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Unconstitutionality Of Health Care Legislation

Floor Speech

Location: Washington, DC


Ms. FOXX. Well, thank you, Mr. Garrett. I appreciate your taking the lead in organizing this Special Order tonight to give us an opportunity to talk about the health care bill that has been proposed by President Obama and Speaker Pelosi. It has certainly gotten a good bit of news in the last few months.

In the news that I watch on a regular basis, particularly in the last few days, we have heard a lot about the health care bill and, as you indicated, about the impact or the possible impact on the election that is being held in Massachusetts today to fill a vacant Senate seat. I think it is very important that we continue this debate, even though there may not be many people watching this, because generally people who are watching C-SPAN, I think, are very interested in what is going on politically in the country, and probably most people are watching what is happening with the outcome of the election in Massachusetts. It has been about 45 minutes now since the polls closed, and I know, when I was watching, just before I came to the floor, the comment was made that it probably won't take long to get the results of the election as Massachusetts is a rather small State, and they have good reporting mechanisms. So we will probably hear, and I think, for months, will continue to debate whether this very, very ill-advised bill that has been proposed has had an impact.

I speak often to groups, school groups, and I always like to talk about the Constitution because it is so important to our country and to why we are the country that we are. No other country in the world has had such an endearing and enduring Constitution as we have had. If you type out the Constitution on 8 1/2 -by-11 paper, double spaced, like you would a term paper, it only turns out to be about 18 pages long. It's rather short as constitutions go. Many countries have constitutions that are thousands and thousands of pages. I think one of the geniuses of our Founders was that they were able to write a very short Constitution that has stood us in good stead for over 200 years, and it continues to stand us in good stead.

One of the things I always point out to the students when I talk to them is the first three words of the Constitution. I wish I had a poster, but I don't. Even in the original document, these three words were written larger than the other words: ``We the People.'' The Founders wanted the people of this country to be in charge of our government. They knew about the tyranny of a king, and they knew about the tyranny of a parliament. They never wanted those tyrannies to be visited upon the American people again, so they wrote a preamble that started that way: ``We the People of the United States.'' That's what we need to focus on here in the Congress all the time.

I agree with my distinguished colleague from New Jersey (Mr. Garrett), which is that, every time we vote, we should ask ourselves: Is my vote going to be a vote that supports the Constitution as I swore an oath to do? I think that is very, very important.

I also think that the 10th Amendment to the Constitution doesn't get nearly the kind of attention that it deserves. The First Amendment gets a tremendous amount of attention, as it should; but all of our amendments are extremely important, and I think it's worthy to point out that in the over 200 years since the Constitution was adopted that we have only had 27 amendments to the Constitution, and we haven't needed a lot of amendments to the Constitution. We've had opportunities to adopt other amendments, and we haven't done so. I want to point out the 10th Amendment and read it, because I think, again, it's so important to this discussion that we're having on why the proposed health care bill is unconstitutional.

The 10th Amendment says, ``The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.''

The Founders did enumerate certain things that the House should do, that the Senate should do, that the President should do, and those things that are not enumerated by the Constitution are left to the people and are left to the States. Nowhere in the Constitution do we read the words: The government shall provide for health care. Nowhere. In fact, the words ``health care'' are nowhere in the Constitution. In fact, the Constitution says in the preamble that the people are ``to provide for the common defence, promote the general welfare.'' Well, the main job of the Federal Government is to provide for the common defense. Unfortunately, we have gotten far, far away from that notion.

Most of the things that have been done by the Federal Government which are unconstitutional, in my opinion, have been done for good reasons. They're not malevolent reasons, but they're wrong. We should not be funding education, for example, and some of us who are here tonight have talked about that in the past. We certainly, I don't think, should be mandating that individuals in this country purchase health insurance on penalty of being put in prison. It is ridiculous that we have people contemplating that in this country. It is a tremendous overreach of power.

I want to point out something that my good colleague has pointed out, which is the issue of our being penalized for the absence of something as opposed to actions. Not buying health insurance will get a citizen in trouble in this country. Never before has that happened.

I want to point out something that the President has said and that our colleagues on the other side of the aisle who are pushing this terrible bill have said.

They said, Oh, when the American people understand what's in this bill, then they will like it. Well, that in itself, to me, is a condemnation of the bill. The bill that has been voted on in the Senate they didn't have a chance to read, and what's being negotiated now between the House and the Senate is being done behind closed doors by a very small group of people--all in secret. Well, if the bill were put out there now, the American people could decide: Do they like the bill or not like the bill? They're saying, from what they know and from what we know and from what had been proposed in the bills in the House, we know that the bills have bad elements in them, and that's what the American people are reacting to--the elements that we know which are bad.

The additional sad situation that we face is that there is a lot that has been agreed to by four or five or six people that nobody knows anything about. That is not the way to operate in a republic. That is not the way this Congress should be operating nor should our President be a part of that.

We have ample evidence from good constitutional scholars that this is not good.
[From the Wall Street Journal, Jan. 2, 2010]

Why the Health-Care Bills Are Unconstitutional

(By Orrin G. Hatch, J. Kenneth Blackwell and Kenneth A. Klukowski)

President Obama's health-care bill is now moving toward final passage. The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional. Legally speaking, this legislation creates a target-rich environment. We will focus on three of its more glaring constitutional defects.

First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce.

Congress has many times stretched this power to the breaking point, exceeding even the expanded version of the commerce power established by the Supreme Court since the Great Depression. It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity. That is not a difference in degree, but instead a difference in kind. It is a line that Congress has never crossed and the courts have never sanctioned.

In fact, the Supreme Court in United States v. Lopez (1995) rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said it could not do.

Some have argued that Congress may pass any legislation that it believes will serve the ``general welfare.'' Those words appear in Article I of the Constitution, but they do not create a free-floating power for Congress simply to go forth and legislate well. Rather, the general welfare clause identifies the purpose for which Congress may spend money. The individual mandate tells Americans how they must spend the money Congress has not taken from them and has nothing to do with congressional spending.

A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states' obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed ``cash for cloture'' because it secured the 60 votes the majority needed to end debate and pass this legislation.

A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.

This violates the letter, the spirit, and the interpretation of our federal-state form of government. Some may have come to consider federalism an archaic annoyance, perhaps an amusing topic for law-school seminars but certainly not a substantive rule for structuring government. But in New York v. United States (1992) and Printz v. United States (1997), the Supreme Court struck down two laws on the grounds that the Constitution forbids the federal government from commandeering any branch of state government to administer a federal program. That is, by drafting and by deliberate design, exactly what this legislation would do.

The federal government may exercise only the powers granted to it or denied to the states. The states may do everything else. This is why, for example, states may have authority to require individuals to purchase health insurance but the federal government does not. It is also the reason states may require that individuals purchase car insurance before choosing to drive a car, but the federal government may not require all individuals to purchase health insurance.

This hardly exhausts the list of constitutional problems with this legislation, which would take the federal government into uncharted political and legal territory. Analysts, scholars and litigators are just beginning to examine the issues we have raised and other issues that may well lead to future litigation.

America's founders intended the federal government to have limited powers and that the states have an independent sovereign place in our system of government. The Obama/Reid/Pelosi legislation to take control of the American health-care system is the most sweeping and intrusive federal program ever devised. If the federal government can do this, then it can do anything, and the limits on government power that our liberty requires will be more myth than reality.

With that, I would like to yield back to my colleague from New Jersey (Mr. Garrett).


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