National Defense Authorization Act for Fiscal Year 2012

Floor Speech

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Mr. GRASSLEY. Mr. President, I am pleased the Supreme Court has agreed to hear the arguments in three cases challenging the constitutionality of the health care reform law Congress passed 2 years ago. I appreciate that the Obama administration asked the Supreme Court to hear this question. In light of the importance of these cases, I have written to Chief Justice Roberts asking him to provide live audio and video coverage of the oral arguments.

The constitutionality of the health care law was the subject of a hearing in the Judiciary Committee last February. Regrettably, the Judiciary Committee would not hold such a hearing until after the bill became law. Those who voted for that law should have given these constitutional questions more attention before they voted for the bill. Today I wish to discuss the issues that are presented in the cases, focusing primarily on the constitutionality of the individual mandate and another recent appellate court ruling on that topic.

When Congress passed this law last year, we were told it would be very popular and truly and clearly constitutional. Neither is true. Polls show that the law remains unpopular. The law's individual mandate provision requires nearly all Americans who do not otherwise have health insurance to purchase such insurance or to pay a monetary penalty. That provision also raises serious constitutional questions about the scope of congressional power to regulate interstate commerce.

Normally, the Supreme Court grants only 1 hour for oral argument. Here, the constitutional questions associated with the bill are so difficult that the Supreme Court has decided to devote 5 1/2 hours to oral argument. The answers to the questions are not clear. Besides considering the commerce clause question, the Court will also hear oral arguments on three other questions. The first is severability: Will the remainder of the law stand if the individual mandate is struck down? Normally, the Court does not even consider severability until it has decided that a part of a statute is, in fact, unconstitutional. The fact that at least four Justices have voted to hear arguments on this question should cause uneasiness among those who are confident that the law is constitutional. The second issue is the constitutionality of the law's expansion of the Medicaid Program upon the States. The third is whether procedurally the law can be challenged in the courts before it actually takes effect.

There is always the possibility that after all the briefs, all the arguments, and all the public expectations, the Supreme Court will finally resolve whether the health care law is, in fact, constitutional. Conversely, the Court could determine that it is too soon for it to rule on the issue because the law hasn't fully gone into effect.

Before the Supreme Court agreed to hear these cases, the U.S. Court of Appeals for the DC Circuit ruled that the individual mandate was within the constitutional power to regulate interstate commerce. That court concluded that this result followed from existing Supreme Court decisions. It also ruled that Congress could, therefore, require private individuals to purchase any product that Congress chose. The majority opinion was written by Judge Laurence Silberman.

I respect Judge Silberman, but I strongly dispute his ruling and I wish to take this opportunity to outline my disagreements with Judge Silberman.

I think Judge Silberman has selectively read Supreme Court decisions. For instance, he noted that no Supreme Court has ever held the commerce clause authority is limited to people who are currently engaging in an activity that involves interstate commerce, but it is equally true that no Supreme Court case has ever held that the commerce clause covers people who are not engaging in an activity and may never do so in the future. It is not clear why Judge Silberman focused only on the first formulation and did not consider the second. This omission is even more peculiar when compounded by his omission of the Supreme Court's repeated skepticism of congressional claims that it can exercise a power that it never before discovered in more than 200 years of our constitutional history. The Court has always been wary when a new power is claimed.

Judge Silberman recognized that the power claimed here to require that the purchase of a product or service is novel, but he did not continue with the next step that the Supreme Court would have taken. Instead, the judge concluded that the argument against the power was equally novel.

I think it is common sense no one would have made such an argument if Congress had not claimed this power. For instance, when the Supreme Court in the Plaut case ruled that Congress could not reinstate a statute of limitations once it had expired, it pointed out that Congress had never done that.

It did not belittle the argument against the practice by characterizing it, as Judge Silberman did, as novel. In fact, the argument against the novel claimed power won.

Judge Silberman stated that Congress cannot regulate noneconomic behavior based on a weak link to interstate commerce. He ruled that Congress cannot regulate intrastate economic activity that in the aggregate does not substantially affect interstate commerce. Agreeing with Judge Silberman, so far so good. But then he found that decisions whether to purchase health insurance do affect interstate commerce. However, the Supreme Court has never ruled that Congress can regulate decisions--in other words, thoughts--on whether to purchase a good or service. The Court for decades has referred to the power of Congress to regulate activities that affect interstate commerce.

Since Congress cannot regulate noneconomic activities or intrastate economic activities that have no combined effect on commerce, then it follows naturally that Congress cannot regulate at all inactivity--such as refraining from buying a product.

Judge Silberman considered the ``activity'' argument and, in my mind, he repeated an earlier error. He concluded that no Supreme Court case had ever said that existing activity was necessary for Congress to exercise its power to regulate interstate commerce.

But it is just as true that many Supreme Court cases have described the kinds of activities Congress may regulate under the commerce clause. Judge Silberman could have as accurately found that no Supreme Court case has ever held that Congress has the power to regulate commerce in the absence of an activity.

Another way Judge Silberman selectively read the Supreme Court precedents is that he could have struck down the individual mandate consistent with all Supreme Court precedents.

This point was confirmed in the Judiciary Committee hearing we held in February. I asked the witnesses whether the Supreme Court could strike down the individual mandate without overruling any of these precedents. The Republicans' witnesses both responded that the Court could do so. The Democrats' witnesses identified no cases that would have to be overturned. So not only is the individual mandate unconstitutional, but the Supreme Court could strike it down without overturning any of its precedents.

Judge Silberman disagreed. He said the mandate here is close to the facts of Wickard v. Filburn, a famous 1942 Supreme Court decision that broadly read the powers of Congress to regulate interstate commerce. The Court then upheld the second Agricultural Adjustment Act. Under that law, a farmer could be penalized for growing wheat on his own farm even for the use of his own family and livestock. He could not grow that wheat if he exceeded his wheat quota. The homegrown wheat substituted for the wheat the farmer otherwise would have had to purchase on the open market, so the Court concluded that would depress the price of wheat when combined with the actions of similar farmers all across the country. So, obviously, in Filburn, that farmer affected interstate commerce. That may not make sense to us today, but it made sense in 1942, and it is still a precedent.

Judge Silberman, however, ruled that the regulation at issue in that case is very similar to the individual mandate, which is an inactivity if you decide not to purchase it, and that any activity involved in the Wickard case was incidental to simply owning a farm.

I take issue with that. The Wickard case differs conceptually from the individual mandate. Farmer Filburn, in 1942, could avoid the regulation by ceasing to farm, by no longer engaging in the regulated activity. In fact, that is true in all of the cases Judge Silberman cited. A person can avoid laws penalizing cultivation of marijuana by not cultivating marijuana. A person can avoid laws criminalizing child pornography by not downloading child pornography. A person can avoid public accommodation regulations by not operating a public accommodation. Those are activities Congress can constitutionally regulate under the commerce clause.

But that is not the case with the individual mandate. You cannot avoid being subject to that mandate. If you exist, if you are alive, an individual in this country, you are regulated. And, of course, that is not the situation with respect to any other decisions Judge Silberman cited. It is why he is, respectfully, wrong to find that the infringements on liberty are the same in those cases as they are in the individual mandate. The liberty of avoiding the regulation was preserved in the laws at issue in those cases. Liberty would prevail because you did not have to abide by the law if you were not in that business, but not so with the individual mandate under the health care reform bill.

Moreover, I disagree with Judge Silberman's assertion that it is for political reasons and not constitutional ones that it took until 2010 for Congress to conclude that the

Constitution allows it to force people to buy goods or services. If this power truly existed, Congress would have exercised it frequently and long ago.

Why would Congress pass tax incentives to encourage people to buy hybrids if Congress could simply order you or anybody else to buy hybrids? Why would Congress give strong incentives for farmers not to grow wheat so as to keep the price up when it could force people--the consumer--simply to buy wheat? Why could it not raise the price of beef by requiring vegetarians to purchase it, so long as it did not require them to eat that beef? Why would Congress take the political heat for raising taxes when it could order some people to pay third parties for goods and services?

Even more sinister, Members of Congress could use this supposed power under the commerce clause to entrench ourselves in office. Congress could require that the goods and services Americans must purchase be limited to those providers who contribute to the political party of the Members. Or it could prohibit purchases from those providers who contribute to the other political party. It could require people to buy houses or cars or other products in areas where that political party has its base of support. Sounds a little bit like Mussolini's Italy, doesn't it?

Before the Supreme Court's Lopez decision, there were people who believed Wickard v. Filburn, since 1942, gave Congress the ability to regulate anything Congress chose to regulate. Then, in the Lopez case, the Supreme Court ruled that the commerce clause did not permit Congress to regulate the possession of handguns near schools. At the time, there was widespread fear among liberals that the power of Congress to regulate interstate commerce would be jeopardized. Those fears did not materialize. Similarly, today, people such as Judge Silberman again believe that Wickard v. Filburn gives Congress the ability to regulate nearly anything it chooses and, therefore, the individual mandate must be upheld. I do not agree.

Where I give Judge Silberman credit--and if you knew the man, you would know this is his character--is in his intellectual honesty. Unlike the Obama administration, Judge Silberman recognizes the truth. If Congress can force people to buy health insurance, he admits, it can force people to buy any goods or services. It can regulate inactivity because it can affect interstate commerce. This is consistent with the opinion of the Congressional Budget Office, which wrote in a 1994 memorandum that ``a mandate-issuing government'' could lead ``[i]n the extreme'' to ``a command economy, in which the President and the Congress dictated how much each individual and family spent on all goods and services. ..... '' That is not the America our Constitution writers envisioned.

At the oral arguments in the DC Circuit, the judges asked the Obama administration lawyer if Congress could require Americans to buy broccoli, or to buy cars to keep General Motors in business, or to set up mandatory retirement accounts in place of Social Security. The lawyer weaseled an answer, saying that ``It would depend.'' That is not a principled position on the nature of the supposed powers of Congress, which has no limit.

Judge Silberman is a former Ambassador to what used to be Yugoslavia. He understands the difference between a command economy and a free market economy. What his decision implicitly states is that Wickard v. Filburn permits Congress to enact a command economy with no individual economic freedom whatsoever. But our Constitution provides protections for private property and for contracts. It establishes some form of a free market system. Judge Silberman's interpretation may imply that Wickard v. Filburn was wrongly decided and should be overturned, but I do not believe it is necessary to overrule that decision, any more than it was necessary to reverse the Filburn case when they decided the Lopez case.

Apart from cases, we need to go back to the basics. We should consider first principles in evaluating the constitutionality of the individual mandate in the health care reform bill. The people are sovereign in our country. The government serves the people, not the other way around. That is enforced through our Constitution. And that Constitution gives Congress just limited powers.

In the Federalist Papers, James Madison wrote that the powers of the Federal Government are few and are defined, and the powers of the States are many and are undefined. Although there is much more interstate commerce in today's economy than there was in 1787, the power is still limited. If Congress can require Americans to purchase goods and services that Congress chooses, without a limiting principle, then there is no limited Federal Government. There would be no issue that Congress could not address at the Federal level. There would be no range of State powers that the Federal Government cannot usurp. And there would be no individual economic autonomy that the Federal Government must respect. Surely, the Constitution would not have been ratified if Americans had understood it to permit such a result.

The upcoming Supreme Court decisions on the constitutionality of the individual mandate are important, not only for the fate of that provision but for their effect on the powers of the Federal Government and for the very survival of individual economic activity.

I yield the floor.

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