Healthcare

Floor Speech

Mr. GRASSLEY. Mr. President, when the Congress passed the health care law, it imposed a mandate on individuals who lacked health insurance to purchase it. Since then, a number of courts have held that the individual mandate exceeds the power of Congress to regulate interstate commerce.

The Supreme Court will soon hear a case on this question.

The Supreme Court, which usually gives a case 1 hour of oral argument, is giving the various issues in this case 5 1/2 hours. This is a modern record.

The Supreme Court should exercise its powers of judicial review carefully. One of its major principles of judicial restraint is that an act of Congress is presumed to be constitutional. But this is a presumption that can be rebutted. It derives from the respect that one branch of government gives when reviewing the actions of another.

If Congress has made a determination that a statute is constitutional, the Supreme Court should give that finding some level of deference.

But the presumption rests on a premise that Congress has made a considered judgment on the constitutionality of the laws it passes. In the case of the health care bill, this did not happen. Republicans raised a constitutional challenge to the individual mandate that was brushed aside by Democrats who favored the bill as a policy matter, and were not going to let a serious constitutional issue get in the way of passing the law.

In fact, we know that there was no Congressional consideration of the constitutionality of this unprecedented restriction of the freedom of American citizens.

I mean unprecedented literally. Congress has never before discovered or exercised this power in more than 200 years of this country's history. And since Congress has never before imposed a requirement to purchase a product, no Supreme Court precedent has ever found that Congress may do so.

Instead, apart from the regulation of items such as navigable waterways or communication lines, the Supreme Court has always discussed the subjects that Congress may regulate under the Commerce Clause as ``activities.'' The Court has never held that Congress can use its Commerce Clause power to regulate inactivity--or require people to engage in commerce. The Court has found that Congress cannot regulate intrastate economic activities that in combination do not affect commerce. And Congress cannot regulate non-economic activities, such as carrying a gun in a school zone.

So it should be clear that Congress cannot regulate inactivity--such as a thought or a decision not to purchase health insurance.

Congress has great power under the Commerce Clause to reduce individual freedom. In 1942, the Court ruled in Wickard v. Filburn that a farmer could be penalized for exceeding a quota on the amount of wheat he could produce, even when the excess went for providing food for his own farm and its livestock.

And that Commerce Clause decision has allowed Congress to pass many significant regulatory laws, such as environmental laws, drug laws, and the public accommodation provisions of the civil rights laws.

But in every such case, the regulated person retained the freedom to avoid being regulated. A person who did not want to comply with environmental laws could stop engaging in the activity that fell under the environmental laws. A person who did not want to be subject to the drug laws could avoid transporting drugs.

And a person who did not want to adhere to the public accommodation laws could leave the public accommodation business.

The individual mandate is different. The mandate requires action. And there is no escape. A person cannot opt out of the activity that triggers the regulation because the mandate applies even to inactivity. If the person is alive, then he or she has to buy health insurance. That is a serious and novel threat to individual freedom.

Congress has offered incentives to change people's behavior.

But it is hard to see why Congress would do that if it had the power it now claims to force people to buy particular goods and services. Under this logic, Congress could require people to buy new GM cars, so it would not have enacted Cash for Clunkers. Similarly, this supposed power would allow Congress to order people to pay money to third parties rather than raising taxes. And a decision upholding the mandate would permit Congress to keep beef prices high by requiring vegetarians to buy beef.

Members of Congress could use this supposed Commerce Clause power to entrench themselves in office. They could require people to buy houses or cars or other products in areas where their political party has its base of support.

Despite the arguments of the Obama Administration, the power it claims that Congress can use to compel people to buy goods and services is not unique to health care. The judges who are honest recognize that if Congress can force people to buy insurance, Congress can force the purchase of any product or service.

It can regulate inactivity because that can affect interstate commerce.

This conclusion is consistent with the opinion of the Congressional Budget Office. In a 1994 memo, CBO wrote that ``a mandate-issuing government'' could lead ``in the extreme'' ``to a command econom[y] in which the President and the Congress dictated how much each individual and family spent on all goods and services.''

In June of this year, the Supreme Court unanimously decided in the Bond case that an individual--not only a State--could challenge the constitutionality of a Federal statute as exceeding the power of Congress to enact under the 10th Amendment. The Court wrote, ``By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.''

The case now before the Supreme Court raises first principles about our republic. The people are the sovereign in our country. The government serves the people, not the other way around. That is enforced through a Constitution that gives the Congress limited powers. In the Federalist Papers, James Madison wrote that the powers of the Federal Government are few and defined, and the powers of the States are many and 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. The 10th Amendment would be a dead letter, as there would be no powers reserved to the States.

Congress exceeded its enumerated powers in passing the individual mandate.

It attempted to create an all-powerful Federal Government that posed a threat to liberty that the Supreme Court unanimously warned against in the Bond case. All the Supreme Court need do to strike down the mandate is to adhere to its position in Bond. If it departs from that view and upholds the mandate, then our hopes for liberty may depend on a new President charting the course contained in Judge Kavanaugh's dissenting opinion in the D.C. Circuit case. Judge Kavanaugh wrote that a President is not required to enforce a statute that regulates private individuals that the President believes is unconstitutional.

This is true even when a court has held the statute to be constitutional.

Mr. President, the upcoming Supreme Court decision on the constitutionality of the individual mandate is important not only for the fate of that provision, but for its effect on the powers of the Federal Government and the very survival of individual economic liberty.

I yield the floor.

I suggest the absence of a quorum.

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