S. HRG. 112–904 

THE CONSTITUTIONALITY OF THE AFFORDABLE 

CARE ACT 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

FEBRUARY 2, 2011 

Serial No. J–112–3 

Printed for the use of the Committee on the Judiciary 

( 
THE CONSTITUTIONALITY OF THE AFFORDABLE CARE ACT 
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89–899 PDF 2011

S. HRG. 112–904 

THE CONSTITUTIONALITY OF THE AFFORDABLE 

CARE ACT 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

FEBRUARY 2, 2011 

Serial No. J–112–3 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Durbin, Hon. Richard, a U.S. Senator from the State of Illinois ......................... 1 

prepared statement .......................................................................................... 52 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 4 

prepared statement .......................................................................................... 55 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 58 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 60 

WITNESSES 

Witness List ............................................................................................................. 51 

Kroger, John, Oregon Attorney General, Salem, Oregon ..................................... 6 

prepared statement .......................................................................................... 63 

Fried, Charles, Beneficial Professor of Law, Harvard Law School, Cambridge, 

Massachusetts ...................................................................................................... 8 

prepared statement .......................................................................................... 76 

Carvin, Michael A., Partner, Jones Day, Washington, DC .................................. 10 

prepared statement .......................................................................................... 82 

Barnett, Randy E., Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, Washington, DC ................................................. 12 

prepared statement .......................................................................................... 95 

Dellinger, Walter, Douglas B. Maggs Professor Emeritus of Law, Duke University School of Law, Durham, North Carolina ............................................... 14 

prepared statement .......................................................................................... 104 

QUESTIONS 

Questions submitted by Senator Dick Durbin for John Kroger ........................... 112 

Questions submitted by Senator Dick Durbin for Charles Fried ........................ 113 

Questions submitted by Senator Dick Durbin for Michael Carvin ...................... 114 

Questions submitted by Senator Dick Durbin for Randy Barnett ....................... 115 

Questions submitted by Senator Dick Durbin for Walter Dellinger ................... 116 

Questions submitted by Senator Jeff Sessions for Michael Carvin ..................... 118 

Questions submitted by Senator Jeff Sessions for Randy Barnett ...................... 121 

ANSWERS 

Responses of John Kroger to questions submitted by Senator Durbin ............... 123 

Responses of Charles Fried to questions submitted by Senator Durbin ............. 131 

Responses of Michael A. Carvin to questions submitted by Senator Durbin ..... 135 

Responses of Michael A. Carvin to questions submitted by Senator Sessions ... 136 

Responses of Randy E. Barnett to questions submitted by Senator Durbin ...... 140 

Responses of Randy E. Barnett to questions submitted by Senator Sessions .... 141 

NOTE: At the time of printing, after several attempts to obtain responses 

to the written questions, the Committee had not received any communication from Walter Dellinger. ................................................................................. 145 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Congressional Record—Senate, December 23, 2009 ............................................. 146 

Harris, Kamala D., Attorney General of California, Department of Justice, 

statement .............................................................................................................. 149 
Page

IV 

AARP, Nora Super, Government Relations & Advocacy, Washington, DC, 

joint statement ..................................................................................................... 153 

Small Business Majority, Joseph E. Sandler, Counsel for Amicus Curiae, 

statement and attachment .................................................................................. 168 

Constitutional Accountability Center, Elizabeth Wydra, Chief Counsel and 

Douglas Kendall, President, Washington, DC, February 1, 2011, letter ......... 186 

National Senior Citizens Law Center (NSCLC), Rochelle Bobroff and Simon 

Lazarus, Federal Rights Project, Washington, DC, statement ......................... 194 

Center for American Progress Action Fund, February 2, 2011, article ............... 197 

Lazarus, Simon, ‘‘The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern American Government,’’ American Constitution Society for Law and Policy, Washington, DC, brief ............ 200 

Lazarus, Simon, ‘‘The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern American Government, Executive 

Summary,’’ American Constitution Society for Law and Policy, Washington, 

DC, brief ................................................................................................................ 227 

Abbott, Greg, Attorney General of Texas, Austin, Texas, February 2, 2011, 

letter ...................................................................................................................... 235 

Bondi, Pam, Florida Attorney, statement .............................................................. 238 

Hatch, Hon. Orrin G., ‘‘Does the Constitution Constrain Congressional Judgment?: Constitutional Problems with Health Insurance Reform Legislation,’’ 

Regent Journal of Law & Public Policy (RJLPP) .............................................. 241 

‘‘Forcing Americans To Buy What They Don’t Want,’’ by Senator Orrin G. 

Hatch, Chicago Tribune, April 4, 2010, article .................................................. 276 

‘‘Why the Health Care Bills Are Unconstitutional,’’ by Senator Orrin G. 

Hatch, Kenneth Blackwell, and Kenneth A. Klukowski, Wall Street Journal, 

January 2, 2010, article ....................................................................................... 278 

U.S. District Court, Northern District of Florida, Pensacola Division, court 

case ........................................................................................................................ 280 

Strange, Hon. Luther, Alabama Attorney General, statement ............................ 300 

Pruitt, Hon. E. Scott, Attorney General of Oklahoma, statement ....................... 303 

Shurtleff, Hon. Mark L., Attorney General of Utah, statement .......................... 308 
(1) 

THE CONSTITUTIONALITY OF THE 

AFFORDABLE CARE ACT 

WEDNESDAY, FEBRUARY 2, 2011 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:02 a.m., in Room 

SH–216, Hart Senate Office Building, Hon. Richard J. Durbin, presiding. 

Present: Senators Durbin, Leahy, Klobuchar, Franken, 

Blumenthal, Grassley, Sessions, Hatch, Cornyn, and Lee. 

OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. 

SENATOR FROM THE STATE OF ILLINOIS 

Senator DURBIN. This hearing of the Senate Judiciary Committee 

will come to order. I want to thank Chairman Leahy for allowing 

me to convene this hearing. I expect him to be here and join us 

shortly. 

The title of today’s hearing is the Constitutionality of the Affordable Care Act. This is the first-ever Congressional hearing on 

whether the landmark health care law complies with the Constitution. I would like to thank the Chairman, as I mentioned, and also 

thank my friend and the Ranking Member of the Senate Judiciary 

Committee, Senator Chuck Grassley of Iowa, who will make an 

opening statement after I have completed my own. And then we 

will turn to the witnesses and seven-minute rounds so that the 

Senators present will have a chance to question this distinguished 

panel. 

When Judge Vinson of the Northern District of Florida issued a 

ruling on Monday striking down the Affordable Care Act, I know 

it must have caused some concern across America. Many Americans who are counting on the provisions of that health care law are 

in doubt now about its future. I am certain that many parents of 

children with pre-existing conditions wonder if they will be able to 

buy insurance now if this law is stricken and the pre-existing conditions become an exclusion for insurance coverage. 

Senior citizens who were hoping that we would close the doughnut hole, that gap in Medicare prescription drug coverage, will 

wonder what it means, whether they have to return the checks 

that were sent to them or the next check that will be sent in the 

future. 

Millions of Americans will be in doubt. Those who are 25 years 

old and now eligible to be covered by their parents’ family health 

care plan may have some questions about that. Cancer patients 
2 

who had joined the Act’s new high-risk pools may have doubts as 

well. And small businesses who thought tax credits were coming 

their way may be asking Members of Congress, ‘‘What does this all 

mean?’’ 

I want those millions of Americans to know that they should not 

despair. 

First, they ought to reflect on the simple history of major legislation in America. This is not the first major law that has been challenged in the courts, even challenged successfully in the lower 

courts, as to its constitutionality. Let me mention two or three others: the Social Security Act, the Civil Rights Act of 1964, and the 

federal minimum wage law—all of those successfully challenged in 

lower courts, but ultimately upheld by the Supreme Court. I think 

the same is going to happen with the Affordable Care Act. 

And for those who are keeping score as to the challenges in federal courts to this law, make certain that you know the numbers. 

Twelve federal district court judges have dismissed challenges to 

this law, two have found the law to be constitutional, and two have 

reached the opposite conclusion. How is it possible that these federal judges, 16 different federal judges, who not only study the 

Constitution but swear to uphold it, have drawn such different conclusions? Well, I think those of us on the Judiciary Committee and 

serving in the Senate understand that many people can read that 

Constitution and come to different conclusions. 

It is unlikely that we are going to produce a national consensus 

in this room, maybe not even an agreement with the people in attendance. But if we serve the Congress and the Nation by fairly 

laying out the case on both sides, I think this is a worthy undertaking by the Senate Judiciary Committee. 

At the heart of the issue is Article I, Section 8, which enumerates 

the only powers delegated to Congress. Now, one side argues that 

with the passage of the Affordable Care Act, Congress went beyond 

that constitutional authority. The other, which includes those of us 

who voted for the law, disagrees. 

Within those enumerated powers is one described by one constitutional scholar as ‘‘the plainest in the Constitution’’: the power 

to regulate commerce. So the threshold question is: Is the health 

care market in America commerce? 

I think the answer is obvious, but ultimately the Supreme Court 

will decide. Over the course of history, the Court has interpreted 

this ‘‘plainest of powers’’ through its application of the Founders’ 

vision to current times. Whether it was Roscoe Filburn, growing 

wheat to feed his chickens in 1941, or Angel Raich, using homegrown marijuana to treat her chronic illnesses in 2002, Justices 

from Robert Jackson to Antonin Scalia have made it clear that 

Congress has broad power to regulate private behavior where there 

is any rational basis to conclude it substantially affects interstate 

commerce. 

The role of the lower courts is to apply those precedents to the 

facts. But sometimes lower court judges—many might be characterized as ‘‘activists’’ by their critics—try to make new law. And this 

has happened in Florida and Virginia as judges, I believe, have ignored the precedents and created a new legal test distinguishing 
3 

‘‘activity’’ from ‘‘inactivity,’’ a distinction that cannot be found anywhere in the Constitution or Supreme Court precedent. 

This is an historic room. I have had four opportunities—Senator 

Grassley has probably had more—to meet in this room and to 

interview prospective nominees to serve on the United States Supreme Court. They all stand with the photographers and the cameras rolling, hold up their hands and take the oath, and then sit 

and answer questions many times for days. Time and again, the 

questions that are asked of them is whether or not they are going 

to follow the Constitution and precedents or whether they are going 

to be judicial activists. That is the standard that should be applied 

as we consider the future of the Affordable Care Act. I believe, if 

the Justices of the Supreme Court apply the precedents, look at the 

clear meaning of the Constitution, that they are going to find this 

law constitutional. 

When the Affordable Care Act comes before the Supreme Court, 

I am confident that they will recognize that Congress can regulate 

the market for health care that we all participate in and that it can 

regulate insurance, which is the primary means of payment for 

health care services. 

The political question which has enervated this debate focuses 

primarily on one section. Even if Congress has the enumerated 

power under Section 8 to tax and to pass laws affecting the health 

care market, did it go too far in requiring that individuals who do 

not buy health insurance coverage face a tax penalty, the individual responsibility section of the law? 

Returning to Article I, Section 8, which allows Congress ‘‘to make 

all laws which shall be necessary and proper for carrying into execution the foregoing powers,’’ the Supreme Court just last year in 

Comstock case said ‘‘the Necessary and Proper Clause makes clear 

that the Constitution’s grants of specific Federal legislative authority are accompanied by broad power to enact laws that are convenient, or useful or conducive to that authority’s beneficial exercise.’’ 

The test is whether the means is rationally related to the implementation of a constitutionally enumerated power. Is an individual 

mandate ‘‘rationally related’’ to Congress’ goals of making health 

care more affordable and prohibiting health insurance companies 

from denying coverage for those with pre-existing conditions? It is 

clear to me that private health insurance companies could not function if people only bought coverage when they faced a serious illness. 

It is also worth noting that many who argue the Affordable Care 

Act is unconstitutional are the same people who are critics of judicial activism. They are pushing the Supreme Court to strike down 

this law because they could not defeat it in Congress and they are 

losing the argument in the court of public opinion where four out 

of five Americans oppose repeal. 

Why is public sentiment not lining up behind the repeal effort? 

Because a strong majority of Americans do not believe that their 

children should be denied health insurance because of pre-existing 

conditions. They want to cover their young adult children under 

their family plans. They believe small businesses should be given 

tax credits to cover health insurance for their employees. They op-
4 

pose caps on coverage and the health industry’s cancellation of coverage when people need it the most. 

With many parts of our world in turmoil today over questions of 

freedom, we should never forget that the strength of our Constitution lies in our fellow citizens who put their faith in its values and 

trust the President, Congress, and the courts to set aside the politics of the moment and to fairly apply 18th century rhetoric to 21st 

century reality. 

Now I want to recognize Senator Grassley, the Ranking Member 

of the Committee, for his opening statement. 

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you, and I appreciate my colleague’s 

discussion of the constitutional issues that are here. I also appreciated his discussion of some of the policy issues within this legislation. Whether you agree parts of this bill are very good, parts of 

it are very bad, things that ought to be thrown out, things that 

ought to be put into it that maybe are not in it, are all legitimate 

issues. But the real issue for us today is on the constitutionality 

of it, and I think we are very fortunate in this country to be under 

the rule of law, under that Constitution. I think we are very fortunate to be probably the only country out of 190 on the globe that 

agree in the principle of limited government, and that is something 

that we not only appreciate; it is something that we ought to worship, and it is something that ought to be considered the American 

people are very special people for that reason. So I look forward to 

those constitutional issues. 

We agree on the issue of it is constitutional, we move forward; 

and if it is not constitutional, we start over again. And, of course, 

all of the policies that are in dispute that my colleague mentioned 

would be continued if this is constitutional. And if it is not constitutional, then we will debate those issues once again. 

The Florida judge who ruled on the constitutionality of the new 

health law this Monday compared the Government’s arguments to 

Alice in Wonderland. That same reference applies equally to today’s hearing. Things are getting ‘‘curioser and curioser.’’ 

Under our system of limited and enumerated powers, the sensible process would have been to have held a hearing on the law’s 

constitutionality before the bill passed, not after. Instead, the Congress is examining the constitutionality of the health care law after 

the ship has sailed. 

Like Alice in Wonderland, ‘‘Sentence first, verdict afterward.’’ 

So what has gotten us to this point? 

Early in the debate, Republicans and Democrats agreed that the 

health care system had problems that needed to be fixed. 

I was part of the bipartisan group of Senators on the Finance 

Committee who were trying to reach an agreement on comprehensive health reform. 

However, before we could address some of the key issues, some 

Democratic Senators and the administration ended these negotiations, and the majority took their discussions behind closed doors. 

What emerged was a bill that I feel has major problems beyond 

even constitutionality. Republicans argued that instead of forcing it 
5 

through the Senate, Republicans and Democrats should return to 

the negotiating table to find common-sense solutions that both parties could support. 

Of course, the plea went unanswered, and the majority passed 

their health care law without a single Republican vote. 

In fact, when Republicans identified specific concerns, such as 

the constitutionality of the individual mandate, we were told our 

arguments were pure messaging and obstructionism. 

Throughout the debate, the majority argued that the individual 

mandate was essential for health reform to work. 

There are many constitutional questions about the individual 

mandate. Is it a valid regulation of interstate commerce? Is it a 

tax? 

The reality is that no one can say for certain. The nonpartisan 

Congressional Research Service notes that it is unprecedented for 

Congress to require all Americans to purchase a particular service 

or good. 

The Supreme Court has stated that the Commerce Clause allows 

regulation of a host of economic activities that substantially affect 

interstate commerce. No dispute about those decisions. But it has 

never before allowed Congress to regulate inactivity by forcing people to act. 

What is clear is that if this law is constitutional, Congress can 

make Americans buy anything that Congress wants to force you to 

buy. 

The individual mandate is the heart of the bill. My friend, Senator Baucus, Chairman of the Finance Committee, said at the 

mark-up back in September 2009, the absence of a requirement of 

‘‘a shared responsibility for individuals to buy health insurance’’ 

guts the health care reform bill. 

If the Supreme Court should strike down the individual mandate, it is not clear that the rest of the law can survive. The individual mandate is the reason that the new law bars insurance companies from denying coverage based on pre-existing conditions, and 

the sponsors made the mandate the basis for nearly every provision 

of the law. 

Judge Vinson’s ruling that the whole law must be stricken reflects the importance of the mandate to that overall outcome. 

Then there is the Medicaid issue before us. Does the new law 

amount to impermissible coercion of the States? States do have the 

choice to drop out of the Medicaid program. No dispute about that. 

But some of my colleagues on the other side of the aisle may 

even make that case today even though I do not think they are 

really promoting that as a viable option for the States. If a State 

drops out of Medicaid, the new health law states clearly that none 

of that State’s citizens would be eligible for tax credits because people with incomes at Medicaid eligibility levels can never be eligible 

for tax credits. 

The idea that the Federal Government could, through Medicaid, 

drive the single largest share of every State budget seems very inconsistent with the objective of our federal system of Government. 

At this point, Mr. Chairman, Senator Durbin, I ask that a statement from Virginia Attorney General be placed in the record. I am 

interested in hearing from the witnesses today, but ultimately, we 
6 

all know that the subject of this hearing is finally going to be determined by the Supreme Court. 

Thank you very much. 

Senator DURBIN. Thanks, Senator Grassley, and without objection, that statement will be made part of the hearing. 

[The prepared statement of Senator Grassley appears as a submission for the record.] 

Senator DURBIN. I want to invite my colleagues on the Democratic side, if they would like to move and fill these seats, they 

would be certainly welcome to come closer. 

I would ask now if this panel of witnesses would please stand 

and take the oath. Please raise your right hand. Do you swear or 

affirm the testimony you are about to give before the Committee 

will be the truth, the whole truth, and nothing but the truth, so 

help you God? 

Mr. KROGER. I do. 

Mr. FRIED. I do. 

Mr. CARVIN. I do. 

Mr. BARNETT. I do. 

Mr. DELLINGER. I do. 

Senator DURBIN. Thank you. 

Let the record reflect that all of the witnesses have answered in 

the affirmative. Each of the witnesses will be given five minutes for 

an opening statement, and then we have seven-minute rounds 

where Senators will ask questions. 

Our first witness is Attorney General John Kroger of the State 

of Oregon. Attorney General Kroger was elected in 2008 and I 

think has a national distinction in the fact that he was nominated 

by both the Democratic and Republican Parties. So he truly is a bipartisan Attorney General from the State of Oregon. He and eight 

other States Attorneys General recently filed an amicus brief before 

the Sixth Circuit in support of the Affordable Care Act’s constitutionality. 

Prior to his election in 2008, Attorney General Kroger served as 

a United States Marine, a law professor, a federal prosecutor, and 

a member of the Justice Department’s Enron Task Force. While a 

federal prosecutor, he served on the multi-agency Emergency Response Team that investigated the 9/11 attacks on the World Trade 

Center. 

Attorney General Kroger received his bachelor’s and master’s degrees from Yale University and his law degree from Harvard law 

School. 

General Kroger, thank you for being here today and the floor is 

yours. 

STATEMENT OF HON. JOHN KROGER, OREGON ATTORNEY 

GENERAL, SALEM, OREGON 

Mr. KROGER. Thank you very much. My name is John Kroger, 

and I am the Attorney General of Oregon. 

Over the course of my career, I have taken an oath to defend the 

Constitution as a United States Marine, as a federal prosecutor, 

and as the Attorney General of my State, and I take that obligation 

extraordinarily seriously. I am confident that the Affordable Care 

Act is constitutional and will ultimately be judged constitutional. 
7 

The reason for that confidence is quite simple. There have been 

four primary arguments raised in litigation challenging the bill, 

and I believe all four arguments are, as a legal matter, meritless. 

I would like to briefly review the four arguments and explain why 

I believe they have no merit. 

The first argument is that the Commerce Clause by its own 

terms only regulates commerce. The argument is that declining to 

get health insurance is not commerce but refusing to engage in 

commerce, and thus falls outside the power of Congress to regulate. 

This argument is extraordinarily weak because it was explicitly rejected in Gonzalez v. Raich. In that case, the Court held, and I 

quote: ‘‘Congress can regulate purely intrastate activity that is not 

in itself commercial.’’ That belief was stated not just in the majority opinion, which was joined by Justice Kennedy, but in the concurrence from Justice Scalia as well. 

This argument is also dangerous. The Gonzalez opinion provides 

the constitutional foundation for federal criminalization of all laws 

banning the home production and home use of child pornography 

and dangerous drugs like methamphetamine. As a prosecutor, I 

think overturning Gonzalez would be a disaster. 

The second argument that has been raised is based on the socalled activity/inactivity distinction. In Perez v. United States and 

subsequent cases, the Supreme Court spoke of the Commerce 

Clause regulating commercial activities. Opponents have used this 

language to raise a novel argument that the Constitution prohibits 

the regulation of inactivity. The litigants also claimed that declining to buy insurance is not an activity but inactivity, and thus constitutionally protected. There are three serious flaws with this argument. 

The first is that the inactivity/activity distinction has absolutely 

no basis in the text of the Constitution. 

Second, the Court recognized in both the Wickard decision and 

in Carter v. Carter Coal that Congress can regulate not only activities but conditions, and I believe that that would also apply then 

to the condition of being without health care. 

Third, people lack insurance because businesses do not offer it to 

their employees, insurance companies decline to extend it for preexisting conditions, or individuals fail to select it and pay for it— 

some out of choice, some because they cannot. All of these are actions with real-world and often very tragic consequences. The constitutional fate of a great Nation cannot be decided by semantics 

and word games that label real-world actions as inactivity. 

The third argument which is cited by some litigants and also by 

some courts is that the Supreme Court has never interpreted the 

Constitution to allow Congress to force individuals to buy a product. This argument is simply inaccurate because this precise claim 

was raised and rejected by the Court in Wickard v. Filburn. In that 

case, the plaintiff argued that, as a result of the Agricultural Adjustment Act, he would be forced to buy a product—food—on the 

open market. As Mr. Justice Jackson wrote, the claim was that 

Congress was ‘‘forcing some farmers into the market to buy what 

they could provide for themselves.’’ This claim, then, is identical to 

the one that has been raised in the litigation, that individuals 

should not be and cannot be forced to buy a health insurance prod-
8 

uct when they would rather self-insure or pay for the product of 

health care themselves. 

Writing for a unanimous Court, Justice Jackson rejected the 

claim, holding that these kinds of questions are ‘‘wisely left under 

our system for the resolution by the Congress.’’ Again, existing 

precedents strongly support the constitutionality of the Affordable 

Care Act. 

Finally, critics claim that the personal responsibility mandate 

impermissibly interferes with constitutionally protected liberty. I 

find this argument odd because the Constitution does not create or 

protect the freedom to freeload. Right now we have 40 million 

Americans who do not have health care coverage. Those 40 million 

people have the right to go to a hospital emergency room, and hospitals are legally required to provide that care. As a result of that, 

they rack up approximately $40 billion of health care fees every 

year. The opponents of the bill claim that this cost shifting is constitutionally protected. I would simply suggest that there is no constitutional right to force other people to pay for your own health 

care when you decline to take responsibility for yourself. 

Thank you very much for your time. 

[The prepared statement of Mr. Kroger appears as a submission 

for the record.] 

Senator DURBIN. Thank you very much, General Kroger. 

Our next witness is Charles Fried. Professor Fried has served on 

the Harvard Law School faculty since 1961 as a renowned scholar 

of constitutional law. He served as Solicitor General under President Ronald Reagan from 1985 until 1989. He worked in the 

Reagan administration Justice Department as a Special Assistant 

to the Attorney General. From 1995 until 1999, Professor Fried 

served as Associate Justice of the Supreme Judicial Court of the 

State of Massachusetts. He received his B.A. from Princeton, a 

bachelor’s and master’s degree from Oxford University, and a J.D. 

from Columbia University School of Law. 

Professor, thanks for joining us today, and please proceed with 

your statement. 

STATEMENT OF CHARLES FRIED, BENEFICIAL PROFESSOR OF 

LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS 

Mr. FRIED. Thank you. I should just add to that statement in my 

C.V. that I have two of my former students here: Professor Barnett, 

to whom I taught torts, and Attorney General Kroger, to whom I 

taught constitutional law. 

[Laughter.] 

Mr. FRIED. I come here not as a partisan for this Act. I think 

there are lots of problems with it. I am not sure it is good policy. 

I am not sure it is going to make the country any better. But I am 

quite sure that the health care mandate is constitutional. 

I have my doubts about the part that Senator Grassley mentioned with the Medicaid compulsion on the States. That is something I worry about, but the health care mandate I think really 

is—I would have said a no-brainer, but I must not with such powerful brains going the other way. 

Clearly, insurance is commerce. That was held by the Supreme 

Court in 1944. There was a time when the Supreme Court did not 
9 

think it was commerce. But it has been ever since, and if you look 

at the mountain of legislation, most noticeably the ERISA legislation, you see that the Congress and the courts obviously think insurance is commerce. And in health care, surely health care insurance surely is commerce, insuring, as it does, something like 18 

percent of the gross national product. 

Now, if that is so, if health care insurance is commerce, then 

does Congress have the right to regulate health care insurance? Of 

course it does. And my authorities are not recent. They go back to 

John Marshall, who sat in the Virginia Legislature at the time they 

ratified the Constitution and who in 1824, in Gibbons v. Ogden, said regarding Congress’ commerce power, ‘‘What is this power? It 

is the power to regulate; that is, to prescribe the rule by which 

commerce is to be governed.’’ To my mind, that is the end of the 

story. The constitutional basis for the mandate is that, the mandate is a rule—more accurately part of a system of rules—’’by 

which commerce is to be governed,’’ to quote Chief Justice Marshall. 

And if that were not enough for you, though it is enough for me, 

you go back to Marshall in 1819 in the McCulloch v. Maryland, where he said, [T]he powers given to the government imply the ordinary means of execution. . . .The government which has a right 

to do an act’’—surely to regulate health insurance—’’and has imposed on it, the duty of performing that act, must, according to the 

dictates of reason, be allowed to select the means. . . .’’ And that 

is the Necessary and Proper Clause, and he ends by saying, ‘‘Let 

the end be legitimate’’—that is to say, the regulation of health insurance—’’let it be within the scope of the Constitution’’—ERISA— 

‘‘and all means which are appropriate, which are plainly adapted 

to that end, which are not prohibited, but consistent with the letter 

and spirit of the Constitution, are constitutional.’’ 

Well, that to me again is the end of the story, and I think that 

one thing is noteworthy about Judge Vinson’s opinion where he 

said, ‘‘If we strike down the mandate, everything else goes,’’ shows 

as well as anything could that the mandate is necessary to the accomplishment of the regulation of health insurance. But is it proper? 

Well, there is, I think, an intellectual confusion here. This is 

clearly necessary to the success of Congress’s scheme. It is improper only if it bumps up against some specific prohibition in the 

Constitution. And the only prohibitions I can think of that this 

bumps up against are the Liberty Clauses of the Fifth and 14th 

Amendment. And if that is so, then not only is ObamaCare unconstitutional, but so is RomneyCare in Massachusetts. And I think 

that is an example of an argument that proves too much. 

Thank you. 

[The prepared statement of Mr. Fried appears as a submission 

for the record.] 

Senator DURBIN. Thank you very much, Professor. 

Our next witness is Michael Carvin. Mr. Carvin is a partner in 

the D.C. office of Jones Day law firm, where he specializes in constitutional, appellate, civil rights, and civil litigation against the 

Federal Government. During the Reagan administration, Mr. 

Carvin was a Deputy Assistant Attorney General in the Justice De-
10 

partment’s Civil Rights Division and the Office of Legal Counsel. 

He was one of the lead lawyers that argued before the Florida Supreme Court on behalf of President George W. Bush in the 2000 

Florida election recount controversy, received his B.A. from Tulane 

University, and his J.D. from George Washington Law School. 

Mr. Carvin, thanks for being here today and please proceed. 

STATEMENT OF MICHAEL A. CARVIN, PARTNER, JONES DAY, 

WASHINGTON, D.C. 

Mr. CARVIN. Thank you for the opportunity, Senator. 

The individual mandate obviously compels citizens to engage in 

a contract with a wealthy corporation even though often, and perhaps usually, it is to the citizen’s economic disadvantage to engage 

in that contract for health insurance when he is healthy and does 

not need the insurance. And I think it is agreed that this is unprecedented. Congress has never before required a citizen to engage in 

contractual commercial activity pursuant to the Commerce Clause. 

And we have heard today and obviously the debate has been that 

this difference is immaterial. There is no difference between regulating inactivity, compelling someone to contract, and regulating 

activity, regulating someone who has decided to contract and has 

entered the commercial marketplace. 

Under this reasoning, of course, that means that because we can 

tell GM how to contract with its customers when they decide to buy 

a car or how to contract with its employees in terms of its workplace conditions, since there is no difference that means we could 

compel somebody to contract with General Motors to buy a car or 

to enter into an employment contract. And the gist of my remarks 

is that this is not some semantic lawyer’s trick, something we came 

up with in response to the health care act. It is a core principle 

that goes to the most basic constitutional freedoms and limits on 

federal enumerated powers. 

In the first place, insurance is obviously commerce. That is not 

the issue. The issue is whether inactivity is commerce. Sitting at 

home and staying out of the commercial marketplace is not commerce. It only becomes commerce if you leave your house and decide to buy or sell goods or services. Then you have got commerce 

which you can regulate. 

Moreover, the decision of the citizen not to buy health insurance 

does not even affect commerce. Unlike the examples we have heard 

in terms of the plaintiffs in Wickard and Raich, those people were 

engaging in commerce. They were providing goods that were going 

to enter the commercial mainstream. Indeed, they were providing 

goods that were precisely of the sort that Congress was free to regulate if in interstate commerce. 

Now, the decision to sit at home does not affect Insurance Company A’s ability to contract with Citizen B. It has no effect on it. 

If there was no pre-existing condition mandate in the bill, this 

would have no effect. So the rationale for the individual mandate 

is not that you are eliminating a barrier to commerce. The rationale for the individual mandate is you are ameliorating a Congressional distortion of commerce. Congress told insurance companies 

that they had to take people with pre-existing conditions. That is 

obviously good for the patients, but it is obviously costly for the in-
11 

surance companies. So what we are doing is conscripting American 

citizens to ameliorate the economic harm that Congress has visited 

on those insurance companies, and this is not in any way within 

the traditional commerce power. 

Congress can tell Mr. Filburn not to grow his wheat, but what 

it cannot do is tell Mr. Filburn’s neighbor that he has got to buy 

some other crop of Mr. Filburn’s to ameliorate the harm that Congress just visited on him by banning his wheat. This is different 

in degree and kind, and it is literally without a limiting principle. 

As the court noted in the Florida case, the more Congress can 

distort in the first place the commercial marketplace, it can then 

bootstrap that original distortion into regulating all sorts of things, 

all sorts of contracts, from credit cards to cards to mortgages, that 

it could never get at in the first instance. And it is also not proper. 

Mr. Fried suggests that it is certainly fine to compel people to 

contract, but just recently, the Court in the Eastern Enterprises 

case said you could not force coal companies to, in essence, provide 

health insurance contracts to former miners. Well, what does this 

Act do? It forces a citizen to contract with a wealthy corporation 

to ameliorate the corporation’s loss of profits. If that is proper, 

then, again, there is literally nothing that Congress cannot do. 

And what is the limiting principle that has been suggested here 

and elsewhere? The Liberty Clause, which I used to call the Due 

Process Clause, which suggests that that will limit Congress’ 

power. But, of course, that is a restriction on the States. That is 

a restriction on the States’ powers. So they are conceding that the 

only limitation on Congress’ limited enumerated powers is the 

same as the limits on the States’ plenary police power. And if the 

Supreme Court has been clear about anything, it is that you cannot 

obliterate the distinction between the limited Federal Government 

and the State government. And if you do that, if you advance a 

Commerce Clause analogy which entirely eliminates that distinction, then that alone shows you that it is an abuse of the commerce 

power. 

Thank you. 

[The prepared statement of Mr. Carvin appears as a submission 

for the record.] 

Senator DURBIN. Thank you very much, Mr. Carvin. 

Our next witness is Randy Barnett, the Carmack Waterhouse 

Professor of Legal Theory at the highly regarded Georgetown University Law Center, where he teaches constitutional law and contracts. Professor Barnett previously served as a prosecutor in Cook 

County—he is from Calumet City—and he has been a visiting professor at Northwestern and Harvard Law School. Of particular relevance for today’s hearing, Professor Barnett argued the Commerce 

Clause case Gonzalez v. Raich, which we have heard referred to 

several times, before the Supreme Court in 2004. He is a graduate 

of Northwestern University and Harvard Law School. 

Thanks for coming today and please proceed with your statement. 
12 

STATEMENT OF RANDY E. BARNETT, CARMACK WATERHOUSE 

PROFESSOR OF LEGAL THEORY, GEORGETOWN UNIVERSITY 

LAW CENTER, WASHINGTON, DC 

Mr. BARNETT. Thank you, Senator. 

In 2010, something happened in this country that has never happened before: Congress required that every person enter into a contractual relationship with a private company. Now, it is not as 

though the Federal Government never requires you to do anything. 

You must register for the military and serve if called, you must 

submit a tax form, fill out a census form, and serve on a jury. But 

the existence and nature of these very few duties illuminates the 

truly extraordinary and objectionable nature of the individual insurance mandate. Each of these duties is inherent in being a citizen of the United States; each is necessary for the operation of the 

government itself, and each has traditionally been recognized. 

In the United States, sovereignty rests with the people, with the 

citizenry. And if Congress can mandate that you do anything that 

is ‘‘convenient’’ to its regulation of the national economy, then that 

relationship is now reversed. Congress would have all the discretionary power of a king, and the American people would be reduced 

to its subjects. 

In essence, the mandate’s defenders claims that because Congress has the power to draft you into the military, it has the power 

to make you do anything less than that, including mandating that 

you to send your money to a private company and do business with 

it for the rest of your life. This simply does not follow. The greater 

power does not include the lesser. 

No one claims that the individual mandate is justified by the 

original meaning of the Commerce Clause or the Necessary and 

Proper Clause. Instead, the Government and those law professors 

who support the mandate rest their arguments exclusively on Supreme Court decisions. But given that economic mandates have 

never before been imposed on the American people by Congress, 

there cannot possibly be any Supreme Court case expressly upholding such a power. 

In my written testimony and a forthcoming article, I explain why 

nothing in current Supreme Court doctrine on the tax power, the 

Commerce Clause, or the Necessary and Proper Clause justifies the 

individual insurance mandate. To summarize that, rather than impose a tax on the American people, Congress decided instead to invoke its regulatory powers under the Commerce Clause. But because the commerce power has never been construed to include the 

power to mandate that persons must engage in economic activity, 

in litigation the government has been forced to rely heavily on the 

Necessary and Proper Clause. 

But the individual mandate is neither necessary nor proper. 

First, it exceeds the limits currently placed on the exercise of the 

Necessary and Proper Clause provided by the Supreme Court in 

the Lopez, Morrison, and Raich decisions. Second, the individual 

mandate is not necessary to ‘‘carry into execution’’ the regulations 

being imposed on the insurance companies. Instead, it is being imposed to ameliorate the free rider effects created by the Act itself. 

Congress cannot bootstrap its powers this way. 
13 

In my written testimony, I also explain why the individual mandate is improper because it commandeers the people in violation of 

the 10th Amendment that reserves all powers not delegated to 

Congress by the Constitution ‘‘to the States respectively, or to the 

people.’’ The 10th Amendment protects popular sovereignty as well 

as the States. 

But wholly apart from what the Supreme Court has said about 

Congress’ power, each Senator and Representative takes his or her 

own oath to uphold the Constitution, and each must reach his or 

her own judgment about the scope of Congressional powers. After 

the Supreme Court relied on the Necessary and Proper Clause to 

uphold the constitutionality of the Second National Bank in 

McCulloch v. Maryland, a case you are going to hear a lot about 

today, President Andrew Jackson vetoed the renewal of the bank 

because he viewed the bank as both unnecessary and improper. 

And, therefore, he found it to be unconstitutional. He wrote, ‘‘If our 

power over means is so absolute that the Supreme Court will not 

call in question the constitutionality of an act of Congress the subject of which’’—and then he quotes McCulloch—‘‘ ‘is not prohibited, 

and is really calculated to effect any of the objects intrusted to the 

Government,’. . . it becomes us to proceed in our legislation with 

the utmost caution.’’ 

Therefore, regardless of how the Supreme Court may eventually 

rule, each of you must decide for yourself whether the mandate is 

truly necessary to provide, for example, for the portability of insurance if one changes jobs or moves to another State. Each of you 

must decide if commandeering that Americans enter into contractual relations with a private company for the rest of their lives is 

a proper exercise of the commerce power. If you conclude that the 

mandate is either unnecessary or improper, then, like President 

Jackson, you are obligated to conclude that it is unconstitutional 

and to support its repeal. 

But even if you do not find that the mandate is unconstitutional, 

this week’s ruling in Florida suggests that there is a good chance 

that the Supreme Court will. So you might want to consider constitutional alternatives to the individual mandate sooner rather 

than later. 

Thank you. 

[The prepared statement of Mr. Barnett appears as a submission 

for the record.] 

Senator DURBIN. Thank you very much, Professor Barnett. 

And now our final witness is Walter Dellinger. Professor 

Dellinger is the Douglas B. Maggs Professor Emeritus of Law at 

Duke University Law School. He is a partner and chair of the appellate practice at the law firm of O’Melveny Myers. He served as 

Acting Solicitor General under President Clinton from 1996 to 

1997. He also was Assistant Attorney General and head of the Justice Department’s Office of Legal Counsel from 1993 to 1997. He 

is a graduate of the University of North Carolina at Chapel Hill 

and Yale Law School. 

Professor Dellinger, we are glad you are here today. Please proceed. 
14 

STATEMENT OF WALTER DELLINGER, DOUGLAS B. MAGGS 

PROFESSOR EMERITUS OF LAW, DUKE UNIVERSITY SCHOOL 

OF LAW, DURHAM, NORTH CAROLINA 

Mr. DELLINGER. Thank you very much, Senator. 

The coming together of the American colonies into a single Nation was more difficult than we can easily now imagine. But come 

together they did in the summer of 1787, and they created the 

greatest common market, continental in scope, that the world had 

ever seen. 

John Marshall characterized the power to regulate the commerce 

of that Nation as the power to regulate that commerce which concerns more States than one. The notion put forward by those who 

have brought these lawsuits that it is beyond the power of Congress to regulate the markets and to make efficient the markets in 

health care and health insurance that comprise one-sixth of the national economy is a truly extraordinary, astonishing proposition. 

The arguments that are made are essentially that it is novel and 

has not been done before, and that crazy things will be done if it 

is accepted. Neither of those arguments pass muster. Each of them 

are exactly the arguments that were made when the challenge was 

brought to the Social Security Act of 1935, first accepted by the 

lower courts and then rejected by the Supreme Court. 

First of all, this is a regulation unlike those in the cases of Morrison and Lopez of local non-economic matters. This is a regulation 

of economic matters, as Solicitor General Fried has put it so well. 

Moreover, it is a regulation that is critical to the provision that 

prohibits insurance companies from denying coverage to Americans 

because of pre-existing conditions or because a child is born with 

a birth defect. 

Now, a lawyer is said to be someone who can think about one 

thing that is inextricably related to another thing without thinking 

about the other thing. And the excellent challengers to this legislation want to do that. There is no dispute over the proposition that 

Congress can regulate insurance contracts to say you cannot turn 

down people who have pre-existing conditions, you cannot turn 

down people because their children are born with a birth defect. 

That being the case and the fact that Judge Vinson himself 

agrees that it is necessary and essential for the Act to operate to 

also provide a financial incentive for people to maintain coverage 

generally, those two provisions are inextricably interlinked. My 

good friend Mr. Carvin says that the provision that prohibits insurance companies from denying coverage for people who have pre-existing conditions, he calls that a ‘‘Congressional distortion.’’ I think 

most Americans that are now assured that when they change jobs 

they will not lose their insurance, who are now assured that if they 

have a child born with a defect they will not lose their insurance, 

do not think of that as a distortion. They think of it as a regulation 

of the market, which Congress has ample authority to make sure 

works effectively. 

Now, the fact that something is within the commerce power does 

not mean that it is permissible. Is this so intrusive that it should 

be carved out of the commerce power? And the answer is it is really 

rather unremarkable. It is no more intrusive than Social Security 

and Medicare. Only if you go to work and earn taxable income do 
15 

the penalty provisions apply to you that require coverage. So if you 

go to work and earn taxable income, one of the things you find out 

is that the Government takes 7.5 percent from you and your employer for Social Security, 15 percent if you are self-employed. They 

take additional lesser taxes for Medicare. And then for coverage 

after you are 65, for coverage before you are 65, and for your family 

they provide a 2.5-percent financial penalty if you do not maintain 

coverage. It is extraordinary to think that something that gives you 

more choice, that allows you access to the market, is somehow so 

intrusive of liberty that it has to be carved out from the scope of 

the Commerce Clause. 

Of course, it has not been done before. As Justice Story noted, 

every new act of Congress is something that has not been done before, and that mode of reasoning he said is found by all persons to 

be indefensible. 

Will it lead to some extraordinary, expansive Congressional 

power? It will not. The limiting principle is clear. The Liberty 

Clauses prevent anyone from forcing Americans to eat certain vegetables or go to the gym. Whether it is State governments or the 

Federal Government, those are precluded. 

And what about the fact that this is something that provides an 

incentive to buy products in the private market? I never thought 

I would hear conservatives say that there is something more intrusive about buying products in the private market than there is 

about having a single governmental provider. But that is essentially their argument. And is it a precedent for doing that for any 

product? Not at all, because this product is, if not unique, it has 

characteristics which would limit the application simply because, 

one, it is a market which no one can be assured that they will not 

enter. You never know when you are going to get hit by a truck 

and impose countless thousands of dollars of expenses in medical 

care which you are guaranteed to be provided by the Emergency 

Medical Treatment Act. That is not true of flat screen televisions. 

If my team makes the Super Bowl and I have not thought that 

they would and have not provided for a flat screen television, I cannot show up and have someone provide it to me. But with health 

care, no one can be assured that they will not need it, and when 

they do need it, it is often the case that the cost is transferred to 

other people. Ninety-four percent of the long-term uninsured have 

used medical care. 

So at the end of the day, it is absolutely unremarkable that this 

market is one where Congress is using a market mechanism to encourage participation. The attacks against it are fully reminiscent 

of the attacks made against Social Security. In the Supreme Court, 

it was argued that if Congress could set a retirement age at 65, 

they could set it at 30 and, therefore, it must be unconstitutional 

to have Social Security at all. The Supreme Court rejected that. It 

was said that if Congress can set a minimum wage of $10, they 

could set a minimum wage of $5,000. That did not stop the Court 

from sustaining the minimum wage law. 

So at the end of the day, I think this challenge to the legitimacy 

of judicial review is one that we have seen before. And even a more 

conservative court than we have ever seen in 1937 stepped back 

from that precipice and said, ‘‘We are not going to stand in the way 
16 

of Social Security.’’ And I think at the end of the day the Supreme 

Court will not stand in the way of something which is less intrusive, which respects the autonomy of Americans, and corrects the 

functioning of a national market. 

Thank you. 

[The prepared statement of Mr. Dellinger appears as a submission for the record.] 

Senator DURBIN. Thanks very much, Professor Dellinger. 

We have been joined by the Chairman of the Committee, Senator 

Patrick Leahy. I would like to give him an opportunity if he would 

like to make an opening statement or submit it for the record. 

Chairman LEAHY. Thank you very much. 

One, I thank Senator Durbin for holding this hearing. When he 

first asked about that, I thought it was an extremely important one 

and obviously very timely. I must say that I have no doubt Congress acted within the bounds of its constitutional authority. 

Professor Barnett from the law school that both Senator Durbin 

and I attended says we should look at our oath of office. We do. 

I have been sworn into the Senate seven times, and I can remember vividly each time taking that oath. And I repeat it to myself 

all the time. I think most of us do. 

But we had arguments on the constitutional issue. In fact, during 

the Senate debate, I talked about those arguments. I responded to 

them. And the Senate voted on the constitutional issue. The Senate 

formally rejected a constitutional point of order claiming that the 

individual responsibility requirement was unconstitutional. It is 

not as though it was not considered. We voted on it. We voted that 

the Act was constitutional. 

Now, two courts have ruled it is not. Two courts have ruled that 

it is. We all know that ultimately it is going to go to the Supreme 

Court to be decided. As I was coming in here, I heard Professor 

Fried, who has testified before this Committee—as Professor 

Dellinger has, and we have all profited by such testimony—saying 

that it was not going to go into questions about the policy but 

about the constitutionality. And I appreciate that. The Act was neither novel nor unprecedented. I believe it rested on what has been 

a century’s work of building on our safety net in this country. 

The opponents sought to continue their political battle by challenging the law minutes after—it seemed almost minutes after 

President Obama signed it into law. It was actually within a few 

days. They want to achieve in courts what they were unable to 

achieve in Congress. This was debated for over a year or most of 

the year, countless hearings, countless debates, on and off the floor. 

And many Americans now have access to health care today because 

of the Affordable Care Act. Parents who have children in school, in 

college, will be able to keep them on their policy until they are 26 

years old. If you have a child with juvenile diabetes, they cannot 

be refused; if you have got a pre-existing condition, you cannot. 

There are a whole lot of things. It eliminates discriminatory 

practices by health insurers, making sure that a patient’s gender 

was no longer a pre-existing condition. Just think about that. In 

the 21st century, some were talking about gender being a pre-existing condition. We have added important tools to help law enforcement recover taxpayer dollars lost to fraud and abuse in the health 
17 

care system. While Senator Grassley and I may have disagreed 

about the health care bill itself, we agreed on going after fraud and 

abuse in the system. A lot of our Nation’s senior citizens will now 

pay less for their prescription drugs. 

I realize that some want the courts to deliver a victory that they 

could not secure in the Congress. Over the course of this country, 

that has happened many, many times, people from both sides on 

issues. But I would hope that the independent judiciary will act as 

an independent judiciary and will be as mindful as Justice Cardozo 

was when he upheld 75 years ago the constitutionality of Social Security. He wrote: ‘‘[W]hether wisdom or unwisdom resides in the 

scheme of benefits set forth. . . it is not for us to say. The answer 

to such inquiries must come from Congress, not the courts.’’ I agree 

with that. I hope the Court will follow his wise example. 

Mr. Chairman, I will have some questions for the record. I have 

another hearing, but I compliment you for doing this. I think this 

is as important a hearing as being held in the Congress at this 

time. 

[The questions of Chairman Leahy appears under questions and 

answer.] 

Senator DURBIN. Thanks a lot, Chairman Leahy. We appreciate 

that very much. 

As I would not invite my former law school professors to stand 

in judgment of my performance as a Senator, I will not ask Professor Fried to issue another grade to Professor Barnett. He had 

that chance once before. But I would like to ask you to comment, 

Professor Fried, if you would, about one of the statements made by 

Professor Barnett, and it relates to the question of whether this is 

a unique situation where we are, in fact, imposing a duty on citizens to either purchase something in the private sector or face a 

tax penalty. And I would like to ask you to comment on that generally, but specifically, if you can, I am trying to go back to the case 

involving this famous man, Roscoe Filburn. Mr. Filburn objected to 

a federal law which imposed a penalty on him if he grew too much 

wheat, and he argued before the Court that this wheat was being 

consumed by him and by his chickens, and that as a result, the law 

went too far. I think the net result of the law is that he either 

faced a penalty or complied with the allotment requirement and 

then had to make a purchase in the open market to feed his chickens. 

Is there an analogy here? Would you like to comment on this 

general notion that this is unique in that the law requires a purchase in the private market? 

Mr. FRIED. I taught Professor Barnett torts, not constitutional 

law. 

[Laughter.] 

Chairman LEAHY. Maybe he thinks it is a tort. 

Mr. FRIED. The Filburn case can be distinguished only if you say, 

‘‘After all, Mr. Filburn did not have to eat, and his chickens did not 

have to eat.’’ And that is an absurd argument, and I think Mr. 

Dellinger pointed that out. That is like saying that if you could 

make a commitment that you will never use health care, that you 

will never visit an emergency room, that you will never seek the 

ministrations of a doctor, then you should be free not to enter this 
18 

system. That is silly. That is the first point of non-distinction in 

Wickard. 

There is another point which is made, and I get a little hot under 

the collar when I hear it, and that is that this turns us from citizens into being subjects. And Judge Vinson also said that those 

who threw the tea into Boston harbor would be horrified at this. 

Let me remind you that the citizens of the earlier United States 

were well acquainted with many taxes. Remember the Whiskey Rebellion. The reason they threw that tea in the harbor was taxation 

without representation. A parliament which they had not elected 

did this to them. 

Well, the people elected the Congress, and in 2010, they changed 

the Congress, and that is why we are not subjects, why we are citizens. 

Senator DURBIN. Professor Barnett, you and Mr. Carvin have alluded to this activity and inactivity distinction. Tell me what case 

you look to for precedent or what part of the Constitution you refer 

to to come up with this approach. 

Mr. BARNETT. Thank you, Senator. Well, there is nothing in the 

Constitution that says that Congress has the power to regulate economic matters, which is what Professor Dellinger referred to; and 

there is nothing in the Constitution that even says that Congress 

has the power to regulate activity that has a substantial effect on 

interstate commerce. That latter doctrine—there is no former doctrine. There is no economic matters doctrine in the Constitution. As 

for the substantial effects doctrine, that is given to us by the Supreme Court, not the Constitution itself. 

So I have been operating—my testimony is based entirely on 

what the Supreme Court has said, and the Supreme Court has 

time and time again referred to the Congress’ power and authorized Congress to exercise its power to regulate activity, economic 

activity. That is what it says. In fact, in Justice Scalia’s concurring 

opinion in Raich, which the plaintiffs—the government in this 

case—relies heavily on—Justice Scalia uses the word ‘‘activity’’ or 

‘‘activities’’ 42 times. That is a lot. 

So that is what we are looking to, and what we notice is that the 

Court has never said that Congress has the power to regulate economic matters, economic decisions, nor economic inactivity. It has 

simply said the Congress can go this far, economic activity, and has 

never said the Congress can go farther. 

Now, it could say that, Senator. It is free, next time it hears a 

case like this one, to say it can go farther. Of course, we know that. 

It just has not done so up until now. 

Senator DURBIN. For the record, I think the other four witnesses 

have acknowledged explicitly that the health care industry is part 

of commerce. Do you accept that? 

Mr. BARNETT. Yes, I do, absolutely. 

Senator DURBIN. All right. General Kroger, how would you respond to this comment: We are talking about the inactivity of a citizen, not the overt act of a citizen? 

Mr. KROGER. I would say two things, Senator. First of all, most 

of the case law does speak repeatedly of activities because most 

bills are regulating activities. But the Supreme Court has certainly 
19 

never limited the Commerce Clause to a formal category of activities and prohibited Congress from acting otherwise. 

The Wickard case itself specifically cites the language in Carter 

v. Carter Coal, which says that the proper test is not just whether 

there is an activity but whether there is a condition that can be 

regulated. And so I think this somewhat artificial attempt to restrict the Congress to only regulating activities as opposed to conditions falls short. It simply does not make sense under the case law. 

Senator DURBIN. And I would like to ask Professor Dellinger— 

I just have a minute left here. Judge Vinson basically said, ‘‘Since 

I found this one section to be unconstitutional, I am going to basically say that the entire Act is unconstitutional, virtually unconstitutional.’’ And then there is a question as to what the operative effect of his decision is on that particular district, that State, and the 

Nation. 

Would you comment on those two aspects of his decision? 

Mr. DELLINGER. Well, I think that Judge Vinson’s decision 

sweeps far beyond where it was necessary to go and takes down 

completely unrelated provisions. And I think that the fact that two 

other federal district courts have upheld the constitutionality of the 

law will indicate that his opinion will not have a necessary effect 

at this moment. 

The Department of Justice, I think, is considering whether to 

seek an appeal, even though he issued no order, to nonetheless 

clarify that only the individual mandate is at stake. And, of course, 

everyone agrees that what is also at stake is the provision that prohibits insurance companies from denying coverage for pre-existing 

conditions. Those two are linked, and I think that aspect of it is 

indisputable. 

Senator DURBIN. Thank you very much. 

Senator Grassley. 

Senator GRASSLEY. Professor Fried, you have made very clear 

that you are convinced that there is no doubt that the mandate in 

the health law is constitutional. So would you see any need for 

Congress to make any changes to the mandate in order to increase 

the chances that it would be found to be constitutional, make more 

certain it was constitutional? 

Mr. FRIED. I see no need for it because it seems so clearly constitutional. You are wearing a belt. Maybe you want to put on some 

suspenders as well. I do not know. But I think it is not necessary. 

I suppose it would be proper. 

Senator GRASSLEY. Okay. Then to any of the witnesses, some of 

you have discussed the Supreme Court’s decision that has given 

Congress broad authority under the Commerce Clause. That is the 

whole point here. But Congress has never before passed a law that 

requires people who are not already engaged in an activity, commercial or otherwise, to affirmatively purchase a product or service. 

Could the Supreme Court strike down such a novel provision as the 

individual mandate without overturning a single one of its precedents? 

Mr. CARVIN. Yes, Senator, that is clearly true. It is the defenders 

of the Act who are seeking to extend the Court’s Commerce Clause 

jurisprudence past what it currently is. Again, as Professor Barnett 

has pointed out, they have only suggested that activities that affect 
20 

interstate commerce can be regulated under the Commerce Clause. 

They have never suggested that Congress can compel people to engage in certain activities to offset the economic effects of another 

part of the law. 

To get back to Senator Durbin’s question, they have never suggested that they could compel Mr. Filburn to grow wheat. They 

have never suggested, again, as I pointed out in my testimony, that 

they could require Mr. Filburn’s neighbors to buy some other of his 

crops to counteract the negative economic effects on limiting the 

amount of wheat that he could grow. Contrary to my good friend 

Charles Fried, I think those distinctions are hardly lawyerly semantics. I would think they are relatively obvious to most people. 

Senator GRASSLEY. If you want to add, Professor Dellinger. 

Mr. DELLINGER. Yes, Senator Grassley. I think the very notion 

that what is involved here is ‘‘inactivity’’ can be called into question. If you are sitting alone in the woods doing nothing, the tax 

penalty does not apply to you. You have to go out and enter the 

national economy, earn $18,000 for a couple in order to be required 

to file an income tax return. Only then do you have to pay a 2.5- 

percent penalty if you do not maintain insurance coverage. And 

since no one can be assured they are not going to need health care, 

they are going to be active participants in the health care markets. 

So in both of those ways, this is in that sense by no means a pure 

regulation of inactivity. And I believe there is no case ever that has 

come close to holding that Congress cannot impose affirmative obligations when doing so carries out its regulatory authority over an 

important part of the national economy. 

Mr. BARNETT. If I can just add, the penalty might not apply to 

everyone, but the mandate does apply to everyone. It is the penalty 

that is enforcing the mandate that might not apply to everyone, 

but the mandate that says every American has to have health insurance, has to obtain or procure health insurance, that does, I believe, apply to everyone. 

Mr. FRIED. If I might just add, the Supreme Court precedent 

which I have always thought was very relevant is the 1905 decision 

in Jacobson v. Commonwealth of Massachusetts. Massachusetts 

said every citizen had to obtain a smallpox vaccination. Jacobson 

thought this was an attack on his liberty. He was fined $5, and the 

Supreme Court said, ‘‘Pay the fine.’’ 

Mr. CARVIN. That illustrates the distinction that I am talking 

about. Massachusetts acted to stop the spread of an infectious disease pursuant to its power to protect the health and welfare of the 

State’s citizens. Congress does not have that plenary power. Under 

Mr. Fried’s analysis, Congress could tomorrow require everyone to 

buy vitamins or vaccinations because in another part of the law 

they have required doctors, for perfectly charitable reasons, to provide free vitamins and vaccinations to others. And this would be an 

offsetting effect just like the individual mandate is an offsetting effect. If Congress can do that—than I think we all agree Congress 

can do everything that State governments can do today, subject to 

the restrictions of the Liberty Clause. And if that is true, then 

there is no distinction between the commerce power and the police 

power. And, again, I think we would all agree that the Court has 
21 

made clear that if there is no such distinction, that means the commerce power has been exceeded. 

Senator GRASSLEY. I want to go on to ask for a comment on a 

quote from the Center for American Progress critical of Judge Vinson: ‘‘If Judge Vinson were to have his way, insurance companies 

will yet again be able to deny you coverage because you have a preexisting condition, drop your coverage when you get sick, limit the 

amount of care you receive, take more of your premium dollars 

from their profits.’’ 

I think that this group shares the same thoughts that many of 

the supporters of this legislation have used as a basis for the law 

as well as a basis for this hearing, that there seems to be no difference between law and politics. And, of course, I think the supporters of that view think that the judge who rules that a law is 

unconstitutional must oppose the policies as contained in the law. 

Obviously, I take a different view. I believe that a judge is obligated to make sure that the laws that Congress passes comply with 

the Constitution. If Congress passes a law that is beyond the constitutional power to enact no matter how popular or desirable the 

provisions of that law are for some people, the courts have an obligation to strike it down. 

Number one—and, by the way, I wanted to direct this to the 

three people on the left. 

[Laughter.] 

Senator GRASSLEY. I am sorry. General Kroger, Professor Fried, 

and Professor Dellinger. Do you think it is appropriate to personally attack a judge’s ruling striking down a law by saying that the 

judge must prefer particular policy results that the critic opposes? 

Mr. FRIED. No, it is not proper. 

Senator GRASSLEY. Okay. And anybody can add if they want to, 

but let me go on to the next one. Is it fair to say that Judge 

Vinson’s decision aims to take away benefits that millions of Americans are already seeing and putting insurance companies back in 

charge of your health care? 

Mr. FRIED. It will have that effect. Quite possibly he greatly regrets it. 

Senator GRASSLEY. And do you think that judges should decide 

cases based on their best understanding of the meaning of the Constitution or on whether they think their rulings would have good 

or bad policy consequences? 

Mr. FRIED. The former. 

Senator GRASSLEY. Obviously, it is good to have that understanding, that we are a society based upon law and not upon what 

judges just happen to think it might be. 

You are right. My time is up. 

Senator DURBIN. Senator Leahy. 

Chairman LEAHY. I always have to watch out for these tough 

chairmen. Actually, on that last question, Professor Fried, do you 

know anybody who disagrees with that, whether the left or the 

right? 

Mr. FRIED. Yes, I am afraid I do. 

[Laughter.] 

Chairman LEAHY. But do you know anybody who should disagree 

with it? 
22 

Mr. FRIED. Not a soul. 

Chairman LEAHY. I thought you might go that way. 

Mr. Kroger, it is good to have you here. We always like having 

Attorneys General here. We are fortunate to have two former Attorneys General on this Committee—Senator Blumenthal and Senator Whitehouse. You represent the State of Oregon, and you said 

that Oregon is a sovereign State—I am trying to summarize your 

testimony—and is charged with protecting and promoting the 

health and welfare of its citizens. Do you have any concern about 

the constitutionality of the requirement that individuals purchase 

health insurance? 

Mr. KROGER. None whatsoever. 

Chairman LEAHY. Thank you. 

Now, as Attorney General, were you asked to or did you on your 

own review the legal basis for the Affordable Care Act? 

Mr. KROGER. Yes, I have, Senator. 

Chairman LEAHY. Do you think it intrudes on Oregon’s responsibility to protect the health and welfare of its citizens? 

Mr. KROGER. Senator, I think it greatly assists the ability of the 

State of Oregon to protect its citizens. 

Chairman LEAHY. Thank you. 

Professor Fried, you know, having been here actually from the 

time of President Ford, when you were Solicitor General for President Reagan, I still almost feel like I—that is when I think I first 

met you. I almost feel I should call you ‘‘Solicitor General.’’ But do 

you believe that the requirement in the Affordable Care Act that 

individuals purchase health insurance represents an unprecedented 

extension of Congress’ authority to regulate insurance under the 

Commerce Clause? 

Mr. FRIED. It is a new requirement. I do not think it is unprecedented. I think the language which I quoted to you from Chief Justice Marshall at the beginning of our Nation amply covers it. 

Chairman LEAHY. You say that it is a different one. Let me just 

explore that a little bit further. Do you believe that there have 

been new limitations on the Commerce Clause by the current Court 

or other courts that give you concern that the Affordable Care Act 

is not a constitutional—— 

Mr. FRIED. There have been—excuse me, Senator. 

Chairman LEAHY. No. Go ahead. 

Mr. FRIED. There have been limitations. I sat at counsel table 

with the prevailing argument in United States v. Morrison because 

I believed that the relevant provisions of the Violence Against 

Women Act were unconstitutional, and the Court so held. But that 

was because the Court found, correctly, that, as despicable and 

criminal as it is for a man to beat up his girlfriend, it is not commerce. Well, there is no doubt health insurance is commerce. 

Chairman LEAHY. And on the Violence Against Women Act, did 

not the Congress go back and redraft it based on the ruling in Morrison? 

Mr. FRIED. I believe they did, but—— 

Chairman LEAHY. Or a version of it. 

Mr. FRIED. I believe they did, but I cannot swear to that, and I 

have sworn to my testimony. 
23 

Chairman LEAHY. Thank you. Again, one of the reasons why I 

enjoyed your tenure as Solicitor General with President Reagan. 

Does anybody want to add to this? Mr. Carvin, here is your 

chance to disagree with Professor Fried. 

Mr. CARVIN. I never pass up a chance to disagree with Charles. 

[Laughter.] 

Mr. CARVIN. It rarely happens. Again, Senator, I do think there 

is a fundamental difference in two respects. You are compelling 

people to engage in commerce, and what is the rationale? Is it that 

by not contracting with insurance companies that somehow acts as 

an impediment to commerce? No. What it does do is prevent this 

free rider problem that Congress created by imposing the pre-existing condition. Now, I call that a distortion of commerce. I did not 

suggest that in a normative sense. Congress interferes in the private market all the time, and what they have done is impose certain restrictions on insurance companies and they are, therefore, 

compelling people to ameliorate that problem. So the individual 

mandate does not carry into execution the regulation of commerce. 

It corrects a distorting effect of the regulation of commerce. And it 

seems to me that that distinction is critical because, otherwise, 

again, if Congress decides to limit what banks can do with mortgages or credit cards or car companies, then obviously they could 

conscript the citizenry to offset that. 

Chairman LEAHY. Which is a repeating of your earlier argument, 

and I am only cutting you off because my time is running out. 

Mr. CARVIN. I was about finished. Thank you. 

Chairman LEAHY. Plus your time is running out. 

Professor Barnett and Professor Dellinger, if you can very briefly—— 

Mr. BARNETT. All I would say, Senator, is—I wanted to talk 

about the two quotes that Professor Fried mentioned, one from 

McCulloch, which refers to Congress’ power to use any ordinary 

means of execution. A mandate is not an ordinary means of execution. It is extraordinary. 

Second, in Gibbons v. Ogden, Justice Marshall said that Congress may prescribe the rule by which commerce is to be governed. 

Nobody up here thinks that the failure to buy health insurance is 

itself commerce. That is not what anybody here thinks. So that 

does not fall under this language either. 

So neither one of those quotations directly apply to the situation 

we currently face. 

Chairman LEAHY. Professor Dellinger. 

Mr. DELLINGER. Yes, I would like to respond, I think, to what is 

one of Michael Carvin’s best points. I disagree that this matter 

would stand for the proposition that, where Congress imposes costs 

on companies, it could then make up for that, fix that by going out 

and making people buy that company’s products. That is not true 

because in this instance, Congress is dealing with a dysfunction 

and an important national market caused by the fact that companies have an incentive to deny coverage to people with pre-existing 

conditions; as a result of that, they are not covered. In order to 

make that market work efficiently, you need to encourage people 

to join the market so that they do not wait and order up their 

health insurance on their cell phone in the ambulance on the way 
24 

to the hospital. That is a market problem that Congress can address and fix. 

It is unprecedented, quote-unquote, but only in the sense that 

the Affordable Care Act uses a market-based system giving people 

more choices than has been our previous custom of providing a single governmental payer, as we did under Social Security and largely do under Medicare. So the idea that this is unprecedented is 

only one that it is a new use of a market-based approach, less intrusive, providing more choice. 

Chairman LEAHY. Thank you. 

Thank you, Mr. Chairman. 

Senator DURBIN. Thanks a lot, Mr. Chairman. 

Senator Cornyn. 

Senator CORNYN. Thank you, Senator Durbin, and thanks to all 

the witnesses for being here. I feel like I am back in law school, 

but we appreciate the fact that each of you are giving us the benefit of your expertise and your opinions on a very important issue, 

no doubt. 

I was tempted to say, Mr. Chairman, that I wish we had done 

this before the law was passed, which we did not, as opposed to 

now. But I think, Professor Barnett, you make a very important 

point, that Congress’ duty with regard to a law like this does not 

end when it passes a law. Indeed, if, in fact, we are of the opinion 

that it exceeds either the prudential or constitutional bounds of 

Congressional power under the Commerce Clause, we can repeal it. 

And I would just say to my friend who is chairing the Committee, 

Senator Durbin, I know it was suggested earlier that it is either 

this or nothing. I think they call that the fallacy of a false dichotomy. There are not just two choices. There are many other choices 

that are available to Congress if this were to be repealed and replaced, and I am sure we will talk about that a lot more. 

But let me just say—I went back to look at the Federalist Papers 

where in Federalist 45 James Madison talked about the powers of 

the Federal Government being enumerated and specific and the 

power of the State being broad. And, indeed, the heading for the 

Federalist 45 is ‘‘Alleged Danger From the Powers of the Union to 

the State Governments Considered.’’ It was exactly this sort of relationship between the State government and State power and individual citizens and the Federal Government that I think is causing 

the most concern here, because my own view is that the individual 

mandate is an unprecedented overreach of the Federal Government’s limited and enumerated powers. And I know lawyers can 

disagree, and we do disagree, and we usually do so in a civil and 

dignified way, and that is great. 

By the way, Mr. Chairman, I would ask unanimous consent to 

introduce a letter from the Attorney General of Texas, Greg Abbott. 

He was one of the 26 Attorneys General who were successful in the 

litigation recently concluded in the district court in Florida. 

Senator DURBIN. Without objection. 

Senator CORNYN. I thank the Chair. 

[The letter appears as a submission for the record.] 

Senator CORNYN. So really I think what worries people more 

than anything else, whether they articulate it quite this way or 

not, is that I think a lot of people feel like the fundamental rela-
25 

tionship between the Federal Government and the American people 

has somehow been altered in a basic and sweeping way. And 

whether they can say, well, that is a violation of the 10th Amendment or it is a violation of the Commerce Clause or the Necessary 

and Proper Clause or whatever, I think it depends on the individual and their background and expertise. 

But I just want to ask whether you agree—let me ask Professor 

Fried this question. Jonathan Turley, a law professor who testifies 

occasionally here before us, said that if the Supreme Court upholds 

the individual mandate, it is hard to see what is left of federalism. 

Do you agree or disagree with that? 

Mr. FRIED. I disagree with that. I recall in the Violence Against 

Women Act there must have been Attorneys General from 52 States 

arguing that that Act was constitutional, and it was thrown out 

anyway because it was not commerce, and that was a correct decision. I supported it. I helped procure it, indeed. But that was because what the act covered was not commerce. This is as I recall, 

the great debate in the Senate was between this device and something called the government option. And the government option 

was described as being something akin to socialism. And I think 

there is a bit of a point to that. But what is striking, Senator, is 

that I do not think anybody in the world could argue that the government option or, indeed, a single-payer federal alternative would 

have been unconstitutional. It would have been deplorable. It 

would have been regrettable. It would have been Western if not 

Eastern European. 

[Laughter.] 

Mr. FRIED. But it would not have been unconstitutional. And it 

is odd that this, which is an attempt to keep health coverage in the 

private market, is now being attacked that way. 

Senator CORNYN. You made a very good case that Congress can 

pass some very bad laws that are still constitutional. 

Mr. FRIED. Yes, sir. 

Senator CORNYN. Because time is running short—and I hope we 

will have a chance for a second round because seven minutes does 

not give us enough time. But I did want to explore. Professor Fried, 

you did say that while you are not troubled by the individual mandate, you are troubled by this huge unfunded mandate imposed on 

the States by the Medicaid expansion. Indeed, there is a whole 

body of law that you are no doubt expert in that talks about the 

Federal Government’s coercing the States and commandeering the 

States to pursue a federal policy that is beyond the Federal Government’s authority to do. And I will have to tell you that one of 

the consequences of this in my State is a $27 billion unfunded 

mandate over the next 10 years for the Medicaid expansion, which 

is crowding out spending at the State level for education and transportation and other important priorities. 

I just want to ask you to expand briefly on your concerns in this 

area. 

Mr. FRIED. The case that comes to mind is South Dakota v. Dole 

which required the States—and that was not even a funding mandate—to alter the drinking age and threatened them with the withdrawal of five percent of highway funds if they did not comply. And 

the Supreme Court said, Well, five percent is so little that it is not 
26 

that much of a threat. Implicit in that is, Would you believe 10 percent? How about 50 percent? And the unfunded mandate here is 

huge, and that is why I said to Senator Grassley that I think there 

really is a constitutional worry about that. 

Senator CORNYN. If I could just conclude by saying that was one 

of the bases for the Texas challenge, and I believe the other Attorneys General in the Florida case—I do not believe that the judge 

got to that issue because—I may stand corrected here, but although 

we are focusing on the individual mandate, I am interested in your 

testimony with regard to the coercion or commandeering of State 

authorities and State budgets. 

Thank you. My time is up for now. I hope to come back. 

Senator DURBIN. Thanks, Senator Cornyn. 

Senator Franken. 

Senator FRANKEN. Well, I feel like I am back in law school. 

I did not go to law school. 

[Laughter.] 

Senator FRANKEN. Attorney General Kroger, Mr. Carvin said and 

then repeated essentially this in his testimony: A decision not to 

buy health insurance does not affect commerce. Is that an accurate 

quote? 

Mr. CARVIN. Absent the pre-existing condition ban, true. In other 

words, if you took the pre-existing condition ban out of the law, the 

insurance company would be able to contract with its patients, and 

the fact that some stranger to that transaction sat at home would 

not affect that contractual relationship. The argument I am making 

is that the pre-existing condition ban is what enables Congress to 

reach out and bring that stranger to the transaction in. 

Senator FRANKEN. Well, without the mandate, you could not 

have the pre-existing condition; it would not work in the law. But 

this is a question for Attorney General Kroger. A decision not to 

buy health insurance does not affect commerce. Mr. Kroger, when 

the uninsured in your State go to emergency rooms and cannot pay 

their bills, how much does that cost Oregon hospitals every year? 

Mr. KROGER. You know, Senator, I have spoken to the CEOs of 

various hospitals around the State. The amount of charitable care, 

care of persons who do not have insurance, varies from hospital, 

between three and in some cases as high as 12 percent of the 

amount of care that they are providing. The idea that being uninsured does not affect commerce is just factually incorrect. Every 

American pays higher insurance premiums to cover those costs. 

Senator FRANKEN. I understand it costs about $1.1 billion every 

year for Oregon hospitals. Do you know how much that costs insured Oregonians in terms of higher premiums? 

Mr. KROGER. Senator, the different studies show somewhere between $450 in higher insurance premiums for individuals, up to 

about $1,500 for families who are required to help carry that cost 

of the uninsured. 

Senator FRANKEN. So this basically sounds to me like insured Oregonians are subsidizing uninsured Oregonians. 

Mr. KROGER. That is correct, Senator. 

Senator FRANKEN. So would you agree with the statement that 

a decision not to buy health insurance does not affect commerce? 

Mr. KROGER. It clearly does affect commerce, Senator. 
27 

Senator FRANKEN. OK. Thank you. 

Professor Dellinger, my understanding is that when the Supreme 

Court decides cases, they are interpreting the Constitution, or if 

they are ruling based on precedent, they are ruling based on previous Supreme Court interpretations of the Constitution. Is that 

correct? 

Mr. DELLINGER. Yes, sir. 

Senator FRANKEN. Okay. I have to say that I am confused—and 

maybe it is because I did not go to law school—by Mr. Barnett’s 

testimony when he says, ‘‘No one claims that the individual mandate is justified by the original meaning of either the Commerce 

Clause or Necessary and Proper Clause. Instead, the Government 

and those law professors who support the mandate have rested 

their arguments exclusively on the . . . Supreme Court.’’ 

First of all, I am confused because I know of at least two scholars, Jack Balkin and Akhil Amar, who do think the original intent 

of the Commerce Clause supports the constitutionality. Are Akhil 

Amar and Jack Balkin no one? They are pretty esteemed, are they 

not? 

Mr. DELLINGER. They are, and so is—— 

Senator FRANKEN. So the statement is not actually accurate. 

Mr. DELLINGER. And so is Professor Barnett, but you—— 

Senator FRANKEN. Okay. Well, but I am sure Akhil Amar and 

Jack Balkin have made ridiculous statements, too. I am sorry. I did 

not mean that. 

Mr. DELLINGER. Okay. 

Senator FRANKEN. I did. I did. 

[Laughter.] 

Senator FRANKEN. Anyway, sorry. See, but to me on this—and I 

did not go to law school, but it seems to me that there is a transitive property. If A equals B, B equals C, and C equals D, A 

equals D. And since the courts are relying on precedent, they are 

relying on a Supreme Court that was interpreting the Constitution. 

Right? So is it not true that by relying on precedent you are really 

interpreting the intent of the Founders? 

Mr. DELLINGER. That is true, Senator Franken, but I would also 

be perfectly willing to go back to the original understanding and 

find that this is fully consistent with it in the following sense: The 

Framers did assume in 1787 that there would be substantial areas 

that were matters for local regulation only and the national government would be limited to regulating only that commerce which concerns more States than one. 

What happened over the ensuing two centuries is that the category of what affects more States than one has increased dramatically because of developments in telecommunications and markets, 

et cetera. We now have a single national market so that Congress’ 

authority to regulate that commerce which concerns more States 

than one is greatly vaster than the Framers would have imagined, 

not because of any difference in constitutional principle that they 

adopted, but because of the extraordinary developments in technology, communications, and other matters which make us a single—— 

Senator FRANKEN. Like airplanes. 
28 

Mr. DELLINGER. Which have made us a single national economy, 

yes. 

Senator FRANKEN. Senator Cornyn made this 10th Amendment 

point. As I understand it, the way the 10th amendment was written, and if you go to the Federalist Papers, it was written specifically to exclude the word ‘‘expressly.’’ This is the 10th Amendment: 

‘‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States 

respectively, or to the people.’’ 

Now, I remember that when they were writing this some South 

Carolina representative wanted to put in ‘‘expressly,’’ which had 

been in the Articles of Confederation, and Madison said no. And 

Madison writes in the Federalist Papers that if you put ‘‘expressly’’ 

in, then every possible power of the Federal Government would 

have to be written in an encyclopedic way into the Constitution and 

that that would be absurd. Is that your understanding, is that 

everybody’s understanding of the 10th Amendment? Is that history 

right? Is my history right? 

Mr. DELLINGER. It is mine. 

Senator FRANKEN. Thank you. 

Senator DURBIN. I would like to welcome to the Judiciary Committee Senator Lee of Utah and recognize him at this point. 

Senator LEE. Thank you, Mr. Chairman. I want to thank each of 

our witnesses for coming today. For a law geek like me, it is an 

honor to be here and be able to interact with each of you. 

I want to echo something that has been mentioned once or twice 

this morning but emphasize it again. I think it is important that 

we do this as Senators because I believe that among the founding 

generation, the Founding Fathers, there was no understanding 

that was more ubiquitous than the idea that what we were creating at the national level was not an all-purpose national government possessing general police powers but a limited-purpose Federal Government. And I think one of our jobs as Senators is to 

make sure that, regardless of what the courts say that we can get 

away with in court, regardless of how broadly we may exercise our 

power without judicial interference, we take a second look and say, 

separate and apart from what the court says we can do, should we 

be doing this? Is this consistent with our role as legislators operating within a government with decidedly limited powers? 

I also like the quote from Justice Jackson that was pulled out a 

few minutes ago, I think by Mr. Kroger, to the effect that certain 

decisions are wisely left for Congress. The courts lack the authority 

to be a sort of roving commission on all things constitutional. We 

have to make a number of these decisions on our own regardless 

of whether the courts are going to do them for us. 

I wanted to ask a few questions of Mr. Dellinger, if that is okay, 

Professor. Do you agree, first of all, with James Madison’s assessment that Mr. Cornyn quoted a few minutes ago that while the 

powers of the Federal Government are few and defined, those that 

are left to the States are numerous and indefinite? 

Mr. DELLINGER. I do agree, and I think Senator Cornyn correctly 

cites Federalist 45 for that proposition. And as I said, Senator Lee, 

within the area of Congress’ authority to regulate national com-
29 

merce, what has grown is the interdependency of national commerce, not our understanding of the Constitution. 

Senator LEE. Sure. Sure, it has grown. But they had interstate 

commerce then. They were interconnected. In fact, that was the 

whole reason why we need to be a union in the first place, right? 

Mr. DELLINGER. Correct. 

Senator LEE. We could not survive. So they understood this 

interconnectedness. This is not new. It has been facilitated by jet 

airplanes and by the Internet, but—— 

Mr. DELLINGER. That is right. But if you get sick in North Carolina in 1787, it had no effect in Utah. 

Senator LEE. Well, Utah then was part of Mexico. 

[Laughter.] 

Senator LEE. Still a lovely place, but—— 

Mr. DELLINGER. It had no effect in Pennsylvania, if I may clarify 

my remarks. 

Senator LEE. Okay, okay. But they were interconnected, so perhaps the changes that we have had have been changes of degree. 

Perhaps we were more interdependent then than we are now, but 

you would still agree that it is still accurate to say the powers of 

the Federal Government are few and defined, whereas those reserved to the States are numerous and indefinite. 

Mr. DELLINGER. Yes. 

Senator LEE. And yet if this law is upheld, if this law is within 

Congress’ limited power to regulate commerce among the States— 

notice it did not say ‘‘commerce.’’ It says ‘‘commerce among the several States and with foreign nations.’’ If this is within Congress’ 

power, wouldn’t it also be within Congress’ power to tell every 

American, including you and me and everything in this room, that 

we must eat four servings of green leafy vegetables each day? 

Mr. DELLINGER. No. 

Senator LEE. Why is that? What is the distinction? 

Mr. DELLINGER. The distinction is that a regulation of commerce 

to be constitutional has to be a permissible regulation of commerce, 

and something which intrudes into the area of personal autonomy 

does not meet that standard. 

Senator LEE. Like, say, deciding where to go to the doctor and 

how to pay for it. I am trying to understand the difference between 

the personal autonomy at issue there and that presented by this 

law. 

Mr. DELLINGER. Well, the case about broccoli is a case that is 

covered both by Lopez and Morrison; that is, you are regulating a 

local non-economic matter, what you eat and whether you exercise. 

And it is also governed as well—it is doubly unconstitutional because it is governed as well by the principle in cases like Luxburg 

and Vacco and Cruzan that say that an individual has the right to 

refuse unwanted medical treatment. You have a constitutional 

right to refuse it, and I—— 

Senator LEE. Please understand, Professor, I am talking about 

the Commerce Clause here. I am not talking about—— 

Mr. DELLINGER. I understand that, but I—— 

Senator LEE. Let us keep our discussion limited to the Commerce 

Clause. 
30 

Mr. DELLINGER [continuing]. Think if you talk about whether 

Congress could require people to buy other products—what would 

be Congress’ legitimate reason for doing so? I think there would be 

many constitutional objections? 

Senator LEE. Oh, I can come up with one right now. I mean, 

look, if we are going to make sure that everybody has got health 

insurance and that the Government is going to pick up the slack 

behind, then Congress could assemble a panel of experts—let us 

say your functional equivalence from the dietary council industry 

who would come and tell us that if you eat four servings of green 

leafy vegetables every single day, you are 50 percent less likely to 

suffer from heart disease, cancer, stroke, or a whole host of other 

ailments. That is going to cost the government less money. So there 

is a pretty tight nexus there. 

Mr. DELLINGER. Yes, but as the Court said in Gonzalez v. Raich, 

that is a Morrison and Lopez problem of dealing with non-economic 

matters, and the Court said in Gonzalez where the act under review is ‘‘a statute that directly regulates economic, commercial activity, our opinion in Morrison casts no doubt on its constitutionality.’’ This is a direct regulation of a commercial activity, not 

something that merely affects a commercial activity. 

Senator LEE. Okay. Let us change the hypothetical just slightly 

then. Instead of saying you must eat them, it would say you must 

take the first $200 out of each month’s earnings and purchase the 

equivalent of four servings of green leafy vegetables to eat per day. 

This all of a sudden is economic activity. This is not Lopez, where 

we are talking about bare, non-commercial, intrastate possession of 

a firearm within a school zone, or about Morrison, where you are 

talking about non-economic intrastate acts of violence. 

Mr. DELLINGER. Okay. It seems to me that there are two responses to the argument that upholding this would stand for the 

proposition that Congress can force people to buy anything. 

The first is that this is a requirement that you make provision 

to buy something which you cannot ever be assured you will not 

use and cannot be assured you will not transfer the cost to others. 

So I think it is distinguishable. 

But, second, the very form of that argument was used to attack 

the minimum wage and Social Security. 

Senator LEE. Social Security was—— 

Mr. DELLINGER [continuing]. Minimum wage, your question to 

be—if the issue were the constitutionality of the minimum wage 

law and it were 1937, you would be asking me, is it a regulation 

of commerce for Congress to have a minimum wage of $5,000 an 

hour? And that has never been a legitimate—is it a regulation of 

commerce to say that if you buy one car, you have to buy three 

cars? That form of argument, I think, was used against Social Security and used against Medicare, and Congress has, in fact, never 

abused that. It has never set the retirement age at 25 as the opponents of the Social Security Act said would be possible if you 

upheld a retirement plan for people over 65. So the very form of 

the argument, I think, deflects attention from what is basically a 

completely unremarkable regulation of an important national market. 
31 

Senator LEE. Mr. Chairman, I see my time has expired. I have 

got one very brief follow-up question. Could I just ask that? Then 

I will be finished. 

I was pleased to see in your written testimony that you have become such a huge fan of Justice Scalia’s jurisprudence. He is also 

one of my favorite Justices on the Court. You quote him repeatedly 

as a source for the Court’s post-Wickard v. Filburn jurisprudence 

under the Commerce Clause. Is it the case that that necessarily reflects his view as an original matter, as a matter of first principles? 

Or are those views made in recognition of the fact that he is bound 

by stare decisis? 

Mr. DELLINGER. That is a good question, Senator, and I do not 

know the answer to that. It could well be that he is reflecting stare 

decisis, and I do admire him, because I believe that in the case that 

you and I are arguing against each other, he cast the critical vote 

for the position that sustained my argument and not yours. 

[Laughter.] 

Senator LEE. And he could not have been more wrong, could he? 

Thank you. 

Senator DURBIN. Thank you, Senator Lee. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

I am going to take a little different tack than Mr. Lee in terms 

of the practicality of these decisions as you look at people who— 

I think Mr. Kroger is well aware of this—already small business 

is taking advantage of the discounts that they are getting and the 

fact that you have got people who are—kids who are getting to 

keep their insurance that have pre-existing conditions and States 

who are now struggling to figure out what they are going to do in 

light of these decisions. And so my question—I know Senator Durbin asked this of Professor Dellinger, but maybe a few of the other 

witnesses want to chime in. What is the practical, immediate outcome of the decision in Florida on Monday? And I understand that 

some State Attorneys General are telling people they do not need 

to do the work to comply with the law since Judge Vinson did not 

stay his ruling pending the government’s appeal. Other States 

think it would be irresponsible not to continue making preparations for implementation of the Act in case Judge Vinson’s opinion 

is overruled at higher levels. 

I guess I would start quickly with you, Mr. Kroger. Just from the 

practical level, what are you telling your State what they should 

do in light of the Florida ruling? 

Mr. KROGER. Well, Senator, I hate to sound like a lawyer as a 

practical matter, if I—— 

Senator KLOBUCHAR. Aren’t you a lawyer? 

Mr. KROGER. Yes. If I was giving advice to State government, it 

would be covered by attorney-client privilege—— 

Senator KLOBUCHAR. Oh, okay. 

Mr. KROGER.—and I would not be prepared to share it with you 

here. 

Senator KLOBUCHAR. OK. 

Mr. KROGER. I can say, generally, that I think it would be a huge 

mistake for a State to pretend that this is the final word. Obviously, we have decisions on both sides that have come out. They 
32 

are only district court opinions. And so, you know, my sense is that 

it would be an enormous mistake for a State not to continue on 

with implementation of the Act. 

Senator KLOBUCHAR. Professor Fried. 

Mr. FRIED. I do not have a judgment on that. It seems to me odd 

that one judge in Florida could govern the Nation. So—— 

Senator KLOBUCHAR. If they were in Minnesota, that might be 

different. 

Mr. FRIED. Not to me, it would not. 

[Laughter.] 

Mr. FRIED. But I cannot really speculate. I had not thought that 

one through. 

Senator KLOBUCHAR. The next two, Mr. Carvin, Professor 

Barnett. 

Mr. CARVIN. I will join Professor Fried’s agnostic response. I am 

not really sure. 

Mr. BARNETT. I have been asked this, too, Senator, and I do not 

think I know the answer. But I can say without violating attorneyclient privilege that I saw Attorney General Abbott from Texas on 

the news last night, and he said himself that he was counseling the 

Texas legislature that they should continue to act pursuant to the 

law until it is ruled upon by above. So I do not know if he is right, 

but I do know that he is someone whose opinion I respect, and that 

is the advice he is giving his own State legislature. 

Senator KLOBUCHAR. Okay. Along these same lines, Judge Vinson struck the entire Affordable Care Act down because he found 

that the individual mandate was unconstitutional. That is a step 

that an earlier decision, which also found problems with the Act 

from the Eastern District of Virginia, did not take. Do you think 

the constitutionality of the whole law is contingent on the individual mandate? And then I guess a secondary question was how 

important it is to you that there was not a severability clause included in the bill. We will start with you, Professor Dellinger. Do 

you want to—— 

Mr. DELLINGER. I think it strikes me as far too sweeping, and I 

will pass that question on to my colleagues. 

Senator KLOBUCHAR. Professor Fried, and then we will go—— 

Mr. FRIED. I do not believe that Judge Vinson said that the other 

parts of the statute were unconstitutional. What he said was because there is no severability clause and because the rest of the Act 

becomes unworkable without the mandate, which is something, of 

course, that many of us have been arguing, therefore, in striking 

the mandate, he is really in effect striking the rest of the statute 

because the rest of the statute becomes unworkable. But he is not 

saying that it is unconstitutional. 

Senator KLOBUCHAR. Right. 

Mr. FRIED. If I read him correctly. 

Senator KLOBUCHAR. Okay. I just meant it more broadly. So do 

you think it matters that there is not a severability clause? 

Mr. BARNETT. A severability clause, Senator, would not be dispositive. It would help the Court in discerning what the intent of 

Congress was. So in the absence of a severability clause, the judge 

must try to figure out what the intent of Congress was, and the 

government, even in its brief, said that the insurance regulations 
33 

imposed on the insurance companies were not severable from the 

mandate. Then the only question was for the judge—and that 

seemed pretty obvious—whether he could go into the bill, the 

2,700-page bill, and look at all the provisions that were not regulations of insurance companies, sort of like the 1099 requirement, let 

us say, and say, Well, those could stand independently of these. 

And he said that is just not something he thinks the judge ought 

to be able to do, to go inside a bill and just find the ones that he 

thinks can work and not work. So he just said, ‘‘It is outside my 

purview, and I am just going to have to go with the whole thing.’’ 

Senator KLOBUCHAR. All right. Professor Dellinger stated that 

the minimum coverage requirement in the Affordable Care Act is 

no more intrusive than Social Security or Medicare. What do you 

think about that statement, Professor Fried? 

Mr. FRIED. It is distinguishable because, after all, the argument 

is being made you do not have to buy insurance, you can pretend 

that you will never get sick and so on and so forth. But with Social 

Security, you only get into that system if you earn money, if you 

have a job, if you make a living. Well, for goodness sake. 

Senator KLOBUCHAR. Professor Dellinger. 

Mr. DELLINGER. Although the mandate applies to everyone who 

is not exempted because they already have Medicare, their income 

is too low, et cetera, like Social Security, the penalty provision only 

applies if you enter the market and earn money. And so what 

strikes me as so remarkable about the attack on this law is that 

it seems to me to be in two ways everything conservatives should 

abhor. 

First of all, it seeks to establish the principle that Congress can 

address a major national economic problem only by providing a 

monolithic government solution and is precluded from using a more 

choice-friendly—— 

Senator KLOBUCHAR. You are saying the argument would lead 

you to believe that under their argument that would be constitutional. 

Mr. DELLINGER. Yes. And I know Professor Barnett, I believe, acknowledges that. I think Mr. Carvin does, too. You could have— 

and so if the only way Congress can address a market problem is 

by having the government step in and be the exclusive provider, 

that strikes me as an odd position for conservatives to take, which 

is why the idea of using the market and creating a financial incentive has always been more or less a conservative idea, a Republican 

idea. It is very akin to what the previous President Bush wanted 

to do with parts of Social Security: give people a financial incentive 

to go into the private market. That private market approach was 

adopted here, so it seems odd to attack that and say you can only 

use a government approach. And it also seems odd to say that five 

Justices sitting in Washington should decide a matter of economic 

regulation for the whole country. Both of those seem to me approaches that ought to be anathema to anyone who marches under 

the banner of conservatism. 

Senator KLOBUCHAR. Thank you very much. 

Senator DURBIN. Senator Hatch. 

Senator HATCH. Well, thank you, Mr. Chairman. I first want to 

ask consent to place a few items in the record. I have a statement 
34 

for myself and one submitted by our Attorney General of our great 

State, Mark Shurtleff. 

Senator DURBIN. Without objection. 

[The prepared statement of Senator Hatch appears as a submission for the record.] 

[The prepared statement of Mr. Shurtleff appears as a submission for the record.] 

Senator HATCH. Now, Utah is an original plaintiff in this multiState lawsuit, and of course, Judge Vinson singled out Utah as 

having standing as well. Attorney General Shurtleff has been at 

the head of the pack in finding for individual liberty and State sovereignty, and I am very proud of Utah’s role in this. So I ask consent for Judge Vinson’s opinion to be part of the record as well as 

the friend-of-the-court brief filed in that case by 32 Senators, including several members of this Committee. 

[The information referred to appears as a submission for the 

record.] 

Senator HATCH. And, finally, I ask consent that a few of the articles that I published on this subject in newspapers such as the 

Wall Street Journal and Chicago Tribune and the Regent Journal 

of Law and Public Policy, if I could have those in the record as 

well, Mr. Chairman. 

Senator DURBIN. Without objection. 

[The information referred to appears as a submission for the 

record.] 

Senator HATCH. Now, it has already been said that the distinction between activity and inactivity is not in the text of the Constitution. I think most all of you have said that. Ah, a textualist 

is born. But neither are words such as ‘‘substantial effects’’ or 

‘‘broader regulatory scheme’’ or anything else the Supreme Court 

has come up with that defenders of ObamaCare rely on. And there 

is no ‘‘intrusiveness’’ standard in the Constitution either. Would 

you agree with that, Professor Barnett? 

Mr. BARNETT. Of course. That is not a constitutional standard or 

doctrine that I am aware of. 

Senator HATCH. Well, none of them are. 

Mr. Carvin. 

Mr. CARVIN. Right, no. Obviously, things that substantially affect 

commerce is something that the Court says is within the Commerce Clause, but as has been pointed out, there are a number of 

things that affect commerce—violence against women, possessing 

guns—which the Court has said, no, no, those do not come within 

the ambit. And I would argue that economic inactivity is far more 

afield from the commerce power than things like buying and possessing guns. 

Senator HATCH. I am very grateful to have Professor Fried 

here—he is a grand old friend—and Professor Dellinger is an old 

friend, both of whom I admire greatly. I do not know you, Mr. 

Kroger, but I am sure you are just fine. 

[Laughter.] 

Senator HATCH. Now, the Congressional Budget Office, in the 

past, has said that requiring individuals to purchase a particular 

good or service was ‘‘unprecedented.’’ Now, that is the Congressional Budget Office. The Congressional Research Service recently 
35 

concluded that, ‘‘It is a novel issue whether Congress may use the 

Commerce Clause to require an individual to purchase a good or 

a service.’’ I think it is a novel issue, I submit, because Congress 

has never done it before. 

Now, I will throw this question to each of our witnesses and hope 

I get straight answers. Can you give me an actual example other 

than ObamaCare of Congress requiring individuals to purchase a 

particular good or service? 

Mr. KROGER. Senator, if I may, my parents own a small business. 

They are constituents of Senator Cornyn’s. And if you told them 

that the government had never required them to buy a good or 

service, they would be astounded. The federal OSHA law and regulations require all kinds of sole proprietors and small business people to go out and buy equipment, whether it is orange cones or 

hard hats or a fire disposal system in a restaurant. The environmental laws require a huge range of small business owners to buy 

air filters up to, you know, sulfur oxide scrubbers. 

The reason small business people tend not to like government 

regulation, and particularly federal regulation, is because it does 

require them to spend money on goods and services. And so I think 

those are—— 

Senator HATCH. Only as a condition of being in business. 

Mr. KROGER. You know, Senator, the—— 

Senator HATCH. I mean, these people are not trying to get into 

business. 

Mr. KROGER. It is true that my parents could close down their 

business. All people could close down their business. 

Senator HATCH. Well, they do not have to because they can go 

into business. But as a condition of going into it, they have to meet 

certain laws, right? 

Mr. KROGER. Yes, I—— 

Senator HATCH. In this particular case, we have an inactivity of 

people—if you want to use that word. I do not find it the greatest 

word in the world. But we have an inactivity here that they do not 

want to do. And they would make their choice not to do it. 

Let me go to you, Professor Fried. 

Mr. FRIED. I think the idea that one can make a choice not to 

seek health care throughout one’s life is simply not realistic and 

cannot be the basis for an attack on the constitutionality. 

Senator HATCH. It is not right. I have to concede that point. But 

that still begs the question of whether it should be mandated. 

Mr. FRIED. Well, I think once you have taken the first step and 

you have made that first concession, the rest follows. 

Senator HATCH. Okay. 

Mr. FRIED. And it has brought to mind the various things that 

were considered in the Senate and which the previous President, 

I think, very wisely suggested as an alternative to Social Security. 

And as an alternative, it was suggested that you could buy mutual 

funds from Vanguard, from Fidelity, and you would not have to buy 

it from the Government. And maybe one would say that, well, you 

do not have to work. You can simply, you know, sit on a corner and 

say, ‘‘Spare change,’’ and then you would not have to pay Social Security. But I think that is unrealistic as well. 
36 

Senator HATCH. Let me go to Mr. Carvin. I only have a few seconds left. 

Mr. CARVIN. No, they have never done it before, and if you buy 

any of the analogies that have been just agreed to, then there is 

no limit on Congress. The notion that health care is unique because 

you have to buy the goods is factually incorrect. You have to buy 

transportation, clothes, housing, shelter, food. The notion that 

health insurance is somehow a core requirement is kind of silly. 

And, of course, if you started drawing these distinctions between 

transportation and health care, you get back into the sort of unprincipled distinctions that bedeviled Commerce Clause jurisprudence prior to at least the 1930s. 

Senator HATCH. Mr. Barnett. 

Mr. BARNETT. It has never been done before, Senator, and the 

fact is that even though everyone might be said to one day need 

health care, the bill itself exempts people from buying health— 

health insurance is not the same thing as health care. Everyone 

does not go into the insurance market, and the bill exempts people 

for religious reasons from having to obtain health insurance. So, 

clearly, even Congress recognized that not everyone has to obtain 

health insurance just because they may or may not one day seek 

medical care. So the fact that medical care is an inevitability— 

which it is not for everyone. But to the extent that it is likely, it 

does not mean insurance. A completely different product is an inevitability. 

Senator HATCH. Walter. 

Mr. DELLINGER. Senator, my understanding is that the very first 

Congress required every adult free male to purchase and equip 

themselves with muskets, with ammunition, even certain forms of 

dress to carry the weapons and equipage with them. It is true 

that—— 

Senator HATCH. But you have got to admit that the—— 

Mr. DELLINGER. That has been a long—— 

Senator HATCH [continuing]. Provides guidance for that. 

Mr. DELLINGER. It has been a long time since then. Yes, you can 

say when something has not been done before that it is novel or 

unprecedented, but no matter how much one italicizes those words, 

it does not amount to a constitutional argument. This is novel in 

the sense that Congress has decided to use a market approach, and 

it has used it with regard to the purchase of a commodity that 

truly is unlike others. There is nothing else in our economy where 

an individual who has made no preparation for the expense could 

go in and get a million dollars’ worth of goods and services provided to them, the cost of which is passed on to others. There is 

nothing like that. So in that truly unique market, an incentive for 

people to make provision through insurance seems unremarkable. 

Senator HATCH. One reason I raised it is for the purpose of showing that it has never been done before, and I think there are good 

reasons why it has never been done before. But I have asked the 

distinguished Chairman if he would just let me make a couple 

more remarks. I have a lot of other things I would like to ask, but 

my time is up. If you will indulge me, I would appreciate that. 

You know, because no Commerce Clause cases involve Congress 

regulating decisions rather than an activities, that renders this 
37 

case as a case of first impression, which is my point. ObamaCare 

backers cite mandates that derive from different enumerated powers. They argue, for example, as some of you have argued here— 

I have been very interested in these arguments—that Congress has 

imposed mandates on individuals before such as jury service and 

military draft or Social Security. Professor Fried has made this argument. And simply because one provision of the Constitution allows Congress to require that someone do something cannot mean 

that the Commerce Clause allows the Congress to impose an individual insurance mandate. 

Jury duty, for example, as been mentioned, has multiple layers 

of exceptions that make it far less compulsory for most people. It 

is also ‘‘necessary and proper’’ in order to exercise Congress’ power 

to establish lower courts and to implement the Sixth Amendment 

right to trial by an impartial jury. 

Congress may impose a military draft, which, again, has layers 

of exceptions, pursuant to enumerated powers to raise and support 

armies, and they can clothe them and ask them to have guns as 

well and maintain a navy. 

And the Social Security system, which has been raised here, is, 

unlike this insurance mandate, unequivocally an exercise of Congress’ power to tax and spend for the general welfare. It is a completely different issue, as far as I am concerned. 

Now, each of these examples stands clearly within enumerated 

power. The insurance mandate does not. And I think, great scholars that you are, I think you have to admit that. If Congress could 

impose—now, that does not say that I am right and you are wrong, 

but it does make it more clear. If Congress could impose any mandate on an individual because it may impose a particular mandate 

on certain individuals, there would be no limits to federal power at 

all. And that is where I have a lot of difficulty here and have had 

a lot of difficulty as I have studied this matter. 

Now, I have got to say, I respect all of you, and I respect the differences in points of view. But for the life of me—Professor Fried, 

I have a great regard for you, but I am really amazed at some of 

your arguments here today. Great man that you are. Now, I expected them from Walter Dellinger. 

[Laughter.] 

Mr. DELLINGER. Thank goodness I have General Fried with me. 

Mr. FRIED. It is wonderful not to lose one’s power to surprise. 

[Laughter.] 

Senator HATCH. Well, you have never lost that power. I have to 

say that I probably agree with you much more on many other 

issues than I do here, but I have really enjoyed this. I really appreciate it. You have taken the time here. This is a very, very important issue. 

And, Walter, Professor Dellinger, I want you to at least realize 

that the liberal part of you should be protecting our rights, not necessarily broadening them in the sense of making us have to buy 

health insurance. 

Mr. DELLINGER. Senator, just a brief comment. I think you make 

obviously a very good point that most legislation, State—— 

Senator HATCH. I thought they were points. 

Mr. DELLINGER. Well, you made one that I thought was—— 
38 

Senator HATCH. Okay, one. 

[Laughter.] 

Mr. DELLINGER. And that is that most legislation, State and federal, prohibits individuals from doing things. But there has always 

been some legislation, State and federal, that imposes affirmative 

obligations. 

Senator HATCH. No question. 

Mr. DELLINGER. That does not mean that—in that sense, it is 

unremarkable to impose affirmative obligations, though I think 

our—— 

Senator HATCH. You can find those in the Constitution, is my 

point. 

Mr. DELLINGER. I think I—well, but it is also true under—it is 

the commerce power that Congress uses to build interstate highways and tells people that they have to move and take a check 

from the government. It is the commerce power that does that. So 

there are lots of affirmative obligations. 

Now, I think we should be very attentive. Affirmative obligations 

can be more intrusive, and, therefore, we have to take a careful 

look to make sure that they do not transcend any limits. This to 

me it seems easily does not. 

Senator HATCH. Well, I have transcended my limits, and I apologize to the distinguished Chairman, but I appreciate him giving me 

this little leeway because I have to leave, and I just want to thank 

each one of you for coming. 

Senator DURBIN. Thanks very much, Senator Hatch. 

If any members of the panel would like us to take a break for 

a few minutes here before we proceed, just kind of give a high sign. 

Should we just keep—— 

Mr. FRIED. I need to get back to Boston if I possibly can, but that 

is a two o’clock train. 

Senator DURBIN. Well, I swear that we will get you to the station 

on time. 

We are honored to have as a new Member of the Senate Judiciary Committee Senator Blumenthal of Connecticut, who is a former 

Attorney General of that State. Welcome, Senator Blumenthal. 

Please proceed. 

Senator BLUMENTHAL. Thank you, Mr. Chairman, and thank you 

to the panel. 

I have to make clear at the very beginning I do not feel like I 

am back in law school. If law school had been this interesting and 

enlightening, I would have gone to more classes. 

[Laughter.] 

Senator BLUMENTHAL. I just want to join Senator Hatch and 

other Members of the Committee in thanking you for spending the 

time with us today and giving us the benefit of some very important testimony. 

I want to say particularly to General Kroger that I appreciate 

your being here and your having the courage to do what you have 

done in declining to join what may be a popular stance in some 

quarters in challenging the lawsuit. I declined as Attorney General 

to join in that challenge, partly because this new Act actually saves 

money for many, many States, including Connecticut. It saves Connecticut some $53 million through September 2011 and perhaps 
39 

does the same for Oregon and other States, but also because I believe that the lawsuit is without merit. And I think that the two 

opinions we have to the contrary from Judge Hudson and Judge 

Vinson show clearly that it is without merit, and partly because of 

this distinction made out of non-cloth, non-constitutional cloth, between inactivity and activity, which is nowhere present in any previous case of the United States Supreme Court, but also because 

I think they give very, very inadequate attention and weight to the 

doctrine that laws should be presumed constitutional. 

Judge Hudson, in effect, rejects the idea because of a footnote in 

City of Chicago v. Morales. Judge Vinson considers it almost not 

at all. In fact, he says that, as I recall, ‘‘I can consider’’—‘‘I assume 

that I can consider the constitutionality instead of I presume that 

it is constitutional.’’ 

So I want to direct this question to you, General Kroger, and also 

perhaps to the other members of the panel. Aren’t you troubled by 

the lack of weight given to this presumption, which is so fundamental to the work that you and other Attorneys General and the 

Attorney General of the United States does day in and day out in 

defending statutes against constitutional attack? 

Mr. KROGER. Senator, I would simply agree with you that the 

presumption of constitutionality is extraordinarily important, and 

that deference is shown to the democratically elected officials in the 

State to craft the right policy that will govern the country. And I 

think probably both of those could use greater emphasis in the decisions that go forward. 

Senator BLUMENTHAL. And would you agree that one of the reasons that this presumption should have stronger and special weight 

in this case is that, in fact, the U.S. Congress, as Senator Leahy 

pointed out earlier, considered these constitutional issues in deliberating and debating this law? So it is not as if the courts have discovered this issue or the plaintiffs have discovered it. Congress considered it, and a co-equal branch of government is entitled to that 

respect. 

Mr. KROGER. Senator, I think ultimately, of course, it is the 

Court’s province to declare whether the law is constitutional or unconstitutional, and as someone who appears in front of courts all 

the time, I would hate to in any way imply that they do not have 

that responsibility. But I do think closer attention to precedent 

would make a big difference in these cases going forward. 

Senator BLUMENTHAL. Let me ask Mr. Carvin, and Professor 

Barnett perhaps, your views on this issue and whether you are not 

troubled by the overreaching—and I do not use that word lightly— 

the judicial overreaching that very plausibly could be seen in this 

disregard for the presumption of constitutionality. 

Mr. CARVIN. I certainly think the presumption of constitutionality is important, and I think the Congress has very broad discretion in its Commerce Clause regulation. But I think the key 

thing to focus on both under the Necessary and Proper Clause and 

the Commerce Clause is Congress was given broad discretion in 

terms, broad means to achieve a legitimate end. This comes from 

McCulloch v. Maryland. And for reasons that I will not repeat, I 

think Congress is seeking to achieve an illegitimate end in this 

context. 
40 

I would also caution that it is unfair to label activities which 

strike down laws as unfair judicial activism. Judicial activism to 

me is striking down a law that is constitutional because you think 

it is bad policy. I think it would be equally wrong to uphold a law 

that you believe is unconstitutional because you think it is good 

policy. In both instances, the judge is not doing what I think we 

all agree judges should do, is look at the law and not be influenced 

by the desirability of the policy. 

Mr. BARNETT. Senator, I am confident that you are not impugning Judge Vinson’s integrity in ruling the way he did, but I know 

people—— 

Senator BLUMENTHAL. Not at all. 

Mr. BARNETT. I know you are not, but some people outside this 

room are. And in light of your question, I just want to point out 

that this very same Judge Vinson who held that the individual 

mandate was unconstitutional turned away the State AG’s challenge to the Medicaid requirements under their interpretation of 

South Dakota v. Dole. That is the very same judge in the very 

same case upholding an act of Congress, although it, too, is being 

challenged by 26 Attorneys General while he—as he turns away 

their challenge. He upholds the law while he finds another part of 

the law unsatisfactory. I think that should be added to the record 

in defense of Judge Vinson’s integrity in respecting a co-equal 

branch of government. 

Senator BLUMENTHAL. Thank you very much. 

Thank you, Mr. Chairman. 

Senator DURBIN. Thanks a lot. I am going to recognize Senator 

Sessions for the last Senator to ask in the first round. We will have 

a second round, but I have asked my colleagues if they have questions; let us do it in a shorter period of time and try our best to 

accommodate the schedules of our kind panel. 

Senator Sessions. 

Senator SESSIONS. Thank you. 

I would like to offer for the record the written testimony of Florida Attorney General Pam Bondi for this, and I also will be offering 

for the record a statement from Alabama’s Attorney General Luther Strange, who would be also of the belief that—both of them 

are of the belief that the Act is unconstitutional. 

[The statements appears as a submission for the record.] 

Senator SESSIONS. The U.S. Government is a government of limited powers. I mean, this is how it was created, and there are explicit grants of power to the Federal Government, and there are 

certain powers that were not given to the Federal Government. In 

recent years, there has been a feeling about in our country that the 

Federal Government can do anything it desires to do on any subject, and I think the rulings attacking this statute are refreshing 

to me in that it causes our Nation to once again enter into a discussion about what it means to be a government of limited powers. 

I would just suggest how far we have gotten from these issues 

when there are explicit constitutional provisions, the right to keep 

and bear arms, whereas we have four members of the Court who 

want to read that out of the Constitution. It has a specific provision 

that provides individuals the right to not have their property taken 

except for public use. It has specific provisions that allow free and 
41 

robust debate and the ability to speak out in public forums. Those 

things are individual rights that our courts somehow have gotten 

to the point that they are not very important anymore. I think in 

those cases the State either won or almost won that would diminish individual rights as opposed to the State. So I just think this 

is a fundamental point that we ought to know. 

We did not have hearings in this Committee on the health care 

bill, the constitutionality of it. When people raised it on the floor 

of the Senate, as quite a number did, they were ignored for the 

most part, and it was dismissed out of hand. We also had a Congressman I saw on television basically saying, What has the Constitution got to do with this? You know, it was a disrespectful approach to the Constitution entirely. So Congress did not do such a 

good job, frankly. We did not seriously engage in a debate about 

whether this power was legitimately granted to the Federal Government. 

And, of course, the comment was made about States and the 

money. I would just note that my Governor, Governor Riley, has 

told me he is stunned by the economic impact that this health care 

bill would have on State budgets. It is a stunning thing. Senator 

Cornyn tells me that Texas expects a $27 billion hit on Medicaid 

requirements for the State under this. So it is huge. 

Mr. Carvin, if the courts were to allow the individual mandate 

to stand and thereby grant the Federal Government authority to 

compel private citizens to purchase goods or services to promote 

some broader government policy, can you identify any limiting 

principle that would prevent the government from mandating the 

purchase of anything or everything? 

Mr. CARVIN. I cannot, and there have been a few efforts to try 

and identify them today. If Congress can require you to subsidize 

a corporation because of burdens the Federal Government has imposed on that corporation, I do not see any limit in terms of requiring you to purchase—I think everyone agrees—commercial goods, 

credit card contracts, cars, things like that. 

Mr. Dellinger, whom I greatly respect, has suggested that maybe 

there is some restriction in terms of requiring you to purchase 

health care because that involves personal autonomy. But I would 

think that most people would think that purchasing health insurance and deciding how you pay for it and what doctor you go to 

would implicate personal autonomy. 

I would also point out there is disagreement between my brother 

Dellinger and my brother Fried on this point. Professor Fried 

thinks that it is perfectly okay to require you to purchase a vaccination citing the Jacobson case, and Professor Dellinger apparently would think that would implicate the Liberty Clause. 

At the end of the day, all that can be agreed on in terms of a 

limiting principle is, well, Congress cannot do anything under the 

Commerce Clause that is unconstitutional. Well, Congress can 

never do anything that is unconstitutional, so it makes the limitations in the Commerce Clause utterly irrelevant, because all it 

means is they cannot violate the Bill of Rights. Well, that would 

be true if you gave to Congress absolute plenary power. They still 

could not violate the Bill of Rights. 
42 

So I would argue that all of these so-called limiting principles 

are, A, very difficult to understand and, B, meaningless, particularly the one that suggests that, gee, health insurance is something 

you have got to buy and it is different than every other product. 

Well, I have got to buy food and transportation and housing and 

clothing every day, and I think people feel much more of a compulsion to buy those products than health insurance, particularly a 

healthy 27-year-old who may well honestly, and quite rationally, 

think, I am not going to go to the doctor except rarely for the next 

20 years, and I can maybe make a much better deal for myself 

than being compelled into this, what everyone agrees is an extraordinarily overpriced health insurance market. 

Senator SESSIONS. Thank you. I believe that is a very important 

point. It basically says that at some level, if we eviscerate the logic 

of Commerce Clause, which, as I understand it, was designed to 

regulate commerce between States and fundamentally it has been 

broadened and broadened, but I do believe there is a limit to it. 

Mr. Carvin, I hear you make a reference to the judicial activism 

question. I believe the President said, or one of his spokespersons, 

that this judicial ruling was judicial activism. I strongly believe 

and have stated repeatedly that a decision that invalidates an act 

of Congress, if that act of Congress is unconstitutional, is not activism. Is that what you would agree? 

Mr. CARVIN. I think everyone agrees that activism is striking 

down acts of Congress even though there is nothing in the Constitution that prevents it. If there is something in the Constitution 

that prevents it, then obviously you need to strike it down. No one 

on this panel is going to tell you it would be judicial activism that 

strikes down a law that denies women the vote, because we can all 

look at the Constitution and realize that that is blatantly unconstitutional. I think these labels are sometimes thrown around in a 

very pejorative manner that is unfair to judges that are trying to 

grapple with what at least I think everyone on the panel would 

agree is a very nuanced and difficult constitutional question. 

Mr. FRIED. I agree with that. 

Senator SESSIONS. Thank you, Mr. Fried. Good to see you again. 

Thank you, Mr. Chairman. I am sorry to have been late. I have 

the Budget Committee and will have to return. Thank you. 

Senator DURBIN. Thank you, Senator Sessions. 

I would like, if I could, to enter into the record the Congressional 

Record for December 23, 2009. In this section which I am entering, 

Senator Hutchison of Texas raised a constitutional point of order 

concerning the Affordable Care Act, and in stating her constitutional point of order, she said that she objected to it, believing it 

was unconstitutional because it violated the 10th Amendment, and 

she specifically referred to the mandate that it was impose on 

Texas to buy health insurance for teachers and employees. And it 

was then considered and voted on by the Senate on December 23, 

2009, and the roll call vote was yes sustaining the point of order 

and 60 votes against the point of order. So there was a constitutional question raised specifically on the floor during the course of 

the debate. 

[The information referred to appears as a submission for the 

record.] 
43 

Senator DURBIN. I would like to ask Professor Fried—the point 

raised by Senator Lee, the ‘‘buy your vegetables, eat your vegetables’’ point—I would like to ask you to comment on that, because 

that is the one I am hearing most often by people who are saying, 

Well, if the government can require me to buy health insurance, 

can it require me to have a membership at a gym or eat vegetables? We have heard from Professor Dellinger on that point. Would 

you like to comment? 

Mr. FRIED. Yes. We hear that point quite a lot. It was put by 

Judge Vinson, and I think it was put by Professor Barnett in terms 

of eating your vegetables. And for reasons I set out in my testimony, it would be a violation of the Fifth and the 14th Amendment 

to force you to eat something. But to force you to pay for something—I do not see why not. It may not be a good idea. I do not 

see why it is unconstitutional. 

I suppose that under the food stamp program there are all kinds 

of regulations which distinguish between healthy and unhealthy 

foods, and if there are not, perhaps there ought to be. And in any 

case, if there were, it would not be unconstitutional. And that is 

a situation where you are going to get your money only to buy your 

broccoli. That is all we are going to give you money for. 

Now, you can say, well, you do not need food stamps. A lot of 

people do not need food stamps. But some people do. And those 

kinds of mandates, I think, are all over the law. The mandate that 

you eat your vegetables, that you go to the gym, I would be willing 

to—I would love to argue that case, the unconstitutionality of that, 

before any court in the country and up to the Supreme Court, but 

on liberty grounds. 

Senator DURBIN. Professor Barnett, my last question relates to a 

section of your testimony which may be taken out of context or misconstrued, and I want to give you an opportunity to clarify it. 

When you close your testimony, you make reference to McCulloch 

v. Maryland and the national bank and the decision by President 

Jackson that he viewed the bank as unnecessary, improper, unconstitutional. And you say in your concluding second-to-last paragraph, ‘‘In short, just because the Supreme Court defers to you 

does not mean the Constitution lets you do anything you like.’’ 

I want to make sure I understand and give you an opportunity 

to state. If the law of the land is a Supreme Court decision, whether I agree with it or not, whether I think it is constitutional or not, 

it is, in fact, the law of the land and I have to follow it, correct? 

Mr. BARNETT. Absolutely. May I expand just a bit? 

Senator DURBIN. Sure, of course. 

Mr. BARNETT. The point I am trying to make and that I think 

is really important is that much of Supreme Court doctrine, getting 

back to Senator Blumenthal’s question, involves a presumption of 

constitutionality in which they defer to the Congress’ judgment 

upon the scope of its own powers. And President Jackson is saying, 

if the Court is going to defer to us, if that is what McCulloch v. 

Maryland stands for—which he is commenting on that specific 

case—then it is incumbent upon us to independently assess whether we think something is unnecessary, improper, and also unconstitutional. So he thought he was respecting the Supreme Court decision in McCulloch v. Maryland by holding the act unconstitutional, 
44 

the bank, which the Supreme Court had itself found to be constitutional. 

Senator DURBIN. But the law of the land until the President 

acted was clear. The decision of the Court was controlling. Whether 

I happen to agree with it as an individual citizen—— 

Mr. BARNETT. You are absolutely right, Senator, and nothing in 

that statement was meant to imply anything to the contrary. I appreciate the opportunity to clarify that. 

Mr. FRIED. May I add to that, Senator? 

Senator DURBIN. Of course. 

Mr. FRIED. I think there is a great difference between the Congress deliberately passing a statute which the Court said violates 

the Constitution and refusing to pass a statute which the Congress 

thinks is unconstitutional even though the Court has said it is not 

unconstitutional. I think there is a big difference between those 

two things, and I think that is what President Jackson was talking 

about. And I think that the renowned citizen of Illinois, Abraham 

Lincoln, made much the same point in his debates in respect to 

Dred Scott. 

So there is a difference, and I think Professor Barnett is dead 

right about that. You have an independent judgment. You have no 

leeway to violate what the Court has said violates the Constitution. 

But you are not bound to say that if they say it is constitutional, 

I guess it must be. No, I think he is right about that. 

Mr. DELLINGER. Can I add, Senator, that I also agree that he is 

clearly right that Members of Congress have an independent obligation to make constitutional decisions. I would just like to clarify 

a point where I think Charles Fried and I may differ. 

We both agree that one can easily dismiss hypotheticals about 

laws requiring you to go to the gym or eat broccoli because they 

implicate liberty interests that are invalid. 

With respect to incentives to buy commercial products, I think I 

disagree or may disagree that I think the Court need not go anywhere near having to hold that it would be acceptable to require 

people to buy commercial products outside the well-defined context 

that presents itself here where virtually everyone has no choice but 

to participate in the health care market, where $45 billion is transferred from people who are underinsured to others, where 94 percent of the long-term uninsured have actually accessed that health 

care market, and where Congress is curing a dysfunction. Those 

elements are unlikely ever to be presented again, and, therefore, I 

think that this unremarkable financial incentive to have insurance 

is not going to be a predicate for a parade of horribles marching 

through the city of Washington. 

Senator DURBIN. Thank you. 

Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. 

I had a chance to ask Professor Fried and Professor Dellinger 

about this, but I would like to give Mr. Carvin and Professor 

Barnett a shot at it. I asked about Professor Turley’s comment that 

if the Supreme Court upholds the individual mandate, it is hard to 

see what is left of federalism. And let me ask you to consider this 

in your answers as well. 
45 

It sounds to me like Professor Fried is arguing there are no limits on Congress’ power to require an individual to buy insurance. 

And the argument, it sounds like, the distinction—and I may be 

missing something—with regard to broccoli and other leafy vegetables is you cannot require them to eat it. But you might be able 

to require them to buy it under the Commerce Clause. 

So I would just like to ask Professor Barnett and Mr. Carvin to 

consider this: The health care costs imposed by diabetes, which is 

really a ticking time bomb in terms of our health care costs and 

especially children who are obese and because they get seriously ill 

and have a premature end to their lives, some of them, as a result, 

I do not really understand how if you concede that requiring the 

purchase of health insurance because of the costs on taxpayers of 

uncompensated care, how that is different if you look at the costs 

of diabetes and what that imposes on taxpayers, and why, if you 

say, well, you can require them to buy insurance, you cannot say, 

well, you are required to buy a gym membership, you are required 

to buy fruits and vegetables. It sounds to me like they are saying 

you cannot make them eat them, but you can require them to buy 

them. That sounds very strange to me. Would you care to respond, 

please? 

Mr. CARVIN. I think everyone agrees that the skyrocketing health 

care costs are more attributable to the rising costs of health care 

than these distortions in the insurance market that have been 

talked about. So if you want to reduce health care costs, not only 

would it be appropriate if the Court upholds this; it would attack 

the problem much more directly. Your diabetes example is an excellent one. I assume even Walter would agree that they could require you to attend smoking cessation programs if you are a smoker and all these other kinds of unhealthy habits. I cannot imagine 

why they could not go at it. 

And then to respond to Walter’s larger point that this is some 

unique system—and to Senator Franken’s point that, look, we have 

so regulated and subsidized this market, these people who decide 

to live their own lives are really becoming these sorts of free riders, 

means that you will always have an excuse to force people to engage in purchasing insurance the more that the government has 

regulated the particular area. That was the point that Judge Vinson made yesterday. It has this very perverse bootstrapping effect 

that the more the Federal Government encroaches on markets in 

local areas, then it gives them a greater power under the Commerce Clause to get at all these people who are so-called free riders 

because of this subsidy issue. So it literally builds on itself such 

that the distinction between local and national is quite literally obliterated. 

Senator CORNYN. Professor Barnett. 

Mr. BARNETT. First, as to Professor Turley’s point about it would 

be the end of federalism, whether or not it would be the end of federalism, it would be the functional end of the enumerated powers 

scheme that is one of the central features of federalism. Federalism 

is based not only on States having independent rights or powers, 

but it is based on Congress having limited and enumerated powers. 

And if, after this, there is not justiciable limit on Congress’ power, 

then that part of the constitutional scheme is gone, and the Su-
46 

preme Court has said repeatedly that that is an essential part— 

that any ruling that would lead to that outcome cannot be a correct 

ruling. That is a reductio ad absurdum of any argument that would 

lead to that outcome. 

And the only other point I would make is that, you know, I think 

Professor Fried in his testimony and again today, he has basically 

conceded the basic claim that if Congress can make you buy this, 

then they can make you buy anything. Now, he has not conceded 

the claim that they can make you eat anything that you buy. But 

in his testimony, he says—and he affirmed it again today—that 

they can make you buy a gym membership. They cannot make you 

go to the gym. 

Well, that may not be everything because they cannot make you 

go to the gym, but it is a whole heck of a lot, and I think that people would really be surprised that Congress—that there is nothing 

improper under the Commerce Clause—that the—let me get back 

to first principles here: that the power of Congress to regulate commerce among the several States that takes place between one State 

and another goes all the way down to make you, the individual person, buy a gym membership at your gym, that that includes that 

power. That is a stretch, and that is a stretch that would end the 

doctrine of enumerated powers. 

Senator CORNYN. If I may ask one more question, then I would 

be glad to have other witnesses who want to respond subject to the 

Chairman’s time limits here. I just want to ask one specific question, Mr. Carvin, because you have talked about the police power 

and the power of the States relative to the Federal Government. I 

think some people are confused by the fact that States like my 

State require an individual who drives to buy liability insurance 

and why there is a different argument when it comes to the power 

of the Federal Government. Would you care to respond to that? 

Mr. CARVIN. Right. Obviously, the States can play a relatively 

paternalistic role in protecting the health and welfare of others. I 

am not an expert on the car insurance laws, but I think even there 

they are not requiring you to insure yourself. They are requiring 

you to have insurance if you run into somebody else. But presumably the States, unlike the Federal Government, might require you 

insure yourselves like they can require you to wear a motorcycle 

helmet. But I do not think anyone would think that that is part 

of the commerce power, but I may be wrong even on that. 

And the other two obvious points are that it is a condition of access to the highways as well. Again, it does not get at somebody 

sitting in their home, which distinguishes it from this, and 

Randy—— 

Mr. BARNETT. Yes. No State requires you to buy a car and operate a car. Only if you choose to buy and operate a car do you have 

to buy insurance. And, in fact, I do not think there are any States 

that require you to buy insurance if you only operate a car on private property and do not go out into the public highways. 

So this gets back to an earlier line of questioning. It is absolutely 

garden variety regulation to tell you, to tell a citizen that if you are 

going to do something, here is how you have to do it. That is just 

something that the government does. And that is a fundamentally 

different proposition than telling the citizen they must do this 
47 

thing—not if they are going to do it, here is how you do it, but they 

must do the thing itself. And that is the line that this bill crosses 

that Congress under the commerce power has never crossed before. 

Senator CORNYN. Professor Dellinger, I know you want to respond. 

Mr. DELLINGER. I do. I want to say two things. 

One, it is similar to automobile liability insurance in the following sense: If you are going to drive, the States say you have to 

have liability insurance. And here it says if you are going to use 

health care, you need to have health care insurance. And since this 

is a product which everyone will use or at least no one can be assured that they will not wind up at the hospital, in that sense it 

seems quite similar. I may say I am never going to use a flat 

screen TV, and you hold it to me, you do not have to buy me one. 

Now, I do not agree with Michael Carvin’s suggestion that, in my 

view, upholding this legislation would mean that it would be constitutional for Congress to require anything that would reduce the 

national health bill like exercise or smoking cessation. What is different about this is that it is a regulation, as Charles Fried noted, 

that since 1944 the Court has clearly held the regulation itself is 

of the commercial transaction of purchasing health insurance. And 

I think that distinguishes it from all other of the hypotheticals. 

Senator CORNYN. Mr. Dellinger, Professor Dellinger, the only 

point I was trying to make—and perhaps I did not make it very 

well—is that the power of the State to legislate is quite broad 

under the police powers because of anything having to do with 

health, safety, and welfare. But that is not to say, just because a 

State can legislate on an issue, that the Federal Government cannot because of the doctrine of federalism that we have talked 

about, the 10th Amendment, and the power of the Federal Government is different than the power of the State government. 

Mr. DELLINGER. I wholly agree, and I think there is nothing in 

the defense of the Constitution under this bill that calls into question decisions like United States v. Morrison and United States v. 

Lopez where the Supreme Court held that when Congress tries to 

regulate crime, local crime, because of its supposed effects on commerce, that the Court will draw a line there because it is a regulation of matters that are local and non-economic. Here is a regulation that is part and parcel of national economic regulation and, 

therefore, does, I think, call into question those limits. 

Senator DURBIN. Thank you, Senator. 

Senator Blumenthal, you have the last question. 

Senator BLUMENTHAL. Yes, thank you again. I will resolve to ask 

this question very simply, and it may be sort of a follow-up to Senator Cornyn’s excellent line of questioning. Tax or penalty. A lot of 

discussion outside this room, almost none here that I can recall. Is 

it a tax or a penalty? Does it make a difference? And maybe it 

makes no difference, and, therefore, we do not—— 

Mr. FRIED. Well, if the Congress had frankly enacted a tax on everybody which they would then remit to those people who bought 

private health insurance, it is hard for me to imagine that we 

would be having this discussion. But Congress did not so enact. It 

did not do so for political reasons. It did not want to have this 
48 

viewed as a tax. And I think they are now paying the price in the 

fact that they have got to confront this discussion. 

But it was not, for better or worse, put as a tax, although the 

penalty is something that is collected by the Internal Revenue 

Service, I believe. But it is not viewed—it was not enacted as a tax, 

because if it had been, as Senator Cornyn pointed out, the power 

to tax for the general welfare and spend for the general welfare is 

pretty plenary. But that is not how Congress chose to enact this, 

so it has left us with this debate that we are having. 

Senator DURBIN. Professor Barnett, last word. 

Mr. BARNETT. I do want to agree with the other thing that Professor Fried just said about that. That is my assessment as well. 

The only thing I would add to it is that if you actually try to justify what was done as a tax, then essentially it does—here is the 

sense in which, Senator, it does not matter because, again, it would 

be an unprecedented proposition that Congress can require American citizens to do whatever it chooses to require, and then enact 

a monetary penalty under its tax power to penalize them for not 

doing that. That is really no different than the debate we just had 

two hours about whether this exceeds Congress’ power or not. In 

other words, whether you call a fine a tax or a fine, it would still 

give Congress the unlimited power to order and command that citizens do anything, and that has never been done before. The tax 

power has never been used for that before. So that is the only thing 

I would add to what Professor Fried has said. 

Mr. DELLINGER. Senator Blumenthal, it is relevant in the following sense: There is a misimpression out there that under this 

law, I think. Federal agents arrive in black helicopters, dressed in 

fully equipped armed Ninja costumes, kick down your bedroom 

door, and drag you off at the point of bayonets to an insurance 

agency. In fact, all that happens is that for those who are not otherwise exempted and when they are filling out their federal income 

tax return, if you are not maintaining minimum coverage, you have 

to pay an additional 2.5 percent, much less than Social Security. 

That is all that happens. So in that sense, this great intrusion on 

liberty does not approach any slippery slope or exceed any understood limits in our legal culture. 

Senator DURBIN. Thank you very much to the panel that has 

joined us. I think this has been an excellent hearing. Professor 

Dellinger, Professor Barnett, Mr. Carvin, Professor Fried, and Attorney General Kroger, it is an honor that you all joined us for this 

important consideration of this major legislation. Many organizations have submitted testimony, and it will be added to the record: 

the California Attorney General Kamala Harris, AARP, a hundred 

legal scholars who happen to agree with the constitutionality of the 

Act, the Small Business Majority, Constitution Action Center, the 

National Senior Citizens Law Center, and the Center for American 

Progress Action Fund, and without objection, they will be placed in 

the record. 

[The statements appears as a submission for the record.] 

Senator DURBIN. I would just say that it is possible that written 

questions may come your way in the next week or two, which I 

hope you would respond to in a timely fashion. It would be greatly 

appreciated. 
49 

Again, thank you all very much. This hearing stands adjourned—— 

Mr. FRIED. Senator, as a citizen, not a subject, may I say that 

what the Senate has shown and this Committee has shown is our 

government at its best. And it was a privilege to participate in it. 

Senator DURBIN. And you can make your train. 

[Laughter.] 

Senator DURBIN. Thank you. 

[Whereupon, at 12:41 p.m., the Committee was adjourned.] 

(51) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED STATEMENT OF SENATOR DICK DURBIN
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PREPARED STATEMENT OF SENATOR CHUCK GRASSLEY
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PREPARED STATEMENT OF SENATOR ORRIN G. HATCH
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PREPARED STATEMENT OF CHAIRMAN PATRICK LEAHY
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PREPARED STATEMENT OF JOHN KROGER, OREGON ATTORNEY GENERAL, SALEM, 

OREGON
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PREPARED STATEMENT OF CHARLES FRIED, BENEFICIAL PROFESSOR OF LAW, 

HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS
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PREPARED STATEMENT OF MICHAEL A. CARVIN, PARTNER, JONES DAY, WASHINGTON, 

DC 
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PREPARED STATEMENT OF RANDY E. BARNETT, CARMACK WATERHOUSE PROFESSOR

OF LEGAL THEORY, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC 
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PREPARED STATEMENT OF WALTER DELLINGER, DOUGLAS B. MAGGS PROFESSOR

EMERITUS OF LAW, DUKE UNIVERSITY SCHOOL OF LAW, DURHAM, NORTH CAROLINA
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QUESTIONS

QUESTIONS SUBMITTED BY SENATOR DICK DURBIN FOR JOHN KROGER
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QUESTIONS SUBMITTED BY SENATOR DICK DURBIN FOR CHARLES FRIED
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QUESTIONS SUBMITTED BY SENATOR DICK DURBIN FOR MICHAEL CARVIN
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QUESTIONS SUBMITTED BY SENATOR DICK DURBIN FOR RANDY BARNETT
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QUESTIONS SUBMITTED BY SENATOR DICK DURBIN FOR WALTER DELLINGER
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QUESTIONS SUBMITTED BY SENATOR JEFF SESSIONS FOR MICHAEL CARVIN
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QUESTIONS SUBMITTED BY SENATOR JEFF SESSIONS FOR RANDY BARNETT
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ANSWERS

RESPONSES OF JOHN KROGER TO QUESTIONS SUBMITTED BY SENATOR DURBIN
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RESPONSES OF CHARLES FRIED TO QUESTIONS SUBMITTED BY SENATOR DURBIN
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RESPONSES OF MICHAEL CARVIN TO QUESTIONS SUBMITTED BY SENATOR DURBIN
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RESPONSES OF MICHAEL CARVIN TO QUESTIONS SUBMITTED BY SENATOR SESSIONS
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RESPONSES OF RANDY BARNETT TO QUESTIONS SUBMITTED BY SENATOR DURBIN
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NOTE: At the time of printing, after several attempts to obtain 

responses to the written questions, the Committee had not received 

any communication from Walter Dellinger. 
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MISCELLANEOUS SUBMISSIONS FOR THE RECORD

CONGRESSIONAL RECORD—SENATE, DECEMBER 23, 2009 
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TESTIMONY OF THE HON. KAMALA D. HARRIS, ATTORNEY GENERAL OF CALIFORNIA, 

FEBRUARY 2, 2011 
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STATEMENT BY AMERICAN ASSOCIATION OF RETIRED PEOPLE (AARP), WASHINGTON, 

DC, FEBRUARY 2, 2011 
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STATEMENT BY SMALL BUSINESS MAJORITY, BRIEF AMICUS CURIAE IN SUPPORT OF

DEFENDANT IN State of Florida v. U.S. Department of Health and Human Services 
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LETTER TO SENATORS LEAHY, SESSIONS, AND DURBIN FROM ELIZABETH WYDRA, 

CHIEF COUNSEL, AND DOUGLAS KENDALL, PRESIDENT, CONSTITUTIONAL ACCOUNTABILITY CENTER, FEBRUARY 1, 2011 
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NATIONAL SENIOR CITIZENS LAW CENTER, WASHINGTON, DC, FEBRUARY 2, 2011 

LETTER
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CENTER FOR AMERICAN PROGRESS ACTION FUND, FEBRUARY 2, 2011, STATEMENT
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‘‘THE HEALTH CARE LAWSUITS: UNRAVELING A CENTURY OF CONSTITUTIONAL LAW

AND THE FABRIC OF MODERN AMERICAN GOVERNMENT,’’ BY SIMON LAZARUS, FEBRUARY 8, 2011, ISSUE BRIEF
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‘‘THE HEALTH CARE LAWSUITS: UNRAVELING A CENTURY OF CONSTITUTIONAL LAW

AND THE FABRIC OF MODERN AMERICAN GOVERNMENT: EXECUTIVE SUMMARY,’’ BY

SIMON LAZARUS, FEBRUARY 8, 2011, ISSUE BRIEF
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LETTER TO SENATOR CORNYN FROM HON. GREG ABBOTT, ATTORNEY GENERAL OF

TEXAS, FEBRUARY 2, 2011 
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PAM BONDI, ATTORNEY, STATE OF FLORIDA, STATEMENT
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‘‘DOES THE CONSTITUTION CONSTRAIN CONGRESSIONAL JUDGMENT?: CONSTITUTIONAL

PROBLEMS WITH HEALTH INSURANCE REFORM LEGISLATION,’’ BY SENATOR ORRIN G. 

HATCH, Regent Journal of Law and Public Policy (RJLPP) 
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‘‘FORCING AMERICANS TO BUY WHAT THEY DON’T WANT,’’ BY SENATOR ORRIN G. 

HATCH, Chicago Tribune, April 4, 2010 
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‘‘WHY THE HEALTH CARE BILLS ARE UNCONSTITUTIONAL,’’ BY SENATOR ORRIN G. 

HATCH, KENNETH BLACKWELL, AND KENNETH A. KLUKOWSKI, Wall Street Journal, 

January 2. 2010 
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BRIEF FOR THE MEMBERS OF THE UNITED STATES SENATE, AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, FILED NOVEMBER 18, 2010 

IN U.S. DISTRICT COURT, FLORIDA
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HON. LUTHER STRANGE, ALABAMA ATTORNEY GENERAL, STATEMENT
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HON. E. SCOTT PRUITT, ATTORNEY GENERAL OF OKLAHOMA, STATEMENT
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HON. MARK L. SHURTLEFF, ATTORNEY GENERAL OF UTAH, STATEMENT
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Æ