- “They [Republicans] want to achieve in courts what they couldn’t achieve in Congress.” — Sen. Patrick Leahy, D-Vt.
- “I believe [the act] has major problems beyond just the constitutionality.” — Sen. Charles Grassley, R-Iowa
WASHINGTON — Senate Democrats on Wednesday afternoon are widely expected to block GOP-backed legislation that seeks to repeal health care reform. Members of the Senate Judiciary Committee spent the morning debating the constitutionality of the Affordable Care Act, which was enacted in 2010.
Sen. Dick Durbin, D-Ill., listens in at the Senate Judiciary Committee meeting on Wednesday. (Photo by Elena Schneider/Medill News Service)
The hearing outlined the dichotomy of the health care discussion, separating along party lines.
Republicans hope to put one more nail in the health care law’s coffin. Democrats plan to use it as a platform to defend and explain the legislation.
“The act was neither novel or unprecedented, it’s based on a century’s work of building our country’s safety net,” Patrick Leahy, D-Vt., said. “They [Republicans] want to achieve in courts what they couldn’t achieve in Congress.”
In response, Charles Grassley, R-Iowa, said that Democrats took the health care discussion behind closed doors.
“The sensible thing would be to hold this hearing before the bill passed, not after,” Charles Grassley, R-Iowa, said. “I believe [the act] has major problems beyond just the constitutionality.”
The committee met hours before the Senate is expected to vote on the health care repeal amendment to a Federal Aviation Administration funding bill introduced by Senate Minority Leader Mitch McConnell, R-Ky., on Monday.
Last month, the Republican-controlled House passed a similar measure to strike down the law.
President Barack Obama has signaled he will veto any wholesale repeal of health care reform, a cornerstone of his legislative strategy.
Issues lining up with the party
Throughout the hearing, senators and witnesses alike referred to a Florida federal district judge’s decision on Monday to strike down the entire health care law. He is the second judge to invalidate the legislation. However, two other district judges ruled the act constitutional.
In particular, the witnesses debated the power of the commerce clause, the application of the “necessary and proper” clause and “active versus inactive” economic decisions, constitutional issues that were outlined in the Florida judge’s 78-page decision.
“Congress would have all the discretionary power of the king,” Randy Barnett, Georgetown University law professor, said, if Congress passed the act based on the commerce clause. “Citizens would become subjects.”
Charles Fried, Harvard University law professor and former Solicitor General, said that the Congress’s power under the commerce clause is a no-brainer.
“Clearly, insurance is commerce,” Fried said, after light-heartedly acknowledging he taught law to two of the witnesses, including Barnett. “[Congress has the power] to prescribe the rule by which commerce is regulated, to my mind, that is the end of the story. The [individual] mandate is a rule by which Congress can regulate.”
The two sides divide on the issue of Congress’s ability to require Americans to purchase health care–the individual mandate.
For the Democratic-leaning witnesses, the use of the commerce clause in this way is based on a set of precedents, like the Social Security Act. For Republican-leaning witnesses, this is the first time Congress required participation in a market.
In addition to the commerce clause, witnesses cited the “necessary and proper” clause as basis for debate. Barnett testified that Democrats had seriously overextended the clause, assuming that health care was both necessary and proper.
When asked if he thought there was anything lawmakers could add to the act to make it more constitutional, Fried said, “It’s already constitutional. If you’re wearing a belt, you can add suspenders, but that’s not really necessary, but it may be proper.”
Like the Florida judge, senators and witnesses debated the meaning of “active versus inactive” economic decisions.
Previous Supreme Court decisions support Congress’s power to regulate “active” economic participation because a regular citizen chooses to enter the market. In Wickard v. Filburn in 1942, the high court began to set the precedent increasing the power of the federal government.
However, Republicans said there is no precedent for Congress to control “inactive” economic decisions–forcing a person to purchase a product even if they do not want to enter the market.
“If you stay in your house and don’t participate, then it’s inactive and not commerce,” Michael Carvin, a partner at Jones Day, said. “The individual mandate compels Americans to engage in a contraction with a wealthy corporation and Congress has never before required Americans to engage in this…This is not some semantic lawyer trick, it goes to the core of Constitution.”
The liberal-leaning witnesses dismissed debating the semantics of active and inactive.
Walter Dellinger, a Duke University law professor and former Solicitor General, said everyone needs health care because no one knows when something could go wrong, meaning Americans could be “active” in the market at any time.
“It is a market that no one cannot be assured that you will not need to enter it, you never know when you will be hit by a truck,” Dellinger said. “No one can be assured they won’t need health care.”
Health care’s future?
The Senate’s Democratic majority prevented a stand-alone health care repeal bill to be voted on, forcing Senate Republicans to seek ways around it.
Sens Lindsey Graham, R-S.C., and John Barrasso, R-Wyo., introduced a bill Tuesday that would let states pick and choose the provisions of the national health care law it wished to implement, including the individual insurance benefit mandates, the employer mandate and Medicaid expansion.
By relegating the power to the states, Republicans hope to diffuse the Democratic federal control of the law, sending the battle into state capitals.
In the hearing, Durbin reminded the committee that this is not the first time major laws have been invalidated on a district level, but then reaffirmed by the Supreme Court. “The Social Security Act, the Civil Rights Act and the Federal Wage Law were successfully challenged in lower courts and upheld in the Supreme Court,” Durbin said. “I believe this will be true for the health care law.”
Grassley agreed the constitutionality of the reform would be decided by the Supreme Court, but added, “if this law is constitutional, Congress can make Americans buy whatever they want them to buy.”
