Unconstitutionality Of Health Care Legislation

Floor Speech

Unconstitutionality Of Health Care Legislation

Mr. BISHOP of Utah. I thank the gentleman from New Jersey for this. You know, we are talking about a potential health care bill which, whether it is the Senate or House version, is an enormous expansion of the government. Not only is it an enormous expansion of the government in the cost for it, but it's also an enormous expansion in the amount of power.

Now, both bills are based on the commerce clause of giving them their authority to implement this program. The commerce clause, as we know, over the last 70 years has been so expanded, its shape has basically been lost. But notwithstanding even when the courts have ruled on commerce clause issues, they have two thresholds that must be maintained before something has usually been declared constitutional for them.

One is the activity has to have a significant impact on interstate commerce. I think you can argue this bill will. But the second is the willing participant threshold that must be met, which means the commerce clause has said Congress can do that which will stop an activity; but never, never have they said the commerce clause can be used to forbid inactivity or force individuals to pay a fine not only for doing nothing, but for doing the wrong kind of thing according to the Federal Government.

Now that is the problem this piece of legislation has, because if you can force people to go through this to have a certain kind of health insurance, they can force Americans to do anything at any given time. The Constitution simply says commercial activity in which people choose to engage, but cannot require that they engage in those commercial activities. So it's one of those simple concepts. Let me give an example.

We passed a Cash for Clunkers bill, which gave incentives for people to go and get a certain kind of car. We still allow people that choice and option. If you use that same program with the principles within this health care monstrosity, we don't have a Cash for Clunkers program; we simply have a clunker program, which will then have the government establish a bureaucracy, an organization not only to tell you what to buy, but when to buy it and give you the opportunity to pay for it yourself or be fined by the Federal Government.

Now that is not the way it's supposed to be. In Mack v. The United States, the Supreme Court said, The Constitution protects us against our better instincts because it divides power to help us so that we do not succumb to the temptation of concentrating power in one location as an expedient solution for crisis of the day. And that is indeed what this particular bill would do.

Mr. GARRETT of New Jersey. With that, I will just have an update from the Cloakroom that on the Massachusetts race that the Republican candidate Brown has won and the Democrat has conceded with 53 to 46 percent on the votes. Thank you.

Mr. BISHOP of Utah. That news, if I can get the time from the gentleman from New Jersey, is as amazing as the potential harm that this bill could do to all Americans that are there. We've spoken many times on the floor about the concept of the general welfare clause, which was not an expansion of opportunity for Congress. It was supposed to be a limitation. And I did at one time get a call--we spoke once on what was the interpretation of the general welfare clause--I got a call from a lady from Alabama after that, saying it was very eloquent, but these are all the things I like the government doing. And then she gave me a list of stuff.

I said, Ma'am, you basically missed our intent. It was not the government can do these things; it is which level of government should do these things. Not every issue has to rise to the importance that Congress needs to do it, which would lead to another element of the Constitution that I think this Obama health care-Democrat-Reid-Pelosi, whatever you want to call it, is violating, which is Federalism.

But before I do that, I would yield back to the gentleman from New Jersey to allow him to at least give some comments upon this particular issue, and then if we want to go back into Federalism--you don't have a whole lot of time--I'd be more than happy to pick that up at some later date. But I'd like to yield back to the gentleman first and at least give you a shot at this thing.

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.

Mr. BISHOP of Utah. I appreciate you yielding again on this.

Let me just say that there are several concepts that we have talked about here. One, does it meet the threshold of the commerce clause according to the courts? I do not think it does. You have also mentioned several other concepts, that just because Congress says this is a necessary and proper act doesn't necessarily mean it is a necessary and proper act.

It also bothers me that we forget the very essence of federalism upon which this country was founded, which means simply, it is not essential for the Federal Government to have to solve every problem. In fact, sometimes it is better if the Federal Government does not. I have used that example many times before about records. When I was younger, if I wanted a song, I had to buy the entire record. Now there is an iPod that my kid can download the song that I want, too. If I want vanilla, Ben and Jerry's still has 34 flavors from which I can choose.

Every part of our lives is now based on the concept of choice and options for American people, except the government. The Federal Government is still the last bastion of one-size-fits-allism, where we tell people what they ought to be doing rather than allowing them to have choices and options. I say this because some people said, Well, if we don't do this, we have nothing. That is not true. States are moving forward. My State already has implemented a process that gives people 66 options based on the demographics of my State, and everything we are doing in Utah is stopped dead. If this Federal bill passes, they succeed, they now dictate everything that will happen.

States are different. Massachusetts has a program they seem to like. It would not work in Utah. The demographics of Utah would not allow our program to be successful in Massachusetts. But that is why there is the brilliance of federalism, so there can be 50 different innovative ideas and people have the chance to experiment and try and prove and find something that works for their particular area. In a nutshell, that is a very brief problem. This destroys the concept of federalism.

I will yield back to the gentleman from New Jersey.

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.

END

Source