was early on in her tenure when she got into a little trouble with some of her remarks in response to the detroit bomber and it was a bit of an embarrassment for the department at that moment, but i think she is better versed in the whole breadth of this enormous entity. at the same time i feel loo -- like the department has president been totally tested in the way it was under some of her predecessors. hopefully we will never have another hurricane katrina, but we have the attempted bombing, christmas bomber, but we have had a homeland security issue. >> since you both cover the homeland security department, have you found less of the stovepipe issue that we talked about in the past? 22 departments now under one head. she talks about the nursdix

being so huge. what has been your experience? >> certainly there is ai lot of lip service given to the amount of information sharing. i think in recent incidents, for example, t.s.a. rollout in the fall and holiday period, that went relatively smoothly, and it showed a more mature department that was able to take directives and when there is a new threat they were able to adjust procedures without airport delays. their messaging could have been better on that, their public relations messaging could have been better, but the actual >> we are almost 10 years from september 11, 2001, and the department itself is stwha more mature.

two weeks of embarrassing incidents regarding contracting many. because the agency is working homeland security in terms of its interactions, you know, with the c.i.a. and it doesn't have a ma sure intelligence committee itself. i think there are still areas where it needs to grow. >> eric lipton were you satisfied with the answers you received on the virtual sense of there have been three secretaries that have talked each one has been positive about the technology. until they actually do it, it is

unknown. >> in terms of using technology on the border, one of the big flaws of f.b.i. net is they tried to use off-the-shelf technology that didn't work in the field. tumbleweeds were setting off scensors and so forth. some of these things useful, but they will not eliminate the need for border patrol, but they can be aids to what the border eric lipton covers "the new york times". gentlemen, thank you for being on "newsmakers." >> thank you. >> thank you. >> today r. memmett tyrerell

live on booktv. join our three-hour conversation with your e-mails, phone calls, and tweets. s >> the reason for doing a dumeri was to -- documentary was to show another side of this. everyone remembers humphrey as licking johnson's boots all the time, and people didn't understand his position. >> "q & a" tonight at 8:00 on c-span. >> on wednesday the senate voted

on a written measure to repeal the health care law. it was defeated in a partyline vote 47-51. here is a one-hour portion of the debate. a senator: mr. predent? mr. schumer: thank you, mr. president. i rise in strong, vehement opposition to the a amendment offered -- to the amendment offered by the minority leader to repeal the health care reform law. i would say to my good friend from nevada, yes, we would like to work together to further reduce costs. but this bill does reduce costs significantly. the c.b.o. has said in no uncertain terms that the appeal would balloon the deficit by more than a trillion in the second decade. the law smokes out a good deal of the waste, the inefficiency, the duplication that we all know is part of our system. and that is the place where we

have to continue to work together. our country delivers the best health care in the world, but it's also the most inefficient. wepend 17% of our g.d.p. on health care. the next highest spending country is only 10%. under the reform law, we will begin the first large step in keeping quality care, but getting the costs under control. now, if my colleagues on the other side of the aisle said, you know, you're right, we have to reduce costs. we have a better way. and they offered a bill on the floor, well, maybe we'd take a look at it. but they're silent. they're easy to sit there and say, repeal. what would you put in its place? d the reason this amendment will be so easily defeated today is because a budget point of order whi says, if you're going to raise the defici deficit $230 billion in the

first decade and a trillion dollars in the second, you better find out where that money's coming from. and the other side is sliefnlt not a peep -- silent. not a peep about where that money would come from. that makes one feel this is sort of forhow. let's wave the flag for some of our hardcore supporters who definitely want repeal. but there's nothing in its place. the old mantra that the other side seem to have some of them, repeal and replace is gone. it is now repeal and we have nothing to replace it with. that does not meet the favor of the american people. in fact, the numbers who are against repeal is growing. only about a fifth of those who say they want the law changed want a full repeal. only 20% of the public wants full repeal. if those numbers are correct, and i believe they are, that

means that a majority of republican voters don't want full repeal. the bottom line, mr. president, particularly in this area of health care, talking about deficit reduction is a lot easier than doing it. that fact is evidenced by the amendment my friend, the leader from kentucky, will offer. that is why a budget point of order is the appropriate response. and that is why this will be defeated rather handily. and in later days maybe my colleagues will come up with parts of the bill they wish to change. we will be open to it. senator stabenow today is offering an amendment to change the 1099 section of the law. she has worked with people on both sides of the aisle. i know that senator johanns has been a leader, the republican from nebraska. we're going to pass that today. so the idea that we're unwilling to change any part of this law is belied by what we're doing here on the floor.

we want to work together. but somehow when we get a repeal amendment -- repeal the whole thing, no sstitute, no change -- no answer to how to deal with the debt, one wonders what this repeal is all about. an furthermore, what is one of the reasons -- why is the american public becoming more favorable to ts law as we go through this debate? that's what the polling data has shown. well, i'd give two reasons. first, many of the horrors that were bandied about as the law was being put together are proving not to be true. i'll never forget in the summer -- last summer someone came over to me, a gentleman from long island, he said, senator schumer, i'm a democrat, i voted for you in every election, but i'm not going to vote for you again.

i said, why? he said, i hate the health care law. i said, what do you hate about it? he said i'm going to lose my alth benefits on labor day. i said, what's your profession, sir? he said i'm a new york city firefighter. he lived on long island, but he was a new york city firefighter. anyone who knows anything about the health care bill knows that a new york city firefighter will not lose their benefits on labor day or any time else under this provision. but this poor man had listened to some talk rio and they convinced him that he was going to lose his benefits. but that is all fading. i haven't spoken to the gentleman since. i don't know his name. i just met him at a summer start treaty fair. but he -- a summer street fair. he found that his benefits are just as good as they were before labor day. it's funny he would say repeal the law a year ago, but wouldn't say so today.

but there's an important reason why this law is gaining support as we learn about, and we owe some thanks to our republican colleagues. because they have given us a second chance to make a first impression. most who looked last year said the messaging, right or wrongly, falsely or truly, was done better by the opponents than the proponents of the law. now as people look at the law, they're learning so many good administration the bill. i dare say that most of my colleagues on the other side of the aisle want to keep those good things. i'd be quite certain that the vast majority of americans would want to keep those things and the polling data backs that up. so when you doepeal, when you just use a hatchet, not a scalpel you lose many of the good thingshat are in effect today. i ask my colleagues on the other side the aisle who support repeal, do you support increasing prescription drug costs for our seniors.

than to this law, the so-called doughnut hole, which was createdn the prescription plan of 2003 under george bush, will beixed. seniors in this doughnut hole, which says when your -- when you've paid about dz 2,500 - 2,500 -- $2,500 for drugs, government will help you no loer, will now get a 50% discount on their medications. this first year that will amount to the average senior savin saving $550. when you're a senior on a fixed income, $550 is a nice amount of change. and will help a whole lot of people. the discount keeps increasing every year until the last crumb of the doughnut hole is gone. i will admit that's a mixed medical for because a- metifore, because a doughnut hole does not have any crumbs. but good try, staff.

it sounded very good to me. but in these times, these savings aren't exactly chicken feed. ey will make a huge difference for seniors. the average senior when the doughnut hole is fully eliminated, crumbs and all, wil save more than $2,000 a year. how how about the provision that helps young people? every one of us knows of instances where young men and women get out of college or get outf high school and they go into the job market and oftentimes those new jobs that they're seeking doesn't provide health care. that happens quite often. it's a new job, it's a low-paying job, they are just starting out, but i know i've spoken to many young people like this and their parents. there is a lot of anguish. does that young person who maybe has a job that pays $25,000 or or $30,000 a year pay $1,000 a month for health care for him or

herself? we can't afford that. on the other hand, not to go with health care, yeah, they are young and healthy, but god forbid they have an accident, go to the hospital, come up with some unusual and rare and expensive disease. what are they going to do? this keeps lots of young people and their parents up at night. this new bill solves that problem because you can stay on your parents' health care should they have it until you're 26, and by then you're in the labor force a little bit longer, and the likelihood of your employer giving you health care is somewhat greater. do my colleagues on the other side of the aisle want to take that away? and if so, what are you going to put in its place? what are you going to tell the young people 22 and 23 and 24 and 25 and 26 what they're going to do? then there is another provision that's, i think, really worth

keeping -- preventative medicine. we all know that one of the big problems with our health care system as opposed to some of the others in some of the oer westernountries is we don't do enough prevention, and so instead of a disease being nipped in the bud, making the patient healthier and costing the system a whole lot less, it waits and waits and waits. well, those who put this health care -- those of us who put this health care bill together realize that and -- realized that and said early detection saves not only lives but billions of dollars. so now in this health care bill, medicare will provide a free wellness checkup once a year for every senior citizen. if there is a little bit of illness, they can nip it in the bud. we all know the earlier you detect cancer or heart disease or diabetes or emphysema, the better chance of curing and the less expensive to cure it. so this is going to save

billions of dollars. just giving certain tests at these wellness checkups will save people, themselves money but more importantly save the medicare system a lot of money. it's important to save the people to save their money, too, of course. and it makes a great deal of sense. a mammography can find breast cancer before it metastasizes. a simple blood test can provide prostate cancer before it spreads. one -- what are my colleagues on the other side of the aisle going to say to seniors? what are they going to say to the medicare system which is trying to get more effective by getting involved in early detection and prevention? forget it? that's what you're doing when you vote for repeal. you have nothing in its place. how about the small business tax credit? my dad was a small businessman.

he had a little exterminating business. i know how small business men struggle. my father truly didn't become happy until he left the business. now, praise god, he is 87, he is a much happier guy even at 87 than he was at 60 strug until that business. one of the dilemmas that small business people face is the high cost of health care for their most. they want torovide it. a, because they want their employees to be healthy. b, because they like most of their employees. and c, because they want to keep the employees from going somewhere else if they're good. but it costs so darn much. well, here is what's in the bill. if you're a small business that makes less than $1.2 million and you have fewer than 25 employees -- i think it's 25 or fewer employees -- you get a 35% credit, going up to 50% in 2014.

huge help to small businesses that are already providing health care for their workers and a great incentive for small businesses that are not already do so. hundreds of thousands of small businesses in my state alone will benefit from this. what, my friends, on the other side of the aisle are you saying to those small businesses? what are you saying to their workers? go at it alone because you want to repeal it, but you have nothing, nothing, nothing to replace it. and there's one more provision i want to speak of. there are so many good things in this bill, no matter how much you don't like some of the bad provisions. i know that's genuinely held by many of my colleagues. to just repeal it and get rid of all the good stuff makes no sense, in my judgment. we've all heard the horror stories of insurance companies when you go to them after you,

your spouse, your kid has an illness, and you say thank god i have insurance, and the insurance company deliberately or mbe not, but anyway, they say, mr. smith, you didn't check off that little box on page 17. you didn't dot that i or cross that t. you're not covered. we all know the intent was to cover. we all know that the insurance company was happy to take the premiums even without that dotted i or crossed t or checked box. when the family was healthy and money was coming in. but now all of a sudden they say bye-bye. this bill doesn't allow that to happen. the kinds of rescission that i just talked about are banned. what are we saying, not just to the families who have experienced this but to every american family with insurance

that worries about this, what are we saying to them? again, you have nothing in its place because you are repealing, not replacing, even though people had said early on that that's not what they're doing. so i'd say in conclusion or just one more point before i conclude, we are willing to work with you. the stabenow amendme on the floor of the senate shows just that. i would have drafted it a different way, and there will be a levin amendment that i would prefer, but either way, we're going to address the 1099 issue. many people on your side of the aisle, many people on our side, that was a mistake. not every bill is perfect, but we're not digging in and saying we have to have the bill ectly as written and exactly as drafted. but you're doing the inverse. you're saying we have to have no part of this bill, because if you wanted to retain parts of it, you would have had an

amendment on the floor saying take these parts out and keep these parts in, but you're not. why? well, your guess is as good as mine, but it's a lotasier. it's a lot easier to just tear down than create, as we learned when we did the health care bill. but you really have an obligation unless you believe there shouldn't be a health care system or we ought to go back to the system without any changes in the law which we had, which nobody liked, it's not fair. so in conclusion, one, this bill reduces the deficit, the repeal increases the deficit, and there is no money the to make up for those funds that the bill would bring in by cost cutting and by fees. second, there are lots of good

things in the bill that probably my colleagues would support, but they just get rid of them with no replacement, nothing. nothing for the seniors, nothing for the 21-26-year-olds, nothing to the people who are treated poorly by their insurance companies. and third, we want to work with you. there are some changes that we could work together on in the bill, not only 1099 but further walking down the road of reducing the inefficiencies in the system, the high costs, the waste while still preserving good care for the people who get it. that's something that would lend itself, particularly in these times of high deficits, to bipartisan support and working together. but today, simple repeal, again, it may feed some red meat to the minority in this country. it's a small minority if you

believe the polling who say just repeal it, but the responsible job of a legislator, whether you agree with this bill or disagree with this bill, is not to repeal but to improve. that isn't happening today. mr. president, i yield the floor. the presiding officer: the senator from alabama. mr. sessions: mr. president, i rise in strong and vehement support of senator mcconnell's bill to repeal the health care reform law as now constituted and will support replacing it with reforms that truly provide americans with access to quality, affordable health care, reduce skyrocketing health care costs and put our nations on a more sustainable fiscal pat these good goals can be achieved, but this current bill

does not do it. i'm pleased to see my colleagues say they would accept some amendments, but the johanns amendment he made reference to was voted on twice last year, and when the democrats held a siificant majority in this body, they voted it down. after seven new members have been added, many of them elected on a promise to repeal this -- every one, virtually, on a promise to repeal this bill, we now have the agreement to change the 1099, which is about .01 of what's significant about this legislation. indeed, if senator scott brown had been elected a month or so soer, the bill wouldn't have passed as it did on december 24, the day before christmas. the american people have never supported this bill. polling numbers shows they still do not support this bill.

the democratic health care legislation was sold as a package that would reduce insurance premiums by $2,500 per family. we were told that repeatedly. it would trim the federal deficit, reduce the deficit and immediately create 400,000 new jobs. sadly, none of these promises have been met, they were all false. they were attacked on this floor by people who were sophisticated, and they pointed out how these matters were not going to be achieved and they have not. they were false then and they're false now. the new health care law will cause health care spending to rise over the next decade. americans will see dramatic increases in their premiums. that is a fact. the federal deficit will increase by an additional additional $700 billion.

this bill does not reduce the deficit, and the law's expensive mandates, penalties and tax hikes will lead to job losses and layoffs that will damage our economy. the last thing we need to do now is to have employers lay off people because of surging health care costs, as is happening. talk to small businesses in your communities. as our nation's reckless fiscal policy and surging debt bngs us ever closer to a tipping point, a debt crisis that could damage our country substantially as it has others around the world. respected economists have stressed the need for congress to reduce federal spending and contain mounting health care losses, but rather than tackle these problems that threaten the long-term stability of our

nation, new -- nation's new health care law exacerbates a fiscal crisis by creating a new open-ended entitlement, a monumental new entitlement program. introducing $2.6 trillion in new spending. tell me how we can spend spend $2 trillion and not increase spending in our country. entitlements today are hammering our budget. they are surging our deficit. entitlements are dangerous things. the last thing we need to do is create a new entitlement that's not going to be contained in its spending. and according to the congressional budget office, our official analyst, the new health ca law, ourwn group, the c.b.o., appointed by the democratic majority, says th the health care law will cause

insurance premiums in the individual market to soar by 10-14%. for american families, translating it into a $2,100 increase in their costs for purchasingealth care coverage by 2016. that's huge. another $2,100? that's a stunning development and is exactly opposite of the promises of the bill. c.b.o. scored that. total health care spending in the united states consumes already 17.3% of g.d.p. and we have felt that that was too high. it's theargest of any industrialized nation in the world. but under this new law, the national healtcare spending will approach 20% of g.d.p. by the end of this decade. this is the budget committ scoring chaired by the democratic majority in the -- in the congress. sadly, many supporters of the

health care law continue to perpetuate the myth that repealing this law would increase the deficit. my friend, senator schumer said, repeal the law and the deficit will go up. a thorough examination of the law pulls back the curtain to expose the deceptive budget gimmicks on how that is stated and reveal the true cost. the double counted -- first, our democratic colleagues double counted $398 billion in medicare costs and taxes, $29 billion in social security taxes, $70 billion in new lonterm health care premiums to pay for the new health care spending. double counted money. it's the largest false accounting scheme i suppose in the history of the world. think i'm exaggerating? december 23, the night before this budget -- this health care

bill was finally passed 60-40 -- 60 democrats, 40 republicans "no" -- i called the congressional budget office, mr. elmendorf, selected by our democratic colleagues to be the budget dector, and this is what he said. "the key point is that savings to the h.i." -- that's the hospital insurance trust fund of medicare under the health care bill "would be received by the government only once, so they cannot be set aside to pay for future medicare spending and at the same time pay for current spending on the other parts of the legislation or on other programs." this money it was cutting medicare benefits, raising

medicare taxes, they didn't use the money to strengthen medicare, which was heading to insolvency, they took the money and spent it on a new program. actually, they borrowed the money from medicare and that's how they got it. it wasn't the treasury's money to spend on a new program. and the way they scored it, it double counted the money. that's how -- it's this money that they're counting to say that this bill is -- actually creates a surplus. without this mey, there's no surplus. since medicare is going into deficit, they are going to call their debt instruments, their bonds from the treasury as they go into deficit. by the way, the u.s. treasury pays medicare interest on the money they borrowed from them to start this new program. and soon that money is going to be gone and we're going to have to borrow money on the open market to fund this new entitlement. and the new entitlement's going to cost far more than is

currently estimated. over the ten-year budget window, the congressional budget office says the new law -- the congressional budget office reports point out how the law was doctored to start certain revenue enhancements, taxes and so forth now but only starting the expenditure programs in 20 2014. why is that important? well, they looked at -- they got a score from c.b.o. of what it would cost over ten years. so you get income for ten and you get expenditures for six, it looks pretty -- might look pretty good. that, plus the double counting of the money and several other gimmicks. that's how they say this is creating a surplus. it is not a surplus.

as the ranking member on the budget committee, i am stunned by how difficult and how challenging our current financial situation is. we've got to do something about it. we need the president to help us and lead. he's not doing so, so it looks like congress may be having to deal with it. but formerirector of the c.b.o., douglas hold douglas ho, cowrote an article in the "wall street journal" in january that eliminates any confusion about the law's impact. i'm disappointed that members of our senate are still coming down here to success -- to suggest that repeal of this law is going to adversely impact our deficit. i'm stunned that that would continue to be said. this is what mr. holtz-aiken, a highly respected individual said, in the "wall street journal" in january. the article is entitled, "health care repeal won't add to the

deficit." he says this -- quote -- "repeal is the logical first step toward restoring fiscal sanity." fiscal sanity. he goes on, how, then, does the affordable care -- he goes on, "how, then, does the affordable care act magically convert $1 trillion in new spending into painless deficit reduction? it's all about budget gimmicks, deceptive accounting, implausible assumptions used to create the false impression of fiscal discipline. repeal is not a budget buster. keeping the affordable care act is." closed quote, mr. holtz-aiken, former director of the congressional budget office. ere's no question about that. holtand it's a stunning thing. a poll by the kaiser foundation and harvard university released

last week revealed that the ameran people are seeing through these ploys. they've heard these talk about before. they're not buying it. 60% of the country believes the health care law will irease the deficit over the next ten years while only 1 think it will lower the deficit so colleagues, give us a break, would you? the american people are not going to buy this argument. i wish it would not be repeated but the president continues to say it himself. clearly, the american people once again showed that they are wiser than our -- than their government leaders in many instances. and the final point i'd like to make about the health care law is its debilitating impact on jobs, the expensive mandates and penalties included in the health care law coupled with rising costs of insurance facing families and businesses are costing us jobs right now.

and they're doing -- will do so more in the future. i would just add, mr. president, i had meetings with small business groups in phoenix city, alabama, and jasper, alabama, 10 or 15 individuals. every one of them told me without question this health care law would cause them to reduce employment. we do not need to be reducing employment. we need to be increasing employment. this bill is a job killer. it's indputable. over 6,000 pages of legislation and regulation regulations add . economic estimates indicate that repealing the law that threatens our economic recovery would save 700,000 jobs. it's imperative that congress does real this law. yes, we need to start and

continue to work on things we had already agreed on, like preexisting condition illness -- preexisting illness interstate competition health premiums, a lot of things that we all agreed on and could agree on to make health care better. let's do on those things. let's not have a massive federal entitlement program funded by dubious gimmicks imposed on the american people against their will, damaging to the american economy. we cannot do that. and it will be repealed, in my view. the -- so, mr. president, i know my time is up. i would justonclude by saying we had a new election. a lot of people took that issue to the american people. i think their voice was clear. they're not happy with congress who do not listen to them and passed the bill against their wishes, and they expect congress

to reconsider it and change it and limb mate it and start over with legislation -- eliminate it and start over with legislation that will work. their message is clear and that's what we need to do. i urge my colleagues to support senator mcconnell's legislation. i would yield the floor. mr. sanders: mr. president? the presiding officer: the senator from vermont. mr. sanders: mr. president, it is very hard for me to understand how anyone could be voting to repeal the entire health care bill, because when you do that, among other things, what you are saying is that we will continue the odious practice of denying health care by insurance companies to people who have prxisting cditions. now, for eight years under president bush, more and more people lost their health insurance, the cost of health

care soared, and our republican friends had virtually nothing to say on health care. now that a bill has been passed, which i am the first to agree is not the best bill that we could have passed -- and i will tell you why -- it has its share of problems which should be remedied. but to say right now, when 50 million americans have no health insurance, when states all over this country are wrestling with huge budget deficits which no doubt will result in millions more being thrown off of health insurance, to say we should retreat to where we were is beyond comprehension. second of all, for my republican friends to say let's repeal health care, there are millions of families that now are beginning to be able to include

within their own health care plans their sons and daughters up to the age of 26. goodbye to that. furthermore, in a nation which ends up spending more on health care -- almost double per person -- compared to any other nation on earth, we have put in the health care reform bill billions of dollars for disease prevention. we are as a nation very weak in terms of trying to keep people healthy, trying to keep them out of the hospital. we spend a fortune on people after they're sick. in this bill, we have made some significant steps forward in terms of disease prevention. wellness, which is very, very cost-effective in terms of health care dollars, not t mention -- not to mention human pain and sufferi.

in that regard, i'm proud to have worked with a number of other senators in doubling in that bill the number of community health centers in america which was providing the most cost-effective primary health care that is provided in this country, keeping people out of emergency rooms, keeping people out of hospitals, giving them access to primary health care, dental care, lowost prescription drugs, and mental health counseling. in the midst of an extraordinary crisis in terms of primary health care, where everybody recognizes we don't have enough primary health care doctors or nurses or teb nitions -- or technicians, we tripled funding for the national health service corps and it is already working effectively in getting doctors and dentists a nurses and other practitioners into underserved areas. all of that would be undone and i think that makes no sense whatsoever.

now, toy mind, what we have to do is not to repeal this bill but to make it a better bill, and i will give you one very specic suggestion that i have worked on now for over a year. senator wyden has worked on th this, others have worked on that and that is to say tt if a ste in this country, the state of vermont, the state o alaska, any other state, can maintain the high standards for quality health care and coverage, that the national health care bill did, then that state should be given significant flexibility to perhaps do it in their own way and do it more cost-effectively. and i should tell you, mr. president, that in the state of vermont, our new governor is a supporter of a medicare-for-all single payer prram. there are other states that to want move in a different direction, maintaining high

standards but doing it, perhaps, in a different way than has been proposed by the national legislation. in my view, they should have that right. and if vermont is effective in doing what i believe we could -- providinhealth care to all of our people in a cost-effective way -- i suspect other states around the country can learn from vermont's experience. i think that is a positive step forward the beauty of our federalist system, 50 states, every state has a good idea. i think if we maintain standards that are high and give states flexibility, this can improve the health care reform bill that we passed last year. but killing this whole bill makes no sense to me at all. mr. president, i also wanted to say a word on an issue which is getting more and more attention, and that is social security. in my view, social security has

proven itself to be the most successful social program in american history. over a 75-year piod -- and this is really extraordina. we take it for granted but it is an extraordinary success story. in good times and in bad times, social security has paid out every nickel owed to every eligible amerin, and it does that in a minimal administrative cost. mr. president, despite its strong record of success over the last 75 years, social security now faces unprecedented attacks from wall street from many of my republican friends, from some democrats. and i have to be very clear that if the american people are not prepared to stand up and fight back, we could begin to see the dismtling of social security this very year.

mr. president, let me just cite the facts with regard to social security. i know when we watch tv tonight there will be some guy up there saying social security has gone bankrupt. social securit is collapsing. and that is absolutely untrue. there has been a significant amount of misstatements regarding social security. here are the facts that nobody denies, nobody denies. number one, according to the latest report of the social security administration, social security will be able to pay out 100% of all benefits owed to every eligible american for the next 26 years. you tell me how a system is going bankrupt. we've got a lot of problems in is government, and our country faces enormous problems. but when you can pay out every benefit owed to every eligible american for the next 26 years, doot tell me this is a program

in crisis or going bankrupt. and after 2037, social security will be able to pay out 78% of promised benefits. do we have to deal with that over the next 26 years? yes, we do. but it is not crisis. and this senator will do everything that he can to oppose any effort toward privatization, any effort to raise the retirement age, any effort to lower benefits. second point: everybody is concerned about the deficit crisis that we face, $14 trillion national debt. and how much has social security crypted to the deficit and the -- contributed to the deficit and the national debt? how much? well, not one penny. not one half a penny. social security is funded by the payroll tax. social security has a2.6 trillion surplus. that surplus will go up.

and to attack social security because of the deficit crisis is grossly unfair. you want to know why the deficit went up? we're in the middle of a recession. we fought two wars in afghanistan and iraq, forgot to pay for those wars. gave hundred of billions of dollars in tax breaks to the wealthy, bailed out wall street, medicare part-d prescription drug program written by the insurance companies, all unfunded. those are the reasons why you have a deficit. social security has nothing to do with it. so i would suggest that in the midst of all of this financial instability that's out there, with the middle class shrinking and poverty increasing and people really worried about their retirement years, one of the most significant things that we as a cgress can do is stand up and say we are there. we're going to protect social security. we ain't going to cut it and we're going to me it stronger

so while it has done a great job for the last 75 years, it will continue to do a good job for the next 75 years. with that, mr. president, i would yield the floor. mr. vitter: mr. president? the presiding officer: the senator from louisiana. mr. vitter: thank you, mr. president. i rise in strong support. mcconnell amendment 13 that would completely repeal president obama's, in my view, unconstitutional health care bill. of course i was an active participant in the debate in the last congress about obamacare and fought that tooth and nail. the day after it passed into law, i introduced a freestanding measure to repeal it completely. the first day of thisew congress that i could file bills, i reintroduced that measure. and of course, for all those reasons, certainly support this amendment that accomplishes that important goal. let me begin by responding to my distinguished colleague from vermont's suggestion.

everybody who wants to repeal this law, including me, weon't want to do away with the idea that you shouldn't be shoved off insurance because of preexisting conditions. you shouldn't have portability. you shouldn't be able to meet those obligations. we don't think that at all. we are, however, for complete repeal for a very simple reason. what's wrong with this bill, what's wrong with obamacare isn't one detail here and one mma there. is isn'tt the periphery of the plan. it's at the heart of the plan. it's the essentials. it's the core of the plan. we can and should and must pass significant reforms like protection for individuals with preexisting conditions. that's why we have introduced those measures. we have advocated those measures in a targeted way. that doesn't mean we can or

should or must preserve the whole of obamacare which has significant problems at the core of that tkpwar -- gargantuan bill. let me mention four of those core problems from my point of view. first is maybe most fundamental, most basic; that is there are important elements at the core of obamacare that are flat-out unconstitutional. and even if they weren't unconstitutional, they would be unwise because they are a dramatic expansion of the power and role and authority of the federal government. the most obvious is an absolute mandate in the bill. a mandate from your federal government that every man, woman, and child in the united states must buy hlth insurance. now this is unprecedented. there has never been a mandate like that from the federal

government or any level of government. there's never been this forced purchasing of a product in the private marketplace. some people bring up the comparison with carnsurance, but that's not a close comparison at all. because at the state level, that's not a forced mandate. that is simply saying if you want the right, the privilege of driving a car, which is not some constitutional guaranteed right, then part of the deals you have to cover the damages from any accident. so that's not a good comparison. so this absolute mandate that every man, woman and child in the united states go out and purchase health insurance, purchase a product in the private marketplace is unprecedented. and for that reason, it is unconstitutional. and it's an unprecedented expansion of the power and role and authority of the federal government.

in the last few days there have been hearings, quite late the hour but there have been hearin in the senate in committees about the constutionality or unconstutionality of obamacare. of course this central question came up. i found the response of some of the witnesses at the hearings who favored obamacare, were advocates for obamacare pretty startling on this point. one senator in the committee asked them, well, if we can mandate constitutionally that every american man, woman and child buy health insurance, why can't we pass a law thatays obesity is a real problem in this country, which it is? and, therefore, we're going to mandate that every man, woman, and child in america eat certain vegetables and certain healthy foods every day. you know what the response was from this advocate of obamacare?

well, i don't think you can mandate that they eat the food. you can only mandate that they buy the food. great. real reassuring. to me, that's not an argument for the constutionality of amacare. that's a clear argument for the unconstutionality and danger of the obamacare federal power overreach. there are many other aspects of obama care which also pose serious constitutional problems. my point is that these are big problems, and they aren't minor details which we can tweak with amendments. they go to the heart of this gargantuan bill. similarly is the dramatic expansion of government and the cost of that expansion. instead of controlling and lowering health care costs,

obamacare is expanding government and expanding health care costs. the senate budget committee estimates the bill will cost $2.6 billion for the first ten years of full implementation of all of that new spending doesn't lower health care costs, and there are multiple sources affirming that. yet, president obama continues to claim that the act will -- quote -- "slow these rising costs." maybe he didn't see the c.m.s.'s chief actuary rhard foster who said overall national health insurance -- excuse me. overall national health expenditures will increase by a total of $311 billion over the next ten years under the law. and when the c.m.s. actuary was asked directly if president obama's health care bill would hold down unsustainable medical costs, just last week that actuary replied -- quote -- "i

would say false close quote. last year the c.b.o. also confirmed our concerns about the bill's inability to contain costs, stating -- quote -- "in c.b.o.'s judgment, the health legislation enacted earlier this year does not substantially diminish that pressure." close quote. in additn, increased costs for the government and present and future taxpayers, health insurance premiums will increase for americans and their families. in fact, the c.b.o. estimated the premiums will increase by $2,100 even though at least candidate obama promised to lower premiums by $2,500 per family. so that big expansion of government and costs, and health care costs including taxes and partly cloudy premiums, is another -- taxes and health care premiums is another big problem. this isn't a minor detail which

we can fix with a perfecting amendment, a few tweaks to the bill. this goes to the core of the entire plan. another fundamental issue which goes to the core of the entire plan is the fact -- and i think it is a well-established fact -- that the obamacare plan will cost us not just money, not just increased taxes, not just increased health insurance premms, will cost us jobs. that should also be worrisome, but it should be particularly worrisome as we stand here today and debe this in a horrible economy, as we're trying to come out of the worst recession since the great depression of the 1930's. again, this isn't just any period of time. this is a time of prolonged historic unemployment. and this bill costs us jobs. and this absolutely debt mates

job create. the bill taxes jobs, places more burdens on job creators. the national federation of independent businesses, representing thousands of american small businesses, including many in louisiana -- my home state -- said that -- quote -- "if new taxes, new mandates and government programs in ppaca -- that's the obamacare bill -- remain intact, the law ll stifle the ability to hire, grow and invest." close quote. in addition to the often discussed 1099 paperwork nightmare for small business, the bill also includes a pay or play mandate on job creators. this complicated new tax penalty imposes a tax on businesses with more than 50 worrs if they do not offer coverage or do offer coverage by workers elect to decline that benef. again, this is a fundamental

problem with the bill that goes to the heart of the bill, not the periphery. now, this aspect of the bill wi have many dire consequences. first, because the $2,000 penalty for not offering insurance is less than the 6,100 average employer benefit contribution, businesses are actually given an incentive to drop coverage, so there is a concrete money incentive, a major money incentive for bunesses to drop coverage and actually push workers off good coverage. many have right now. second, businesses that are able to grow and hire more workers may choose not create jobs and to stay under the 50-employee threshold to avoid all of these disincentives and difficulties. because of all this the nonpartisan congressional budget

office concluded that the bill -- quote -- "will encourage some people to work fewer hours or to withdraw from the labor market" -- close quote, and it said -- quote -- "on net, it will reduc the amount of labor used in the economy" -- close quote. now, is that what we want to encourage in any economy?, but particularly in a horribly down comirks we're trying to come out of the worst recession since the great dression, and do we want to reduce labor opportunity in our economy? these are stunging conclusions that so many of us warned against during the debate, conclusions that the majority of americans feel. taxing american job creation, sticking business with more government compliance requirement and cost is absolutely the wrong approach, particularly in a down economy.

finally, madam president, there is another concern that i share with so many others in this body that, again, goes to the heart of the bill. it's not a minor detail. it's not something that we can solve with a perfecting amendment. it is not at the per river re, it is not changing a comma, changing a sentence. it is at the heart of the bill. and that is that the bill contains, at its heart, over $500 billion in medicare cuts. ye over half a trillion dollar cut to medicare. and these cuts aren't invested back in medicare. they don't help medicare stay solvent. they don't help medicare survive solvent for longer. they don't help fix the looming medicare challenge. they're stolen from medicare to pay for brand-new stuff for

other people in obama care. these medare cuts directly impact seniors, and one study shows that the massive cs to medicare advantage will hit louisiana seniors particularly hard. a study by the heritage undation shows that louisiana seniors enrolled in medicare advantage plans lose more than any other state i the nation because of the obama health bill. the report says that projected enrollment in medicare advantage will drop by over 125,000 louisianans, 62%. benefits will be cut by $5,000 per beneficiary. so this bill takes away benefits and choices for seniors, not to fix medicare, not to preserve medicare, not to preserv its solvency for longer, but steals it from medicare, steals it from seniors for brand-new purposes for other folks.

and this directly contradicts the presidens promise that -- quote -- "if you like wh you had, you can keep it" -- close quote. no, you can't, mr. president. thousands of louisiana seniors can't. in fact, c.m.s.'s chief actuary also verified that the prose will be broken, confirming that americans may lose their current health careoverage regardless if they want to keep it or not. so, madam president, i respond directly to my friend and colleague from vermont by saying, we want full repeal of obama care for a very simpl reason: the big problems with the bill, the big problems with the plan aren't at the margin, they're at the core. and the big problems can't be fixed with a perfecting amendment, the changing of a comma, changing punctuation, revising one or two or five or ten sentences.

the big problems are at the core of the plan, starting with the mandate from the federal government, unprecedented, that every man, woman, and child in america needs to go into the market and buy a particular product. that's why we demand repeal. that's why we'll continue to pursue repeal until it hangars and that's why -- until it happens, and that's why we'll replace this huge, burdensome bill with targete reforms like protecting folks with preexisting conditions, like reimportation, generics reform and other measures to reduce prescription drug prices, like allowing american citizens to shop for health insurance across state lines and to pool together through their small businesses, through other means, through association health plans. thank you, madam chair. with that, i urge all of my colleagues to come together. let's repeal this really

problematic plan, and let's start anew with focused, targeted reforms that the american people have been askin >> following the vote een askin republicans discuss their efforts to repeal the healthcare law. an amendment offered would have repealed it altogether. it failed by a vote of 47-51. this is about 20 minutes. >> i think the american people

understand fully this issue and they know for sure where republicans an democrats are. this is an issue upon which we are not likely to achieve any degree of cooperation with the administration >> although i must say there is a victory today we celebrate and that is the amendment to get rid of the 1099 requirement did pass. it was offered by a democrat but essentially it identical to the amendment that the senator offered. we have at least rolled back one of the egregious features of many in the 2,700-page law. i would like to call next on the senator to talk about that. >> thank you very much and good evening. everyone. today was a victory. it is not so much a victory for

me or really anyone else in the senate. it is a victory for about 40 million businesses across this country who are literally facing a mountain of paperwork if this 1099 would stay as the law of the land. we started this journey many months ago. we put the first bill in and it got something like 41 votes. we tried again and it got more, 61. but we needed 67 because of some procedural issues. then, right after we came back from the recess, arnold -- around the holiday, we started picking up supporters in gang buster fashion. as of yesterday we had picked up 61. very bipartisan, republican and

democrat. >> the senate has stood up and said let's get rid of this. and, i might add, in a very significant way, 81-17 was the vote today. so a remarkable result and i couldn't be happier for all of those in the business community that are worried about this from the very smallest to the largest. this not only applied to businesses. it applied to your local church, to nonprofit organizations, state and local government. it is a massive, massive mountain of paperwork. so, i appreciate my colleagues'

stepping up to this issue. we have taken a very important first step. we are not done yet because we have to sync up, if you will, with the house. i think we can look forward to the day this goes off the books. >> that 1099 vote was very important because basically i have had democrats say we know that the bill was not a good bill and there are a lot of things that need to be changed. there are some things that are good and republicanses would admit that. if they had worked with us i think we could have a health care bill that the vast majority could support. if you get 81 votes on something we could hardly get through that is impressive. i want to thank senator johanns for his leadership on this. this is a budget busting bill that we are trying to work on.

we were unsuccessful today but we know where everybody stands. it destroys jobs, increases health costs, raises taxes and threatens the liberty all in the name of one of the greatest expansions of federal power in our history. i'm disappointed that our friends are not ready to start over to bring down healthcare costs without putting washington bureaucrats between us and our doctors, between patients and doctors. democrats are fooling themselves if they think fixing their small business crushing 1099 reporting requirement is all that they need to do and it will satisfy the american people. it is not, even though that is a wonderful move and shows one of the major points we made through the years. this has been wrong from the start and the american people will want it repealed and expect us to sit down and not do it on

a partisan basis because it is too important. it is not too late to start over. we should repeal this law and we will. it may not be today or tomorrow but we are going to defeat it and hopefully i think we can come up with a health care bill that everybody can be proud of that will work and maximize the principles of federalism in our society that have kept this country the greatest country in the world. >> i, too, want to congratulate mike johanns on a great success. he has been a tenacious advoc e advocate, fiercely fighting for small businesses, which by the i.r.s.'s own admission 40 million would be impacted by the provision. he has done them a great favor and those who are job creators a great favor with this amendment.

i would also say we have made headway. a year ago we got 40 votes. today we got 47 votes. elections do have consequences and i think the democrats are still in denial about what the public believes. the american public made up their minds that this bill is a loser. the reason is it fails on three fundamental issues. the issues that the american people are concerned about are jobs, spending and debt. the tax increases this will destroy jobs. the spending, $2.6 trillion, is the opposite of what the american people said in the election. they want got reined in. they don't want government expanded in the way this massive entitlement will. the largest expansion of government in the last half century.

at $14.3 trillion will explode in the out years when the bills come home tpfor this program. this was a good vote and makes clear where we stand. we stand ready and willing to work with the administration if they are willing to work with us and throw this version out and start over and focus on a measure that does lower costs for most americans and will continue to provide the highest quality healthcare i think americans expect. >> there's is a narrative that this is somehow a futile act because republicans didn't have the votes to repeal obama care. but these are the first steps in a long road that will culminate in 2012 where we will expose the

flaws and weaknesses in legislati legislation, where the courts will review them and this last week have found the healthcare mandate unconstitutional. we know that a the path to the judicial branch will end up in the united states supreme court. but the problem with this bill has a lot of provisions that people just don't know about because it was jammed through in such great haste on christmas eve a year ago. i hope many of you had a chance to watch the hearing this morning in the judiciary committee which was on the question of is obama care constitutional. you would have thought we would had that before the bill was

jammed through but we didn't. we still, i think, learned a lot. and that is that the theory upon which the federal government's authority to impose an individual mandate requirement or penalize you is unprecedented in constitutional law. the very same heal experts that -- legal experts that said can you do that said you can make people buy broccoli because it is good for them but you can't make them eat it because it intrudes on their individual liberties. that is an absurd argument that defies common sense. i feel confident as we continue to expose the flaws in the legislation as the courts continue to review the decisions on the two federal judges who found it unconstitutional that we will prevail. repeal and replace this bill makes healthcare more affordable and accessible to the american people.

>> nancy pelosi said first you have to pass the law before you get to find out what is in it. this was one of the atrocious things that was in the law. as new regulations come out we will continue to see things that the american people are going to not want any part of. as somebody who practiced medicine 25 years in wyoming, what i want as a doctor for my patients and my family, you want people to get the care they need from the doctor they want at a cost they can afford. this bill does not provide any of those three things. that is why i continue to say this healthcare bill is bad for patients, bad for providers, the doctors and nurses, and bad for the taxpayers. we are working hard as a party and conservatives as republicans to make it cheaper and easier to

create private sector jobs in this country. this healthcare law, with its mandates and expenses are making it more expensive and harder to create private sector jobs. it is astonishing to see 2.2 million americans have been given waivers so obama care doesn't apply granted by the secretary of health apnd human services. many are members of unions who lobbied for the law and don't want it to apply to them. i don't think this law should apply to anyone and every american ought to get the waiver. yesterday i introduced the states healthcare choice act with senator graham to allow states to have the opportunity to opt out. this is a discussion that will be held at every state, allow legislators to make decisions locally. because when washington has a

one size fits all approach it doesn't work anywhere in this country. we need to have patient-centered healthcare without a washington bureaucrat or insurance company bureaucrat standing between the patient and her doctor. >> what next steps will you take to repeal this law or delay the implementati implementation? [inaudible] >> let me sum up where we are. we think this is just the beginning. this issue is still ahead of us. we will be going back at it in a variety of ways, some of which you heard described here tonight. there are also funding issues. you may recall we deleted

funding for additional bureaucrats to ramp up enforcement of obama care. we will be looking at it in ways to revisit it and hopefully our friends on the other side of the aisle will have other epiphanies in addition to the 1099 requirements. >> [inaudible] >> i think this had a bigger impact on slowing our effort to get out of this stagnant econ y economy. every meeting i have had -- and i expect the folks behind me will confirm this -- with medium, small and big businesses indicating one reason they are not expanding is the un certain certainty, and certainty, of

what is in this bill. this is a job-crushing measure. one of the single most significant things we could do to get the economy going would be to pass this amendment this afternoon. >> [inaudible] >> it really is the same amendment. here is what i have been saying. i don't get too spun up about that and i'm kind of flattered. keep in mind that when i first walked in with this amendment, i don't think it was really taken very seriously by the other side. i did not get a lot of votes for what i was trying to do. we kept building the support for it, and i suspect a couple of things happened. one is the president mentioned it in his state of the union.

i sure did appreciate that. the second thing that happened is that i suspect people were home over the holidays and got another earful from their small businesses about how this was going to hammer them. so, we got up to 61 supporters very quickly and i think my friends on the other side of the aisle saw you that the handwriting was on the wall. they couldn't let the train leave the station, if you will. so, senator establish -- stabenow was picked to go to the floor and i was very happy to vote for my amendment and vote yes and see 81 votes for it, whether it had her name on it or my name on it. >> some critics have said it is easy to tear things down. will the republicans have any job creation packages to put

forth to replace what you call the job crushing of the healthcare bill? >> the private sector is being crushed by excessive government spepbgd. we have added $3 trillion to our debt in the last two years. at the same time we have lost three million jobs. one of the morse important things we can do to get the private sector going is quit doing what we did in the last congress. we hope to take the country in a different direction. the president is at least rhetorically pivoting on a lot of these issues. we will see if he backs it up with real action and willing to come in our direction on trade agreements, lowering the corporate tax rate, on doing something about this mounting spending and debt, he is going to find a willing partner. >> [inaudible]

>> you know, i will let you know. thanks, everybody. [captions copyright national cable satellite corp. 2011] [captioning performed by national captioning institute] >> the senate judiciary committee had a hearing on the constitutionality of the healthcare law two days after judge vincent in florida ruled it was unconstitutional. it is the fourth federal district court to rule on the constitutionality of the law. with two courts upholding the law in michigan and virginia, and two courts in florida and virginia finding parts or all of it unconstitutional. oregon attorney general john kroger filed an a.m. mick cuss brief in the florida. this is two hours and 40

minutes. 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 ma 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 ben 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 challeng in lower courts but unanimously upheld by the supreme court. i think the me 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 consens 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 t 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 rose 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 floridand 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 cot. 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 politicaluestion focuses primarily on one section.

even if congress has the enumerated powers under section 82 tax and pass laws affecting the heal 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 cerage 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 andhey'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 fort? because a strong majority of americans do not believe their children should be denied insurance because of pre- existing condition 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 constition 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 e moment and fairly applied 18th-ceury rhetoric to 21st ntury reality. i want to recognize senator grassley. >> thank you. i appreciated it the discussion of some of the policy isss within this legislation. whether you agree partsof 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 probl 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 foard 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

docratic 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 toldur 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 fo nearly every provincial law. judge vincent's ruling that the whole law must be strken 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 ate?

some of my colleagues on the other side of the aisle may even make t 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 finallygoing 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. tre 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 genel from t 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 mmerce clause by its own terms only regulates commerce. the argument is that declining toet health insurance is not commerce, but refusing to engage 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 provid 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 disaster. the second argument that has been raised is based on the activity-inactivity distinction. in peru as verses united states, the supre 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 inteeres 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 t 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 biion 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 grassleyentioned 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 obviouslythink 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 constitional. 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 tt 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 behalf of president george w. bush in the recount controversy. he received his b.a. from tulane university. thank you for being here today.

please proed. >> 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 ctract with its customers

when they decide to bua 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 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 wicr. they were providing goods that would enter the commercial mainstream. they were providing gos that were the sort that congress was free to regulate under the interstate comrce. 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. at 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 deee 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 theirst 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

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 at 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 cnty. 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 athing 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 cisions. 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 pows under the commerce clause. because the commerce power has never been construed to include the power to mandate a person must engage in onomic 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 a itself. congress cannot bootstrapped powers this way. in testimony, i explained by te individual mandate is improper because it commandeers the people in viation 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 upholthe constitutionality of the second national bank in case you will hear a lot about today, present 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 wer 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 r legislation with the utmost caution." therefore, regardless of how the supreme court may rule, each of you must decide for urself

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 s 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 imane. come together as they did come in the summer of 1787, they created the greatest common market the worldad 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 i 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 i of economic matters, as

professor fried has put it well. it is a regulion that is critical to the provision tt 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 thi. e 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 i 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 proves 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 byhe 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 ce. at the end of the day, it does not remarkable that this market is when congress is usi 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 giveim an opportunity. >> thank you very much. think senator durbin for holding thiseeting. 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 he 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. e 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 tir 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 ater 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 toenter 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 tew 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 peoe 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 lik

this one, it could go farther. we know that. it has not done so until now. >> forhe record, the other four witnesses have acknowledged explicitly thatthe heal care industry is part of commerce. 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 thgs. most of the case law does speak repeatedly of activities. most bills are regulating activities. it has never limited e 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 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 prision that prohibits insurance companies from denying coverage f 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 questionthey 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 heris, 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 ov the national economy. >> t 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 citizns. congressoesn't have that power. under mr. fried's analysis, ngress 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 prxisting 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 thoughtshat 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