Senate hearing on health care bill’s constitutionality had more show than substance

Shortly before 10 a.m. on Wednesday, members of the Senate Judiciary Committee filed into room 216 of the Hart Senate Office Building to proceed with a hearing on something that had already been decided. The topic of discussion was the Patient Protection and Affordable Care Act and the question being asked of the witnesses was whether or not the individual mandate requiring Americans to purchase health insurance under penalty of a fine is constitutional.

Yet the hearing consisted of more show than substance. “Health Care Law Is Constitutional. Repeal Efforts Will Fail,” read the headline of a press release from the Democrats of the Judiciary Committee before the sessions even ended, begging the question of why, then, the hearing was called in the first place?

Republicans have been at war with President Obama’s health care bill since the moment he first proposed such a bill during the 2008 presidential campaign. And when the House under a new Republican majority voted for a full repeal, and two judges — one in Virginia and one in Florida — ruled the bill unconstitutional, Democrats finally had to take notice, though not even that went without Republican criticism.

Nearly all the Republican members present thanked Judiciary Committee Chairman Patrick Leahy of Vermont for holding the hearing, but followed their gratitude up with disapproval over not having had the hearing sooner.

“Hearing today in Senate Judiciary Committee on constitutionality of HC law — about 14 months and $2.7 trillion too late!” tweeted Republican Sen. John Cornyn of Texas at 8:45 that morning.

Republican Sen. Chuck Grassley of Iowa even likened the hearing to Alice in Wonderland, saying things were getting “curiouser and curiouser.”

“The sensible process would have been to have held a hearing on the law’s constitutionality before the bill passed, not after,” said Grassley. “Like Alice in Wonderland, ‘Sentence first, verdict afterward.’”

Nonetheless, the hearing convened on schedule, and the Democratic senators went to work reaffirming their belief that the mandate is within the bounds of the Constitution. It wasn’t hard either. Three out of the five witnesses ardently supported the constitutionality of the mandate.

Most of the lines of questioning went something like this:

Sen. Leahy: Is there any concern about the constitutionality of the individual mandate?

John Kroger, Oregon attorney general: None whatsoever.

Sen. Leahy: Is the mandate unprecedented?

Charles Fried, Harvard Law professor: It’s new, but not unprecedented.

Sen. Leahy: Do new limitations on the commerce clause affect constitutionality?

Fried: There’s no doubt health insurance is commerce.

Mandating the purchase of health insurance vis-à-vis the interstate commerce clause has been, and was at the hearing, the most contentious source of debate surrounding the health care law. Those on the left argue the federal government’s power to regulate commerce gives Congress the authority to compel the purchase of health insurance.

“I am confident it is constitutional,” said Kroger.

“In this instance, Congress is dealing with a dysfunction in the market,” said Duke University law professor Walter Dellinger. “In order to make the market work efficiently, [Congress] needs to encourage people to enter the market.”

Fried, who was U.S. Solicitor General under President Reagan, went so far as to say, “Not even the government option would have been unconstitutional. Deplorable…but constitutional.”

  • loudog

    “Equally fundamental with the private right is that of the public to regulate it in the common interest. … Thus has this court from the early days affirmed that the power to promote the general welfare is inherent in government. … [N]o exercise of the legislative prerogative to regulate the conduct of the citizen [can be imagined] which will not to some extent abridge his liberty or affect his property. But subject only to constitutional restraint the private right must yield to the public need”

    Upholding Congress’s power to regulate the sale and distribution of coal because of the impact of that industry on American economic and social life, the Court stated:

    If the strategic character of this industry in our economy and the chaotic conditions which have prevailed in it do not justify legislation, it is difficult to imagine what would. To invalidate this Act we would have to deny the existence of power on the part of Congress under the commerce clause to deal directly and specifically with those forces which in its judgment should not be permitted to dislocate an important segment of our economy and to disrupt and burden interstate channels of commerce . . . . Congress under the commerce clause is not impotent to deal with what it may consider to be dire consequences of laissez-faire”


    Health care expenses are 15% of GDP.

    • riseabove

      If this were only about making sure the estimated 30 million uninsured obtained proper medical care then the government could’ve initiated some kind of program similar to Medicare. But then that wouldn’t have gotten a foot in the door toward Socialism, would it?

      • loudog

        What’s socialistic about private insurance and private medical care?

  • virginiagentleman

    Congress as a whole and the senate in particular are always late in addressing Americas problems. Nothing new here. Reaction appears to be their forte, that and an eye towards the next election.

  • allouchsit

    I have never understood how the power to regulate translates to the power to compel the purchase of something. For example, the federal government regulates the beef industry through the USDA. Does that mean Congress has the power to compel American citizens to purchase a pound of ground beef a week or face a fine? The federal government regulates the production of wheat. Does that mean Congress has the power to compel all American citizens to grow at least a bushel of wheat each year? I wish these Senators and Professors who think the PPACA is constitutional because Congress can regulate the health care industry would explain to me how that gives Congress the power to compel all Americans to purchase a specified policy of health insurance. It just makes no sense to me and I have been practicing law in the federal courts for 30 years.

    • loudog

      If the security of our economy and commerce rested on eating a hamburger a week, yes they could. But since burgers don’t and spiraling health care costs and millions of uninsured Americans do effect commerce and our nations public and economic health and account for 15% of our GDP, it’s health care reform that congress is concerned with.

    • loudog

      I’m sure you’ve heard of these before then:

      Wickard v. Filburn, 317 U.S. 111, 125 (1942).

      Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 395-96 (1940).

      Nebbia v. New York, 291 U.S. 502, 523-525 (1934). While the particular question before the Court in Nebbia concerned the relationship between individual liberty and the power of a state, the Court expressly stated that within its sphere Congress also possesses the “power to promote the general welfare:”


    • whoframedrudy

      Loathe as I am to defend Obama’s Five-Year Plan: it’s a fiction to say the uninsured don’t participate in the insurance market. Your beef example mixes apples and oranges (contingency and consumption). Contingency is the essence of the insurance transaction (as opposed to consumption, like your beef example, where you immediately consume what you pay for.) The uninsured person is on Medicaid, de facto; they won’t bill the safety net unless they get sick, exactly like a healthy person with private insurance. Simply by being mortal human beings, they transact for free contingency care, warping the market in the process.

      So the uninsured person is maimed in a car accident; EMS drags his mangled uninsured body to the side of the road and lets him bleed to death? That’s fantastical – that unreal scenario can’t be the basis for a commerce clause ruling. In reality, the uninsured person then completes the transaction by consuming a benefit they never paid for — just like a yuppie on foodstamps. I think Congress can regulate that.

      My problem isn’t the mandate. It’s the Soviet-style policy ‘planning’ disaster-in-waiting.

  • kingfish

    Now THAT’s what I call a great HEADLINE!