in the world, but we have an inactivity here that they don't want to do. and they would make their choice not to do it. let me go to you, professor fried. >> 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. >> that isn't right. i have to concede that point. i -- it begs the question whether it should be mandated. >> i think once you've made the first step and you've made that first concession, the rest follows. >> ok. and i am -- brought to mind the

various things that were considered in the senate and which the previous president, i think very wisely suggested as an actualityive -- alternative to social security, and as an alternative, it was suggested that you could buy mutual funds from vanguard, from fidelity and you wouldn't have to buy it from the government. and maybe one would say that, well, you don't have to work. you can simply, you know, sit on a corner and say "spare change" and then you wouldn't have to pay social security. but i think that's unrealistic as well. >> let me go to mr. carvin. >> no, they've never done it before and if you buy any of the analogies that have just been agreed to, then there is no limits on congress. the notion that health care is unique because you have to buy the goods is facially incorrect. you have to buy transportation, clothes, housing, shelter,

food. and the notion that health insurance is somehow a core requirement is kind of silly and of course if you started drawing these distinctions between transportation and health care, you get back into the sort of principled -- nonprincipled distinctions of debyilied commerce clause jurisprudence prior to the 1930's. >> mr. barnett? >> it has never been done before, senator. and the fact is even though everyone might be said to one day you need health care, the bill itself exempts people from buying -- health insurance is not the same thing as health care. everyone doesn't go in the insurance market and the bill exempts people for religious reasons from having to obtain health insurance. so clearly even congress recognized not everyone has to obtain health insurance just because they may or may not one day seek medical care. so the fact that medical care is inevitability which it isn't for everyone, but to the extent it's likely doesn't mean

insurance, a completely different product, is an inevitability. >> nor, my understanding is that the very first congress required every adult free male to purchase and equip themselves with muskets, with ammunition, with even certain forms of dress to carry the weapons with them. it is true that -- >> but you got to admit -- >> it's been a long, long time. >> provide some guidance for that. >> it's been a long time since then. yes, you can say when something hasn't been done before it's novel or unprecedented but no matter how much one says those words it doesn't amount to a constitutional argument. this is novel in the sense the congress has decided to use a market approach and has used it with regard to the purchase of a commodity that truly is unlike others. there's nothing else in our economy where an individual who

has made no preparation for the expense can go in and get a million dollars worth of goods and services provided to them, the cost of which is passed on to others. there's nothing like that. so in that truly unique market, an incentive for people to make provisions through insurance seems unremarkable. >> the reason i raised it is for the purpose of showing that it has never been done before and i think there are good reasons why it's never been done before. but i've asked the distinguished chairman, just let me make a couple more remarks. i have a lot of other things i'd like to ask but my time is up and if you'll indulge me, i'd appreciate that. you know, because no commerce clause cases involve congress regulating decisions rather than activities, rendering this -- that renders this case as a case of first impression, which is my point.

the obamacare factor cites mandates that arise from different enumerated powers and argue, for example, as some of you have argued here. i've been very interested in these arguments, that congress has imposed mandates on individuals before such -- as jury service and military draft or social security. professor fried has made this argument. and simply because one provision of the constitution allows congress someone would do something cannot mean the commerce clause allows the congress to impose an individual insurance mandate. jury duty, for example, that has been mentioned has multiple layers of exceptions and they make it far less compulsory for most people and is quote, necessary and proper in order to exercise congress' power to establish lower courts and the sixth amendment of a right by

an impartial jury. the congress may impose a military draft which again has layers of exceptions pursuant to enumerated powers to raise and support armies and they can close them and ask them to have guns as well and maintain the navy. and the social security system, which has been raised here is unlike this insurance mandate. unequivocally an exercise in congress' pow tore tax and spend for the general welfare. it's a completely different issue as far as i'm concerned. now, each of these examples stands clearly with an enumerated power. .

professor fried, i have a great regard for you but i am amazed that some of your arguments. great man that you are. i expected it from him. [laughter] >> thank goodness i had him with me. >> is wonderful not to lose one's power to surprise. >> i probably agree with you much more on many other issues than i do here. i really appreciated commodore

taking the time here. this is a very important issue. professor dellinger, we should be protecting our rights, not necessarily broadening them in the sense of making us have to buy health insurance. >> a brief comment. you make obviously a very good point, that most legislation -- >> [unintelligible] >> most legislation prohibits

i think they give it buried in adequate attention and weight to the doctrine that the law should be presumed constitutional.

judge hudson in effect rejects the idea because of a footnote in city of chicago. judge vinson considered almost not at all. in fact he said as i recall, i can consider -- i assume that i can consider constitutionality instead of i presume that is constitutional. i want to direct this question to you, general kroger, aren't you troubled by the lack of weight given to this presumptions, which is so fundamental to the work that you and other attorneys general and the attorney general of the united states does come a day in and day out, in defending statutes against constitutional party. >> senator i was simply agree with you that this is

extraordinarily important. likewise, the preference that is shown to the democratically elected congress to craft the right policy. of those could use greater emphasis and the decisions going forward. >> 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 has centrally he pointed out earlier considered these constitutional issues in deliberating in debating this law? it is not as if the courts have discovered this issue or the plaintiffs have discovered it. congress considered it an echo when jewel. >> @ coequal branch of government is entitled that. >> it is ultimately the courts

province to discuss clear whether it is unconstitutional. i would hate to in any way imply that they do not have the responsibility. i do think closer attention to precedents would make it did -- make a big difference in this case going forward. >> let me ask mr. pacarvine, a year at -- your views on this issue and whether you were troubled by the overreaching -- and i do not use the word lightly -- the judicial overreaching that plausibly could be seen in this disregard for the resumption of constitutionality. i think the resumption of constitutionality is important. i think the key thing to focus on under the necessary and proper clause is that congress

has the broad discretion for its means to a legitimate and. for reasons that i will not repeat, i think congress is achieving to an illegitimate and in this context. it is unfair to label activities which strike down laws as unfair judicial activism. judicial activism to me is striking down all law that is constitutional because you think is bad policy. i think it would be equally wrong to strike down a lot that you believe is unconstitutional because you think it is good policy. in both instances, the judge is not doing what i think judges should do, look at a lot and not be influenced by the desire ability. >> senator, i'm confident you are not impending the judgment. some people outside this room are. in light of your question, i want to point out this very same judge vinson who held that the

individual mandate was unconstitutional turned away the state ag challenge to the medicaid requirements. that is the very same judge in the very same judge upholding an act of congress, although it is being challenged by 26 attorneys general. he turns away their challenge and upholds the law while it finds other parts of the law and fat -- unsatisfactory. they should be added to the record in respect of judge vinson's integrity. >> thanks. i would recognize senator sessions last in the first round. we will have a second round. i have asked my colleagues if they have questions, but still within a short period of time, and try our best to accommodate the schedules of our kind panel. >> thank you. i like to offer for the record the written testimony of florida

attorney general and bonding -- pam bondi, and that statement from alabama's attorney general, is also of the belief that that the act is unconstitutional. the u.s. government is a government of limited powers. this is how was created. there are explicit grants of powers to the federal government, and there are certain powers they were not given to the federal government. in recent years, there has been a feeling about it in our country that the federal government can do anything it desires to do on any subject. i think their rulings 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 -- i government of limited powers. i wish to suggest how far we have gotten on these issues when they are explicit constitutional provisions, the right to keep and bear arms, whereas we at four members of the court to want to read 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 debates and the ability to speak out in public forums. those things are individual rights that our courts somehow gone to the. they are not very important anymore. in those cases, the staid

almost one it would diminish individual rights. i just think this is a fundamental point that we ought to note. we did not hearing -- have hearings in this committee on the health care bill, the constitutionality of it, and will people raised it on the floor of the senate, as quite a number did, they were ignored for the most part, and it was dismissed out of hand. we also had our congressmen -- i saw on television, saying what does the constitution have to do with this? it was a disrespectful approach to the constitution entirely. congress did not do a good job, frankly. we did not seriously engage in a debate about whether this power was and legitimately -- was

legitimately granted to the federal government. the comet was about about states and the money. i would just note that mike governor, governor riley, has told me he is stunned by the economic impact that this health care will have on the state budgets. senator corn and tells me that texas expects that $27 billion hit on medicaid requirements for the state. if the courts were to allow the individual mandate to stand, and thereby grant the federal government the authority to compel private citizens to purchase goods or services, to promote some broader government policy, can you identify in the limiting principle that would prevent the government from mandating the purchase of anything or everything? >> i cannot, and there have been a few efforts to try to identify

them today. if congress can require you to subsidize a corporation because the burdens the federal government has imposed on a corporation, i do not see any limit in terms of requiring a purchase. certainly commercial goods, credit card contracts, cars, things like that. mr. della certification, who i greatly respect, suggest there some restrictions in requiring you to purchase health care, because that involves personal autonomy. but most people would think that purchasing health insurance and deciding how you pay for and what dr. you go to would implement -- implicate personal autonomy it as well. there's a disagreement on this. professor fried they say it is per cent -- perfectly ok, citing the jacobson case. and professor dellinger would think that would implicate the liberty clause. at the end of the day, in terms

of a limit in principle, congress cannot do anything under the commerce clause that is unconstitutional. will congress can do nothing unconstitutional. it makes the limitation to the commerce clause utterly irrelevant. it would be -- the few gave congress absolute plenary power, they still cannot violate the bill of rights. it would be meaningless, particular the one that suggests that health insurance is something that you have to buy and it is different from every other product. i have to beg for food and transportation and housing and clothing every day, and i think people feel much more compulsion to buy that product and health insurance, particularly a healthy 27-year-old who may well honestly quite rational think i am not going to go to the doctor except rarely for the next 20 years. i could make a much better deal for myself and be compelled into what everyone agrees is

extraordinarily overpriced health insurance market. >> i believe that is a very important point. it basically says that it at some level, if we of disarrayed the logic of the commerce clause, which is i understand was designed to regulate commerce between states, fundamentally, it has been broadened and brought in, but i do believe there is a limit to it. i heard you make a reference to the judicial activism question. i believe the president said or one of his post persons that this judicial ruling was judicial activism. i strongly believe and have stated repeatedly that a decision that invalidated an act of congress, if that act of congress is unconstitutional, it is not activism. is that what would you agree?

if everyone agrees that activism is striking down acts of congress because there is nothing in the constitution that prevents it. if there is something in the constitution that prevents it, and you need to strike it down. no one will tell you it would be judicial activism the strike down all of that denies women the vote. that is blatantly unconstitutional. i think these labels are sometimes to run around in a pejorative manner that is unfair to judge is trying to grapple with -- at least everyone on the panel would agree it is a nuanced and difficult constitutional question. >> i agree with that. >> thank you. good to see you again. and thank you, mr. chairman. >i am sorry i was late. i had budget committee and i have to return. >> i would like to, if i could come and enter into the record the congressional record for december 23, 2009, and in the

section which i am entering, senator hutchison of texas raised a constitutional point of order, inserting the affordable health care act. in the state of the constitutional point of order, she stay -- she said it violated the 10th amendment and she specifically referred to the mandate, that it would oppose on taxes, to buy health insurance for teachers and employees. it was then considered and voted on by the senate on december 23, 2009, and the vote was sustained by 60 votes against the point of order. there was a constitutional order race specifically on the floor during the course of debate. all of like to ask professor fried, the point raised by senator leahy, by your vegetables come and eat your vegetables -- i would ask you to comment on that. that is the one i'm hearing the most often by the people were saying, if the government in the

army to buy health insurance, can that require me to have membership in a gym or eat vegetables? we've heard from professor dellinger on that. would you like to comment? >> we hear that quite a lot. it was put by judge vinson, and i think it was put by professor barnett, in terms of eating your vegetables. for reasons i set out in my testimony, that would be a violation of the fit and the 14th amendment. to force you to eat something. but to force you to pay for something, i do not see why not. it may not be a good idea, but i do not see why it is unconstitutional. i suppose that under the food stamp program, there are all kinds of regulations which

distinguish between healthy and unhealthy foods. if there are not, perhaps there ought to be. in any case, if there were, it would not be unconstitutional. and that is the situation where you're going to get your money only to buy your broccoli. that is all we're going to get the money for. you can say, well, you don't need food stamps. a lot people do not, but some people do. those kinds of mandates, i think, are all over the law. the mandate that you eat your vegetables, that you go to the gym, i would be willing to -- i would love to argue that case, the and constitutionality of that, before any other country

-- any other court of the country up to the supreme court, but on liberty crowns. >> my last question relates to a section of your testimony which may be taken out of context or misconstrued. a will to give you an opportunity to cleared up. you've preface's a decision by president jackson, that he viewed the bank of united states on proper and unconstitutional. you say in the concluding segment, in short, just because the supreme court defers to you does not mean that constitutionalists you do anything you like. i want to make sure i understand. if a lot of the land is a supreme court decision, whether i agree with it or not, whether i think it is constitutional or not, it is in fact a lot of the land and i have to follow it. >> absolutely. can i expand? i am trying to make this point. much of supreme court doctrine -- getting back to senator

blumenthal's question, the resumption of constitutionality, a state may defer to the congressman's judgment. president jackson is saying that if the court is one to defer to us, which is commenting on a specific case, it is incumbent on us to protect -- to independently assess where we think something is an improper. he thought he was respecting the supreme court decision in mcauliffe v. maryland by holding the bank unconstitutional which the supreme court itself that found to be constitutional. >> but all of the land until the president acted was clear. that decision of the court was controlling. whether i agree with that as an individual citizen, that does not matter. >> you're absolutely right. i appreciate the opportunity to clarify that. >> may i add to that, senator? there is a great difference between the congress deliberately passing a statute

which the court said by alex to constitution, and refusing to pass a statute which the congress thinks it is unconstitutional even though the court has said it is not unconstitutional. i think there's a big difference between those two things. i think that is what president jackson was talking about. i think that the renowned citizen of illinois, abraham lincoln, made much the same point in his debates with respect to dread scott. so there is a difference. i think professor barnett is dead right about that. you have an independent judgment. you have no leeway to violate what the court has said bile is the constitution.

you're not bound to say that if they say it is constitutional, i guess it must be. i think he is right about that. >> and can i add, i also agree, is clearly right that members of congress have an obligation to make the constitutional decisions. i like to clarify a point where i think that charles fried in nine may differ. we both agreed that one could easily dismiss hypothetical about laws requiring you to go to the gym or eat broccoli because they implicate liberty. with respect to incentives to buy commercial products, i think i disagree or may disagree. 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 of the well- defined context that presents itself here, where virtually everyone has no choice but to

for dissipate in the health-care market where $45 billion is transferred from people who are underinsured to others, or 94% of the long-term uninsured have access that health care market, and where congress is carrying a dysfunction. those elements are unlikely ever to be presented again. therefore, i think this unremarkable financial incentive to have insurance is not going to be a predicate for parade of horribless marching through washington. >> i had a chance to ask professor fried and professor dellinger about this but i would like to give this to the others a shot. i asked about the comment that if the supreme court upholds the individual mandate, it is hard to see what is left of federalism.

let me ask you to consider this in your answers as well. it sounds to me like professor fried is arguing there are no limits on congress's power to require individuals to buy insurance. and the argument, it sounds like as a distinction and i may be missing something with regard to broccoli and other leafy vegetables, is, you cannot require them to eat its, but you might be able to require them to buy it under the commerce clause. so i would just like to ask professor barnett to consider this -- the cost -- the health care cost imposed by diabetes, really a ticking time bomb in terms of our health care costs, especially children who are

obese, and because they get seriously ill and had premature ends of their lives, some as a result, i really do not understand how, if you can see that requiring the purchase of health insurance, because of the costs on taxpayers of uncompensated care, how that is different. if you look at the cost of diabetes and what that imposes on taxpayers and why did you say the requirement to buy insurance, you cannot say, well, you are required to buy a gym membership, you are required to buy fruits and vegetables, and it sounds to me like you're saying you cannot make them eat them but you can require them to buy them. it 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 we talked about. if you want to reduce health care, not only would be -- it be appropriate if the court upholds a, it would attack another problem which more directly. diabetes is an excellent example. walter would agree that they could require you to attend smoking cessation programs if you were a smoker. all these unhealthy habits, i cannot imagine why they could not go at it, and then to response to the larger point, this is some unique system, and the senator frank and's point, we'd so regularly subsidizes market, these people decide to live their own lives become these three writers, it means that you will always have an excuse to force people to engage in purchasing insurance, the more that the government is regulating the particular area. that was the point that judge vinson said yesterday.

it has a bootstrapping affect. the more the federal government encroaches on markets and local areas, it gives them greater power under the commerce clause again all these people who are so-called free riders come off because of the subsidy issue. it literally builds on itself such that the distinction between local and national is quite literally obliterated. >> first, as to the point about the end of federalism. whether it would be the end of federalism, it would be the punctual end of the in numerous -- the enumerated powers scheme which is one of the central features of federalism. it's not only states having an affair rights and powers but congress having limited and enumerated powers. if after this there is no just -- no limit on congress's powers, then that part of the kind to small scheme is gone. and the supreme court has said that as an essential part. in the ruling will lead to that outcome cannot be the correct

ruling. it is a reduction 0 at certain -- ad absurdum. professor fried has conceded the basic point that if congress can make you buy this, they can make you buy anything. he is not exclude -- he has now conceded the point that they can make you eat anything that you buy. but they can make you buy a gym membership but they cannot make you go to the gym. that may not be everything. they cannot make you go to the gym, but it is a heckuva lot. people would be surprised that congress -- that there is nothing improper under the commerce clause. let me get back to first principles here. the power of congress to regulate commerce among the several states, which takes place between one state and the other, it goes all the way down to make use the individual person by a gym membership had your gym.

that includes that power. that is a stretch. that is a stretch that would and the doctrine of enumerated powers. >> if i may ask one more question, and that would be glad to have all of you respond subject to the chairs time limits, i just want to ask one specific question. you have talked about the police power and the power of the state's relative to the federal the government. i think some are confused by the fact that states like my state requires an individual who drives to buy liability insurance, and why there is a different argument when it comes to the power of the federal government. would you care to respond to that. >> obviously the state can play a relatively paternalistic role in protecting against the health and welfare of others. i am not an expert but even there they are not requiring you to ensure yourself, they are requiring you to have insurance

if you hit someone else. unlike the federal government, the states can require you to wear motorcycle helmets. i don't think anyone would think that is part of the commerce power. and the other is that it is a condition of access to the highways as well. it does not get at someone sitting in their home. which distinguishes it from this. >> no state requires you to buy a car and operated carteret only if you choose in -- to, do you have to buy insurance. and there's some that do not require you to buy insurance if you operate a car on private property only. its -- if you're going to do something, here is how you have to do it -- that is something that the government does. that is fundamentally different than telling a citizen they must do this thing. not if they're going to do it, here is how.

but they must do the thing itself. that is the line that this bill crosses that congress and the commerce power has never crossed before. >> it is similar to automobile liability insurance. if you're going to drive, the state say you have to have liability insurance. harris says, if you're going to use health care, you need to have health care insurance. this is a product which everyone will use or least no one can be assured that they will not wind up in the hospital, in that sense it seems quite similar. i'm i say i am never. use a flat screen tv and you hold it to me. you do not have to buy me one. i do not agree with michael's suggestion that in mind you of holding the suggestion -- this legislation would mean that. what is different about this is that it is a regulation.

as charles fried noted, since 1944 the court has clearly held that there regulation itself is of the commercial transaction of purchasing health insurance. i think that distinguishes it from all other of the hypothetical. >> professor dellinger, perhaps i did not make the point very well. the power of the state to legislate is quite broad on the the police powers because anything having to do with health, safety and welfare, but that is not to say just because they can legislate on an issue, that the federal government can. because of the doctrine of federalism that we talked about, the 10th amendment, and the power that the federal government is different than the power of the state. >> i wholly agree. there's nothing that calls into question decisions like united states beat s -- v. morrison

which held that when congress tries to regulate local crime because of a supposedly effects on commerce, that the court will draw a line there because it is a regulation about local and noneconomic. here is a regulation that is part and parcel of a national economic regulation and therefore does not call into question those limits. >> senate to limit all, you have the last question. >> i will try to ask this question very simply. it may be a follow-up to that excellent line of questioning. tax or penalty? a lot of discussion outside this room, almost none here that i can recall. is it a tax or penalty? does it make a difference? and maybe it makes no difference. >> if the congress had frankly 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. but congress did not so enact. it did not do so for political reasons. it did not want to have this viewed as a tax. i think they are now paying the price in the fact that they have got to confront this discussion. but it was not, for better or worse, put as a tax, although the penalty is something that is collected by the internal revenue service, i believe. but it is not viewed, it was not enacted this attacks, because if they had been, as the

senator pointed out, the power to tax for the general welfare is pretty plenary. but that is not how congress chose to enact. it has left us with this debate that we're having. >> last word. >> i want to agree with everything that professor fried said about that. the only thing i would add is that if you actually try to justify what was done as it has, then essentially -- here is a sense in which senator it does not matter. again it would be an unprecedented proposition that congress can require american citizens to do what ever it chooses to require and then in act a monetary penalty under its tax power to penalize them for not doing that. that is really no different than the debate we just had two hours about whether this exceeds congress's power or not. it would still congress to give

congress to command the citizens to do anything. that has never been done before. that tax power has never been used that way before. that is the only thing i would add to what professor bayh said. tooted it is relative and the fallen since. there is the impression out there that under this law, federal agents are rife in black helicopters, dressed in fully equipped ninja cost in, kick them in your bedroom door and drag you off at the point of data into an insurance agency. when all that happens is that those who are not otherwise exempted, when they're filling up their federal income tax return, if you're not maintaining minimum coverage, if you messed up a and additional 2.5%, much less than social security. that is all that happens. it does not approach any slippery slope of any understood limits and are legal culture.

>> thank you so much for the panel that has joined us. this is an excellent hearing. witnesses, it is a not assert that -- an honor that you have to one is for this important consideration of this major legislation. many organizations have submitted testimony and we will add it to the california project to the record. the california attorney general, legal scholars agree with the constitutionality of the act, small business majority, constitution action center, the national senior citizens law center, and the center for american progress action fund. it is placed in the record. it is possible the written questions may come your way in the next weaker to which we hope you would respond to in a timely fashion. again, thank you very much. the senate -- is hearings stands adjourned. >> as a citizen, may i say that what the senate has shown in this committee and -- it has shown our government at its best. and it was a privilege to

participate in it. >> thank you. ." host [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011] >> on c-span tonight, from the washington institute for near east policy, a discussion about the future of egypt. the senate budget committee holds a hearing on the tax code and its effect on the budget deficit. and the ceo's anddell and ibm if their recommendations for cutting the federal budget.

on tomorrow's washington journal, we will talk with national journal correspondent james kitfield about each is military. when white discusses efforts to stop the spread of bedbugs. the university of pennsylvania law professor david skeel on the possibility of states declaring bankruptcy. it begins live at 7:00 a.m. eastern on c-span. >> sunday on it in debt, emmett tyrrell, who has written and half-dozen goes including "the conservative crackup," and his latest, "after the hang over." join our latest discussion with your e-mails and tweets at noon eastern on both tv. >> because of the extraordinary use of the filibuster, the

ability of our government to legislate an address the critical problems is severely jeopardized. >> is it true he says that forceful threat to the end of the filibuster is an address to the melody and senator byrd did not want us tampering? >> the filibuster remains intact but there are few new rules in the senate. find out what they are and watch the debates with c-span congressional chronicle, with time lines and transcripts of every house and senate session. congressional chronicle at c- span.org/congress. >> the washington institute for near east policy is executive director called egypt's military the key to resolving the rapidly deteriorating situation in the country at an event halted by the group in what she did today. others tossed on the possibility for the future of the country. this is an hour and half.

>> this is timely and designed to link voices for change to what the middle east with u.s. policy makers, analysts, and strategic thinkers, in the first ever near-real-time, global interactive communication, which we have instituted: that the current form -- we have called the fikra forum. it provides a platform for mainstream activists, mainstream thinkers, in the middle east to combat extremism and to promote democratic change. fikra forum is an independent initiative of our project fikra.

it is under the direction of dina guirguis who you hear from from just a moment. many with heavy egyptian representation art participation -- participate in the form, was an equal number of americans from across the political spectrum. it is an exciting platform, one i am sure policymakers will rely on more and more in coming days to get near-real time conversations bridging arabic and english divides went off leaders in st. leaders in arab capitals. the forum is funded through a generous grant from the wagoner family foundation in memory of dr. stephen croft. project fikra is funded through a generous grant from michael, linda, and james kessler. the fikra forum can be found at

fikraforum.org, and i urge you to monitor that very closely to find out what leaders throughout the middle east, young, mainstream, leaders for change, are saying about the prospects for change in their countries. with that, i am delighted to be able to introduce my panelists and have them take the podium. to my immediate left, scott carpenter, that keston family fellow at the washington institute and director of project fikra. scott comes to the institute with many years of experience in promoting democratic change throughout the world. in europe, asia, africa, and elsewhere. through his work for the international republican institute and other major pro-

democracy institutions. immediately prior to join the institute, scott served as the deputy assistant secretary of state in the bureau of near east affairs and the director of the middle east partnership initiative, which itself is an important initiative in the government to develop institutions in people to promote positive change. i am delighted that scott will lead off our team today, talking about the issues related to transition generally and specifically in egypt. after scott, i will turn to dina guirguis. dina is the keston family research fellow in project fikra. she is an american-egyptian attorney, former director of the voices for democratic egypt, a nonprofit organization dedicated to promoting democracy, human rights, and the rule of law in her major

country. she is a passionate analyst of change. just a couple of weeks ago, dina testified before a house committee on the situation in egypt and the importance of religious tolerance. she brings with us a wide experience in dealing with all aspects of the political opposition and the movement for change in egypt and in other arab countries. she will speak on the nature of the opposition, who they are, but they want. david schenker is our of zane family fellow and director of the program on arab politics. he came here after serving as a director in the office of secretary of defense. he is fortuitously completing, although we are a couple of weeks behind, fortuitously completing a major study on secession in egypt and what the potential -- [laughter]

what the potential for the post- mubarak regime looks like. we have sped up the process as you can imagine. it just went to the top of the queue. you can see a substantial excerpt from his work distributed very shortly. david will talk about other key actors in the egyptian situation. the army, and key actors. and then i will close with some comments about u.s. policy, where we are, what we're saying, what it means, and where we are likely to go. so, scott. >> thank you for that kind introduction. i would like to say a special welcome to all of you who have gathered here. i have taken as my point of departure, a discussion of the broader notion of transition. how they take place, what does this particular -- that jasmine

revolution taking place in egypt, what does it represent? there was a concept known as that third wave that took place after 1989, when across the eastern and central eastern europe, all large swath of the former soviet union, africa, latin america, where the spirit of change was so great that it provoked a wave of democratic political transition. the middle east was notably not part of that global transformation. and during the days of the bush administration after 9/11, the question was why -- why is this not happening? why did not happen to resurrect and is in that time there bit is some political and economic opening to address some of the

social and political pathologies that existed in the region? and president bush would say, the fact that we say that this is not possible was a soft bigotry of low expectations. there was an expectation that the people at some one bank, because you could see the writing on the wall, the political institutions, the economic landscape, was right with such difficulties that pressures were building and ultimately would be released. in any case, the arab world was not -- did not participate in that third wave. today as we look across the region, people are asking, is this 1989? is this 1979? and when the as these questions, they are not talking about cn and square in 1989. they are talking month, is this the fall of the berlin wall,

will there be a domino effect to sweep the region, or is this 1979 in the case of iran, but truly revolutionary moment in which islamic theocrats are going to subvert and takeover a broad base political movement of change? i would say that at the outset that as it is right now, it is neither. it is neither the expectation that there would be a domino effect across the region, nor is it in 1979 moment, and there are a variety of reasons for this. in particular, there is no etiology truly involved in this. the circumstances across the arab world are very particular. i think a lot of analysts expected, fully expected, especially as egypt began to undertake economic reform

without consequent political reforms, that these, given the nature and structure of the egyptian society, that these pressures would build up that there could be cataclysms'. even if you read the wikileaks cable, you see the united states government has been clear cited about this with president mubarak himself. talking to him and them about the necessity of creating shock absorbers for the system. i think that the republics in the arab world are in a much more precarious position than the monarchies. they have a different establishment for their legitimacy. it helps to be the commander of the faithful. and therefore he in the republics, the question is what is the basis for legitimacy now? can it continue debate, and in the case of syria, that the reason we are still here is because of israel? is that going to be on

mobilizing, legit a mating foundation for the continuance of that regime? what is the vision in tunisia? what is the vision in yemen, etc.? the kings by virtue of being king's can simply replace the prime minister here in there and try a in a way to remove them. i see closer parallels in tunisia and egypt to the roumania case, actually. it was a outier for the transitions in central europe where there was a popular mass demonstration that led to the housing and in the execution of the then-president. but the establishment is essentially free consolidated itself. the communist party renamed itself. in an initial election, there was a government of national salvation led by the former head

of the communist partnered -- party. a center-right government did not come to power through elections there until 1996. and it was booted out in 2000. so the structure -- it was not a true revolution in terms of sweeping away all that was sold. but in central and eastern europe, old structures managed to reassert themselves. another example and all but a lot of a search taking a looking at its turkey in 1980. looking at the role the military played in leading a political transition their, stepping in to bring opposition leaders together, and ultimately to write a new constitution hold elections under the constitution, and the regime has been in place since then. very specific to these countries -- what i would say about each of is that we're not yet at point of transition. nothing really has changed at

all. that is why it is an extremely dangerous moment. the interstates and president obama's speech last night as committed us to a transition in egypt. and much of this is very much still up in the air. obviously the key institution for the successful transition is the egyptian military. they have been able to pull off a fairly neat trick. the military in egypt is the core of the regime. it is the very heart of it, the backbone of the regime. and yet the people are looking to the military to preserve it from the ndp, the president, and the interior ministry. whereas the government and mubarak is looking to the military to safeguard its continued rule.

so it is the only truly credible institution that exists. it has the faith of the people for the moment, and this is a deep concern in my view to president mubarak, it to thendp, and may have relevance to what is happening in the streets of cairo today. i think they're real risk here -- there are a number of challenges for the military in any transition. one is in coherence at the top. how long, how persistence does the leadership maintain of unified view of what is happening and what it should do? that is one question. the second is, what happens along with the military is out in the streets with the people? if the coherence is maintained at the top, and orders that are given from the top be carried out at the local tactical level? will the military fire on the

people if ordered to cross a marked the military has said in statement after statement that it will not. that has to be of deep concern to president mubarak and those who would seek to keep him in power at the moment. the other challenge for the military as an institution is the squandering of symbols of national and possible national unity. all of the key figures that are in power in egypt today, the vice president, come out of the military. many were thinking that he would be the key transitional figure, but the longer that this kind of situation and lack of clarity persists, the more difficult that will be to preserve his own credibility for the opposition and for the egyptian people themselves. there is one symbol of their, one person we have not heard a lot out there, but david will tell us more about him, the

chief of staff. i have heard his name raised as someone who could lead this transition. very quickly, the military is the key institution. what it does in this moment is of utmost important and time is running out for the military to take action. the other players the opposition. the biggest problem i say and someone will be talking about the opposition but there is no clear emergence leadership. . with an honest day's talks about the need for a negotiated transition, this is a fundamental problem. with him to you negotiate or start we have focused on reaching out to the military and to the bar. where is the leadership within the crowds to negotiate a transition with the mubarak regime? you absolutely need it in order to have an negotiated

transition. transition.