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Supreme Court Health Care Decision

Floor Speech

Location: Washington, DC

Mr. GOHMERT. Mr. Speaker, I appreciate the comments of my friend from Texas. We do have some disagreements, but I want to go back to the issue of jobs.

People are hurting. Without jobs, the unemployment has been higher than the President said it would ever get if we would just simply give him about a trillion dollars to give away to his friends, that that would make it all better. Well, it didn't.

What we've seen over and over from this administration is a complete disregard for the rule of law. When you look at all the people who have been drawn into this country illegally, in violation of our immigration laws--even though there is no country in the world that allows the immigration that this country does and the wide open gates that we do. But we do have parameters.

We've been told there may be a billion, billion and a half people who want to come to this country. If they did all at once, they would overwhelm us, and there would be no country for others to come to.

Why do so many want to come here? It's because we've always had regard for the rule of law. When there were those who would ignore the rule of law and put partisan and personal benefit above the law, eventually they had to account. Some have gotten away, but this country has done a better job of being fair across the board than any other country in history. That's why so many want to come here, because we've had more jobs, a better economy, and made more advancements than any country in history.

Yet, on the issue of immigration, this President stands up and announces we're going to ignore the law, just as he did on marriage. There is a proper law that was signed into law by President Bill Clinton, enacted by Congress, upheld, and he says we're going to ignore that because we don't like it. There goes the rule of law.

When it comes to ObamaCare, we've passed this law. But you know what? So many of the people that pushed this through and rammed it down the throats of America, they're asking for waivers and they're good friends, so we're going to give them waivers so they can ignore the rule of law.

How about the auto bailout? Ignored. The bankruptcy law? It ignored the Constitution and took away dealerships and gave them to others. This was a place where the rule of law was completely ignored.

Then this President stands up and says: Not only are we going to ignore the rule of law, duly passed law, but as I speak, I will create law. I now speak into effect new work visas and work permits that have never existed. But just as the ancient pharaohs or the leaders of the ancient world, as I speak, so it must be. I'm speaking into effect new work permits. I'm speaking into effect an ignoring of the laws that were duly passed. I'm speaking into effect a chance to give them jobs that Americans are hurting and trying to get.

We also have an Attorney General who was not only asked about Fast and Furious, he was asked about Justice Kagan on the Supreme Court: Are you aware of any instances during Justice Kagan's tenure as Solicitor General of the United States in which information related to patient protection and affordable care and/or litigation related thereto was related or provided? He refused to answer.

When did your staff begin removing Solicitor General Kagan from meetings in this matter? On what basis did you take this action? On what other matters was such action taken?

Look, the rule of law required that when it turned out there were possibly thousands of abuses of the national security letter in a Republican administration, I picked up the phone, called the chief of staff of my President, and said, This is unforgivable. We need a new Attorney General. Where is my friend across the aisle who will step up and say, the rule of law is too important?

We have Justice Kagan, who is ignoring law 28 U.S.C. 455 that says, You must disqualify yourself in any case in which your impartiality might reasonably be questioned. It must be reasonably expected that either she ignored the law, did not do her job as Solicitor General, was totally negligent, or she did her job, and she should not have sat on this case. She should have disqualified.

I beg and plead for my colleagues across the aisle to step up, as I did when the Attorney General was responsible for presiding over an injustice, and call for her resignation. It is contemptuous of Congress.


Mr. GOHMERT. I thank and greatly appreciate my friend, Mr. Clarke. That is obviously an important announcement. I didn't realize that the United Way had been around 125 years. They do great work, and I appreciate my friend, and I do mean my friend, calling that to our attention.

The Obama administration had an agenda item, getting ObamaCare passed. Elena Kagan was Solicitor General, and she continued to be Solicitor General even up until after the time when the first lawsuits were filed against ObamaCare. Now, she gave testimony before the Senate that satisfied them at the time that she was pure as the driven snow and she would in no way compromise integrity. That was the feeling that was gotten. She got the votes that she needed to be confirmed, and then went on to the U.S. Supreme Court.

But since that time, more questions have arisen. Wait a minute, she was there during this, that, and the other. When ObamaCare was being drafted, when it was being prepared, and even after it passed and it became law, she was the Solicitor General.

And so now that we see all of these things in perspective, we go, wait a minute, could she have been the worst Solicitor General in American history that she would never advise the President, her boss--never advise him--on the litigation that would surely be coming when his prize legislation got passed, if it got passed? Because a legitimate lawyer, an adviser, a counselor, will tell the client--in this case, the President--Look, if you want to have this pass constitutional muster, here's what you need to do. Let's get this verbiage in one place, let's get this in another.

Could she have foreseen that perhaps a weakness of the brilliant John Roberts would be, if you call something a penalty in a bill and then later call it a tax after it's passed, that maybe the Supreme Court would buy it? I don't even think that Solicitor General Kagan could have foreseen that John Roberts would totally abandon intellectual consistency. No matter how intelligent, I don't think she could have seen that coming. I certainly didn't.

But the law regarding judges, Federal judges, is not just a matter of ethics--gee, you can have an ethics complaint filed against you as you can if you're a practicing attorney or a judge. The law is 28 U.S.C., section 455, and it says:

Any justice, judge, or magistrate judge of the United States shall disqualify himself--that's generic for him and her--in any proceeding in which his impartiality might reasonably be questioned.

Well, it is absolutely clear that her impartiality is certainly questionable in her boss's most prized legislation: ObamaCare.

My friend from Alabama, one of the great Senators over at the other end of the hall, Jeff Sessions, had extended eight questions to Attorney General Holder asking for answers, and they were submitted timely under the rules so they were part of the hearing and would require answers from our Attorney General Holder. And three of them in particular were these. These were questions for Attorney General Holder, because as 28 U.S.C., section 455 is the law and Justice Kagan's impartiality has reasonably been questioned, there is potential here for a law violation by Justice Kagan, and we need to know more. Since this is with regard to the law that the Attorney General is supposed to uphold, fair questions. From Jeff Sessions to Attorney General Holder:

Are you aware of any instances during Justice Kagan's tenure as Solicitor General of the United States in which information related to the Patient Protection and Affordable Care Act and/or litigation related thereto was relayed or provided to her?

Another question from U.S. Senator Jeff Sessions to Attorney General Holder that required an answer:

When did your staff begin ``removing'' Solicitor General Kagan from meetings in this matter? On what basis did you take this action? In what other matters was such action taken?

Clearly, Solicitor General Kagan was on the email list for people who were talking about the laws that were coming up that the administration wanted to get passed, including ObamaCare, so it's a legitimate question to know at what point did she stop getting emails regarding ObamaCare.

It's also important to know what she said in those emails, because the one email they slipped and let us get a glimpse of was when ObamaCare passed. She sent an email something along the lines of: Can you believe they got the votes? Sounds like an excited utterance.

And it's worth noting that under 28 U.S.C., section 455 the law is very clear, this is the law. It's not an ethics, an encouraged rule. This is the law.

``Where he or she has served in government employment''--as Solicitor General Kagan had--``and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy, she shall disqualify herself.''

So, clearly, she is already disqualified because her impartiality is certainly reasonably being questioned. But is there even another law--not rule, but law--in which her impartiality can be questioned? But it makes it very clear, if she ever, ever expressed an opinion concerning the merits of ObamaCare, she should not have been allowed to sit on this case.

I think history is going to judge this case in a way that Justice Roberts never dreamed. He is so brilliant. There's no question that he was able to rationalize that coming as part of the majority as he did was the thing to do. He has gotten accolades, just as Chief Justice Taney did when he came out with the Dred Scott decision. Justice Taney got accolades from people, you know, wow. Yes, he got criticism, just as Chief Justice Roberts has, but he got some of the same accolades he's got: wow, what a brilliant man. He has removed politics from the Supreme Court when the truth is just the opposite of what occurred.

The politics of the White House prevailed. It was pure politics; it was nothing but politics. And anyone who honestly reads this opinion from an entirely objective standpoint will not be able to say this is a beautiful piece of well-reasoned legal logic because it is not. It is a hodgepodge of poorly written, poorly thought-out, poorly pieced-together opinion; and it's an embarrassment. And one day, history will record that this Court was possessed of four individuals who had political agendas and could not set them aside, and that a Chief Justice, who knew better, decided he would try to make the Court look less than political, and in doing so became very political.

We need answers to these questions.

The third one was:

Did you ever have a conversation with Justice Kagan regarding her recusal from the matters before the Supreme Court related to the Patient Protection and Affordable Care Act? If so, please describe the circumstances and substance of those conversations.

Real easy. Now, we know that this Attorney General has significant recollection problems. He recalled, under penalty of perjury before our Judiciary Committee that he had only learned about Fast and Furious a few weeks, he said, a few weeks before the hearing. Within months, we found documentation showing that that was a lie. It had been months before, at a minimum, that he had learned. Then, when he had that presented to him, he said a few weeks, months, what's the difference? Highest Justice official in America sees no difference between a few weeks and months.

These questions need to be answered. It's already embarrassing enough that a Justice hid behind the refusal to answer questions, the avoidance of questions, to be able to sit on this case and participate in one of the worst thought-out and thought-through and expressed opinions that I've read from the U.S. Supreme Court.

And it's worth looking at some of them. If you go to the opinion itself, first of all, the Supreme Court has to deal with the issue of whether the Supreme Court can consider the case because the Anti-Injunction Act basically, in essence, says: if Congress passes a tax, then the Supreme Court does not have any jurisdiction to consider the case. No one can file such case in Federal court until the tax is actually levied and the individual filing suit has actually had it levied on them. Then that individual has standing, can file a lawsuit, and the Supreme Court can consider it. But until the Supreme Court could decide and determine whether or not the penalty for not buying health care insurance was a penalty or a tax--even though the language in the act clearly said it was a penalty--well, the Court couldn't go forward. So that was the first thing they had to wrestle with. You see it particularly highlighted from pages 11 through 15.

But it's worth noting--this is page 11--the Court says: before turning to the merits, we need to be sure we have authority to do so. That's Justice Roberts, before turning to the merits, we've got to be sure we have authority. He said the Anti-Injunction Act provides:

No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.

Can't bring the lawsuit, the Supreme Court can't consider it if it's a tax, because it won't be 2014 or so before that happens.

So you look at this decision, page 12, our brilliant Chief Justice--and he really is brilliant, he just compromised it here:

Congress's decision to label this exaction a ``penalty'' rather than a ``tax'' is significant because the Affordable Care Act describes many other exactions it creates as ``taxes.''

Because there are taxes. There are, clearly. There's the medical device tax that ObamaCare adds. All these other taxes, they call themselves taxes. This doesn't. And Justice Roberts points out, it's a penalty. They call it that.

Justice Roberts says, and this is page 13 of his opinion:

The Anti-Injunction Act and the Affordable Care Act, however, are creatures of Congress's own creation. How they relate to each other is up to Congress and the best evidence of Congress's intent.

Get that: best evidence of Congress's intent is the statutory text. That's why he goes through and says the text calls it a penalty. On page 15, he says:

The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits.

It's not a tax; it's a penalty. All right. So, page 15, all this legal reasoning, it's not a tax, it's a penalty, best evidence of what it is is what Congress calls it, Congress calls it a penalty, ergo it's a penalty and we can move on. And now we're entitled to consider the merits.

Now, he also adds--this is over at page 39:

The joint dissenters argue that we cannot uphold section 5000A as a tax because Congress did not frame it as such.

Now, in fact, the four intellectually honest dissenters have pointed out to the Chief Justice--they called it a penalty. You said the best evidence of what it was was what Congress called it. Congress calls it a penalty, they treat it as a penalty, and that's the best evidence. So you can't uphold 5000A as a tax because it was not intended to be one.

If you look, page 39 is where--and the full sentence says: ``An example may illustrate why labels should not control here.'' This is the Chief Justice saying these lines. Labels should not control here. He just said, in page 11 through 15, labels should control. Congress puts the label on what they mean it to be: that should control. Now he's saying labels don't control here.

He goes on to say, and this is at page 44:

The Affordable Care Act's requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a ``tax.''

I called it a penalty so I'd have jurisdiction to write this opinion, but now that I have jurisdiction to write this opinion, now, page 44, I'm calling it a tax. Also on 44 he says:

The statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it.

Well, that is the point I guess, that is really strange in an opinion because that's in a paragraph marked Capital D that starts with:

Justice Ginsberg questions the necessity of rejecting the government's commerce power.

You never put that in, you're not supposed to. In good writing of judicial opinions, you don't put that in a majority opinion. You don't attack another co-majority signer, and yet he does that a few times in his majority opinion.

But then to add first person, the first person pronoun ``I'' and then follow that with a conditional future tense verb ``would'' uphold it as a command if the Constitution allowed it, why is that there?

That looks like that should have been part of a dissenting opinion, not, for heaven's sake, the majority opinion by one of the smartest lawyers in the country. He sacrificed not only his intellectual consistency, he sacrificed his intellectual ability to write as one of the best writers we ever had. It's really tragic.

But the statute reads more naturally as a command to buy insurance. I would have allowed it. It makes no sense there in that context.

One other quote we have down here, it's found at page 57. He says:

We are confident that Congress would have wanted to preserve the rest of the Act.

He knows that's not true. He knows that the House version of ObamaCare had the severability clause. And the severability clause, every good lawyer, even every bad lawyer knows, if you want the whole document to be preserved, even if one line is struck out, you better put that Mother Hubbard clause in there so that it's all protected. You lose one line, you don't lose the whole document.

And that was in the House version, but the Senate chose to strike it out. They didn't want it in there to say, if any of these parts get struck down by the Court, it all has to fall. They didn't want that. They wanted the bill without the severability clause because if anything got struck, everything had to go. That's the way they looked at it.

In fact, that debate was even made. If we don't get this part, we don't get that part, then there's no sense even having any of it.

Well, it's pretty tragic, pretty tragic. But there's been so much sacrifice.

I'm very grateful to Justice Kennedy, Justice Scalia, Justice Thomas, Justice Alito for maintaining their consistency. The dissent is very well-written, very consistent. They not only didn't sacrifice their intellectual integrity, they did not compromise their writing ability.

It's a dangerous time, and now we know, because of this Supreme Court decision, talking to my friend, Allen West this morning, he brought this up. I didn't know he'd brought it up already in an interview. But since we now know that bringing down the cost of government function is a legitimate interest that justifies intrusive legislation, and you can now have a tax on people if they don't participate, then we know everywhere that concealed guns have been made legal, the crime rates have gone down. When the crime rates go down, the costs go down. So we need a bill that will require everybody in America to buy a gun, and if you don't, you'll be taxed.

And this Supreme Court, in their intellectual lack of integrity, will sustain that bill.

With that, I yield back the balance of my time.


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