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

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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.”

But Republicans on the committee fought hard to sway the slanted panel that their view was the correct one. The most inspiring attempt came from Sen. Mike Lee of Utah, who before coming to Congress clerked for U.S. Supreme Court Justice Samuel Alito.

“One of our jobs is to make sure, regardless of what the courts say we can get away with…is to take a second look and say ‘should we be doing this?’” said Lee before targeting Dellinger. “If this is within Congress’ power, wouldn’t it also be within the government’s power to tell people to eat four servings of wheat a day?”

Dellinger replied that no, it would not, suggesting that the distinction between forcing people to buy health insurance and ingesting wheat is that the latter is an issue of personal autonomy.

“Like deciding where to go to the doctor and how to pay for it,” Lee interrupted.

Michael Carvin, a partner at the law firm Jones Day, was one of the witnesses who supported the Republican view. “Obamacare forces citizens to engage in a contract with a private institution,” said Carvin. “By that logic, the government could compel someone to buy a car.”

“Sitting at home and staying out of the commercial marketplace is not commerce,” he added. “It doesn’t even affect commerce. “

Carvin went on to say the individual mandate was included in the act simply to ameliorate the financial burden placed on insurance companies by making it illegal not to purchase their product.

But at the end of the hearing, the same people who entered the room believing the individual mandate was constitutional left believing it was constitutional. The same goes for views on the commerce clause. The only consensus to be had was that all the committee members seemed to agree the issue would eventually be settled by the Supreme Court.

So the show ended with ample time for the senators to mull over the debate before the vote on the health care repeal later in the day. But it wasn’t before Democratic Sen. Al Franken of Minnesota could quip, “I feel like I’m in law school!”

He probably wasn’t the only one.

Alex Brown contributed to this report.

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