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CONSTITUTIONALITY OF THE 

INDIVIDUAL MANDATE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

FEBRUARY 16, 2011 

Serial No. 112–5 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM REED, New York 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

FEBRUARY 16, 2011 

Page 

OPENING STATEMENTS 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 0 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 6 

WITNESSES 

The Honorable Kenneth T. Cuccinelli, II, Attorney General, Virginia 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 11 

Walter Dellinger, Professor, Duke University School of Law 

Oral Testimony ..................................................................................................... 17 

Prepared Statement ............................................................................................. 19 

Randy E. Barnett, Professor, Georgetown University Law Center 

Oral Testimony ..................................................................................................... 27 

Prepared Statement ............................................................................................. 29 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary ......................................................................................................................... 4 

Prepared Statement of the Honorable Kamala D. Harris, Attorney General 

of California, submitted by the Honorable Jerrold Nadler, a Representative 

in Congress from the State of New York, and Member, Committee on 

the Judiciary ......................................................................................................... 46 

Prepared Statement of John Kroger, Oregon Attorney General, submitted 

by the Honorable Jerrold Nadler, a Representative in Congress from the 

State of New York, and Member, Committee on the Judiciary ....................... 53 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Committee 

on the Judiciary ................................................................................................... 97 

Prepared Statement of Charles Fried, Beneficial Professor of Law, Harvard 

Law School ............................................................................................................ 100 

American Constitution Society (ACS) for Law and Policy, Issue Brief, The 

Health Care Lawsuits: Unraveling A Century of Constitutional Law and 

The Fabric of Modern American Government, Simon Lazarus, February 

8, 2011 ................................................................................................................... 106 

Statement of Support from Legal Scholars ........................................................... 133 

Articles on Health Care Reform ............................................................................. 140 

(1) 

CONSTITUTIONALITY OF THE 

INDIVIDUAL MANDATE 

WEDNESDAY, FEBRUARY 16, 2011 

HOUSE OF REPRESENTATIVES, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to call, at 9:35 a.m., in room 2141, 

Rayburn House Office Building, the Honorable Lamar Smith 

(Chairman of the Committee) presiding. 

Present: Representatives Smith, Sensenbrenner, Coble, Gallegly, 

Goodlatte, Lungren, Chabot, Issa, Pence, Forbes, King, Franks, 

Gohmert, Poe, Chaffetz, Reed, Griffin, Marino, Gowdy, Ross, 

Adams, Quayle, Conyers, Nadler, Scott, Watt, Lofgren, Jackson 

Lee, Waters, Cohen, Johnson, Quigley, Chu, Deutch, and Wasserman Schultz. 

Staff Present: (Majority) Allison Halataei, Deputy Chief of Staff/ 

Parliamentarian; Zachary Somers, Counsel; and Heather Sawyer, 

Minority Counsel. 

Mr. SMITH. The Judiciary Committee will come to order. Without 

objection, the Chair is authorized to declare recesses of the Committee at any time. We welcome our panelists today as well as all 

Members who are present in the room. I am going to recognize myself for an opening statement, and then recognize the Ranking 

Member for his opening statement. 

As the Framers of the Constitution understood, Congress has an 

independent duty to examine the constitutionality of the legislation 

it considers. Ideally, we should assess the constitutionality of legislation before it becomes law. However, given the unprecedented nature of the health care law’s individual mandate, it is important 

that we examine its constitutionality then though it has already 

been enacted. 

The individual mandate, which requires all Americans to purchase health insurance, is the foundation of the new health care 

law. It is also, in my judgment, unprecedented. Twenty-seven 

States are now challenging the constitutionality of the new law. 

Two Federal district court judges have ruled that the individual 

mandate is unconstitutional, two have determined that it is not. 

Ultimately, it will, of course, be decided by the Supreme Court. 

The individual mandate requires Americans to purchase health 

insurance from a private company. It does not matter whether they 

want health insurance or can even afford it. Under this law, Americans must either obtain insurance or pay a penalty. But the Constitution, which creates a Federal Government of limited, enumerVerDate Aug 31 2005 12:37 Mar 30, 2011 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\FULL\021611\64582.000 HJUD1 PsN: 64582
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ated powers, does not necessarily allow Congress to require individuals to purchase any good or service including health insurance. 

As Judge Vinson observed in his opinion in the Florida case declaring the health care law unconstitutional, ‘‘it is difficult to imagine that a Nation which began, at least in part, as a result of opposition to a British mandate imposing a nominal tax on all tea sold 

in America, would have set out to create a government with the 

power to force people to buy tea in the first place.’’ 

The Obama administration argues that the individual mandate 

is either a law that is necessary and proper for the regulation of 

interstate commerce or, alternatively, that the mandate is constitutional because it is a tax. 

The Administration’s arguments are supported by neither the 

original meaning of the Constitution nor Supreme Court precedent. 

The Constitution gives Congress the authority to regulate economic activity, which includes everything from growing wheat to 

managing a restaurant to running a Fortune 500 company. But the 

current health care law wrongly assumes that Congress can also 

regulate economic inactivity. Neither the Constitution nor the Supreme Court has ever given Congress that authority. 

There is a difference between regulating economic activity that 

is ongoing and forcing Americans to engage in an economic activity, 

in this case, purchasing health insurance. Part of a free society 

means the freedom to choose not to do something. Never before in 

America’s history has Congress required people to purchase a good 

or service simply because they live in the United States, at least 

not until now. 

If the commerce clause allowed Congress to regulate inactivity, 

Congress could force Americans to buy anything that might conceivably affect commerce in some way. If the housing sector were 

struggling, Congress could force renters to purchase a house. If the 

auto industry is on the verge of collapse, Congress could force individuals who take public transportation to purchase a car, or if falling citrus prices were driving farmers into bankruptcy, Congress 

could force consumers to purchase oranges. 

The Administration asserts that the decision not to purchase 

health insurance is unique because if Americans don’t purchase 

health insurance, the cost of their health care shifted to the government. But the same can be said of every other type of insurance 

that people choose not to purchase. There is no end to the number 

of commercial transactions Americans could be forced into if the 

commerce clause were as broad as the Obama administration argues. 

Because the Administration’s commerce clause argument is without legal precedent the Administration has argued that the individual mandate is authorized by Congress’ power to tax. This argument, however, is an unpersuasive revisionist justification for the 

mandate that was not raised until the mandate was challenged in 

court. 

The health care law explicitly calls the penalty imposed on those 

who fail to purchase insurance a penalty not a tax. As President 

Obama stated, the mandate is ‘‘absolutely not a tax’’ and ‘‘nobody 

considers it a tax increase.’’ Additionally the mandate’s penalty is 

not listed with the provisions of the health care law intended to 

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raise revenue for the government. And the IRS is prohibited from 

seeking the same types of punishment for failure to pay the penalty as it does for failure to pay taxes. 

The arguments in favor of the constitutionality of the individual 

mandate are unconvincing and, if accepted, would give the Federal 

Government almost unlimited power over Americans’ lives. In my 

opinion, the individual mandate is both unprecedented and unconstitutional. We should question any law that appears to violate the 

Constitution and common sense. 

[The prepared statement of Mr. Smith follows:] 

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Mr. SMITH. That concludes my opening statement. I am very 

pleased to recognize the Ranking Member the gentleman from 

Michigan, Mr. Conyers, for his opening statement. 


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Mr. CONYERS. Thank you very much, Chairman Smith. Good 

morning, Members of the Committee and distinguished witnesses 

present. We are here today to have a hearing on the constitutionality of the individual mandate. You will note that the term individual mandate does not appear anywhere in the bill that is 

being claimed to have an unconstitutional provision. 

The Affordable Care Act includes the term minimum coverage requirement in the bill. There is nothing—the term ‘‘individual mandate’’ does not appear. 

Now, I enjoyed our first reading of the Constitution on the floor 

in the Congress in all of my career here. I hope somebody got more 

out of it than I did, because reading the Constitution and understanding the Constitution are two different things. I think you 

could be in about the sixth or seventh grade and you can read 

clearly enough to read the Constitution. It does not comport with 

your understanding of the Constitution. And that is why Chairman 

Smith and I have talked about evening classes, informal sessions 

with our colleagues here to talk with experts about certain provisions of the law of the Supreme Court decisions and the Constitution itself, and I encourage our reading and negotiations on that. 

Now, as a universal single-payer health care advocate, I was not 

enthusiastic about all of the benefits that accrued to the insurance 

industry under the Affordable Care Act. I supported it nevertheless. And I assume because of that support the insurance industry 

itself supports this so-called individual mandate. I wonder how 

they feel about this assault on that portion of the law. 

Fortunately, the Chairman and his Committee did not say that 

consequently that voids the whole Act itself. I hope he didn’t say 

that. I didn’t interpret him to say that and he doesn’t say that. 

And so I am struck by the partisan nature of the discussion that 

is going on this morning here about constitutionality because you 

see many years ago, my colleagues in the other body, Senators 

Orrin Hatch and Senator Charles Grassley, along with 18 other Republican colleagues, included the notion of an individual mandate 

in their health care bill of 1993. And I hope someone asks me to 

prove that because my staff has researched this. 

Now, in addition to that, we have other supporters on the constitutional question who are not Democrats. Former Massachusetts 

Governor Mitt Romney featured an individual mandate as part of 

his successful health care reform law in Massachusetts where it 

helped reduce insurance premiums by 40 percent while the national average has increased 14 percent. 

Given this demonstrated success and the need to solve our national health care crisis, one would hope that my friends on the 

other side of the aisle would continue to embrace the idea that has 

been brought forth by Republicans at a earlier period of time. But 

unfortunately, they have taken a different course and are now suggesting that the individual mandate is unconstitutional. 

Now I would like to cite the Constitution. Congress has the clear 

power under article 1, section 8, clause 3 of the Constitution, which 

gives us the authority to regulate commerce between the States. 

And further, that power is augmented by article 1, section 8, clause 

18, which grants us discretion to choose the ‘‘necessary and proper’’ 

means of achieving our legitimate regulatory goals. And if I could 

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just begin my conclusion by explaining briefly why our authority 

here is really beyond question. And I suppose that this hearing 

today may conclusively determine that. 

First, the core argument that is put forward by my friends is 

that this regulates inactivity. Now what in the world does that 

mean, to regulate inactivity? It requires us to accept what really 

amounts to a complete fiction because we all participate in the 

health care market. That is one statement I can make. Everybody 

from the time they are born until the time we leave this planet will 

participate in the health care market one way or the other. No one 

can claim that they will never get ill or get injured or get sick. We 

even promise emergency care for all who need it. As a matter of 

fact, we passed a law to say that emergency rooms must take in 

people who are ill and don’t have any insurance and don’t have any 

visible means to pay for the health care that they seek at a hospital. The cost of uncompensated care in this country last year was $43 

billion. And those costs, of course, are shifted to other Americans 

who pay higher taxes and increased fees for medical care and insurance premiums. The individual mandate recognizes the reality 

that we are all active in the health care market and regulates how 

and when we pay for our health care. Doing so is uncontrovertibly 

within the scope of congressional power. 

Now while some of my colleagues may think talking about inactivity is an argument, I would counter with the statement of former 

solicitor general Charles Fried, a Reagan appointee, who said that 

in any event, it is irrelevant as a matter of law. Solicitor General 

Fried is not a partisan supporter of the Affordable Care Act. But 

he is a staunch defender of the Constitution, and in his view, the 

individual mandate is fully constitutional because Congress unquestionably has the power to regulate the interstate health and 

insurance markets and the discretion to choose the necessary and 

proper means of doing so. 

Solicitor General Fried has testified in the other body, and I 

would ask unanimous consent to enter his statement into the 

record. 

Mr. SMITH. Without objection. 

Mr. CONYERS. In conclusion, Chairman Smith and I thank you 

for your generosity with the time. We have been hearing a lot 

about individual liberty, the right to be let alone. But is it really? 

For example, States can and do require citizens to purchase car insurance. You have to have insurance to drive a car. In Massachusetts, legislation signed by former Governor Romney obligates that 

States’ residents to purchase health insurance. 

There are many, many other laws that impose affirmative obligations on our citizenry. We must pay taxes. We must send our children to school and vaccinate them, we must contribute to Medicare, 

and to Social Security, just to name a few in the long list. So I am 

pleased to be here today to join in this discussion with the Members of the Committee. 

And I thank the Chairman for his generous allowance of time. 

Mr. SMITH. Thank you, Mr. Conyers. 

Without objection, other Members’ statements will be made a 

part of the record. We welcome our panelists today, and our first 

8 

witness is going to be introduced by the gentleman from Virginia, 

Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman, for holding this 

hearing and affording me the opportunity to introduce our attorney 

general, Congressman Forbes and Congressman Scott join me in 

welcoming Ken Cuccinelli who was elected attorney general of Virginia on November 3, 2009, and was sworn into office on January 

16, 2010. 

In this position, he is responsible for overseeing the Office of the 

Attorney General and its more than 300 attorneys and support 

staff. 

Prior to this, Attorney General Cuccinelli served in the Senate of 

Virginia from August 2002 to January 2010. 

As a State senator and private attorney, Attorney General 

Cuccinelli worked to improve all levels of the Commonwealth mental health system, first serving as a court-appointed attorney for individuals in Virginia’s involuntary civil commitment process. After 

joining the Senate in 2002, he passed legislation that has provided 

for more humane treatment of the mentally ill and helped family 

members better cope with treating their loved ones. 

Best known nationally, however, for having brought the first lawsuit challenging the constitutionality of the individual mandate, a 

challenge which was successful at the district level before Judge 

Henry Hudson in the Eastern District of Virginia. That case is now 

on appeal. 

Mr. Chairman, it is my pleasure to welcome a great leader of the 

Commonwealth of Virginia. 

Mr. SMITH. Thank you, Mr. Goodlatte. 

Our second witness is Walter Dellinger. Mr. Dellinger is the head 

of appellate practice at O’Melveny & Myers and the Douglas Maggs 

professor emeritus of law at Duke University Law School. Mr. 

Dellinger served as assistant attorney general for the Office of 

Legal Counsel from 1993 to 1996 and as acting solicitor general 

from the 1996 1997 term of the U.S. Supreme Court. 

By our joint reckoning, he is making perhaps his 30th appearance before Congress as a witness today, 30th or 31st, something 

like that. 

Our final witness is Randy Barnett. Mr. Barnett is the Carmack 

Waterhouse professor of legal theory at the Georgetown University 

Law Center. He has served as a visiting professor at Northwestern 

and Harvard Law School and was awarded a Guggenheim Fellowship in Constitutional Studies and has authored over nine books 

and over 100 articles and reviews. 

Each of the witness’ statement will be made a part of the record. 

We welcome you all and look forward to your 5 minutes’ worth of 

a statement after which we will need to move on to the next witness. 

We appreciate your presence and look forward to the testimony, 

first of Attorney General of Virginia, Mr. Cuccinelli. 

TESTIMONY OF THE HONORABLE KENNETH T. CUCCINELLI, II, 

ATTORNEY GENERAL, VIRGINIA 

Mr. CUCCINELLI. Thank you, Mr. Chairman and Members of the 

Committee. I will not repeat my written testimony. In my oral tesVerDate Aug 31 2005 12:37 Mar 30, 2011 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 H:\WORK\FULL\021611\64582.000 HJUD1 PsN: 64582
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timony, I would like to make three points to you all. The first is 

that what the States are doing, and I will refer to the States generically, there are dozens of cases running challenging the individual mandate. My focus obviously being an Attorney General is 

on the States’ cases. What the States are doing in challenging the 

individual mandate and which ultimately will result in a request 

to the Supreme Court to find that individual mandate unconstitutional, is very modest from a legal perspective. We are not asking 

the Supreme Court to change any law, to expand or contract any 

of its precedent, simply to apply the existing law to deny the opportunity to the Federal Government to massively expand its power to 

compel American citizens to act. 

The other side, the Federal Government, requires to prevail an 

expansion, as noted by the judges that have even rules in their 

favor, an expansion of the commerce clause power which is already 

vast, as it stands under Supreme Court precedent right now, the 

Federal Government requires that to be expanded yet again, and 

further, in order to prevail in this case. 

It is the Federal Government that is asking for a dramatic 

change to the law, not the States that are challenging the individual mandate. That is the first point I would like to leave you 

with. 

The second point is that this case, while it, of course, deals with 

the legislation passed last year that the President signed March 23 

last year relating to health insurance, health care and a variety of 

other things, the litigation is not so much about health care as it 

is about liberty. And the reason for that is that if the power that 

the Federal Government, for the first time, is exercising in the legislation passed last year is allowed to stand, then it can be applied 

across the economy and across the lives of our citizens in ways that 

are not part of the discussion now because they don’t have anything to do with health care. 

The Chairman referenced ordering people to buy a car, to eat asparagus or broccoli, the vegetable of discussion changes day to day, 

those compulsions were addressed by judges in these cases, they 

are very legitimate concerns, and until the United States can articulate a constitutional boundary to the power that it proposes the 

Federal Government has, it should lose in the Supreme Court because of the vast expansion of Federal power. 

To give you one example, Professor Turley, here at George Washington University, I am sure some of you are familiar with him, in 

his first op-ed after this case was filed, he noted that if the States 

lose this case, it is the end of federalism as we have known it for 

over 220 years, the end of federalism. 

Federalism, of course, is intended, in part, to protect the liberty 

of citizens ultimately by the tension established by the Federal and 

State governments. 

And I would submit to you that the States that are assaulting 

the individual mandate in court are doing exactly what the Founders expected us to do, and that is, to check Federal power when 

they overstep the boundaries of the Constitution. That is exactly 

what we are doing in this case. 

My third point is more historical. Whenever we deal with a novel 

question of constitutional law, and this is an unprecedented exerVerDate Aug 31 2005 12:37 Mar 30, 2011 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 H:\WORK\FULL\021611\64582.000 HJUD1 PsN: 64582
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cise of Federal power, and so the question that the court is dealing 

with is novel, I would reference Mr. Conyers’ remarks about the inactivity, activity distinction, that has never arisen before because 

no case the Supreme Court has ever dealt with before has ever had 

to consider it because Congress has never presumed to have the 

power to compel Americans in the way done with the individual 

mandate. 

In that sort of a circumstance, we do look back to the founding 

period. We look back to the writing of the commerce clause, and we 

look back to the context in which it was written. What was the 

problem they were trying to solve? And if you recall the colonial period, during that time, the colonists engaged in boycotts of British 

goods. This began in the 1760’s with the Stamp Act and the followon Acts of taxation primarily, but it also included the Intolerable 

Acts. And a Massachusetts convention in 1768 determined to boycott British goods until the Stamp Act was lifted and the duties imposed by it were lifted. 

Cross the water to Britain, King George III is furious about this. 

In a mercantilist economic system, this hurts. Merchants are hurting, his shippers are hurting, and at that time, the solicitor general 

and attorney general by tradition sat in the Parliament and the solicitor general was asked in Parliament if what the colonists were 

doing was treason to boycott British goods. And the solicitor general responded by saying that while the colonists have come up to 

the line, they have come to within a hair’s breadth, they are within 

the law to boycott British goods. 

Now that didn’t sit well with a lot of the powers that be in Britain at the time. But the corollary of that is that they could not 

compel colonists, subjects of the crown and parliament, to purchase 

the goods of their choice. But we now have a President and had a 

Congress that thinks that they can. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you Mr. Cuccinelli. 

[The prepared statement of Mr. Cuccinelli follows:] 

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Mr. SMITH. And Mr. Dellinger. 


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TESTIMONY OF WALTER DELLINGER, PROFESSOR, 

DUKE UNIVERSITY SCHOOL OF LAW 

Mr. DELLINGER. Thank you, Chairman Smith. 

The provisions of the Affordable Care Act that are at issue in 

this case are so clearly within the commerce power that there are 

multiple ways that it is a perfectly unremarkable application of 

Federal power. Yes, it does impose an affirmative obligation, an affirmative obligation as an alternative to paying a 21⁄2 percent tax 

penalty, in order to encourage Americans to have a minimum 

health coverage. It is as Solicitor General Fried who served under 

Ronald Reagan, as Mr. Conyers noted, so eloquently put it, this is 

a perfectly routine application of Congress’ power to regulate the 

insurance market. 

Now what is absolutely at stake in this litigation is the provision 

of the health care law that for the first time prohibits insurance 

companies from denying coverage to Americans because of preexisting conditions, the provision that for the first time prohibits 

insurance companies from denying coverage to individuals because 

they have a child who is born with a birth defect. This was a very 

important reform, to ensure that Americans could obtain the health 

care coverage they needed. 

Of course, when you do that, you create the possibility that people can say, well, I am going to wait to buy my insurance when I 

am in the ambulance on the way to the hospital because they can’t 

turn me down. And therefore, it was clearly reasonably adapted, 

reasonably related to use Justice Scalia’s language justifying the 

use of the necessary and proper clause, it is reasonably adapted to 

the law that prohibits insurance companies from denying coverage 

to individual Americans to provide this financial incentive for 

Americans to maintain minimum coverage. 

That is all. It is perfectly unremarkable. It is clearly a regulation 

of commerce as no one would doubt that Congress has the authority to regulate the terms and conditions upon which insurance is 

bought and sold and that this is a very essential facilitation of the 

requirement that insurance companies not be allowed to deny coverage. 

What is striking about it is that is there something so remarkable about this affirmative obligation that would mean that it has 

to be accepted from what would otherwise be Congress’ power to 

regulate these commercial transactions. It is actually no more intrusive than Medicare or Social Security. All three of them, Medicare, Social Security and the minimum coverage requirements that 

are called the individual mandate, those three only apply to individuals that go into the economy, the penalty provisions only apply 

if you go into the economy and earn a sufficient amount, $18,000 

for a couple, earn a sufficient amount, that you have to file Federal 

income taxes. If you go into the economy and do that, you are required to pay 71⁄2 percent of your earnings into Social Security, 15 

percent if you are self-employed. You are required to pay a certain—to take care of your old age benefits, you are required to pay 

a few percentage points for Medicare to provide for health coverage 

after you are 65, and now you are required to pay up to 21⁄2 percent 

and an additional tax penalty to provide for health care before you 

are 65, unless you are maintaining minimum coverage. 

18 

The difference between this approach and what is done with Social Security and Medicare, and the reason it was supported for so 

long by so many conservatives, is it that offers more choice. Instead 

of having a single monolithic governmental provider, it allows people a choice among private providers of insurance. That surely is 

a choice that Congress can make to favor a market approach over 

a government bureaucracy approach. 

Is this unprecedented? Has Congress ever ‘‘regulated inactivity’’? 

Congress of course has no free standing power to regulate inactivity. It has a variety of powers which it can sometimes use to impose affirmative obligations. That is what we are talking about. 

In 1792, months after the Bill of Rights was adopted, Congress 

passed a law requiring every adult free male to purchase a weapon, 

to purchase ammunition, to purchase a knapsack. No one said, oh 

my goodness, this is a regulation of inactivity, and if Congress 

could regulate that they could regulate anything. The reason they 

didn’t is that what it was was the imposition of an affirmative obligation where Congress has the authority to impose an affirmative 

obligation. 

Now, let me go just right to the question of limits, first of all, 

this doesn’t implicate the Supreme Court’s decision limiting Congresses’ power to regulate noneconomic local matters, like street violence, or guns within schools—near schools. Morrison and Lopez 

deal with different issues because this regulates a matter that is 

entirely economic, entirely commercial. 

Secondly, does it allow Congress to require the eating of asparagus or broccoli? I wanted to decide that with General Cuccinelli 

about how many times the word ‘‘broccoli’’ would be mentioned this 

morning. Of course it doesn’t. The liberty clause of the Constitution 

stands in the way of that kind of imposition of activity on individuals. 

Does it require the purchase of any other products? Can I tell 

you if Congress can regulate this, anything that Congress cannot 

regulate? I can tell you thousands of things Congress cannot regulate after this is upheld. I brought the Yellow Pages because if you 

want me to spend the next 3 days, I can read every product that 

Congress would not have the power to require you to purchase—— 

Mr. ISSA. Mr. Chairman, has the opening statement concluded? 

Mr. SMITH. Conclude your testimony. 

Mr. DELLINGER. I will. I will by saying that the justification will 

be that Congress can require the purchase of the unique product, 

which is one that no one can be assured they will not use and 

which we have complete and total evidence that when people are 

not insured, they transfer that cost to other Americans, other people who are sick, or to taxpayers and that is a unique situation 

where Congress can encourage people to maintain minimum coverage. It would not be a precedent for any of the parade of 

horribles that come marching through this Committee room. 

Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Dellinger. 

[The prepared statement of Mr. Dellinger follows:] 

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Mr. SMITH. Mr. Barnett. 

TESTIMONY OF RANDY E. BARNETT, PROFESSOR, 

GEORGETOWN UNIVERSITY LAW CENTER 

Mr. BARNETT. Thank you, Mr. Chairman, and thank you to the 

Members of the Committee. 

Let me begin today with a thought experiment. Imagine that I 

tell you 100 things that you may not do tomorrow. For example, 

you may not run on a treadmill, you may not eat broccoli, you may 

not buy a car, and 97 other specific things that you can’t do tomorrow. Now while your liberty would certainly be restricted, there 

would still be an infinite number of things that you may still do. 

All right. Now suppose I tell you 100 things that you must do 

tomorrow. You must run on a treadmill, you must eat broccoli, you 

must buy a car and 97 other things. These 100 mandates could potentially occupy all your time and consume all your money. 

I offer this illustration to help you see why economic mandates 

are so much more onerous than either economic regulations or prohibitions, and why so dangerous an unwritten constitutional power 

should not be implied. Now of course, we all know that Congress 

may mandate the citizens register for the military and serve if 

called, submit a tax form, fill out a Census form and serve on a 

jury. 

But each of these duties is necessary for the operation of government itself, and each has traditionally been recognized as duties 

that are inherent in being a citizen of the United States. They are 

inherent in United States citizenship. In essence, the mandate’s defenders are claiming that because Congress has the power to draft 

you into the military, it has the power to make you do anything 

less than this, including mandating that you send your money to 

a private company and do business with it for the rest of your life. 

To justify this claim of power, implied power, supporters of the 

mandate say that health care is different or unique. But a factual 

description of health care is not a constitutional principle. It does 

not provide any principled line identifying when economic mandates are constitutional and when they are not. Once a power to 

conscript Americans to enter into contracts with private companies 

is accepted here, the Supreme Court will never limit it to any particular factual circumstance in the future. 

From now on, Congress would simply have the power to impose 

economic mandates whenever it deems it convenient to its regulation of the national economy. So when a defender of the insurance 

mandate says health care is unique, you need to ask, okay, but 

what is the constitutional limit on the power to impose economic 

mandates? 

Now some have responded that the commerce power is limited by 

the protection of liberty in the due process clause. But law professors know, even if the American people do not, that the Supreme 

Court now limits the scope of the due process clause to protecting 

only a very few specifically defined fundamental rights, none of 

which would include a right to refrain from doing business with 

private companies. 

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tion is really to claim that Congress’ enumerated powers in article 

1 are unlimited except as they are qualified by the Bill of Rights. 

Such a proposition has always been rejected by the Supreme Court. 

As Chief Justice Rehnquist wrote in Lopez v. United States, ‘‘We 

start with first principles, the Constitution creates a Federal Government of enumerated powers.’’ And then he went on to quote 

James Madison’s Federalist 45 and here is what Madison said, 

‘‘The powers delegated by the proposed Constitution to the Federal 

Government are few and defined. Those which are to remain in 

State governments are numerous and indefinite.’’ 

As I explained in my written testimony, existing Supreme Court 

doctrine limits Congress to the regulation of economic activity, and 

to date, has never sanctioned implied congressional power to regulate inactivity. In other words, the Supreme Court has said that 

Congress may go this far and no farther. But even if it did, even 

if the Supreme Court were to uphold this, each Member of Congress must still decide for him or herself whether conscripting 

Americans to enter into contractual relations with a private company is a proper exercise of the commerce power. 

In 2010, Congress claimed a power that had never before been 

claimed, the power to mandate that every citizen enter into a contractual relationship with a private company and do business with 

it or another business like it for the rest of their life. Had this ever 

been done before? Each of you would know all the economic mandates that you must obey upon pain of penalty to the IRS, you 

don’t know of any such mandates because this claim of power is literally unprecedented. 

For this reason, if you conclude that economic mandates are either unnecessary or improper and are therefore unconstitutional 

and beyond your power to impose, this conclusion would affect only 

one law ever enacted by this Congress, the Affordable Care Act of 

2010. 

And this fact makes it much more likely that it will be held unconstitutional by the Supreme Court. 

Nothing in Judge Vinson’s opinion in Florida imposes any new 

limits on congressional power. For over 200 years, Congress has 

gotten along without a power to mandate that every citizen enter 

into a contractual relationship with a private company. Congress 

has ample means to solve free rider problems by regulating economic activity and devising tax and spending schemes and does not 

need this new and dangerous power. 

Because economic mandates are both an unnecessary and improper means for regulating interstate commerce, the individual insurance mandate is unconstitutional, and I believe Congress should 

repeal it. Thank you. 

Chairman SMITH. Thank you, Mr. Barnett. 

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Mr. SMITH. I will recognize myself for questions and Mr. 

Cuccinelli, I would like to address my first question to you. You 

mentioned that if the individual mandate is upheld, you feel that 

it would be the end of federalism. I gather then that you also feel 

that if Congress can require everyone to purchase health insurance, that there is really no limit to Congress’ ability to regulate 

under the commerce clause. Is that the case? 

Mr. CUCCINELLI. That is correct, Mr. Chairman. Once you have 

allowed, sort of kicked open that door, there is no articulable limit 

to that power. I am sure I could come up, as Mr. Dellinger mentioned, with examples what I would call crumbs off the table that 

might remain exclusively within the power of the States, but we 

would have dramatically, dramatically reduced that sphere. 

Mr. Conyers, in is his opening remarks, referenced auto insurance and the Massachusetts insurance example, both legitimate examples, I hear questions about them all the time. Massachusetts 

is a State. The Constitution as originally written did not limit 

States. It limited the Federal Government, and it is the Federal 

Government that has stepped outside those boundaries. Massachusetts can do exactly what the Federal Government attempted to do 

last year perfectly well within its constitutional prerogative as a 

sovereign entity in our constitutional system. 

That is why federalism is so threatened by this legislation is you 

completely gut that differential, the distinctive authority and responsibility that was left to the States when the Federal Government was limited by the enumerated powers. And that is why the 

language of the 10th Amendment reads the way it does, is that residual power which we typically refer to as the police power is still 

left with States, and it would be gutted if the individual mandate 

is allowed to stand. 

Mr. SMITH. Thank you, Mr. Cuccinelli. 

Mr. Barnett, supporters of the individual mandate say we don’t 

need to worry because the due process clause puts a limit on Congress’ power. Do you buy that argument? 

Mr. BARNETT. Well, the due process clause does put a limit on 

Congress’ power and it puts a limit on the States power as well. 

And if that is the only limit that is on the State and Federal power, 

that means that Congress’ power is the same as the States’ power, 

it is just as broad, if that is the only limit, since it is the same limit 

on both entities. But we know that that is not right that Congress 

has limited and enumerated powers and the States’ powers are 

broad and diverse. So that can’t be the only limit. 

Essentially what argument says, Mr. Chairman, is that the enumerated powers in article 1, section 8 are unlimited in and of 

themselves, they are unlimited and they are only to be qualified by 

the Bill of Rights or the due process clause. It is like saying Congress’ powers are unlimited unless they violate free speech. It is 

the same kind of argument. 

Mr. SMITH. Mr. Barnett, one other question. Supporters of the individual mandate also say that somehow health care is unique and 

therefore we also don’t need to worry about excessive power residing in the hands of Congress. 

Do you think that health care is so unique that that should alleviate our concerns? 

42 

Mr. BARNETT. Whether or not health care is unique, the factual 

uniqueness of any particular market is not a constitutional principle. And for 200 years, the Supreme Court has declined to examine the factual reach of any particular congressional law. 

What they need is a firm line that they can judicially administer, 

and they don’t get into the factual details of this circumstance 

versus that circumstance. So the problem with that objection is it 

is not a constitutional limitation, it will never be held as a constitutional limitation, so it don’t solve the basic problem. 

Mr. SMITH. Thank you, Mr. Barnett. 

And the gentleman from Michigan, Mr. Conyers is recognized for 

his questions. 

Mr. CONYERS. Thank you, Chairman Smith. First of all, I want 

to thank the Attorney General Of Virginia for his instructions. I 

will not debate this now because we are short of time, but I wanted 

to just ask you this question: What is it that two solicitor generals, 

Fried and Dellinger, don’t understand about the constitutionality of 

the issue that brings us here this morning? What is it that they 

don’t understand and that you do understand? Could you explain 

that for me? 

Mr. CUCCINELLI. Mr. Conyers, they, along with many others, we 

could pile the list of supporters of each position on a scale and it 

would be a mile high, but the position they have taken is accepting 

that there are not no limits but virtually no limits on the commerce 

clause power of Congress. 

And you commented earlier on the inactivity focus of us on our 

attack on the individual mandate, if one can treat a decision to do 

nothing as activity for purposes of Supreme Court precedent, which 

even judges ruling in favor of the Federal Government have had to 

make that logical leap, that is the leap they have to make, they 

have to redefine words and they have to have leaps of language 

and logic to prevail, and they are willing to do that. 

Mr. CONYERS. I want to assure you that the sky is not falling. 

I want to give you the assurance today that federalism is probably 

alive and well before, during and after the Supreme Court decision 

on this matter. 

Now, Mr. Dellinger, do you have a response for Professor Barnett 

in this discussion that we are having this morning? 

Mr. DELLINGER. Mr. Conyers, I believe that the fundamental 

flaw in the critique of this legislation, the no-limits critique, is it 

assumes that a decision by the Supreme Court upholding this law 

would say that we are upholding this law because in our opinion 

Congress can regulate anything it wants or Congress can require 

the purchase of any product it wants, but why in the world would 

you think that would be what the Supreme Court would hold? 

Whether a Supreme Court decision sustaining this minimum coverage incentive or requirement would allow Congress to do lots of 

other things when would entirely depend upon what the Supreme 

Court gave as the reason. And I think, I can’t, I am sure there are 

ethical rules and criminal rules that prevent Members of Congress 

and witnesses from wagering, but if there weren’t, I would wager 

that not only would this be upheld if it gets to the Supreme Court, 

that is, if any of the courts of appeal strike it down, which they 

may not, and I would wager that—and I have sampled a lot of 

43 

other Supreme Court experts, I would wager that Chief Justice 

Roberts writes an opinion upholding the law. And he is not going 

to write an opinion that says, we are upholding this law because 

Congress can require people to buy any product that Congress 

chooses or engage in any exercise. They are going to uphold it by 

saying in this case it is imminently intertwined with a fundamental part of the interstate markets in health insurance and 

health care. 

And here is what the opinion I expect by the chief justice will 

cite. It will say that 94 percent of the long term uninsured have 

actually utilized health services. It will say that only one-third of 

the cost of health service is obtained by the uninsured are paid for 

by the uninsured. Of hospital costs, only 10 percent of the hospital 

costs obtained by the uninsured are paid for by the uninsured. 

Ninety percent of those costs are transferred to other Americans, 

other patients who are sick, and to taxpayers. 

And in those circumstances, when Congress is regulating a market by prohibiting insurance companies from denying coverage, it 

can surely create an incentive more, modest more respecting of liberty than the way Medicare and Social Security operate in order 

to encourage people to maintain minimum coverage. 

That is what the Supreme Court will say, and it won’t be a 

precedent for requiring any other obligation to purchase anything 

whatsoever. 

Mr. CONYERS. Well, I want to assure you that as long as you stay 

away from Internet gambling, wagers are probably permitted in 

the Rayburn building. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Conyers. 

The gentleman from Virginia, Mr. Goodlatte, is recognized for his 

questions. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Gentlemen, welcome. This is a very interesting discussion. But 

Mr. Dellinger, I have to tell you that while the Supreme Court can 

write anything they want to in their opinion, they have historically 

done so from the perspective of what parameters they are going to 

impose upon what Congress can do based upon that decision and 

based upon the precedents that have stood before them. 

And quite frankly, I find it astonishing that you would compare 

Social Security or Medicare or any other government program 

which is funded through taxation, and then provided to people who 

can choose to avail themselves of it or not as the equivalent of 

mandating that individuals buy a private product from a private 

company which the government is also going to then mandate to 

that private company what has to be provided in the product. 

And I would yield first to the Attorney General and see if he 

would like to address that point. 

Mr. CUCCINELLI. Thank you, Congressman. 

I would note that every example that I have heard listed by either Mr. Dellinger or Mr. Conyers, car insurance, Medicare, Social 

Security the 1792 Militia Act that Mr. Dellinger was referring to, 

all stand on their own constitutional footing and it is not the commerce clause, or none of them. None of them. They all have an 

independent power provided to Congress. The Militia Act, if you 

read your article 1 section 8, you will see it worded affirmatively 

44 

that you may raise an army, that there is vast authority over the 

militia and how it is to be governed and utilized. That doesn’t exist 

in commerce. You must regulate something that already exists. 

They may not compel it into being. 

Car insurance we already talked about. That is within the realm 

States. Medicare and Social Security as you note are implemented 

using the taxing power, a broad though not unlimited power of 

Congress. 

The other example cited so far is for schooling which is within 

the realm of the power of States, not the Federal Government. 

So none of the other examples are applicable. And I am one of 

these—I was an engineer before I went to the dark side and went 

to law school. So I had this logical training that forces me to argue 

in certain ways, I would say. And all of the discussion of the importance of the subject, I take for granted. I agree this is important. 

The Supreme Court has repeatedly noted that that doesn’t matter, 

it doesn’t matter. What matters is are you within the boundaries 

of the Constitution? And this isn’t even close. 

Mr. GOODLATTE. Let me ask you about another argument that 

has been made by the Justice Department in supporting their case. 

They have argued that the individual mandate penalty is constitutional as a tax. 

And could you explain the problem with the argument that the 

mandate’s penalty is a tax. 

Mr. CUCCINELLI. First of all, let’s note that this argument really 

didn’t exist until they began to worry we might actually beat them. 

Mr. GOODLATTE. We were told here that it wasn’t a tax. 

Mr. CUCCINELLI. Of course, and rather famously and emphatically the President in the George Stephanopoulos interview said 

the same thing. And that was cited by Judge Vinson in his October 

14 order in the Florida case. But it is called a penalty. It had been 

called a tax in an earlier version of the bill. That was changed to 

a penalty. 

The Supreme Court has noted La Franca. There is a distinction 

that matters between taxes and penalties. The taxing power, as I 

already mentioned, is broad for you all, for Congress. However, it 

is not unlimited either. 

And the money you must pay if you fail to obey the government 

dictate and buy their chosen health insurance is a penalty. It is a 

punishment for failure to comply. That is a penalty. It was called 

a penalty. It acts as a penalty. In form and substance it is a penalty. To rename it after the fact in court attacks doesn’t change its 

form or its substance. And it does not generally raise revenue as 

the money raised for Medicare and Social Security do. That is why 

those stand just fine. And it is an argument that not even the two 

judges who have found the individual mandate constitutional have 

bought. 

I would suggest to you that if all you have to do, and you here 

as Congress, if all you have to do is penalize me some amount of 

money if I don’t obey whatever you put in the legislation whatever 

the legislation can be and that can survive under the taxing power, 

that is a truly radical argument in terms of Federal power. That 

is radical. And it is not being upheld by any judge anywhere. And 

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gle judge in America upholds that argument. They may uphold the 

individual mandate. It is going to be a close call. But they will not 

uphold that taxing argument. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Goodlatte. 

The gentleman from New York, Mr. Nadler, is recognized for his 

questions. 

Mr. NADLER. Thank you. I agree with Mr. Cuccinelli. I don’t 

think anybody will uphold that argument because they will never 

get to it because they will decide the case is valid, the law is valid 

as an expression of Congress’ power under the commerce clause. 

Before I begin my questioning, let me ask the Chairman for 

unanimous consent to enter into the record the testimony submitted for today’s hearing by the attorneys general of California 

and Oregon, Kamala Harris and John Kroger. 

Like Attorney General Cuccinelli, they are involved in legal challenges to the Affordable Care Act. But they defend the constitutionality of the law and herald it as a much-needed solution to 

their States’ and our Nation’s health care crisis. 

Having their perspectives will be useful to our consideration of 

this issue. 

Mr. SMITH. Without objection. 

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Mr. NADLER. Thank you. I now would like to start the questioning. 

Let me ask Mr. Cuccinelli, a number of our laws impose affirmative obligations on citizens. We must all pay taxes, buy car insurance, send our children to school and vaccinate them. 

Yet critics of the Affordable Care Act proclaim that this law, not 

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ing questions about government forcing citizens to eat leafy greens 

or to exercise, both from my perspective perhaps objectionable. 

Can the States require residents to eat broccoli or require them 

to exercise, Mr. Cuccinelli? 

Mr. CUCCINELLI. I am sorry, eat broccoli or—— 

Mr. NADLER. Can the States require, can the States, can Virginia 

require someone to eat 2 ounces of broccoli a day? 

Mr. CUCCINELLI. I think they could certainly order people to buy 

broccoli. 

Mr. NADLER. Can they require them to eat broccoli? 

Mr. CUCCINELLI. I think that is a more difficult question. 

Mr. NADLER. But they could require them to buy them? 

Mr. CUCCINELLI. And the Federal Government cannot. 

Mr. NADLER. Now, presumably what you are saying is under the 

police power, the State can order that? 

Mr. CUCCINELLI. That is correct. 

Mr. NADLER. And the Federal Government doesn’t have the police power? 

Mr. CUCCINELLI. That is correct. Well—— 

Mr. NADLER. But if that is correct, if the State under the, if the 

State can exercise its authority to order someone to buy broccoli or 

to exercise, then the quarrel here is not about individual liberty 

such as you talked about. It is not a question of the liberty interests under the Fifth Amendment, but it is a question of who gets 

to exercise that authority. If the State can order it, then that is not 

protected by the Fifth Amendment, or the 14th for that matter. 

And the question then is, since somebody can order it, the question is who can exercise the authority which concededly is not limited by the liberty interest of the Fifth Amendment. And so long 

as we act within an enumerated power, which I would contend we 

do here, doesn’t the supremacy clause answer that question as well 

in favor of Congress? 

Mr. CUCCINELLI. Mr. Nadler, I would acknowledge that if you 

take the broccoli example and say the State government can order 

but the Federal Government cannot, that there is the potential 

within each of the 50 States for the citizens there to be burdened 

with that obligation. 

Mr. NADLER. My question is not that. My question is: Isn’t your 

argument that the Congress is limited by a liberty interest here negated, and that the question has nothing to do with the liberty interest of the Fifth Amendment? The question is simply one of how 

far the commerce clause power extends, which is not a liberty question, but is an enumerated powers questions, and the liberty question is, therefore, really a red herring? 

Mr. CUCCINELLI. Yes, this case is about liberty and not health 

care. And the reason that the distinction you are making does not 

address that problem is that the Federal system of sovereignty, 

States and Federal being separate and having separate spheres of 

authority, is intended to be a structural protection for liberty. 

So the fact that the States still have this reservoir of power and 

authority does not change the fact that the division of that power 

and authority is a protection. 

67 

Mr. NADLER. Of course, that argument you have just made has 

been specifically rejected numerous times under the supremacy 

clause jurisprudence of the Supreme Court. 

Mr. CUCCINELLI. That is not correct, Congressman. 

Mr. NADLER. I ask Mr. Dellinger briefly to comment on what Mr. 

Cuccinelli just said, and on my contention, that if a State can force 

you to eat broccoli, then it is not a question of liberty, it is simply 

a question of whether Congress can to do something under the 

commerce clause or not, there is no liberty interest question here. 

Mr. DELLINGER. That is correct. I think there is no issue of liberty in anything that the States can do and the Federal Government can do. Let me give credit to the other side by saying that 

there is the following question: What I think they misnamed ‘‘the 

regulation of inactivity’’ is actually the imposition of an affirmative 

obligation in an area where Congress has power, jurisdictional authority to legislate. 

Now, I think as Professor Barnett, who has been one of the great 

advocate of—— 

Mr. NADLER. Let me interrupt you for a second because my time 

is about to run out. This whole question of the inactivity and the 

liberty interest of inactivity, et cetera, wasn’t that disposed of really by Wickard v. Filburn when the courts specifically said, in 1942, 

I think it was, that the Federal Government, under the commerce 

clause, could regulate the private production of wheat for the farmer’s own use, that that affected interstate commerce, because if he 

didn’t grow it, he would buy it from someone else. And the court 

there is saying, in effect, that Congress has the right to prevent an 

inactivity, namely that he wouldn’t buy it from someone else? 

Mr. DELLINGER. I think, yes, that essentially Wickard is a case 

in which the court recognized that Congress is encouraging people 

to make a purchase in interstate commerce who would have preferred not to make such a purchase. 

Mr. SMITH. The gentleman’s time has expired. 

The gentleman from California, Mr. Lungren, is recognized. 

Mr. LUNGREN. Thank you very much. And I hope my friend from 

New York will pay as much attention to the opinion of this attorney general from California as he does to the new one, but I may 

be asking for too much. 

You know, I am sorry, even though I went to law school at 

Georgetown and practiced law and was attorney general and argued a case before the Supreme Court, sometimes we seem to make 

these things so esoteric that the average person is left out. That 

is, only those of us with coats and ties on or judges who are attorneys with robes on can really make sense of this. 

I always thought that the intent of the Founding Fathers was to 

have a limited government. And I always thought that one of the 

defining issues of limited government was the power to compel; 

that is compulsion. And what I don’t understand, and with due respect to you, Mr. Dellinger, because I respect you and I have liked 

your opinions many other times, I don’t understand why you so 

easily find that the power of the Federal Government in this instance is closer to the power to compel one to defend the country, 

including compel performance in the Armed Forces by way of a 

draft, as opposed to the liberty interest that is explicitly expressed 

68 

in the Fifth Amendment, you can’t be compelled to testify against 

yourself. 

Now, I know we don’t have a specific amendment that says Congress cannot compel an individual to buy a product, but I thought 

if there is any essence of the sense of liberty, it would be that. And 

I am, well, put off a little bit by your argument. It almost seems 

to me that you are saying because there is a constitutional end, you 

can use a constitutional means to get there. That the commerce 

clause is so elastic that if there is any way we can shoehorn anything in, then Congress can use the power of compulsion to do that. 

And your opening statement was emotional about what we want to 

do about those who have preexisting condition, but it didn’t go to 

the constitutional question of whether, therefore, we can do that. 

I mean, as I have told my friends on this panel many times, the 

Constitution is the truly inconvenient truth. You may want to do 

it, but we don’t have the right to do it. And I am really surprised 

at this, and also your argument, and even Mr. Cuccinelli’s argument about the difference between the State and the Federal Government. If you think about a liberty interest and you read the 

10th Amendment, the 10th Amendment seems to say, at least to 

me, that there is a whole area of activity that is left to the States 

and the sovereignty of the people. 

So if there is a liberty interest with respect to an individual, the 

10th Amendment says that is to be expressed and protected by the 

sovereignty of the people within the States, which would say that 

there is still a liberty interest, but the concept of protecting it on 

the State level is left to popular sovereignty. Now, I know that may 

not be the current thinking with some, but can you help me with 

that? How do you so easily find that we have the right to compel 

someone to act in this way, to purchase a product, particularly 

when you say no one can escape being part of the system and 

therefore everything I do affects everybody else. Well, you know, 

there are people who don’t believe in doctors and don’t go to doctors, and there are people who are hermits who will never utilize 

these services. 

And there are other ways to do this, by the way. One of the ways 

you could do it, I am not saying it is the most practical way, but 

you could say that we understand, for instance, young people, we 

want to get young people in and they don’t do it because they make 

a bet that on average they are not going to be sick like the rest 

of us, and that is a pretty good bet. But when they lose it, they 

have to pay. One of the ways you could do to incentivize young people to be part of it is say if, in fact, you have an illness, if, in fact, 

you have an accident and you are taken care of and there are bills 

that are incurred, you will never be allowed to discharge that in 

bankruptcy. That will follow you the rest of your life. 

Now, that is one incentive, one way of doing it that doesn’t get 

into the question of the liberty interest. 

And so, are you saying that ultimately as long as you can shoehorn something within the commerce clause, we have no protection 

against the government’s compulsion? We have no protection 

against the government’s compulsion as long as Congress decides 

that we are going to compel you in a certain way? 

69 

Mr. DELLINGER. Well, first of all, I want to correct one statement 

you made. I have never taken a position that this is in any way 

like the solemn responsibility Congress compels sometimes for people to engage in military service. That is not—— 

Mr. LUNGREN. That was my metaphor to say within those parameters, on the one side we all recognize that in order to have a 

government work, a society work, we can compel people. On the 

other hand—— 

Mr. CONYERS. Mr. Chairman, I ask unanimous consent that the 

gentleman be given an additional minute. 

Mr. SMITH. Without objection. 

Mr. LUNGREN. I am not saying you were, but I am trying to say 

it seems to me those are the two edges of the question. I think you 

easily go to the one side, and I would say I find it very difficult 

to get that way. 

Mr. DELLINGER. Look, you said we ought to put this simply so 

the people can understand it, and I agree. I think Ronald Reagan’s 

solicitor general was chosen by President Reagan because he had 

a very good capacity to put things simply. 

What Charles Fried said was this is a regulation of an interstate 

commercial transaction. It is a requirement rather than a prohibition, but it is still a regulation of commerce, and Congress has the 

power. Now, the question is: Is it so intrusive because it is an affirmative obligation? And I think that is a serious question because 

affirmative obligations, as Randy Barnett has noted, affirmative 

obligations are more intrusive than negative prohibitions. So I 

think you could well argue that just because something has some 

influence on commerce, if it is an affirmative obligation, Congress 

needs to have a better reason than that. 

But unlike any of the thousand products mentioned here, this is 

in the Yellow Pages or in the Sears catalog, this is a product where 

Congress can simply say 94 percent of the people have used health 

care for the long term uninsured, and we can, therefore, create a 

financial incentive, that is all it is, a financial incentive to participate. 

Is that intrusive in liberty. Mr. Goodlatte said it was astonishing 

that I would compare it to the use of the tax power for Medicaid 

and Social Security. 

What I find surprising is the notion that there is a constitutional 

rule that the only way Congress could deal with a situation like 

this would be to provide a monolithic government provided, taxpayer-supported system, rather than having the same kind of or 

even lesser incentive to purchase a product in a private market. 

That seems unremarkable to me. 

Mr. SMITH. The gentleman’s time has expired. 

The gentleman from Virginia, Mr. Scott, is recognized. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Welcome, Attorney General. 

Mr. Dellinger, one of the things your testimony kind of talked 

around it is about what do we call this thing? And it has always 

intrigued me that the label is so important. People pretty well accept the idea if you go to a gas station with a credit card, it should 

be prohibited to charge you extra for using the credit card. However, people think it ought to be permissible to have a cash disVerDate Aug 31 2005 12:37 Mar 30, 2011 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6601 H:\WORK\FULL\021611\64582.000 HJUD1 PsN: 64582
70 

count. So if there are two prices, one a credit card price and then 

a lower cash price, if you call it a penalty for using a credit card, 

that is bad. But if you call it, the same differential, if you call it 

a cash discount, then that should be permissible. 

It seems to me that we are in the same situation on what we call 

this thing. There is no mandate. If you don’t have insurance, you 

pay the tax. If everybody is paying the tax, if we called this thing 

a tax credit for having insurance, would that have made a difference because there is no mandate? It is calling it a tax credit 

for having insurance, and that would mean Mr. Cuccinelli couldn’t 

label it a mandate and couldn’t label it a penalty. If you called it 

a tax credit, would that have made a constitutional difference? 

Mr. DELLINGER. I don’t think it should because even when you 

consider it as a commerce clause matter, the fact that it is clearly 

within commerce and would be unremarkable if it were done unmistakably as a tax credit for having coverage rather than an additional tax penalty for not having coverage, it seems that is very 

deeply nonintrusive. Your notion about what to call—— 

Mr. SCOTT. That is what we hear about. We hear about the penalty, the mandate. If we called it a tax credit, would it have made 

a difference? 

Mr. DELLINGER. It shouldn’t. It just would have changed the 

rhetoric. 

Mr. SCOTT. Mr. Cuccinelli, would have made a difference if we 

called it a tax credit? 

Mr. CUCCINELLI. As I mentioned earlier, if the structure is as it 

is now in the bill and you changed the word ‘‘penalty’’ to ‘‘negative 

tax credit’’ or something, the substance is still the same. It is the 

substance that the Supreme Court has looked to historically. It 

does not operate as a tax; therefore, it is not a tax. Therefore, it 

does not fall under the taxing and spending power for the general 

welfare. It will have to survive on some other basis. 

Mr. SCOTT. You can get a tax credit for solar panels. You don’t 

have to buy a solar panel; but if you do, you get a tax credit for 

it. 

Mr. CUCCINELLI. Well, the critical distinction in your point, and 

it goes to the earlier sort of shift of Mr. Nadler over to Wickard v. 

Filburn is yes, but if you compelled the purchase of solar panels, 

we would be in a totally different category. Much like the Wickard 

case—— 

Mr. SCOTT. We don’t compel the insurance. If you don’t have insurance, you pay the extra tax. You don’t have the tax credit for 

insurance. 

Mr. CUCCINELLI. You do, in fact, compel it, and you provide a 

punishment for those who don’t obey the compulsion. The Wickard 

case, the wheat case, I am sure you all are familiar with, would 

have been like this legislation if Wickard was compelled to grow 

wheat. He was not, but he chose to do so and, therefore, was governed because his activities, voluntarily engaged in, were subject to 

regulation under the commerce clause. 

Mr. SCOTT. You have labeled it a mandate when there is no mandate. You don’t have to buy insurance. 

Mr. CUCCINELLI. Well, if you don’t, you are not obeying the law. 

71 

Mr. SCOTT. You pay the extra penalty. If you don’t have insurance, you don’t get the tax credit. And if we labeled this a tax credit for having insurance, we wouldn’t be here. 

Mr. CUCCINELLI. You still have the structural problem of the legislation as it is. The words on it, if I could ask you to set aside—— 

Mr. SCOTT. If it had a different differential, those without insurance will pay a tax, and those with insurance get a tax credit and 

will not have to pay that extra tax, would that make a difference? 

Mr. CUCCINELLI. Well, you give tax credits for various forms of 

insurance that are purchased, and at least that tax credit standing 

on its own has never been challenged, so far as I know. 

Mr. SCOTT. So, Mr. Dellinger, if we labeled it different, would we 

have a different conclusion? 

Mr. DELLINGER. I think your question very effectively points out 

the fact that this simply isn’t very intrusive. If it is just the flip 

side of providing a tax credit, a modest tax credit for maintaining 

insurance by having a set of modest tax penalties for not maintaining insurance, how is this the end of liberty as we know it? 

Mr. SCOTT. Well, is it true there is not a mandate to have insurance? 

Mr. DELLINGER. There is a freestanding requirement in the bill, 

a requirement that everyone should have coverage unless they already have Medicare or Medicaid or they are below the poverty 

level. The penalty provision only applies to people who engage in 

certain activities, which I will describe. 

You can search the bill for the word ‘‘individual mandate.’’ It nowhere appears. 

Mr. SCOTT. So you have the difference, if we labeled it ‘‘tax credit,’’ we would have avoided a lot of this controversy? 

Mr. DELLINGER. Absolutely. And it can’t be that a mere labeling 

like that is something on which turns some great issue of liberty. 

If you ask an ordinary person to say look, if you are sitting out 

in the woods, you don’t have to buy insurance because there is no 

penalty that attaches to it. If you go to work in the economy, they 

are going to deduct money for Social Security for your old age. 

They are going to deduct money for your Medicare for health care 

after you are 65, and they are going to add a 21⁄2 percent tax penalty to pay for coverage before you are 65 unless you are maintaining minimum coverage. 

No one is going to say well, gosh, one of those is the end of liberty as we know it; and the other two are all right. In fact, this 

argument sounds exactly like the arguments over the challenge to 

Social Security. And those attacking Social Security said, if Congress can mandate a requirement age of 65, financial support for 

those over 65, they can set the retirement age at 30, or 25. The Supreme Court said Congress is never going to do that. That doesn’t 

mean it is unconstitutional. 

People said when the minimum wage law was passed, that if you 

could have a minimum wage of $10 an hour, why couldn’t Congress 

have a minimum wage of $5,000 an hour. Once again the Court 

said Congress is never going to do that. That, I think, hardly 

counts as an argument. No one would think of this as 

unremarkable. No one is going with bayonets and force you, force 

72 

march you to some insurance agency. It is just a financial incentive 

to maintain minimum coverage, as your question points out. 

Mr. SMITH. The gentleman’s time has expired. 

The gentleman from Iowa, Mr. King, is recognized for his questions. 

Mr. KING. Thank you, Mr. Chairman. I appreciate this hearing 

today, and I think there has been a tremendous amount of instructive testimony that has come out from each of you. I look at the 

bookends, Mr. Cuccinelli and Mr. Barnett, have made, I think, the 

arguments that I would be making. And so rather than turn directly to either one of the gentlemen, I would go to Mr. Dellinger 

who probably hasn’t had quite enough time to air his position. 

I would first take it to this point as I listened to the discussion 

about Wickard v. Filburn. I have a couple of follow-up questions for 

you, Mr. Dellinger. 

Do you believe that Wickard v. Filburn was justly and rightly 

held? 

Mr. DELLINGER. I do. 

Mr. KING. Rather than go into my disagreement with that, I 

think that expanded the commerce clause beyond the intentions of 

the Founding Fathers or the concepts that we basically hold today, 

then would you describe what you think, if ObamaCare is upheld 

as constitutional and the provisions of the commerce clause are, 

you might argue not expanded, I would argue they would be expanded if that were the case, then what could be constrained by 

the commerce clause? What type of activity would be constrained 

and where would the boundaries be? 

Mr. DELLINGER. That is a very good question. It would depend, 

of course, on the kind of opinion that the Supreme Court wrote upholding the law. 

In my view, the Supreme Court, in upholding it, will say first of 

all, nothing we uphold today gives Congress any power to regulate 

local noneconomic matters unless they have some special showing 

of relation to interstate commerce. So nothing we hold today undercuts United States v. Morrison, United States v. Lopez, regulating 

local, noneconomic matters is something Congress cannot generally 

do. 

Secondly, they would say we think when Congress imposes affirmative obligations, it has to show that is really tightly related 

to—I expect them to say Congress has to show that there is a substantial relationship to a regulation of commerce. And a substantial 

relationship here would be that this is part and parcel of a regulation of insurance contracts that prohibits denial of coverage for preexisting conditions to provide a financial incentive for people to 

participate. It does not provide—our opinion today, they will say, 

does not mean that Congress can simply require anyone to purchase anything in order to stimulate the economy. 

Mr. KING. And then quickly, before I go to Mr. Barnett, can you 

tell me, the distinction I just heard, the language used ‘‘health 

care’’ and ‘‘health insurance’’ and the distinction between the two 

was blurred in your opening testimony. Can you draw a distinction 

between the two? 

Mr. DELLINGER. I think both of those markets are markets obviously which Congress can regulate under its commerce power. They 

73 

account for one-sixth of the national economy. Health care is 

unique in that no one can decide not to utilize it. Health insurance 

is how you pay—— 

Mr. KING. Would you agree that is has been a practice to conflate 

the two terms, and it makes it difficult sometimes for us to sort the 

two when we use the term ‘‘health care’’ interchangeable with 

‘‘health insurance,’’ and we should do a better job of being careful 

how we use that terminology? 

Mr. DELLINGER. Yes. 

Mr. KING. Let me just make that a statement because the clock 

is ticking, and I turn to Mr. Barnett. 

Mr. Barnett, would you care to respond to the response that you 

heard from Professor Dellinger? 

Mr. BARNETT. Yes. It is what I said in my opening statement, 

Mr. King, and that is that we have heard no constitutional principle. 

The Supreme Court, if they uphold this bill, they will write an 

opinion. They will talk a lot about how health care is different. But 

then they will say we must defer to Congress’s assessment that 

this was necessary in order to impose insurance requirements. So 

they will defer to you is basically how the opinion will be written. 

They will not identify a limiting principle, if they uphold this bill. 

At least we have not heard from any of the proponents of the bill 

a constitutional principle that the Supreme Court could enunciate. 

If they say health care is different, what I am saying to you is that 

never in the history of this country has the Supreme Court gotten 

into a factual determination saying well, okay, health care is different. That is okay. But this other market for cars, let us say, that 

is different. There is a constitutional difference between the two. 

They haven’t ever said that, and they are not going to say that. 

Mr. KING. And likely then, if the Supreme Court upholds, then 

they would leave the discretion to Congress to define because they 

would be reluctant to? 

Mr. BARNETT. I would just say that I bet you, Professor Dellinger 

would take that bet, that he would not want to take the bet that 

if the Supreme Court upholds the mandate, that they won’t say 

that in the future it is up to Congress to decide whether to impose 

mandates. 

Mr. KING. General Cuccinelli. 

Mr. CUCCINELLI. Well, actually, Mr. Dellinger and I were on a 

panel in October at the Washington Legal Foundation, and when 

he was asked the principle at that time, he said the limits would 

be political. And I agree with him. I think that is the absolutely 

dead on, accurate, honest answer. And that means majority rules. 

If that is the case, why have a constitution in the first place? 

Mr. KING. I will accept that as a closing remark, and I yield back 

the balance of my time. 

Mr. SMITH. Thank you, Mr. King. 

The gentleman from Georgia, Mr. Johnson, is recognized for his 

questions. 

Mr. JOHNSON. Thank you, Mr. Chairman. I was in the process of 

formulating my thoughts here. 

Let me ask, or let me note the fact that Mr. Cuccinelli, you have 

opined that States have the power to mandate that an individual 

74 

purchase insurance. That is what you said as far as Massachusetts 

is concerned; is that correct? 

Mr. CUCCINELLI. Yes, sir, that is correct. 

Mr. JOHNSON. And you have also stated that your State, the 

State of Virginia, has the power to compel or mandate that its citizens purchase broccoli? 

Mr. CUCCINELLI. I think that is probably correct, yes. 

Mr. JOHNSON. And it can compel them to actually eat the broccoli? 

Mr. CUCCINELLI. No, I didn’t go there. I don’t think so. 

Mr. JOHNSON. Okay, just to purchase the broccoli. What provision of the Virginia constitution would authorize the State of Virginia to compel its citizens to purchase broccoli? 

Mr. CUCCINELLI. Congressman, you wouldn’t find it in the constitution of Virginia. The power resides with the States best articulated in the 10th Amendment. It is a power not given to the Federal Government; and, therefore, it is left to the States and the 

people through the 10th Amendment. 

Mr. JOHNSON. No, if the State has the power to compel its citizens to purchase broccoli, where does it get that power from? Is it 

an express power or is it an implied power in the Virginia constitution? 

Mr. CUCCINELLI. It is not in the Virginia constitution. It is a residual power remaining in the States because it was not given from 

the States to the Federal Government when the Constitution was 

written. So it stays with Virginia. 

Mr. JOHNSON. Well, you realize that probably some individuals 

in the State of Virginia would argue that since the power to compel 

a citizen to purchase broccoli is not stated in the constitution expressly, then it has been left to the people themselves, that power? 

You realize that, correct? 

Mr. CUCCINELLI. I would agree with that statement with respect 

to the Federal Constitution. But the State constitutions, and Virginia in particular, lays out not only what the governmental structure would be, but it is not formulated like the Federal Constitution to be a specific list of enumerated powers. 

Mr. JOHNSON. And the Federal Government, I would argue to 

you, because times have changed since the enactment of the Constitution and its amendments, times have changed, things have 

grown, the concerns and affairs of the government have grown and 

expanded, both State and Federal, and they are much more complicated now than they were back in the 18th century; is that correct? 

Mr. CUCCINELLI. Absolutely undeniable, Congressman. 

Mr. JOHNSON. And so, therefore, we have to have an ability to 

interpret the Constitution with an understanding of how it applies 

under current conditions; isn’t that a reasonable proposition? Or 

should we just stick with a strict authority or strict interpretation 

of the Framers of the Constitution, what they intended at the time? 

Because even the Supreme Court didn’t do that in its Citizens 

United case, did they? 

Mr. CUCCINELLI. Congressman, you are looking to change interpretations with changing times, and I would suggest to you that 

the proper course is to amend the Constitution if some alternative 

75 

power is believed to be more necessary or appropriate to our time 

that was not originally granted to the Federal Government when 

they enumerated powers in the Constitution. 

Mr. JOHNSON. If one of Virginia’s citizens said that the State of 

Virginia does not have the power to force me to purchase broccoli 

unless it goes and gets a constitutional amendment which would 

authorize it to do so, would that be reasonable? 

Mr. CUCCINELLI. As a policy matter, perhaps not. But as a constitutional matter, they could pursue that through the general assembly. And if they got a bill, I suspect it would stand up under 

the Virginia constitution. 

Mr. JOHNSON. I believe what we are doing is we are arguing for 

States rights when it is politically expedient to do so, and then 

when the Federal Government wants to regulate something like 

the ability of States to determine whether or not damages in medical malpractice injuries should be capped or not, then it is okay 

for the Federal Government to come into that kind of a situation 

and legislate. And so it is politics. And that is what we have here 

with this health care argument in the courts. 

And, unfortunately, due to the activities of a couple of our Supreme Court Justices and how close they are to the Koch brothers, 

I am disappointed at the specter of politics coming into a decision 

by the U.S. Supreme Court on this very issue. And with that, I will 

yield back the balance of my time. 

Mr. SMITH. The gentleman’s time has expired. 

Let me say to Members that one of our witnesses, Mr. Cuccinelli, 

is going to have to leave in 15 minutes for a prior engagement. We 

ought to have at least three more rounds of questions. 

Mr. LUNGREN. Parliamentary inquiry, Mr. Chairman. 

Mr. SMITH. The gentleman from California is recognized. 

Mr. LUNGREN. I know under the rules of the House, one is not 

allowed to call into question the motivation of a Member of Congress in the House or the Senate or the President of the United 

States. Does that rule of the House also refer to members of the 

Supreme Court? 

Mr. SMITH. I think the gentleman may have referred to politics, 

and I am not sure that accusing someone of politics is impugning 

their character. So I would say it does not apply in this case. 

Mr. LUNGREN. Mr. Chairman, there was a particular reference to 

particular individuals and decisions made by members of the Supreme Court, and one would believe that was a question of motivation. And I know my objection is not timely, but I believe that the 

gentleman’s words could have been taken down under the ruling of 

the parliamentarian in past decisions. 

Mr. SMITH. As the gentleman stated, his objection is not timely. 

In any case, I am sure that the gentleman from Georgia did not 

intend to impugn the integrity of members of the Supreme Court, 

either individually or in the whole. 

If the gentleman from Georgia would want to comment on that, 

he is welcome to. If not, we will move on to questions. 

Mr. JOHNSON. I appreciate that, Mr. Chairman. Just to clear it 

up, I did not comment about what the Supreme Court has already 

ruled. It is what I fear that they may rule. But this matter may 

not even get to the U.S. Supreme Court. We will have to see. 

76 

Mr. SMITH. We will now recognize the gentleman from Indiana, 

Mr. Pence, for his questions. 

Mr. PENCE. Thank you, Mr. Chairman. I want to thank you for 

calling this hearing on what I think is perhaps the most important 

constitutional question since I arrived on the Judiciary Committee 

in 2001. That is this question of whether or not the Federal Government has the power under the Constitution of the United States 

to order Americans to purchase goods or services, whether they 

want them or need them or not. 

And I want to thank this panel: General Cuccinelli, who I greatly 

admire for his thoughtful testimony; and Professor Dellinger and 

Professor Barnett. This has been an important discussion. 

We have now added the Judiciary Committee to a chorus of 

kitchen tables around America, small tables in diners over coffee. 

This is an argument the American people are fully engaged in, and 

I think it is an enormously important debate. And the disposition 

of this debate I think will bear greatly on the liberties of our people 

for generations to come. 

Professor Dellinger held up the phone book and compared, frighteningly, and began to recite various goods and services that could 

never be compelled by the Federal Government. And while that list 

may be long and I assume good faith by the witness, I fear that 

list, what would be included is longer than any American today 

would ever imagine. Meaning those things that could be regulated. 

I want to associate myself strongly with something that you said, 

General Cuccinelli. You quoted Professor Jonathan Turley who said 

if the States lose this case, it is the end of federalism. Let me say 

that I think the effort by States like yours, like my own beloved 

Indiana, 27 States in all, challenging this unprecedented exercise 

of Federal power represents potentially the rebirth of federalism in 

America. I leave that maybe for another hearing, Mr. Chairman, 

but I think something very special is happening in America today, 

and I believe it is something that our Founders would have, as you 

said, General Cuccinelli, I think they would have greatly identified 

with the notion that States ought to, by definition, they should feel 

obligated to defend the liberties of the people and defend their own 

prerogatives as a means of ensuring the ongoing vitality of the limited government enshrined in the Constitution of the United 

States, and most especially, defined in the 10th Amendment. 

I want to say specifically on this issue of regulating the market, 

and Professor Dellinger, I think you and I vigorously disagree on 

this, but I have great respect for your career and for your intellect. 

Let me just stipulate, you will never convince me that the Constitution of the United States gives this government the power to 

order Americans to buy health insurance. You just will never convince me of that. So I don’t want you to spend a lot of energy on 

that. You don’t even have to come over here. 

Mr. DELLINGER. I was going to leave. 

Mr. PENCE. That is not going to happen. But it is important to 

me to understand your thinking on this. You actually said this fell, 

in your judgment, this individual mandate in this legislation, fell 

within, I think you used the phrase ‘‘routine power to regulate the 

insurance market.’’ This is a very sincere question, and sometimes 

we do more posturing here, but I would love to know your answer 

77 

to this question, and that is: How does regulating a market include 

compelling people to participate in that market? It does seem to me 

that you make a point that the commerce clause contemplates an 

orderly regulation of the Federal Government and commerce between the States. But is it your view that if the government has 

the power to regulate the insurance market in this country, that 

by definition that also includes the power to compel Americans to 

participate in that market? 

Mr. DELLINGER. That is closer to General Charles Fried’s view 

from the Reagan administration that purely and simply, just as the 

Supreme Court held in 1905, that prohibiting interstate commerce 

was a regulation of commerce, prohibiting the shipment of lottery 

tickets in that case, so you can either prohibit a commerce or require commerce, either way you are setting the rules for commerce, 

I don’t think you need to, and I don’t think the Supreme Court 

would actually reach that question because I think they would simply say regulating existing insurance contracts by forbidding preexisting condition denials, for example, is clearly a regulation of 

commerce. 

And the only question is this, to use the court’s phrase, Justice 

Scalia’s phrase, reasonably related to that regulation. And, secondly, that this is a market in which Americans will already participate, cannot choose not to participate, and the facts show very 

substantially transfer the costs to other people. 

Now, let me acknowledge that when I say this is a routine application, I think you are right to raise a question about that. Let me 

acknowledge that in the following sense. While it is well within the 

commerce power, imposing affirmative obligations may very well 

demand a stronger level of justification. I think what the Supreme 

Court would say is there are three limits on Congress’s power. 

First is political. That is, it is the only thing that prevents you 

from adopting a minimum wage of $5,000 an hour. 

Second, there are liberty clause objections and Bill of Rights objections. And thirdly, where I think Congress is imposing affirmative obligations, you might need a special justification. You can’t 

simply say making people buy something will help that company, 

it would help the economy, therefore they can willy-nilly buy something. 

As Randy Barnett said, a Supreme Court decision upholding this 

would talk a lot about the uniqueness of health care. It is the one 

market where Federal law requires people to provide you with a 

service whether you are going to pay for it or not and transfer the 

costs to other people. Therefore, it is uniquely one where you could 

justify requiring people to maintain coverage. 

Mr. SMITH. The gentleman’s time has expired. 

The gentleman from North Carolina, Mr. Watt, is recognized. 

Mr. WATT. Thank you, Mr. Chairman. 

I actually wasn’t intending to ask questions. I came back to 

thank my good friend, Mr. Dellinger, and the other two witnesses, 

of course, but my relationship with Mr. Dellinger goes back a long, 

long ways to North Carolina. 

But I can’t resist the rare opportunity that I have to agree with 

Mr. Pence on a couple of issues, the first of which is this is important for the Judiciary to have the hearing about, even though in 

78 

no sense will we be the final word on this. It is working its way 

up through the courts. There is substantial division of opinion 

about it. And ultimately, it will be decided by the United States 

Supreme Court. So I think it is important for me to agree with Mr. 

Pence that this is an important hearing for the Judiciary Committee to have. It is important for me to agree with him that Mr. 

Dellinger has had a long and very bright legal career, and we 

thank him for that. 

And I hope we have some agreement on one other thing because 

Mr. Pence and I, over the years, have had pretty strong feelings 

about one thing, and one comment he made, the comment that says 

you will never convince me that this is constitutional, I have kind 

of been in that position one time myself on the short end of a 434- 

1 vote on an issue that I thought was unconstitutional and that the 

Supreme Court ultimately disagreed with my view on. I hope that 

once the Supreme Court, if it does say this is constitutional, maybe 

that will convince him because I had to have an attitude adjustment on that issue once the Supreme Court ruled. I had to come 

back and vote for some things I had to implement, to vote for funding for something that I had previously thought was unconstitutional. 

And I hope we have the agreement that his never, ever, ever, 

Walter Dellinger won’t convince me, also doesn’t apply to the Supreme Court because he is going to be out there possibly in a very 

difficult position. Having been there myself, I can attest to that. 

With that, this has been a great hearing. I am glad I got to hear 

the witnesses before I had to go off and hear witnesses in another 

Committee. I am glad I got a chance to come back and at least express my appreciation to the Chairman for having the hearing and 

to position myself in a similar position at the opposite end of a 

spectrum from Mr. Pence, but nevertheless, the dilemma is the 

same. We try to do what we believe is constitutional. There is no 

way we would have been able to convince Mr. Pence, or others, that 

this was a constitutional undertaking. 

But at some point, the Supreme Court is going to resolve this 

question, and we are all going to have to live with it one way or 

another. And I hope that the American people and the Congress 

will get on with it and hopefully provide health care to all of the 

American citizens if that is the ultimate outcome. 

So with that, Mr. Chairman, I yield back the balance of my time. 

Mr. SMITH. Thank you, Mr. Watt. 

Mr. Cuccinelli, thank you for your testimony today. We understand you have to leave. 

Mr. CUCCINELLI. May I just thank Congressman Watt for something that in my own legislature in Richmond I don’t always see, 

and that is a commitment to upholding your oath. If you think it 

is not constitutional, to voting against it. I do not see that enough. 

I don’t have—I am not here with you all, I am in Richmond, but 

my friends don’t always abide by that. They kick it to the court. 

They say it is a decision for the court. Read your oath, and I really 

appreciate, Mr. Watt, you fulfilling that oath in the way. 

Ms. LOFGREN. Mr. Chairman? 

Mr. SMITH. The gentlewoman from California is recognized out of 

order. 

79 

Ms. LOFGREN. I appreciate that and I understand that the attorney general has to leave. I did have questions for him, and I am 

wondering if I may submit those questions to him in writing and 

get his agreement to answer them. 

Mr. CUCCINELLI. Ma’am, absolutely. And if we can help any of 

you all, even if you may not agree, we are happy to help talk 

through subject matter with anyone of you all to try to be as helpful as we can as you try to do your job as you see fit. 

Ms. LOFGREN. Thank you. 

Ms. WASSERMAN SCHULTZ. Mr. Chairman? 

Mr. SMITH. Let me say to all Members that it is a part of our 

regular order of business that all Members have 5 legislative days 

to submit questions to the Chair, and we will submit the questions 

to the witnesses and get their responses in time to make them a 

part of the record. 

Ms. WASSERMAN SCHULTZ. Mr. Chairman. 

Mr. SMITH. The gentlewoman from Florida is recognized. 

Ms. WASSERMAN SCHULTZ. Mr. Chairman, Attorney General 

Cuccinelli, I am the next Democrat to ask questions, and my questions are of you. Do you have an extra couple of minutes? 

Mr. CUCCINELLI. I brought my running boots, so I can. 

Ms. WASSERMAN SCHULTZ. Thank you very much. 

Mr. SMITH. Actually the gentlewoman from Florida is not the 

next Member to ask questions. 

Ms. WASSERMAN SCHULTZ. I said I am the next Democrat. 

Mr. SMITH. The gentleman from Arizona, Mr. Franks, is recognized. 

Mr. FRANKS. Mr. Chairman, because General Cuccinelli has been 

so kind to stay a little longer, let me first start out, thank you for 

reminding us of our oath. We take an oath, we swear to uphold and 

defend the Constitution, not to adding the words unless the Supreme Court thinks otherwise. I am grateful to you because that 

is indeed one of the great geniuses of this country is that when we 

with trifurcated this government, all of us would have to have 

some tension between us, if necessary, to maintain the great principles of the country, and I am grateful to you, sir. 

This debate over the individual mandate, I believe, is a big one, 

Mr. Chairman. I know that Professor Dellinger has expressed sort 

of the general thought here, and I will paraphrase, that no one can 

escape being part of the system when it comes to health care. I 

guess I am concerned because if, indeed, the commerce clause in 

the Constitution can compel us to buy a certain product, then I 

wonder what cannot be reached within the framework of economy? 

Any inactivity or activity, I wonder what could not be reached by 

the commerce clause? 

I just think that the Chairman put it so well in his opening 

statement, those who threw the Boston Tea Party for excessive taxation of tea, I wonder how they would respond if their government 

told them they had to buy tea. I think that it might have been an 

even more lively party. 

Every exercise of Congress’s power to regulate interstate commerce has involved some form of action or transaction engaged in 

by an individual or legal entity. The government’s theory that the 

decision not to buy insurance is an economic one, would, for the 

80 

first time ever, permit laws commanding people, coercing citizens, 

to engage in economic activity. 

According to Ilya Shapiro, he is senior fellow of constitutional 

studies at the CATO Institute, under such a reading which two 

judges have upheld, Congress would be the sole arbiter of its own 

powers. The only check would be political. The Federal Government 

would have plenary power, plenary authority to compel activities, 

as we have heard, ranging from eating spinach to joining gyms to 

lessen the burden on the health care system, to coercing citizens 

to buy GM cars as, perhaps, an auto bailout. 

So, Mr. Barnett, how would you describe the breadth of what I 

suggest is a power grab under the ObamaCare rubric? 

Mr. BARNETT. Well, as I said, Congress has never before tried to 

impose an economic mandate on the people. So it is a new power. 

It is a new claim of power. And they have been able to get along 

without that power for over 200 years. So they are not claiming the 

power to do other things, but they are claiming the power to do 

this. And being able to make you do something, being able to make 

you enter the marketplace rather than regulate you after you voluntarily choose to enter the marketplace is a vast expansion of congressional power, especially when it claims the power to do so as 

long as it sees a rational connection between this mandate and its 

regulation of interstate commerce, or sometimes more broadly put, 

the regulation of the national economy. 

It is a vast claim of new power that will, after it is recognized 

by the Supreme Court, if it ever is, will be solely within Congress’s 

discretionary power to exercise. 

Mr. FRANKS. Mr. Chairman, I would just express a sense of gratitude to the American people because the former Congress seemed 

to be headed in a pretty dangerous direction. The precedent that 

they were willing to set, if you look at the original version of 

ObamaCare introduced by the former House leadership, it would 

require families to purchase insurance that the CBO estimated 

would be $15,000 a year annually. It would require families to do 

that for the average family of four. 

First of all, I am wondering if that is what is considered free insurance, $15,000 a year requirement. 

Under the original version, the even worse potential precedent 

that they were attempting to set, and it didn’t pass, I am grateful 

for that, but it is an indication of the, I guess arrogance, is the 

word. The failure to purchase the insurance would have resulted in 

not only civil penalties, but criminal penalties. If the head of household chose a pay medical expenses out of pocket rather than purchase health insurance, the citizen could have been fined a quarter 

of a million dollars or sentenced up to 5 years in prison. 

I am wondering if that kind of provision could be in a health care 

bill introduced in the Congress. If ObamaCare is upheld, is there 

anything standing in the way of such a legal scheme to be instituted in the future? And Mr. Barnett, I will give you a shot at it. 

Mr. BARNETT. Congressman, that is a very good point. As Mr. 

Dellinger has noted, there are two provisions of the current Act. 

One is the requirement that every person have health insurance, 

and the other is a monetary penalty for the failure to. Those are 

two different provisions. 

81 

The issue is the constitutionality of the requirement. And if that 

requirement is upheld, the Supreme Court will certainly say that 

Congress has powers to enforce this requirement however it wishes 

to. It has chosen in its first iteration to enforce it as a monetary 

fine or penalty. In the words of the statute, a penalty. That is what 

it chose to do so now. Only applicable to people who pay taxes. 

But there is no reason, there is no constitutional limit on 

Congress’s power to enforce the requirement, once the requirement 

is upheld as a valid regulation of commerce. So you are absolutely 

right. That parade of horribles, that parade of severe penalties 

could easily be upheld once the precedent of the requirement is set. 

Mr. SMITH. The gentleman’s time has expired. 

The gentlewoman from Florida, Ms. Wasserman Schultz, is recognized for her questions. 

Ms. WASSERMAN SCHULTZ. Mr. Chairman, thank you. 

Attorney General Cuccinelli, I appreciate your indulgence. I will 

try to ask my questions rapid fire to get you on your way. 

You mentioned in your written testimony that you see no constitutional problem with Congress taxing Americans to pay for government-provided health care; is that right? 

Mr. CUCCINELLI. Yes, ma’am. 

Ms. WASSERMAN SCHULTZ. And you believe that Medicare is constitutional? 

Mr. CUCCINELLI. Yes, ma’am. 

Ms. WASSERMAN SCHULTZ. And you believe that Social Security 

is constitutional? 

Mr. CUCCINELLI. Yes, ma’am. 

Ms. WASSERMAN SCHULTZ. And that is because in your view Congress is taxing the activity of working? 

Mr. CUCCINELLI. In the transaction, yes. Voluntarily engaged in. 

Ms. WASSERMAN SCHULTZ. Right. So in your view, Congress can 

tax labor in the present to pay for social welfare legislation down 

the road, and you are fine with that? 

Mr. CUCCINELLI. The tax, what it goes for is irrelevant. They 

have the taxing power. 

Ms. WASSERMAN SCHULTZ. But something that we can—the concept of taxing labor in the present to pay for social welfare down 

the road is something that you are fine with? You think it is constitutional? 

Mr. CUCCINELLI. As a constitutional matter, yes. 

Ms. WASSERMAN SCHULTZ. Okay. Do you also believe that Congress can regulate activities that substantially affect interstate 

commerce as was decided in United States v. Lopez? 

Mr. CUCCINELLI. Yes. 

Ms. WASSERMAN SCHULTZ. Were you aware that in 2008 alone, 

the uninsured, those who got sick or had an accident and couldn’t 

pay racked up $43 billion in health care costs? 

Mr. CUCCINELLI. I read that in briefs for well on a year. 

Ms. WASSERMAN SCHULTZ. Is $43 billion a lot of money to you? 

Mr. CUCCINELLI. It is heck of a lot of money. It is more than my 

State’s budget. 

Ms. WASSERMAN SCHULTZ. It is not more than mine, but it is certainly a lot of money. Do you conceive that $43 billion worth of uninsured medical costs substantially affects interstate commerce? 

82 

Mr. CUCCINELLI. Yes, but it does not give you the ability to compel people against their own desire to enter into a market to address the problem. 

Ms. WASSERMAN SCHULTZ. No, no, no. Because in United States 

v. Lopez, which you support, commerce that is substantially affected, Congress has the ability to regulate. That is what you stated. 

Mr. CUCCINELLI. Ma’am, if your assertion in that question is that 

then they can do anything, then you have reduced the necessary 

and proper clause to the necessary clause. Anything necessary to 

regulate is therefore within Congress’s power; that is simply not 

the case. 

Ms. WASSERMAN SCHULTZ. No, the Supreme Court decided that 

activities that substantially affect interstate commerce, which you 

just acknowledged that $43 billion is substantially affecting commerce, then by connecting those dots, then you would agree that 

that kind of impact affects interstate commerce significantly? 

Mr. CUCCINELLI. Not as you have phrased it. 

Ms. WASSERMAN SCHULTZ. Well, did you know that the average 

family paid an extra $1,000 last year in their medical premiums 

due to the cost of the uninsured? 

Mr. CUCCINELLI. Again, I read it in briefs over the last year. 

Ms. WASSERMAN SCHULTZ. Do you pay for your own health care? 

Mr. CUCCINELLI. Yes. 

Ms. WASSERMAN SCHULTZ. Okay, wouldn’t you like to have an 

extra thousand dollars in your pocket? 

Mr. CUCCINELLI. I would like to have an extra thousand dollars 

whether I paid for my health care or not. 

Ms. WASSERMAN SCHULTZ. So would we all. Do you think American families would like to have that extra thousand dollars in your 

budget each year? 

Mr. CUCCINELLI. Obviously. 

Ms. WASSERMAN SCHULTZ. You would do what with an extra 

thousand dollars, invest in a bank, invest in stocks, make sure that 

you could send your kids to college? 

Mr. CUCCINELLI. Or donate to a Republican in Florida. Who 

knows. 

Ms. WASSERMAN SCHULTZ. You may have to look at a different 

district than mine. You might be throwing money away if you do 

that. 

Mr. CUCCINELLI. Freely and with no compulsion, you are right. 

Ms. WASSERMAN SCHULTZ. I think we have established pretty 

clearly that you acknowledge that $43 billion is a significant 

amount of money, that it significantly affects interstate commerce, 

and I think your arguments that somehow we are regulate inactivity by your testimony and your answers to my questions makes 

it pretty clear that the individual mandate is constitutional. 

Mr. CUCCINELLI. No, actually your questions used the words ‘‘activity’’ in your presumption, and that is where you fail. 

Ms. WASSERMAN SCHULTZ. Well, $43 billion in expenditures is activity. 

Mr. CUCCINELLI. People deciding not to do something is inactivity. It is the state of doing nothing. 

Ms. WASSERMAN SCHULTZ. If they go to the emergency room—— 

83 

Mr. SMITH. Let the witness answer one question. 

Ms. WASSERMAN SCHULTZ. Oh, he answered a bunch. Thank you. 

Mr. CUCCINELLI. If you look at the argument that you are talking 

about there, there are two, call them ‘‘boxes.’’ One is the action of 

a transaction undertaken. The other is the decision not to undertake a transaction. To do nothing. Now, if doing nothing is 

regulatable under the commerce clause, it literally has infinite 

reach. If something can be regulated, that is everything. 

Ms. WASSERMAN SCHULTZ. Mr. Attorney General, individuals 

who have to go to the emergency room to get their health care 

which is part of that $43 billion is not inactivity. That is activity 

that we all pay for. 

Mr. CUCCINELLI. You can regulate at that point. 

Ms. WASSERMAN SCHULTZ. So it substantially affects interstate 

commerce. 

Mr. CUCCINELLI. And you can regulate at that point. And the 

Federal Government, by its own law, has sold the treatment that 

causes in part the costs you are identifying. So the Federal Government has trapped itself into a financial corner and then says hey, 

we are trapped into a financial corner, give us new constitutional 

powers so we can get out. That doesn’t hold water. 

Mr. SMITH. The gentlewoman’s time has expired. 

Ms. WASSERMAN SCHULTZ. And I do appreciate the Attorney General’s Indulgence. It was a pleasure bantering with you. 

Mr. CUCCINELLI. Yes, ma’am, for me as well. 

Mr. SMITH. Mr. Cuccinelli, we appreciate your being here. 

The gentleman from Texas, Mr. Gohmert is recognized. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

I think most of us would agree, including General Cuccinelli, 

that the right to regulate is far different from the right to mandate. 

And, in fact, if this Congress did a better job of regulating rather 

than trying to run people’s lives, this country would be a whole lot 

better off. And in fact, if the Federal Government, for example, did 

a better job of regulating fraud and illegal activity with regard to 

stocks, than perhaps we wouldn’t have the Madoffs out there taking advantage of people. But this government has gotten so interested in mandating and running people’s lives, that we have lost 

sight of the job that is really important and that is, regulating, 

making sure there is a fair, level playing field for people to play 

on. We have been so busy being players on the field and referees 

that we have really skewed what the original intent was of the 

Constitution. 

And so we hear all this talk about car insurance. Let me ask the 

witnesses, are you aware of any State in the Union in the United 

States that mandates the purchase of car insurance in order to reside in that State? Either. 

Mr. DELLINGER. No. 

Mr. GOHMERT. Because I keep hearing that brought up, car insurance. States can mandate car insurance. But I know, as smart 

as both of you are, you know that no State mandates the purchase 

of car insurance unless a resident decides to take advantage of the 

privilege of driving on the State’s roadways, correct? 

Mr. DELLINGER. That is correct. What is similar about that, that 

particular mandate, is that the reason that it is one of the rare 

84 

items that people are compelled to purchase to operate a motor vehicle is that no one can be assured that they are just not going to 

have an accident and impose costs on other people. 

Mr. GOHMERT. Well, there—— 

Mr. DELLINGER. And so here as well no one can be ensured that 

they are not going to use health care and put the cost on other people. 

Mr. GOHMERT. Let’s go back. I haven’t asked about health care 

yet, because I am wanting to go after this metaphor of car insurance purchase. 

The fact is there is not a State in this country that requires anybody to purchase car insurance on themselves in order to have the 

privilege of driving on the roads. Every State that I am aware of 

requires the purchase of insurance to protect against damaging 

someone else, but you don’t have to buy insurance to drive on a 

road to cover your own damages. So that is another difference from 

car insurance. This is the Federal Government going in and saying, 

for the first time ever, we are requiring not only the purchase of 

a private product, but we are requiring you to purchase a private 

product that must be used on yourself. 

That seems pretty significant. 

Mr. DELLINGER. What is similar is that, in both cases, the cost 

is imposed on other people. When you have a car accident, it imposes costs on other individuals. Liability insurance means that 

there is going to be a way to pay those individuals. 

When the uninsured use hospitalizations, they wind up paying 

only 10 percent of—— 

Mr. GOHMERT. Who is ‘‘they’’, sir? 

Mr. DELLINGER. The uninsured—the uninsured pay only 10 percent of the hospitalization costs that they use. 

Mr. GOHMERT. Do you know how much insurance companies pay 

on the cash value of services that are rendered? I know from some 

lawsuits in which I was involved you have got insurance companies 

that pay about 10 percent of what someone who doesn’t have insurance has to pay. So there are all kinds of problems with the system 

the way it is set up. 

We could regulate that system. We could require free market 

competition, which we don’t have and can’t have as long as nobody 

really knows what insurance companies are paying, what pharmaceuticals get paid, what somebody really could get away with paying if they work out a deal with cash. Those are the kind of things 

we ought to regulate, and then people don’t have to be paying for 

everybody else’s. 

But again I see I am running out of time. 

But let me just say, with regard to my friend from Georgia who 

brought up Supreme Court justices, I wish I had heard from my 

friends across the aisle the sense of outrage and also from Common 

Cause the kind of outrage they are expressing, and the racial hatred they are stirring up by doing so, if they had raised that kind 

of issue over an ACLU leader sitting in judgment on cases involving the ACLU or a Supreme Court judge who has been a solicitor 

general sitting on cases in which the solicitor general was involved. 

I think it would have a lot more credibility to raise it at this point. 

And with that I yield back. 

85 

Mr. SMITH. Thank you, Mr. Gohmert. 

The gentleman from Florida, Mr. Deutch, is recognized. 

Mr. DEUTCH. I thank you, Mr. Chairman. 

First of all, Mr. Chairman, I would, as a Member of the other 

side of the aisle, take offense to the suggestion that those in my 

caucus are somehow stirring up racial hatred. I think it is an inappropriate comment. 

Mr. GOHMERT. Would the gentleman yield? 

Mr. DEUTCH. I will. 

Mr. GOHMERT. I didn’t say that. I was redressing Common Cause 

that stirred up demonstrations that created racial epithets and 

threats to Supreme Court justices and their family. I am not aware 

of anybody on the other side of the aisle stirring up that kind of 

issue; and if I indicated that, I did not intend to. I was referring 

to Common Cause. So thank you. 

I ask unanimous consent that he have additional time to make 

up for what I said. 

Mr. SMITH. Without objection, the gentleman from Florida is 

yielded 1 additional minute. 

Mr. DEUTCH. Thank you, Mr. Chairman. 

We have been able to do the one thing that all of us believe in. 

With the General’s departure, we have leveled the playing field. 

I have some questions for both of you. 

Professor Dellinger, you spoke earlier about the fact that—and 

we have now confirmed with the General—that it is constitutional 

to require the purchase of old age survivors and disability insurance, that being Social Security; it is constitutional to make payments, health insurance payments, throughout one’s working life 

with those benefits to then be paid out upon retirement, that is 

Medicare; so I would like to understand then why this is different, 

but I would like to play it in a different direction. 

Professor Barnett, if the Federal Government enforced an individual mandate by deducting premiums from Americans’ paychecks 

and providing individuals with a coupon to buy private insurance 

that they would have to be required—mandated to buy from a private insurance company, would that be constitutional, in your opinion? 

Mr. BARNETT. Mr. Congressman, this actually gets back to Mr. 

Scott’s earlier question about labels making a difference. I agree 

with you that labels make a big difference. And Congress does have 

a tax power. It is the label given one of your powers, the tax power. 

And when you exercise that power, you can collect revenues, and 

then you can then spend those revenues for the general welfare, to 

provide for the general welfare and the common defense. 

And the programs that you have just mentioned are an exercise 

of that tax power, and the constraint on the tax power that is provided for up till now is political. And that is the reason why Congress doesn’t like to exercise it so much. Because when they do exercise the tax power they have to pay a political price for doing so. 

So they might rather call it something else. So labels actually do 

make a difference. 

Mr. DEUTCH. So collecting taxes then and handing out coupons 

and requiring that those coupons be spent in the private market, 

that is acceptable. That is constitutional. 

86 

Mr. BARNETT. That would be an exercise of your tax and spending power, Congressman. 

Mr. DEUTCH. And what if individuals have the option to purchase 

publicly run health insurance in the exchange? I guess the question 

is, would public ownership of a health plan affect the interpretation 

of the constitutionality of the mandate? 

Mr. BARNETT. I think the simplest way to put this is, if Medicare 

is constitutional, then Medicare for everyone is constitutional. 

Mr. DEUTCH. So single-payer clearly would be constitutional? 

Mr. BARNETT. Yes. 

Mr. DEUTCH. And would an even greater exercise then of a single-payer financed through new taxes and automatically provided 

to all Americans, that would clearly be constitutional? If, instead 

of this, we had an additional tax that was used to finance a publicly created entity to provide health insurance, that is clearly constitutional? 

Mr. BARNETT. Yeah. 

Mr. DEUTCH. So how much more government intervention is required to make the Affordable Care Act constitutional? 

Mr. BARNETT. There is no principle of constitutional law that 

measures the degree of intrusiveness of constitutional power. You 

have a list of powers in article 1, section 8, and some of them are 

very intrusive, and some of them are not. One of the most intrusive 

powers you have is power of taxation. That is the reason why the 

general public is very sensitive to when you invoke that power. 

And candidates run for public office pledging they won’t invoke 

that power. So the label makes a big difference in terms of the constraint on that power, but you do have that power. 

Mr. DEUTCH. Professor Dellinger, would you flesh out that distinction between the Affordable Care Act provisions and the proposed privatization of Medicare which would provide coupons that 

would then be—would then mandate individuals to use those coupons in the private market? 

Mr. DELLINGER. I think what is important about that example is 

that, functionally, it would be the same and yet there would be no 

doubt about one being valid. The rhetorical arguments wouldn’t 

even be available to challenge it. So you have to ask whether it 

could possibly be some great incursion in liberty if you are merely 

talking about the way in which you label matters. 

But I think your question leads to a more—an even more profound point, which is much of the argument against the purchase 

requirement or the requirement that you maintain insurance is 

that it is novel. 

Now, all new laws are novel. But this is novel for a particular 

reason. This is really the first time for a major social program that 

Congress has chosen a market approach, giving American citizens 

greater choice and giving them the choice among private providers, 

rather than doing it through an imposition and a monolithic government bureaucracy. And that is what is novel. 

Mr. DEUTCH. Professor Dellinger, I am sorry. I am running out 

of time. 

Professor Barnett, the last question is, why shouldn’t Congress 

be able to require individuals to assume responsibility for their 

87 

own health care when their inaction on the issue has a direct and 

negative impact on society? 

You spoke earlier about the things that we politicians run on. 

Well, a lot of us are run on individual responsibility. Why shouldn’t 

we be expected to impose some responsibility on American citizens 

to take responsibility for themselves? 

Mr. BARNETT. You certainly may, Congressman, as long as it is 

within one of the powers that is given to you by the Constitution. 

Mr. DEUTCH. Thank you. 

Mr. Chairman, I yield back. 

Mr. SMITH. Thank you, Mr. Deutch. 

The gentleman from Pennsylvania, Mr. Marino, is recognized. 

Mr. MARINO. Thank you, Mr. Chairman. 

Gentlemen, I have to admit that my constitutional appetite has 

been fully satisfied today with your discussions. I really appreciate 

that. 

Professor Dellinger, I am not a betting man, but I think I am 

forced to take you up on your bet, not with who may write the 

opinion but the outcome of it. We shall see. 

Mr. DELLINGER. We shall see. And I will send a note to your constituents saying what a fine and outstanding person you are if you 

prevail. And you can hold me up to ridicule if—— 

Mr. MARINO. I would never do that. I respect your intellect and 

your arguments here today. 

This question is to both of you, but, please, Mr. Barnett, would 

you start with this? 

My question is, there was discussion about if the Supreme Court 

does rule this is not unconstitutional and then sending back to the 

Congress for further legislation as to how the health care program 

would be implemented, the limitations, does that not move the line, 

the scrimmage line down the field for further issues concerning 

constitutionality of what Congress can do as far as implementing 

any particular program or any particular thought that a Congressman or woman has in mind promoting their cause? Do you understand my question? 

Mr. BARNETT. Really, all that is at issue here, Congressman, I 

believe, is whether the Constitution gives Congress the power to 

impose economic mandates on the general public. So that is what 

the Supreme Court is going to have to decide one way or the other. 

And your guess is as good as mine perhaps how they are going to 

rule. 

If they should uphold the power for the first time to impose economic mandates on the general public, then at that point when 

Congress now has this new power that it has never needed to exercise before, there is going to be an awful lot of future litigation or 

at least future issues about when that power can and should be 

employed and when it cannot be. But, generally speaking, the 

Court will defer to Congress’ judgment about when it may exercise 

one of the powers that Court thinks the Congress has. So once they 

have acknowledged this power, chances are at that point it is just 

going to be a matter of Congress to employ this new power that it 

has. 

Mr. MARINO. Professor Dellinger. 

88 

Mr. DELLINGER. I think a lot of your colleagues have asked questions in the following form: If this is upheld, then can’t Congress 

do anything? And the answer to that is, if the Supreme Court were 

to uphold this requirement on the grounds that Congress can do 

anything, then indeed Congress can do anything. But they won’t. 

The reason Chief Justice Roberts will write the opinion is because I think he will want to write a narrow opinion. He won’t 

want to say that the market alternatives are ruled out and you can 

only use monolithic government alternatives. He will write an opinion to say that this is upheld not because Congress can use its commerce power to impose affirmative obligations willy-nilly to purchase, but it is upheld because of all the reasons we have said 

about the central role it plays in avoiding the displacement of costs 

on to other citizens. 

And if that is the opinion the Supreme Court writes, then only 

things that fit within that parameter will be regulatable by Congress, and I think that will be a very small set. 

Mr. BARNETT. Congressman, you have yet to hear from my 

friend, Mr. Dellinger—and he truly is my friend, actually. It is not 

just one of these things we just say to each other. We have known 

each other for a long time—and you have yet to hear from former 

Solicitor General Fried, who was my torts professor in law school, 

any constitutional limitation, any constitutional limitation on this 

new claim of a power to impose economic mandates. 

Yes, health care is unique. It is different. It is free rider problems. It is this. It is that. Those are not constitutional principles. 

I agree if the mandate is upheld, the opinion will be written like 

that. But it will not impose any future constraint on the use of this 

new power once it is acknowledged. And that is why you are having this hearing, because there is a lot at stake as to what is going 

to happen going forward. 

Mr. MARINO. Gentlemen, thank you. I have no further questions. 

I yield back my time. 

Mr. DELLINGER. Chairman Smith, I have my own individual 

mandate that I may need a couple of minutes to take care of, if 

that is possible. I trust Mr. Barnett not to say anything completely 

dishonest while I am down the hall. 

Mr. SMITH. We have had a request for a 7th inning stretch, and 

we will take 5 minutes to recess and then resume our hearing. 

[recess.] 

Mr. SMITH. The Judiciary Committee will resume our hearing; 

and the gentlewoman from Texas, Ms. Jackson Lee, is recognized 

for her questions. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman; and I 

appreciate this hearing. It has been fascinating. And I am disappointed not because I don’t have two remaining stellar witnesses 

but that the Attorney General would not allow me to banter with 

him. But I hope as we go forward with our witnesses we will be 

able to give all Members a chance to question all witnesses and 

that their time will be accordingly. 

This is an important issue, and I just want to start with sort of 

a given constitutional premise from the Wickard-Filburn case that 

indicates that even when a farmer grew his own wheat for personal 

consumption it was discerned that it was interstate commerce. 

89 

So I want to raise questions of policy and law, Mr. Dellinger, because you have argued before the Supreme Court and because we 

have two distinct positions, four courts, two decisions, one, the Affordable Care Act is constitutional, and then the second with two 

courts unconstitutional. 

And I might make the point that there is certainly some question 

as to the persuasion of the two courts that rendered the decision 

that it was unconstitutional, so the Supreme Court becomes even 

more important, and I think that is what the Founding Fathers intended for us to do. 

Let me just give you these numbers: 5.8 million Texans without 

coverage, includes 1.5 million children. My State has the highest 

rate of residents without health insurance, 26.8 percent. According 

to a Gallup poll, 16 percent of American adults are without health 

insurance. Census numbers say that 46 million Americans in totality are uninsured, 41.5 percent Hispanic Americans, and 19.9 percent of African Americans. Those are policy questions. 

And let me just ask this. As I reflect on Supreme Court decisions 

through the ages or say in the last—since 1950, 1954 decision on 

Brown v. Board of Education, have lawyers made policy arguments 

before the Supreme Court? 

Mr. DELLINGER. Well, I think the answer to that question is yes. 

In many instances, lawyers in our system do argue what the practical outcome would be of one decision or another. It is—— 

Ms. JACKSON LEE. Along with the law. I understand. 

Mr. DELLINGER. Throughout, yes. 

Ms. JACKSON LEE. But, in fact, you can raise sort of the irreparable harm potential from a policy perspective as you make your 

arguments. 

Mr. DELLINGER. That is one kind of argument that people can 

and have made. Yes. 

Ms. JACKSON LEE. Well, I would venture to say a State that has 

some 26 percent or large numbers of unemployed, 5.8 million and 

26.8 percent, a Nation that has 41 percent Hispanic uninsured and 

then a sizable number of African Americans, I think we have a 

question of whether there has been irreparable harm. 

So let me just proceed with some of the questions. 

I will ask you, Mr. Dellinger, if instead of the word ‘‘penalty’’ 

someone said you will get a ticket if you don’t have health insurance, would that have answered some of the opponents’ concern? 

Tickets, you got a parking ticket, you got a lack of health insurance 

ticket. Are we in the business of semantics? Do we need to say that 

you have a ticket, you get a ticket when you don’t have insurance? 

Would that have answered this whole question of the mandate? 

Are we playing semantics here? 

Mr. DELLINGER. I think that is a question better asked to those 

who believe it is unconstitutional. I think it is—since it is no more 

intrusive than Medicare or Medicaid as a practical matter, I don’t 

think the label matters, that it is not constitutional in any respect. 

Professor Barnett, if they impose a ticket on you, would it be unconstitutional? 

Ms. JACKSON LEE. And before he answers the question, let me 

also raise this question, and I am not being facetious. But could I 

not be engaged in economic activity by actively not getting insurVerDate Aug 31 2005 12:37 Mar 30, 2011 Jkt 000000 PO 00000 Frm 00093 Fmt 6633 Sfmt 6601 H:\WORK\FULL\021611\64582.000 HJUD1 PsN: 64582
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ance? Isn’t it a fine line of semantics? And might I just—let me just 

put this on the record so you both can answer this. 

Just a few years ago, a Republican, Senator Orrin Hatch, supported the idea of mandates in the Republican proposal for health 

insurance. In fact, as I understand it, he said, ‘‘to tell you what you 

have to buy even if you don’t want to buy it’’ is a quote. And then 

their particular plan would have required everyone to buy coverage, and it would have helped them do so by giving them a 

health care credit, which was a point made earlier. 

So couldn’t I actively not be insured, and isn’t that economic activity? Professor. 

Mr. BARNETT. I thought maybe I would add to our conversation 

a definition of penalty and the definition of tax that has been 

adopted by the Supreme Court in a 1996 case, and here is how justice Souder defined those two terms: He said, if the concept of penalty means anything, it means punishment for an unlawful act or 

omission. So that is what a penalty is, the substance, not the label, 

just the thing. 

By contrast, he then described a tax as, quote, a pecuniary burden laid upon individuals or property for the purpose of supporting 

the government. That is a tax. 

So it isn’t just a matter of labels. It is a matter of substance. And 

you have to ask yourself, is the penalty that is called a penalty in 

the bill, is it a punishment for an unlawful act or omission defined 

as failure to have health insurance, or is it an enactment, a burden 

laid upon individuals for the purpose of supporting the government? 

Ms. JACKSON LEE. I ask the gentleman for 15 additional seconds. 

Mr. SMITH. The gentlelady is recognized for an additional 30 seconds. 

Ms. JACKSON LEE. I thank the gentleman. 

And I would make the argument, one, that, instead, it is an incentive to do right, that it is not penalizing you. Because penalty 

is punishment. You are not punished if you have health insurance, 

in fact. And so you are, in fact, incentivized to have health insurance, rather than take the negative, which is to suggest that because you have the penalty you are being punished. 

I am helping you. I am helping you not have 26 percent 

uninsurance in the State of Texas. I am helping children be insured. I am helping diverse minorities be insured. 

And I know during the civil rights arguments, even though we 

were arguing on the Constitution, there were many policy statements being made. Do we want to live in a Nation that discriminates against a person for the color of their skin? 

In addition to the amendment constitutional argument, do we 

want to live in a Nation where there are people who are uninsured, 

causing catastrophic costs to the Nation and others have to pay? 

I think that is a question that should be considered by the courts. 

And I also need to—I understand the Souder language, but I also 

need to say whether or not it is more an incentive than it is a punishment. I am more inspired by incentive, and I welcome it being 

a parking ticket. We give parking tickets all the time, and no one 

complains about being required to do the right thing. 

I yield back. 

91 

Mr. SMITH. The gentlelady’s time has expired. 

The gentleman from South Carolina, Mr. Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. 

I want to start by commending all three of the witnesses, the two 

that are remaining and the Attorney General, for the civility and 

the professionalism with which you disagree with each other, which 

really is an example for all of us. 

Professor Dellinger, was Morrison correctly decided? 

Mr. DELLINGER. Yes. 

Mr. GOWDY. So Congress can mandate that the victim of domestic violence purchase health insurance but cannot set a forum in 

which she seeks justice for her injuries? 

Mr. DELLINGER. That is correct. 

Mr. GOWDY. Help a guy that made a C in con law understand. 

Mr. DELLINGER. Well, the reason is that the Supreme Court held 

in Morrison that local crime had only an attenuating connection to 

national commerce. 

Mr. GOWDY. But she has got injuries which will be treated for 

at a hospital. So we can make her have health insurance for her 

injuries, but we can’t set the forum for the adjudication of the underlying crime. 

Mr. DELLINGER. Correct. 

Mr. GOWDY. What about Lopez? 

Mr. DELLINGER. That is because there is something different 

about the health care market that you can’t avoid participating in 

it and transferring the costs to others. 

And also what the Court was concerned about in Morrison and 

in Lopez regulating guns near schools was that fact that, once you 

got into the area of local crime, because all local crime affects commerce in the sense that people who are crime victims are less productive, there is no limit to what—— 

Mr. GOWDY. However, in Title XVIII you specifically have to 

prove that the gun traveled in interstate commerce. In the Hobbs 

Act, you have to prove that the good that was stolen from the store 

in a Hobbs Act case traveled in interstate commerce. 

Mr. DELLINGER. Correct. 

Mr. GOWDY. So you concede there are—that this language ‘‘Congress shall have the power to regulate commerce among the several 

States’’ still means something. 

Mr. DELLINGER. Yes. 

Mr. GOWDY. Can Congress mandate the purchase of dental insurance if we show that overall dental health is tantamount to overall 

dental health? Can we mandate the purchase of dental insurance. 

Mr. DELLINGER. It would depend on what the Supreme Court 

said in upholding the health care mandate. 

Mr. GOWDY. Well, I am asking you. If you were on the Supreme 

Court, you are advocating on behalf of the constitutionality of this 

particular mandate. 

Mr. DELLINGER. If I were on the Supreme Court and asked to 

pass on a mandate to purchase dental insurance, I would want to 

know whether Congress had the same basis for showing that people had no choice but to get dental care. And maybe that showing 

could be made and that the cost of that care, when obtained, was 

transferred to other taxpayers. 

92 

Mr. GOWDY. What about life insurance? Because we are all going 

to die, and generational debt is a bad thing. Can Congress mandate 

the purchase of life insurance? 

Mr. DELLINGER. I would assume that that is distinguishable. Because there is no showing that if you don’t buy life insurance that 

the cost is going to be imposed on other Americans. 

Mr. GOWDY. Can you give me three examples where you would 

find that Congress has exceeded its—that the commerce clause is 

not as elastic as some of my colleagues believe it to be? 

Mr. DELLINGER. Yes. 

Mr. GOWDY. I will just take three. 

Mr. DELLINGER. Congress cannot regulate that you eat broccoli, 

that you go to a gym, or, in my view, that you purchase a flatscreen television. 

Mr. GOWDY. So you do not see much of a stretch between mandating the purchase of health insurance and mandating other 

things that contribute to good overall health like vision insurance 

and dental insurance? 

Mr. DELLINGER. Contributing to overall health is a fine and salutary objective, but it may be one that the Court would think is a 

matter for local governments. This is a regulation of an economic 

activity itself, and let me just give you one example. 

If the—— 

Mr. GOWDY. I will give you 10 seconds, because I have one more 

chance to ask another law professor a question, and I have never 

had this chance in my life. 

Mr. DELLINGER. Ask Professor Barnett again; and if I have a moment, I will come back. 

Mr. GOWDY. Some would argue that you gave the road map to 

the opposition, so to speak, by your wonderful advocacy in Raich. 

Am I correct pronouncing it? 

Mr. BARNETT. Raich. Angel Raich was my client. 

Mr. GOWDY. And that is marijuana being sold, grown purely 

within a State, and you convinced the Supreme Court that that impacts—that Congress can regulate that. How is that not a road 

map for the opposition? 

Mr. BARNETT. When you say I convinced the Supreme Court, you 

mean I argued strenuously against that, and I only got three votes, 

and I lost that case. 

Mr. GOWDY. You lost it. Well then good. That makes me feel better. 

Mr. BARNETT. It was Solicitor General Paul Clement who won 

that case, and I failed to convince the Court. 

Mr. GOWDY. In 10 seconds, if the Chairman will give me 10 seconds, how does Raich not carry the day on this issue? 

Mr. BARNETT. Because it would be as though Congress had required that my client grow marijuana for medical purposes. What 

they said is she couldn’t grow it, and the majority of the Court said 

she couldn’t grow it. Because growing marijuana, like growing any 

other good, is an economic activity and therefore is something within Congress’ power to reach, economic activity. But they never said 

or intimated that somehow Congress had the power to make her 

grow marijuana. That would be a step that no one even imagined 

until last year was something Congress would ever claim. 

93 

Mr. SMITH. The gentleman’s time has expired. Good question. 

Thank you. 

Mr. Issa, the gentleman from California, is recognized. 

Mr. ISSA. Thank you, Mr. Chairman. 

The line of questioning has been interesting, and I apologize I 

have been going in and out with another Committee. But I am trying to understand something. 

Mr. Barnett, you are a professor. Maybe you can help me. There 

is a long history of States requiring insurance if you want to drive 

an automobile, right? But even when they require you to do that— 

I am a native of Ohio—they have held in those States that, constitutionally, they can’t make you buy the insurance, but they can 

make you provide the equivalent of insurance. So, in the case of 

Ohio, they can’t make you buy insurance. They can make you post 

a bond, show financial ability to pay if you are in an accident, or 

buy insurance. 

Is there anything in the Health Care Reform Act that is the 

equivalent of that for people who say I can take care of my own 

health care? 

Mr. BARNETT. Well there is an exemption in the Act for people 

who have religious objections. So it is somehow not necessary that 

they—— 

Mr. ISSA. But being wealthy enough to pay for your own health 

care is not a religion. 

Mr. BARNETT. No. No. 

Mr. ISSA. So we don’t—in this Act, if there were no other problem, we fail to observe people’s right to pay out of their pocket. In 

other words, we force them to enter into a commercial relationship 

with a for-profit entity, an insurance company. 

Mr. BARNETT. That is the mandate. Yes. 

Mr. ISSA. Is that enough to be unconstitutional, just because we 

didn’t leave them their individual liberty to simply pay the doctor 

themselves? 

Mr. BARNETT. I think the way to simplify this, just for purpose 

of understanding, whichever side of this you are on, is that when 

you choose to engage in voluntary activity government at the State 

and Federal level may regulate that activity that you choose to engage in in a variety of ways. And the Federal Government has 

some powers to regulate, State governments have other powers to 

regulate. But there is just no dispute that if you voluntarily decide 

to engage in activity the government can tell you how to do it, like 

if you are going to drive a car, you have to do it this way. You have 

to get a driver’s license, too, in addition to insurance. That is something else you have to get. 

Mr. ISSA. So you agree that the Federal Government could simply nationalize all insurance and take away from all States the 

right to regulate insurance companies, eliminate 50 States’ insurance commissioners? 

Mr. BARNETT. The Supreme Court in 1944 said that insurance 

was commerce, an interstate commerce, and that is the precedent 

that we are living with. For 100 years before that, it denied that 

is true. But now that is established law, and no one is contesting 

that. So Congress can do, in regulating that industry, whatever 

they can do in regulating any other industry. 

94 

Mr. ISSA. Here is a question I find amazing, and it is not on the 

same topic as others. 

So those who voted for ObamaCare—we will call those the other 

side of the aisle and nobody on this side of the aisle—they could 

have simply created 50 State complete over-the-border selling, and 

they could have even taken it on to a 50 State common federalized 

system if they had wanted to. They could have usurped all of the 

States and had anyone who is licensed anywhere be licensed to the 

Federal Government and therefore sell insurance in all 50 States 

and created incredible competition on a national basis by having a 

single standard, couldn’t they? 

Mr. BARNETT. The reason why States still regulate insurance is 

because Congress passed the McCarran-Ferguson Act in 1944. 

After the Supreme Court said it was in your hands, then Congress 

turned around and said we are going to preserve the State system 

that had been up and running—— 

Mr. ISSA. Right. But ObamaCare has partially preempted it. It 

could have preempted that. 

So I understand that when my colleagues on the other side said 

they wanted to bend the health curve down, they wanted to save 

money, and they wanted to find ways to have more competition so 

that you wouldn’t have just one choice in Alabama or South Carolina, they could have done that very easily because one law trumps 

the one before it. They would simply amend that. 

Mr. BARNETT. Yes, Congressman. 

Mr. ISSA. So we didn’t do the constitutional common 50 State insurance. We didn’t put in any kind of a personal responsibility alternative where you simply post a bond or provide the proof that 

you can pay for it. We didn’t do a lot of things we could do. But 

we chose to mandate that you pay if you don’t pay. Is that right? 

Mr. BARNETT. Yes, Congressman. 

Mr. ISSA. Mr. Dellinger, you have done a wonderful job of telling 

me how, you know, there are all these things that are okay constitutionally. But what about that mandate that I pay a private entity rather than, if you will, the personal responsibility that was 

envisioned by our Founders? They certainly did expect that George 

Washington could have a doctor come in on his own, that he 

wouldn’t have to buy something that wasn’t even available at the 

time, insurance, right? 

Mr. DELLINGER. Right. 

Mr. ISSA. Mr. Chairman, I thank you for this hearing. 

Being the last on my side, I would assume that all that could be 

said had already been said, but I found one little piece that I 

thought hadn’t, and I yield back. 

Mr. SMITH. Thank you, Mr. Issa, for your contribution. Actually, 

you are next to last, because the gentlewoman from Florida, Mrs. 

Adams, is recognized. 

Mr. ISSA. Sorry, only on my side. 

Mrs. ADAMS. Thank you, Mr. Chairman. 

And I will preface this by saying I come from Florida, also; and 

I stood with our Attorney General then, Attorney General McCollum, when he challenged this law when it was signed into law. I 

agree with him. I believe that it is unconstitutional, and I will go 

ahead and tell you up front. 

95 

I am trying to reconcile how you believe, Mr. Dellinger, that if 

someone is sitting in their home and they are not engaged in any 

activity how the Federal Government could then force them to engage in this activity? 

Mr. DELLINGER. Well, the Federal Government, like the State 

and local governments, has for more than 200 years sometimes imposed affirmative obligations on individuals where they have had 

power. Sometimes it is an important power like the militia power 

where everyone was required sitting at home to go out and buy a 

knapsack for their ammunition, the Congress in 1792. Congress is 

never considered, quote, regulating an activity when they impose 

an affirmative obligation and then they can only impose an affirmative obligation where they already have the power to do so. 

Now, the penalty in this law does not apply to someone who is 

just sitting at home. It is only when that person goes into the national economy and earns $18,000 for a couple that they are required to file a Federal income tax and make a 21⁄2 percent additional penalty payment if they haven’t maintained minimum insurance coverage. Like you have to pay a couple percentage points for 

Medicare coverage for when they are over 65, they have to pay 71⁄2

percent for Social Security for old-age assistance after they are 65. 

Those are impositions that the government makes, the latter two 

under the taxing power, but none of them seem particularly extraordinary in terms of an incursion of liberty. And, in fact, what 

is so—— 

Mrs. ADAMS. Let me stop you there. Because the knapsack and 

the gun—I also am a staunch supporter of the Second Amendment, 

and I understand that that was done so that we would have some 

kind of protection to our country, and that is a constitutional requirement that government provide for our safety and well-being. 

On that same inference that you are saying, so this person who 

works, may not have a car, and so, therefore, under that same 

analogy, there are car accidents, there are a lot of tort actions, 

there is a lot of costs associated with those accidents. Would you 

then say that we should maybe say that everyone, no matter if 

they own a car or not, because you are going to buy car insurance, 

so are you now saying that everyone who owns a car, whether they 

own a car or not, should have to pay car insurance so that everyone 

would be covered if something were to happen in an accident? 

Mr. DELLINGER. No, I would not. 

Mrs. ADAMS. Okay. You made a comment that kind of concerned 

me. You said that no one can decide not to use health care. Do you 

believe that everyone has to use health care? 

Mr. DELLINGER. No. What I mean by that—and that is a good 

question. What I mean by that is, except for those who have religious objections to health care—— 

Mrs. ADAMS. You didn’t say that, though. You said—and you said 

it right here in this hearing, and I wrote it down verbatim because 

I thought that was unusual. You said, no one can decide not to use 

it. 

Mr. DELLINGER. Yes, that is correct. 

Mrs. ADAMS. So that concerns me also because—— 

Mr. DELLINGER. May I—— 

96 

Mrs. ADAMS. When I hear about the Federal Government taking 

more and more liberty away from the American people or imposing 

their will on the American people, when I heard that statement, it 

made me concerned that you believe that no one can decide not to 

use health care in America. 

Mr. DELLINGER. That is a statement of fact, Mrs. Adams, not a 

statement of preference. That is to say, no one can be assured if 

you are riding a bicycle, as I do, that you are not going to be hit 

by a truck and wind up in the emergency room. And when you do, 

under the Emergency Medical Treatment Act, they are going to 

have to provide with you with treatment, whether or not you are 

going to pay for it—— 

Mrs. ADAMS. If you get hit by the truck, hopefully they have insurance. Because if you are driving that vehicle on a city roadway 

or a city roadway or a county roadway or a Federal roadway then 

in order to have the privilege of driving that truck, you have to 

have insurance. So let’s move on. 

Mr. DELLINGER. I was on a bicycle. 

Mrs. ADAMS. I really am concerned about that statement, but I 

am going to move on. Because there has been conversation about 

choice, choice, here; and I would like to know from you and Mr. 

Barnett how do you equate choice with mandate? How do you bring 

those two together? 

Mr. DELLINGER. I bring them together in the following sense, 

that one proposal for dealing with health care for the last 40 years, 

one that Congress did not adopt, is simply to extend Medicare from 

age 65 all the way down so that people would be taxed out of their 

income to pay for Medicare. This alternative adopted instead, Mrs. 

Adams, gave people more choice among private providers, rather 

than having them limited to a government provider. 

Mrs. ADAMS. Mr. Barnett, quickly. 

Mr. BARNETT. This bill does give people the choice between a congressionally mandated—between providers of congressionally mandated health insurance policies. You no longer have a choice—insurance companies no longer have a choice on what terms to offer 

you and you no longer have a choice on whether to do business 

with them. The only choice you have is which insurance company 

you do business with. And that is not really—that is a choice, but 

it is not the choices that we started with. 

Mrs. ADAMS. Thank you. 

Mr. SMITH. I thank the gentlewoman. 

The gentleman from Arkansas, Mr. Griffin, is recognized for his 

questions. 

Mr. GRIFFIN. I don’t have any at this time. 

Mr. SMITH. That makes it easy. 

We have concluded our hearing, and let me thank the witnesses 

again for their testimony. 

Without objection, all Members will have 5 legislative days to 

submit additional questions for the witnesses, and we will make 

their responses part of the record. 

Also without objection, Members will have 5 legislative days to 

submit additional materials for the record. 

With that, again, thanks to the witnesses. We are adjourned. 

[Whereupon, at 12:23 p.m., the Committee was adjourned.] 

(97) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE HENRY C. ‘‘HANK’’ JOHNSON, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA, AND MEMBER, COMMITTEE ON THE JUDICIARY


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PREPARED STATEMENT OF CHARLES FRIED, BENEFICIAL PROFESSOR OF LAW, 

HARVARD LAW SCHOOL


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AMERICAN CONSTITUTION SOCIETY (ACS) FOR LAW AND POLICY, ISSUE BRIEF, THE

HEALTH CARE LAWSUITS: UNRAVELING A CENTURY OF CONSTITUTIONAL LAW AND

THE FABRIC OF MODERN AMERICAN GOVERNMENT, SIMON LAZARUS, FEBRUARY 8, 

2011 


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STATEMENT OF SUPPORT FROM LEGAL SCHOLARS


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ARTICLES ON HEALTH CARE REFORM


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