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 g 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

>> if law school had been this interesting i would've gone to more classis. thank you for spending the time today and giving us the benefit of some important testimony. i want to say particularly to general kroger that i appreciate you being here and you having the courage to do what you have been in declining to join what may be a popular stance in some quarters in challenging -- i declined as an attorney general to join that challenge partly

because this new act saves money for many, many states including connecticut. it saves connecticut some $53 million for september of 2011 and perhaps does the same for organ and other states but also because i believe that the lawsuit is without merit and i think the two opinions we have to the contrary from the judges show clearly that it is without merit and partly because of this distinction made out of non- constitutional clause between inactivity and activity which is nowhere present in any previous case of united states supreme court but also because they get very inadequate attention to the doctrine that laws should be presumed constitutional. judge hudson rejects the idea

because of a footnote in city of chicago obverses morales and judge vincent did not consider it almost at all. he said i can consider, i assume that i can consider the constitutionality instead of i presume it is constitutional. i want to direct this question to you, general kroger and also perhaps to the other members of the panel, aren't you troubled by the lack of weight given to this presumption which is so fundamental to the work that you and other attorneys general and the attorney general of the united states does day in and day out in defending statutes against constitutional attack? >> i would simply agree with you that the presumption of

constitutionality is extraordinarily important. likewise the deference that is n to the democratically elected officials in the state to craft the right policy that will govern the country. i think probably both of those could use greater emphasis in the decisions that go forward. >> would you agree that one of the reasons that this presumption should have stronger and special weight in this case is because the united states congress considered these constitutional issues in deliberating and debating this law? it is not as if the courts have discovered this issue or the plaintiffs have discovered it. congress discovered it and a co- equal branch of government is entitled to that respect. >> i think ultimately it is the court's province to declare whether the law is

constitutional or unconstitutional. i would hate to imply that they don't have that responsibility. i think closer attention to would make a big difference going forward. >> let me ask mr. carvin and mr. barnett whether you are not troubled by the overreaching that plausibly could be seen in this disregard for the perception of constitutionality? >> i think the presumption of constitutionality is important. i think congress has broad discretion in the commerce regulation. the key thing to focus on is congress has been given broad

discretion as to the means to a legitimate end. for reasons that i will repeat, think congress is looking to achieve an illegitimate and in this context it is unfair to label activities which strike down laws as unfair judicial activism judicial activism is the striking down a law that is constitutional because you think it is bad policy. it would be equally wrong to strike down a law that you believe is unconstitutional because you think it is a good policy. in both instances, the judge is not doing what judges should do which is look at the law and not be influenced by the desire ability of the policy. >> i am confident that you are not impugning judge vincent's integrity. >> not at all that, some people outside this room are. >> some people outside this remark. this same judge vincent turned

away the state ag challenge to the medicare requirements. that is the very same judge in the very same case of cold and act of congress. that is also being challenged by 26 attorneys general. he up old-style law. he finds another part of law does satisfactory. that should be added to the record in terms of judge vincent's integrity. 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 >> on c-span today, "washington journal" is next. lye with your phone calls. the senate budget committee holds a hearing on the economy. and ben bernanke speaks at the national press club. in about 45 minutes, a look at the egyptian military with