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Unconstitutionality Of Health Care Legislation

Floor Speech

By:
Date:
Location: Washington, DC

BREAK IN TRANSCRIPT

Mr. GARRETT of New Jersey. I can tell by looking at the proverbial clock on the wall at 8:30 that an important election that was just held today with the voting booths now closed just one half hour ago and the ballots all being collected in their boxes and brought to the appropriate places for counting, and we will see--potentially during the course of the next 60 minutes--just how that election should turn out.

Just as an aside, for those who are with us here this evening taking part in this discussion on the constitutionality, or the lack thereof, the unconstitutionality of the health care legislation that's about to come before this House again, we will be interspersing some of the election results so we can keep everyone apprised of just how those elections are turning out.

I mentioned the fact that the election was held today, and I'm sure there will be pundits on the air tonight talking about exactly what do the election results mean up in the State of Massachusetts, not just for the State of Massachusetts, but for the country as a whole; and a number of them will be saying what I have said before, that it's not so much just looking at those two individual candidates, but what their respective parties stand for, and more specifically, what the President of the United States and this administration has stood for over these last 12 months and what his seminal program, his major issue, has been, and that of course is this health care, so-called ``reform,'' the imposition of new mandates and taxes and totally changing the health care configuration and how the delivery of it is done in this country.

Some would make the case that what the election that just closed now 32 minutes ago in Massachusetts is about is whether or not the American public agrees with what the Obama administration has put forth as their major proposal is changing the health care delivery system in the United States or not. We will see the results, if not in the next 60 minutes, at least sometime tonight.

More importantly, though, than what the outcome of that one election will be is what will Congress be doing with that legislation here in the House and in the Senate

this week or next week or whenever they decide to bring back that issue for a vote, and we anticipate that they will.

The fundamental issue, though--this is the one that we'll be discussing in here--is not some of the minutia of that health care legislation, not some of the small language that is buried within--first in the thousand pages that came before this House that I would hazard a guess that probably just about no one on the other side of the aisle read thoroughly and had a complete comprehension of what they were voting on when they voted ``yes,'' nor clearly in the 2,000 pages that came forth in the Senate variation and version of that health care bill.

It's not some of the minutia, not some of the small language, and not so much the details that should be the first question that any Member of Congress should be asking themselves when they're about to vote on that bill; but it's rather the fundamental issue of whether that piece of legislation is constitutional at all.

In my pocket here is my wallet, and in my wallet is my voting card--actually, I have it over here because we just finished voting a little while ago. And as you know, Madam Speaker, every time we vote, we put it in one of these little slots here before we vote red, green, or yellow.

I always suggest to my colleagues that before they vote on whatever the legislation is, they should be asking themselves one fundamental question: Is the bill that they're about to vote on constitutional or not? Does the Constitution of the United States give us, as Members of this body, the authority to pass that law that we're about to vote on?

We are all required, when we become new Congresspeople every 2-year terms, to raise our hands and to say that we support and defend the Constitution of the United States. As a matter of fact, I was just in New Jersey earlier today where now-Governor Chris Christie did the same thing, raised his hand and said that he is supporting and defending not only the Constitution of New Jersey, but also the Constitution of the United States as well. We, as Members of this body, of the House of Representatives, do that every 2 years when we have the honor and privilege of being elected by our constituents at home; we come to Washington and say we will support and defend the Constitution.

As an aside, there is one member of our delegation from Texas who has suggested that it should be a requirement that every Member of Congress and their staffs should read the Constitution at least once each term. Well, I'm not going to say that we have to mandate that; I think it would not be a bad thing for each Member to do it each term. I go through the Constitution on a regular basis, and I hope that other Members would as well. But we have all held up our hands and said that we are going to uphold it, so that is why I suggest to each Member that before they vote on any bill, that they ask themselves is that bill constitutional.

Now, the health care bill that we're talking about here is far more sweeping than just about any other piece of legislation that I have ever dealt with in my short term here in Congress. And I think it is far more devastating and sweeping than any other legislation that we have seen in generations. It would impact upwards of one-sixth of our economic activity of this country. But far more important than that, it would impact our very fundamental liberties that our Founding Fathers intended that our Constitution was designed to protect.

And so that is what our discussion is going to be tonight. And we will eagerly await the outcome of the election in the State of Massachusetts to see what the voters of that State would like to have their voices come in on. But I think the voices of that State will say, whether they support the nature or some aspects of this health care bill or not, I think all of those citizens of Massachusetts, as with the citizens of the great State of New Jersey would also agree with me, that whatever we do on health care in this country should at the very least be constitutional.

Now, one of the primary aspects of this bill that I would suggest has a flaw in it with regard to the constitutionality of it is the health care mandate. And what is that? In the bill, for the first time ever, I would suggest, in the history of the United States, Congress is going to suggest that we are not going to try to be regulating activity, but we are going to try to regulate inactivity.

For a long time now--well, basically, you can go back to the 1930s and the New Deal courts and FDR and the like--Congress has grown in its authority and had the Federal Government grow in its size as far as its reach of regulation and taxation of economic activity in this country. And so now you can see just about every aspect of your life in one way, shape or form having a little bit of a reach of the Federal Government into it as the Federal Government tries to regulate in one way, shape or form.

But that is always in the area of activity. If you're in interstate commerce some how or other, if you're a trucking firm, the Federal Government is going to reach out and regulate your activity. If you're selling some sort of product either in your State or outside of your State, the Federal Government is going to try to come in and regulate that form of activity. If you're in any other form of business, in State or out of State, the Federal Government is going to try and step in in some way, shape or form, I would suggest, and try to regulate that activity.

But never before since our Constitution was first created in 1787 has the Federal Government said we are now going to regulate inactivity. We are going to start regulating you even if you do absolutely nothing. Even if you just stay home, don't buy anything, don't do anything, we are now going to regulate your activity. And we're going to do that regulation in a more personal and profound nature than any other aspect that we've been talking about here on the floor in the last several months or years, and that is your health care and your health insurance.

So in this legislation that the administration has proposed that has passed out of this House, that has passed in the Senate, and now is in some area of compromise on the other side of the aisle, the Federal Government, this administration says, can regulate inactivity. They can step into your house and say, because you are not doing something that the Federal Government believes you should be doing--what is that? buying insurance--we're going to penalize you and we're going to do that with a tax. We have never seen this before. And I would suggest that that is an overreach, a far overreach of what the Founding Fathers ever intended for this government, this Federal Government to be able to do.

It is, therefore, a fundamental flaw, an unconstitutional flaw in this legislation. It is one of the main reasons why I voted against it when it came in this House, and it will be a continuing reason why I will vote against it if ever it comes back on the floor of this House again.

Now, I see I have been joined by some of my colleagues from the floor who have spoken on the difficulties or the problems or the demerits of the health care bill in the past. As I said in my opening comments, there are a number of those areas that we can talk about with regard to the taxation aspect or with regard to the fact that you're putting the government--and I'm looking at a doctor now--between you and your doctor and other problems with this bill as well. There are a whole host of reasons why this legislation is bad as it impacts upon us as individuals and our health quality in this country. But as I said at the beginning, the most profound aspect of it is that it's unconstitutional, and it's unconstitutional because of this mandate.

With that, I am pleased to be joined by Ms. Foxx, who would like to speak on this topic as well.

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Mr. GARRETT of New Jersey. I thank the gentlelady for joining us on the floor this evening and for her remarks for the last several minutes on this very most important issue. As the gentlelady who has come to the floor on numerous occasions in the past to speak to this most profound and fundamental issue, the protecting of our constitutional rights, I once again thank her.

With that, I will now just turn to the gentleman from Georgia, who is familiar, I'm sure, with James Madison and ``The Federalist Papers'' where Mr. Madison said, ``In the first place, it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated powers.'' Congress, in other words, was not set forth free by our Founding Fathers to have unlimited grants of authority but, rather, certain prescribed ones.

With that, perhaps you could help enumerate and share on that point on which Madison was so eloquently quoted 200 years ago. The gentleman from Georgia.

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Mr. GARRETT of New Jersey. I thank the gentleman from Georgia for his passionate statements and litany of facts with regard to the unconstitutionality of this underlying bill. And within all that, there is the question of: What does that mean to me? The unconstitutionality.

What it comes right down to is this: That the Founders were profound and wise in their thinking in establishing the Constitution, and to do so not for their generation but for posterity as well, so that our rights and our liberties would be protected. And I think that is the case you were making.

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Mr. GARRETT of New Jersey. My shot is just to be able to bring this issue to the floor and to the American public and to Members of Congress as well. As my opening

comment was the importance of looking at the constitutionality of any legislation, or particularly this legislation--you probably recall this--I was not the first one to bring this issue up. Reporters were actually the ones who brought this up to our leadership here in the House and to the White House as well. I wasn't there when it happened. All I know is what I read in the paper.

But when the issue of the constitutionality, whether it was the mandate provision that we are talking about principally here or the other aspects as well, my understanding from what I read in the press is when the reporter asked Speaker Pelosi about, Did you consider the constitutionality of this legislation, she just laughed it off and said, Of course not. We are not looking at that.

My understanding is, likewise, when that question was posed to the administration, Did you consider the constitutionality of the health care bill, their answer was even more emphatic: no, we didn't look at that at all. That is so profound of an answer, to think that the administration would not look at the constitutionality of a piece of legislation that is going to impact upon personal choices of the health decisions of Americans and one-sixth of the economy as well.

The Founders understood this issue as far as protecting our freedoms and our liberties and that you need a document in order to do so. One of our first Chief Justices, Chief Justice Marshall, famously observed that the powers of the legislature, here in the Congress, are defined and limited, as the gentleman from Georgia just enumerated the 18 powers in it, and that those limits may not be mistaken or forgotten in the Constitution as written.

What he said was that the Constitution--I have a copy over here--was written because we want to put down the limitations on the power of the government to go and exercise authority over the public to a limited factor so the public still has some freedom and liberty at the end of the day. He continued on with that by saying, Should Congress, under the pretext of executing its powers, pass laws for the accomplishments of objects not entrusted--perhaps some of those list of requirements or ideas that this lady who called you from Alabama, was it--that she would like somebody to take care of her for her--should Congress under the pretext of executing its powers pass laws via accomplishment of objects not entrusted to the national government--this is where I yield back to you on the Federalism issue--it would become the painful duty of this tribunal--that meaning the U.S. Supreme Court--should a case requiring such a decision come before it, to say that such an act was not the law of the land.

What does that mean? That means that Congress does not have the ability to say that something is constitutional just because we say it is. Congress does not have the ability of saying that something is necessary and proper just because we say it is. Congress does not have the ability to say something is providing the good and general welfare for the country and therefore is constitutional just because we say it is.

We have a Constitution that is a contract entered into by the people of this country with their government defining what the authority is on the various levels of government, and we here as Members of Congress must live within the terms of that contract. We cannot go outside of the terms of the contract any more than any one of us can go outside the terms of a contract that we entered into when we buy a house or buy a car or enter a contract with some store or what have you.

We are limited by what the Constitution does and says. That is what we are trying to ask that this administration keep in mind and what we are asking the Speaker to keep in mind as well when they bring forth a bill to the floor trying to do something that we all agree needs to be done, and that is to reform the health care delivery system in this country. But we would suggest that it be done in a way that is constitutional and protects the freedoms and liberties of the American people.

And with that, I yield to the gentleman whatever time remains.

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Mr. GARRETT of New Jersey. I am trying to think of the quote. You can try to help me out here. ``States were created as the----''

Mr. BISHOP of Utah. ``Laboratory of democracy.''

Mr. GARRETT of New Jersey. ``--laboratory of democracy'' so all of those experiments could go on. Instead, what we have are the States becoming the guinea pigs for the democracy because the States are being controlled by the Federal Government in a way that is not the way the American public would like to see it.

So I thank the gentleman from Utah for, once again, joining us on the floor in an eloquent and educational format, as you always do. I appreciate that in a commonsense way that we can all understand it as well.

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