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.”