Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, after weeks of closed-door clandestine negotiations, Senator Reid finally emerged with a 383 page manager's amendment yesterday to the 2,074 page, $2.5 trillion tax-and-spend Washington takeover of our health care system. Despite all the promises of ushering a new era of accountability and transparency in Washington by the President and the Democratic Party, the Reid amendment represents everything that Americans hate about Washington right now Chicago-style backroom buy-offs at the expense of American taxpayers. At yesterday's press conference, when Democrats were asked about the Nebraska earmark for Medicaid funding, the majority leader simply replied, ``A number of States are treated differently than other States. That's what legislation is all about. That's compromise.'' So in addition to the Medicare Advantage deal to grandfather only Florida's seniors and the $300 million give- away known as the Louisiana Purchase, we now know what the Democrats' version of compromise really looks like. In the Reid amendment, released yesterday, Vermont gets a 2.2-percent increase for 6 years in its Medicaid Federal match rate while Massachusetts gets a 0.5 percent increase for 3 years for its entire program. But the deal for the State of Nebraska takes the cake. Now we all know that any one Congress can't bind future Congresses but somehow Nebraska will receive a special carve out that would have the Federal Government pay for every dollar of its Medicaid expansion. The total cost of these Medicaid special deals--$1.2 billion. So the next logical question is pretty straightforward--who will pay for these special deals? Well, the answer is simple. Every other State in the Union, including Utah, which are collectively facing $200 billion in deficits and are cutting jobs and education services to survive; our States will now pay to support these special deals for Nebraska, Massachusetts and Vermont. According to the Congressional Budget Office, the Medicaid expansion in the Reid bill creates a $26 billion unfunded mandate on our cash- strapped States. Coincidentally, only one State avoids this unfunded mandate--Nebraska. Let me now focus my attention on over a $\1/2\ trillion worth of new taxes, fees, and penalties on individuals, families, and businesses imposed by the Reid bill. The new fees begin in 2010, while the major coverage provisions do not start until 2014. Almost $57 billion in new taxes are collected before any American sees the major benefits of this bill, which are largely delayed until 2014. It is no wonder why this budget gimmickry creates an illusion of this bill reducing our national deficit. Based on data from the Joint Committee on Taxation--the nonpartisan congressional scorekeeper--this bill would break President Obama's campaign promise by increasing taxes on 42 million individuals and families making less than $250,000 a year. This is even after taking into account the government subsidies provided to low- and certain middle-income individuals and families. The Reid bill not only increases payroll taxes by nearly $87 billion but also imposes $28 billion in new taxes on employers who do not provide government approved health plans. These new taxes will ultimately be paid by American workers in the form of reduced wages and lost jobs. According to a recent study of similar proposals by the Heritage Foundation, these new job killing taxes will place approximately 5.2 million low income workers at risk of losing their jobs or having their hours reduced and an additional 10.2 million workers could see lower wages and reduced benefits. So with nearly $\1/2\ trillion in Medicare cuts and more than $\1/2\ trillion in new taxes, does the Reid bill actually do anything to control our Nation's skyrocketing health care costs? The answer, according to the Congressional Budget Office, is no. In fact, it will actually increase our national health care spending. I quote: ``Under the legislation, Federal outlays for health care would increase during the 2010-2019 period, as would the Federal budgetary commitment to health care. The net increase would be about $200 billion over that 10- year period.'' So what is the bottom-line? More taxes, more spending and bigger government. Let me a take a moment to talk about the so-called abortion compromise in this bill. The language to prevent taxpayer dollars from being used to fund elective abortions in the Reid amendment is completely unacceptable. The new abortion provisions are significantly weaker than the amendment I introduced with Senator Ben Nelson to ensure that the Hyde amendment, which prohibits Federal dollars from paying for elective abortions, also applies to any new Federal health programs created by Congress. The Hyde amendment has been public law since 1976. The Nelson-Hatch-Casey amendment, which is almost identical to the Stupak amendment that was included in the House-passed health reform bill in early November by a vote of 240 to 194; it is important to note that 64 of those Congressmen voting for the amendment were Democrats. Let me repeat that--the Stupak amendment was supported by 64 House Democrats. And, despite that vote and the support of seven Senate Democrats, the majority decided not to include this language in the Reid bill or the Reid managers' amendment. I find that absolutely outrageous. Moreover, the Reid conscience protections are much weaker than those included in the House passed health reform bill. The House bill included the Hyde-Weldon conscience protections that have been included in the HHS appropriations bills since 2004; the Reid health reform legislation does not. The Hyde-Weldon language ensures that strong conscience protections are in place for medical providers who oppose abortion. These strong protections, which are currently Federal law, should also apply to the new programs created through the Reid managers' package. The so-called abortion compromise does not stop there. The Reid amendment also creates a state opt-out charade. As noted by Cardinal Daniel DiNardo, the Archbishop of Galveston-Houston and the Chairman of the U.S. Catholic Conference of Bishops' Committee on Pro-Life Activities, allowing ``individuals to `opt-out' of abortion coverage actually underscores how radically the underlying Senate bill would change abortion policy. Excluding elective abortions from overall health plans is not a privilege that individuals should have to seek as the exception to the norm. In all other federal health programs, excluding abortion is the norm. And numerous opinion polls should that the great majority of Americans do not want abortion coverage.'' Additionally, this provision does nothing to prevent one State's tax dollars from being used to fund abortions in other States. In other words, tax dollars from Nebraska or Utah could be paying for abortions in California or New York. The Reid amendment also creates a new public option that will be run by the Office of Personnel Management, OPM, which, for the first time, creates a federally funded and managed plan that will cover elective abortions. Should this legislation be signed into law, the Federal Government will be funding elective abortions for the first time in over 30 years, against the will of the vast majority of Americans. For these reasons, I believe that the Senate health reform legislation is far inferior to the House passed bill when it comes to protecting the sanctity of life. It should come as no surprise to anyone that pro-life organizations from the U.S. Conference of Catholic Bishops to the National Right to Life Committee and the Family Research Council have expressed their strong opposition to this so-called compromise. Finally, let me take a moment to talk about the individual mandate tax which has almost doubled from $8 billion to $15 billion in the Reid amendment. I have long argued that forcing Americans to either buy a Washington-defined level of coverage or face a tax penalty collected through the Internal Revenue Service is unconstitutional. The Constitution empowers Congress to do many things for the American people. Just as important, however, is that the Constitution also sets limits on our power. We cannot take advantage of the power without recognizing the limits. We hear a lot about how Senators on this side of the aisle are supposedly defending the big, evil insurance companies while those on the other side of the aisle are the defenders of American families. This insurance mandate exposes such partisan hypocrisy. Let me ask one simple question: who would benefit the most from this unprecedented mandate to purchase insurance or face a penalty enforced by our friends at the Internal Revenue Service? The answer is simple. There are two clear winners under this draconian policy and neither is the American family. The first winner is the Federal Government, which could easily use this authority to increase the penalty, or impose similar ones, to create new streams of revenue to fund more out of control spending. Second, the insurance companies are the most direct winners under this insurance mandate because it would force millions of Americans who would not otherwise do so to become their customers. If you do not believe me, then just look at the stock prices of the insurance companies that have recently shot to their 52-week highs. Right now, States are responsible for determining policies that best meet the particular demographic needs and challenges of their own residents. Massachusetts, for example, has decided to implement a health insurance mandate while Utah has decided not to do so. This bill would eliminate this State flexibility so that the Federal Government may impose yet another one-size-fits-all mandate on all 50 States and on every American. I cannot think of anything more at odds with the system of federalism that America's founders established--a system designed to limit government and protect liberty. As I have said all year long, ensuring access to affordable and quality care for Americans is not a Republican or Democrat issue--it is an American issue. Unfortunately, the majority's arrogance of power has forced us down a path where ideology has trumped policy and big government has trumped American families. Town hall after town hall and poll after poll tell us that Americans want us to step back, start over and reform our healthcare system in a step-by-step, fiscally responsible manner. This is a moment for courage and leadership. All we need is one Democrat to listen to a growing chorus of concerns from Americans across this great nation and stand up against this bill. I am going to do everything possible to make sure that the voice of Utahns and Americans everywhere is heard loud and clear in this Senate Chamber. A vote to move this bill forward will be one of the most important votes this body has ever taken--a vote that is bigger than our parties or our ideologies; a vote that will fundamentally change the American landscape for generations to come and restructure one-sixth of our economy; a vote that will determine if we will give our future generations the same opportunities and the same sense of pride that has been our privilege. Make no mistake, our actions on this vote will not be without consequences. History and our future generations will judge us on this vote. Despite the harsh realities of skyrocketing deficits and an exploding national debt, the majority's insatiable appetite to spend has not changed. Last weekend was a perfect example. At a time when we are already debating a $2.5 trillion tax-and-spend Washington takeover of our health care system, the majority jammed through a $1.1 trillion appropriations bill with a 12-percent year-over-year increase in Federal spending. But this is only the tip of the iceberg. There is already talk of raising our Nation's debt limit by almost $2 trillion to accommodate Washington's out of control spending habits. Enough is enough. It is time to stand up and do what is right and there is no better time to do it than to vote against moving forward on this health care bill. The time for courage is now. The historic blizzard in Washington yesterday was a perfect symbol of anger and frustration brewing in the hearts of the American people against this bill. I urge the majority once again to listen to the voices of the American people. My Republican colleagues and I are united with the American people in our fight against this $2.5 trillion tax-and-spend bill. There is still time to step back and start over. One last thing. When you have one-sixth of the American economy involved, it deserves a bipartisan vote. To be honest, almost every major reform we have ever passed--in fact, every one I can think of-- had a huge bipartisan vote. In this particular case, I don't know of one Republican who is going to vote for this. If you can't get 75 to 80 votes on something this important, this much of a reform, then we should start over and do it the right way. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I appreciate the comments of my colleagues. They are right-on. They know what they are talking about regarding the Medicaid program. If this bill becomes law, the CBO estimates that by the year 2019, 54 million nonelderly, nondisabled Americans will be locked into Medicaid. Think about that. Americans with incomes below 133 percent of the Federal poverty level are not eligible for tax credits to purchase private coverage through the exchange. I will take a few minutes to read part of a letter I received from our Governor in Utah, Gary Herbert--who worked at almost every job from local government right up to Governor of the State--about the Medicaid expansion included in the Reid bill. My Governor is deeply concerned about the impact the proposed Medicaid expansion would have on individual States. Here is what he said: In Utah, we have a good system of public medical programs that provide for our neediest population. The extension of Medicaid to additional populations, as discussed in proposed Federal healthcare legislation, will amount to an unfunded mandate that would create financial havoc for our state. While I understand the idea that everyone must ``share in the pain,'' and appreciate the Administration's commitment to reforming healthcare without increasing the size of the federal deficit, to force Medicaid cost increases onto states will simply shift massive cost increases to the states. As we prepare the state's fiscal year 2011 budget, we face continued cuts to agency budgets and reduced government service on top of painful reductions made last year. The unfunded mandate of a forced Medicaid expansion will only exacerbate an already dire situation. If required to increase our Medicaid program as envisioned in Washington, Utah and most every other state will be forced to fund the money to do so through other means. This will require states to either raise taxes or continue to cut budgets in areas currently suffering from a lack of funding, such as public and higher education. We must work together to ensure that no new requirements for states to fund healthcare for additional populations pass. In summary, I ask my colleagues, if the Reid bill is signed into law and the Medicaid expansions go into effect, what will the States do to make their budgets work? According to Utah Governor Herbert, States will be looking at a variety of options, such as cutting education programs and raising taxes. It would devastate the State, as Governor Barbour has said and as almost every Governor would say. I thought that was an important point to make.

Mr. HATCH

Mr. HATCH. Mr. President, yesterday the administration's own Department of Health and Human Services health analysis warned Americans about the impact of this bill. According to the official scorekeepers at CMS, the Centers for Medicare and Medicaid Services, the Reid health care bill will actually not only increase our national health care costs by $234 billion over the next 10 years but will also reduce access and cut benefits for our seniors. This nonbiased report simply proves what we have been saying all along: You cannot reform a $2.4 trillion health care system simply by spending another $2.5 trillion of hard-earned taxpayer money. Despite all the rhetoric from the other side about this historic legislation, the only thing this bill accomplishes, after imposing $\1/2\ trillion in new taxes and $\1/ 2\ trillion in Medicare cuts, is to simply bend our Nation's health care cost curve up. As a longtime supporter of the Medicare Advantage Program, I offered an amendment on the Senate floor to strip nearly $120 billion in cuts to the Medicare Advantage Program that provides comprehensive health benefits, including vision, dental, and reduced cost-sharing, to almost 11 million seniors. Unfortunately, despite statements from the Congressional Budget Office that these cuts would result in reduced cuts for seniors enrolled in Medicare Advantage, Democrats in the Senate voted to keep the cuts in the package to finance more Federal spending--$500 billion in cuts in Medicare. Whom are they kidding? Medicare has $38 trillion in unfunded liabilities. This report is another reminder of why it was a mistake to not adopt my amendment. The CMS Actuary found that the cuts to the Medicare Advantage Program in the Reid bill would not only result in ``less generous benefit packages'' for our seniors but, more important, it would decrease enrollment in Medicare Advantage plans by 33 percent. Clearly, health care spending continues to grow too fast. This year will mark the largest ever 1-year jump in the health care share of our GDP. This jump is a full percentage point to 17.6 percent. You can think of this as a horse race between costs and resources to cover those costs. The sad reality is that costs win year after year. Growing health care costs translate directly into higher coverage costs. Since the last decade, the cost of health coverage has increased by 120 percent, three times the growth of inflation and four times the growth of wages. Rising costs is the primary driver behind why we continue to see a rising number of uninsured in our country and why increasing numbers of businesses find it hard to compete in a global market. Without addressing this central problem, we cannot have a real and sustainable health care reform bill. So what does this $2.5 trillion tax-and-spend bill do to address health care costs? Absolutely nothing. According to the Congressional Budget Office, the premiums for Americans who buy insurance on their own will actually increase by 10 to 13 percent, while premiums for small and large groups will largely remain unchanged and continue to rise between 5 to 6 percent a year. Furthermore, according to the CMS report, the new fees on prescription drugs, medical devices, such as wheelchairs and hearing aids, and health care plans will not only increase overall health care prices but also health insurance premiums for millions of Americans. Let me make this point as clearly as I can. This bill does not address the underlying problem of slowing down the growth of health care costs. It simply spends hundreds of billions of dollars in new subsidies to buy out the cost of these increases for families making up to $80,000 a year. Instead of fixing the real problems, this bill simply tries to spend its way out of the problems. Does that sound new to you? This administration seems to think that just throwing money at things is going to help. We have been hearing a lot recently about how Democrats are throwing the government-run plan out of their bill to quickly jam this bill through the Senate before Christmas. The American people need to be careful about believing this propaganda. The Democratic solution to the government plan is a Ponzi scheme that would embarrass even Bernie Madoff himself. I have to be fair here. I have to rely on news reports to discuss these provisions. You heard me right--news reports. Why is that? Because no one knows what is actually in the bill they have sent to the CBO. Not even my friends on the Democratic side, by and large, know. The Reid bill was put together by very few Democrats with the White House in the back rooms of the Capitol. Nobody really knew what they were doing until they came out with it. Once we all saw it, we all realized what a mess that is. They found themselves in trouble, so they have gone and done another bill and submitted it to CBO, and hardly anybody on the floor knows exactly what the features are in that bill. No one knows actually what is in the bill. And despite the continuous claims of transparency our friends on the other side are always talking about, the real bill continues to change on a daily basis behind the closed doors of the majority leader's office. I am really glad to know that it is not just the Republicans who are in the dark about what is actually in this bill. Democratic Members of Congress in this body are also in the same boat. It is really unbelievable. We are being asked to move forward on legislation that will reform one-sixth of the American economy and impact every American life and business without knowing what is actually in the bill. We have to rely on news reports. I have never seen anything like this in my 33 years of Senate service. One proposal that has come to the floor in recent days is the idea of expanding Medicare to include coverage for Americans 55 and over. Currently, we all know Medicare is for Americans 65 and over. It is a bankrupt program. It is well intentioned, it does a lot of good, but it is bankrupt. It is a program that can barely pay for the benefits of the 40 million seniors in it today. Medicare is on a path to fiscal meltdown, with Part A facing bankruptcy by 2017. I don't think anybody denies that. It underpays doctors by 20 percent and hospitals by 30 percent compared to the private sector, forcing an increasing number of providers to simply stop seeing our Nation's seniors. According to the June 2008 MedPAC report, 9 out of 10 Medicare beneficiaries have to get additional benefits beyond their Medicare coverage. What is Washington's solution to address this problem and crisis? Take up to $500 billion out of this bankrupt program and at the same time push millions of Americans into it. Does that sound logical to you? The CMS report states in clear terms that the Medicare cuts in this bill could jeopardize our seniors' access to care. The cuts would result in nearly 20 percent of all Part A providers, such as hospitals and nursing homes, operating in the red within the next 10 years as a result of these cuts. Twenty percent--that is a pretty big number. It should come as no surprise that this proposal faces strong opposition from a wide variety of provider groups, from doctors and hospitals that are already under tremendous financial pressure due to underpayments from Medicare. Keep in mind, the AMA here in Washington has backed this monstrosity. Now some people think that AMA represents all the doctors. It does not. The average doctor out there is incensed about this. Adding more lives to this insolvent Medicare Program will only further limit their ability to see all Medicare patients, not just the new ones. Even more troubling is the impact of this expansion on the premiums of our Medicare seniors from this ill-conceived policy. This expansion would encourage an influx of sick Americans in private coverage into Medicare, which will simply raise premiums for seniors already enrolled in Medicare. So seniors, expect your cost of Medicare to go up. So why are Democrats pushing this idea? Congressman Anthony Weiner said it best. I think he was very honest; very upfront. He said this: Extending this successful program to those between 55 and 64, a plan I proposed in July, would be the largest expansion of Medicare in 44 years and would perhaps get us on the path to a single-payer model. Well, the Democratic endgame on health care reform is crystal clear: Make as many Americans as possible dependent on the Federal Government programs. Democrats believe by making millions of Americans dependent on big government programs, on the backs of their grandchildren's future, they are taking a huge leap toward creating a permanent majority for themselves. Why, it would be a natural constituency for them. Well, let me tell you this--America is built on the spirit of self- reliance, not government handouts. Poll after poll, especially the CNN poll, has said 61 percent of Americans are now opposed to the bill, and study after study is warning us this is the wrong solution for our Nation. This unknown bill, which continues to change by the day behind closed doors, is a direct violation of the President's own pledge to only support a reform that would reduce costs, protect benefits, and not raise taxes. I sincerely hope the Democrats will step away from their arrogance of power and listen to the will of the American people. It is not too late for us to push the reset button and work on health care reform in a truly bipartisan manner. We are eager and willing, as we have been all year, to work on a responsible solution that every American can be proud of. There are all kinds of things we could agree on, that Republicans would work hand in glove with Democrats to solve, if they were willing to do it. But keep in mind the HELP Committee bill was totally Democratic. Not one Republican was asked to help write it. The House bill, totally Democratic. Not one Republican was asked to help write it. I admit my friend, the Senator from Montana, Max Baucus, worked hard to try to get a bipartisan bill. But in the end, he did not have enough flexibility to reach a deal. All of a sudden, he finds his bill being put together--between the House bill and the HELP Committee bill--behind closed doors, with very few people involved--all Democrats and the White House and probably two or three or four or five from the Senate but no more than that. Throughout this debate, I have heard a lot of rhetoric from the other side of the aisle how Republicans are opposed to this $2.5 trillion tax-and-spend bill because, as the Democrats incorrectly suggest, we want the status quo. Oh, give me a break. We all know this is completely false. We on this side of the aisle have asked the Democrats over and over again to step back and write a new bill with us. But they are so consumed with their arrogance of power that they simply want to push what they have always wanted; that is, more government and more government controls over all our lives. America is a free nation, the greatest Nation in the history of mankind. What makes us great is not our reliance on the Federal Government but our individual resolve and strength. Americans want the Federal Government to help them, not support them. Well, let me tell you the other side of this. In a recent Gallup Poll, Independents around this country opposed this bill 53 to 37. These are Independents. So it would be wise for my Democratic friends to realize America is not behind them; not behind this bill. It is time for them to listen to what the majority of Americans want and that is not this bill. I cannot tell you the kind of opposition I have seen in my State to this bill. It is almost unprecedented. I read it in the letters, hear it in the calls. At airports and grocery store aisles and on the streets people stop me and say: Don't let that thing pass. Absolute power corrupts, and that is what we are seeing in Washington today. Democrats control the White House, the House, they have a filibuster-proof Senate and they have used this absolute power to rubberstamp this administration's big-government agenda and have tripled our deficit within 1 year--1 year. We will run deficits of at least $1 trillion a year for the foreseeable future, while our national debt will triple. We are literally mortgaging the future of this country to foreign countries as we speak. Enough is enough. Let us step back and start over on a plan we can all be proud of and all work on. We hear a lot about how the Republicans are simply standing for big and evil insurance companies and how the Democrats are the defenders of American families. Well, these days, nowhere is this Democratic hypocrisy more clear than the individual, mandated policy that is part of this tax-and-spend legislation. Let's be very clear about who would benefit the most from this provision, which would, for the first time in our Nation's history, give the Federal Government the power to force Americans to either buy health insurance or face a tax penalty enforced by our friends at the Internal Revenue Service. There are only two clear winners under this policy, and it is not the American families. First, it is the Federal Government, that will now use this authority as a blank checkbook to increase the penalty in the future as a new revenue stream for its out- of-control spending habits; and, second, are the insurance companies, that will now reap the benefits of having Americans being forced to buy coverage at the decree of the Federal Government. Right now, States are responsible for determining policies that best meet their unique demographic needs and challenges. Massachusetts, for example, has decided to implement an individual mandate, while Utah has decided not to. Under this bill, we are explicitly taking away this State flexibility and authority to give the Federal Government the authority to make this one-size-fits-all decision for all 50 States and every American. This is an unprecedented grab of State power by Washington--a fundamental threat to the very Federalist vision our Founding Fathers used more than 200 years ago to create the greatest Nation in the history of the world, in the history of mankind. I am gravely concerned about the precedent this policy will set for us as a nation going forward. If the Federal Government can force us to buy health insurance, what else can it force us to do? The possibilities are endless, just like my concerns, which I share with millions of Americans, on Washington's growing role in our private lives and personal decisions. Think about it. Washington has become an unwanted houseguest in our homes and lives who will not leave. If it does not start listening to the families, it will get kicked out, sooner rather than later. Think about it. A couple of our friends have even said: Well, it is similar to car insurance. The States require you to buy insurance for your car, and it is in the best interest of the community that you do so. Well, the reason they do is because you want to drive. It is an activity you want to participate in, and so they get away with it. Here, if they have an individual mandate, they are forcing you to buy policies that are defined by Washington. If you don't, you are going to be penalized. This has never happened before in our lives. If they can get away with this, I have to tell you, they can get away with anything. The liberties of all Americans are going to be affected by it. This is not an activity. This is not something we choose to do necessarily. If we choose to do it on our own, that is great. But to have the government come in and say you have to buy this policy--for the first time in history--you have to do this, even though you don't want to buy it, is unprecedented. Well, let me say, I think it is fair to see I am not very enthused about the health care ideas of our colleagues. But I do wish to end on a positive note. There are some good things we can all do, some of which are in the bill. It is not totally bad. It is only about 90 percent bad, but there is at least 10 percent we could build on; that we could work together on. I am not just saying that. Look, I have been around here a long time. I can name all kinds of bills I have worked on with some of the most liberal people in the whole Congress to pass. Hatch-Waxman is a perfect illustration. That created the modern generic drug industry. Henry Waxman is as liberal as it gets but he was willing to face up to these realities with me, and we did Hatch-Waxman. I call it Waxman-Hatch when I am around him. I might add the orphan drug bill. We found there were only maybe two or three orphan drugs being developed. These are drugs to benefit population groups of less than 200,000. Well, it is clear the drug companies can't afford to do it for 200,000 people because it costs upward of $1 billion. Biological drugs cost even more than that, and they are not truly drugs. But the fact is, they cost even more than that. We came up with some very small incentives--but they were incentives with prestige--and some tax breaks and all of a sudden it was about a $14 million or $15 million bill, as I recall, in the early 1980s, when I was chairman of the Labor and Human Resources Committee. Today, we have well over 300 orphan drugs being developed, many of which have been developed, and from some of them blockbuster drugs have evolved. Let's take the CHIP bill. That was the Hatch-Kennedy bill. Ted Kennedy, very liberal. He would have preferred to have the Federal Government do it all--just like our colleagues do today with this enormous number of 60 votes on their side--but he was willing to work with me. I went to him and said: Look, I had two families from Provo, UT, come to visit me--husbands and wives. In each family's case, both the husband and the wife work. Neither family's combined joint income is over $20,000 a year. At that time, it was too much to have their kids qualify for Medicaid and too little for them to be able to buy health insurance. I said: The only kids left out of the health care equation are children of the working poor. Teddy, we have to do something about that. He saw it, and he said yes. He wasn't happy with the bill, in the end, because it was exactly what I told him it would be. It would basically be block-grants to states, where the States would handle it in accordance with their own demographics. It has worked amazingly well, until now. They are shoving more and more people into CHIP, other than the children of the working poor whom we originally decided to help. Well, I could go on and on and on, on so many pieces of legislation, but I will just mention those few. I am very concerned because I actually believe that if we get what they are talking about on the other side, it will not only bankrupt the country, it will make more and more people dependent upon the Federal Government. Like I say, a natural constituency for the Democratic Party, but it is a matter of great concern to me. Are our colleagues bad people? No. They simply believe the Federal Government can do it better. There are some things the Federal Government can do better, such as defending our national security interests, which is what the Constitution expects the Federal Government to do. But even there, under this administration, we are not doing as well as we should. Although I commend the President for deciding to send the people to Afghanistan and for standing on these issues. Once he saw the intelligence and the other information, it infused reality into his decision-making process. I give him credit. I am one who believes he deserves great credit for the decision he made. But even in that decision, he had to be very careful how he characterized when we are going to leave. He did leave it flexible. In that alone, he deserves a lot of credit because he knows there may not be enough time to do all we have to do to create the well-trained police and security forces that are necessary to keep Afghanistan free and to keep the world from allowing the Taliban and al-Qaida to obtain nuclear weapons. Well, that is another subject for another day. I wish to end by saying I don't believe anybody on the other side is an evil person or a person who doesn't believe they are acting in the best interest of the country, but I do not see how--I do not see how they can continue to push what they are trying to push, I think to the detriment of this country. I yield the floor.

Mr. HATCH. On the CHIP bill I can't remember what the exact number was but I think it was between 70 or 80 votes. It was a bipartisan bill. In fact, on the Finance Committee when I brought it up only two Senators voted against it. It was like 19 to 2.

Mr. HATCH. Every Republican except two, and every Democrat voted for it.

Mr. HATCH. That was unanimous. If I recall correctly, I think it was done through a unanimous consent.

Mr. HATCH. Yes.

Mr. HATCH. They were all bipartisan. That is what gets me, because people know--people such as myself, such as the senior Senator from Kansas--we are willing to work on it with them. We know we can't get everything we want. Our colleagues have different viewpoints than we do. But tell me that I am wrong--I know you can't--that the HELP Committee bill was done solely between a few people at the White House and the Kennedy staff, and basically a few Democrats. That was it. No Republicans. The House bill, I wish to ask the Senator, does he know of any Republican who was asked to participate in helping to develop that monstrosity they call the House bill?

Mr. HATCH. After they came up with it, but how about the Reid bill? Does the Senator know if any Republicans were involved, able to participate in that bill, after the discussion between the White House and Senator Reid and a few Democrats?

Mr. HATCH. None were involved. After they get it they say we want to work with you. After they get it done in the ways that I don't think any Republican can support, then they will say, yes, we would like it to be bipartisan. Has the Senator seen any acceptance of amendments here on the floor?

Mr. HATCH. That is right. One thing I appreciated very much about Senator Kennedy, as liberal as he was--he was the leading liberal lion in the Senate, in the whole Congress, in my opinion--he knew unless we could get together in a bipartisan way we could not get the job done. This involves one-sixth of the American economy; one-sixth. We are being told take it or leave it. That is what I call an arrogance of power. I don't want to be mean to my colleagues, I think many of them are very sincere, but it is an arrogance of power to not deal with the other side and to not even talk to us about it until after you have done what you want to do. I have to say, this is the worst I have seen it in the whole 33 years I have been in the Senate.

Mr. HATCH. It is a western tie. I thought I would wear it out of loudness today.

Mr. HATCH. I believe we could craft a bill that would get almost 100 votes. I think we would at least get between 70 and 80 votes and probably more if we worked together to do it. I don't think there is any question we could do that. Look, we all want prevention, we want maintenance, we all want to cover as many people as we possibly can, we all want to correct some of the deficiencies that are in these bills, we all want to take care of people with preexisting illnesses. I could go on and on. Those are things we could build upon in ways that would work. This bill is not going to work very well. But we could build upon that, bipartisan-wise, and build a complete bill We Republicans would not get everything we want. But I think there are Democrats who believe we ought to use the principles of federalism, have 50 State laboratories out there, let them work on their own problems in accordance with their own demographics. I know Kansas is not New Jersey. Neither is Utah. And New Jersey is not Kansas or Utah, to pick three States. You can do that with any three States. But we know one thing, if we follow the principles of federalism--that is what we did in CHIP, and CHIP worked well by anybody's measure--if we follow the principles of federalism we would be able to look and pick and choose from the various States what works and what does not. You would have the usually big Democratic States that probably wouldn't function no matter what you do. But even they would benefit. Even they would benefit from looking at the other States and saying will that work in our State. Frankly, that is what made this country great. There are friends on the other side who do not agree with me on that but there are friends over there who do agree with me on that, as you can see, getting 70 or 80 votes on the CHIP bill. There were other bills we put through by unanimous consent, because people recognized they were well intentioned, well written, had bipartisan support and nobody wanted to vote against them.

Mr. HATCH. That is right. When Senator Kennedy and I did the CHIP bill, as an illustration, we had to go up and down this country giving speeches everywhere, building constituencies, working very hard together. It is no secret, in the end it was not everything he wanted. It wasn't everything I wanted either. He wanted the Federal Government in control of it. I wanted the States to be in control of it. But in the end I happen to know, as one of the dearest friends of Senator Kennedy, with all the differences we had--and we had plenty, we fought each other most of the time, but in the end he was as proud of that bill as any bill he passed or he worked on--even though it was put together in a way that brought a great number of Republicans on board. Frankly, that can be done here. I have no doubt it could be done here. I look at the distinguished Senator in the chair. He is one of the brightest guys in the Senate. He has a lot of experience in this area. I personally believe the people such as the Senator from Rhode Island, the Senator from Kansas, myself--if we got together we could do things that our respective States would be proud of and would be pleased to work on--even though there would be some give and take, and that is what we need to do. Look, I point out one more time, the HELP bill is totally Democratic, not one Republican, until they brought the bill to the committee. The House bill--totally Democratic, not one Republican was even asked to give input. And this bill, not one Republican. In fact, not many Democrats. I made the point here a few minutes ago, most of the Democrats do not know what is in the bill that was submitted to the Congressional Budget Office. You heard the very competent minority--majority whip, the Senator from Illinois, say he did not know what was in the bill either. When the minority--excuse me, the majority; I have that in my mind, I think. If the majority whip didn't know, how in the world are we Republicans going to know? And how in the world are the rest of the Democrats going to know? These are things that worry me and bother me. I believe they believed with President Obama's aura, with his strength in politics, with all of us wanting to help him and with their distinctive 60-person majority, that they could put over whatever they wanted to. This was their opportunity to go to a single-payer system-- or at least to move the whole system much farther toward a single-payer system than it even is today. These things bother me a great deal. Frankly, I hope we can get our colleagues to sit down and work with us. I think both sides would have to give. Both sides would have to get together. But at least one-sixth of the American economy would be treated with respect rather than one side saying take it or leave it.

Mr. HATCH

Mr. HATCH. Mr. President, I appreciate the remarks of my distinguished colleague from Florida. People need to listen to him. I am grateful to have him in the Senate, a fine man he is and a good example to all of us. I appreciate his remarks. I rise to explain why I believe the Reid health care bill is not only bad policy for this country but also undermines the Constitution and the liberty it makes possible. I urge my colleagues to resist two errors that can distort our judgment and lead us down the wrong path. Those errors are assuming that the Constitution allows whatever we want to do and ignoring this question altogether. We have only the powers the Constitution grants us because liberty requires limits on government power and we have our own responsibility to make sure we stay within those limits. James Madison said that if men were angels, no government would be necessary, and if angels were to govern men, no limits on government would be necessary. Because neither men nor the governments they create are angelic, government and limits on government are both necessary to protect liberty--not just government but limits on government as well. Those limits come primarily from a written Constitution which delegates enumerated powers to the Federal Government. Here is how the Supreme Court put it just a few years ago. This is in United States v. Morrison in 2000, quoting Marbury v. Madison--one of the most important decisions ever by the Supreme Court, probably the single most important decision--back in 1803: Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. ``The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.'' The important word there happens to be ``limits.'' No one likes limits, least of all politicians with grand plans and aggressive agendas. It is tempting to ignore or forget the limits the Constitution imposes on us by pretending the Constitution means whatever we want it to mean. But we take an oath to support and defend the Constitution, not to make the Constitution support and defend us. The Constitution cannot limit government if government controls the Constitution. In April 1992, during a debate on welfare reform legislation, the senior Senator from New York, Mr. Moynihan, with whom I served, made a point of order that an amendment offered by a Republican Senator was unconstitutional. Here is what Senator Moynihan said: We do not take an oath to balance the budget, and we do not take an oath to bring about universal peace, but we do take an oath to protect and defend the Constitution of the United States. Applying that sage advice today, we do not take an oath to reform the health care system or to bring about universal insurance coverage, but we do take an oath to protect and defend the Constitution of the United States. For the past 8 years, my friends on the other side of the aisle insisted that the Constitution sets definite and objective limits that the President must obey. The Constitution, they said, does not mean whatever the President wants it to mean. Compelling circumstances or even national crises, they said, cannot change the fact that the Constitution controls the President, not the other way around. It is easy to insist that the Constitution controls another branch of government, that the Constitution does not mean whatever another branch of government wants it to mean. The real test of our commitment to liberty, however, is our willingness to point that same finger at ourselves. I ask my colleagues, is the Constitution rock solid, unchanging, and supreme for the executive branch but malleable, shape-shifting, and in the eye of the beholder for the legislative branch? A principle applied only to others is just politics, and politics alone cannot protect liberty. We must be willing to say that there are lines we may not cross, means we may not use, and steps we may not take. The Constitution empowers Congress to do many things for the American people. Just as important, however, is that the Constitution also sets limits on our power. We cannot take the power without the limits. I want to address several constitutional issues raised by this legislation. The first is the requirement in section 1501 that individuals obtain not simply health insurance but a certain level of insurance. Failure to meet this requirement results in a financial penalty which is to be assessed and collected through the Internal Revenue Code. We hear a lot about how Senators on this side of the aisle are supposedly defending the big, evil insurance companies, while those on the other side of the aisle are defenders of American families. This insurance mandate exposes such partisan hypocrisy. Let me just ask you one simple question. Who would benefit the most from the unprecedented mandate to purchase insurance or face a penalty enforced by our friends at the Internal Revenue Service? The answer is simple. There are two clear winners under this Draconian policy and neither is the American family. The first winner is the Federal Government, which could easily use this authority to increase the penalty or impose similar ones to create new streams of revenue to fund more out-of-control spending. Second, the insurance companies are the most direct winners under this insurance mandate because it would force millions of Americans who would not otherwise do so to become their customers. I cannot think of a bigger windfall for corporations than the Federal Government ordering Americans to buy their products. Right now, States are responsible for determining the policies that best meet the particular demographic needs and challenges of their own residents. That is the States. Massachusetts, for example, has decided to implement a health insurance mandate, while Utah has decided not to do so. This bill would eliminate this State flexibility so that the Federal Government may impose yet another one-size-fits-all mandate on all 50 States and on every American. I cannot think of anything more at odds with the system of federalism that America's Founders established, a system designed to limit government and protect liberty. I can understand why this mandate is so attractive to those who believe in an all-powerful Federal Government. After all, raising the percentage of those with health insurance is easy by simply ordering those without insurance to buy it. But while government may choose the ends, the Constitution determines the permissible means. That is why one of the basic principles is that Congress must identify at least one of our powers enumerated in the Constitution as the basis for any legislation we ultimately pass. The health insurance mandate is separate from the penalty used to enforce it. The only enumerated power that can conceivably justify the mandate is the power to regulate interstate commerce. For more than a century, the Supreme Court treated this as meaning what it says. Congress cannot use its power to regulate commerce in order to regulate something that is not commerce. Congress cannot use its power to regulate interstate commerce in order to regulate intrastate commerce. In classic judicial understatement, the Supreme Court has said that ``our understanding of the reach of the commerce clause . . . has evolved over time.'' Indeed, it has. Since the 1930s, the Supreme Court has expanded the power to regulate interstate commerce to include regulating activities that substantially affect interstate commerce. That is obviously far beyond, by orders of magnitude, what the commerce power was intended to mean, but that is where things stand today, and some say it justifies this health insurance mandate in this bill. Using the Constitution or even the Supreme Court's revision of the Constitution as a guide requires more than a good intention fueled by an active imagination. The Supreme Court has certainly expanded the category of activities--get that word ``activities''--that Congress may regulate. But every one of its cases has involved Congress seeking to regulate just that: activities in which people have chosen to engage. Even the Supreme Court has never abandoned that category altogether and allowed Congress instead to require that individuals engage in activities, in this case by purchasing a particular good or service. The Court has never done that. Let me mention just three of the Supreme Court's commerce clause cases. In its very first case, Gibbons v. Ogden in 1824, Thomas Gibbons had received a Federal license to operate a steamboat between New Jersey and New York and wanted to compete with Aaron Ogden, who had been granted a steamboat monopoly by New York State. In Wickard v. Filburn, Roscoe Filburn used the winter wheat he planted on his Ohio farm to feed his livestock and make bread for his own dinner table. In the winter of 1942, he grew more wheat than allowed under the Agricultural Adjustment Act and challenged the resulting fine. And in Hodel v. Surface Mining & Reclamation Association, companies challenged a Federal statute regulating surface coal mining. These cases have two things in common. The Supreme Court upheld Federal authority in each case, but each case involved an activity-- remember the word ``activity''--in which individuals chose to engage. There would have been no Gibbons v. Ogden if Thomas Gibbons had not chosen to operate a steamboat. Congress could regulate his activity but could not have required that he engage in it. There would have been no Wickard v. Filburn if Roscoe Filburn had not chosen to grow wheat. Congress could regulate his activity but not have required that he engage in it. And there would have been no Hodel case if companies had not chosen to mine coal. Congress could regulate their activity but could not have required that they engage in it. The key word in the commerce clause is the word ``regulate,'' and the key word in every Supreme Court case about the commerce clause is the word ``activity.'' Regulating an activity in which individuals chose to engage is one thing; requiring that they engage in that activity is another. The Congressional Budget Office examined the 1994 health care reform legislation which also included a mandate to purchase health insurance. Here is the CBO's, the Congressional Budget Office's, conclusion. This is August 1994, the Congressional Budget Office: A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy a particular good or service. . . .Federal mandates typically apply to people as parties to economic transactions, rather than members of society. That is pretty important language. In other words, Congress can regulate commercial activities in which people choose to engage but cannot require that they engage in those commercial activities. Just a few months ago, as Congress once again is considering a health insurance mandate, the Congressional Research Service examined the same issue. Here is what the Congressional Research Service concluded. This was in July 2009. The CRS concluded: Whether such a requirement [to have health insurance] would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service. Can Congress use this clause to require an individual to purchase a good or service? One thing did change in the legal landscape between 1994, when CBO called the health insurance mandate ``unprecedented,'' and 2009, when CRS called it ``novel.'' The Supreme Court twice found that there are limits to what Congress may do in the name of regulating interstate commerce. In United States v. Lopez, the Court rejected a version of the commerce power that would make it hard ``to posit any activity by an individual that Congress is without power to regulate.'' If there is no difference between regulating and requiring what people do, if there is no difference between incentives and mandates, if Congress may require that individuals purchase a particular good or service, why did we even bother with the Cash for Clunkers Program? Why did we bother with TARP or other bailouts? We could simply require that Americans buy certain cars or appliances, invest in certain companies, or deposit their paychecks in certain banks. For that matter, we could attack the obesity problem by requiring Americans to buy fruits and vegetables and to eat only those. Some say that because State governments may require drivers to buy car insurance, the Federal Government may require that everyone purchase health insurance. That is too simplistic, that argument. Simply stating that point should be enough to refute it. States may do many things that the Federal Government may not, and if you do not drive a car, you do not have to buy car insurance. This legislation would require individuals to have health insurance simply because they exist, even if they never see a doctor for the rest of their lives. The defenders of this health insurance mandate must know that they are on shaky constitutional ground. The bill before us now includes findings which attempt to connect the mandate to the Constitution. I assume they are the best arguments that this unprecedented and novel mandate is constitutional. Those findings fail in at least four ways. First, the findings say that the requirement to purchase health insurance will add millions of new consumers to the health insurance market. I cannot dispute the observation that requiring more people to purchase health insurance will result in more people having health insurance. I think that seems quite self-evident. But the question is not the effect of the mandate but the authority for the mandate. Liberty requires that the ends cannot justify the means. The findings also fail to establish that the insurance mandate is constitutional by failing to offer a single example--a single precedent, a single case-- in which Congress has required individuals to purchase a particular good or service or the courts have upheld such a requirement. The cases I described are typical, and similar examples are legion. Every one involves--every one of those cases I have cited--the regulation of activity in which individuals choose to engage. Requiring that the individual engage in such activity is a difference not in degree but in kind. The findings also fail to answer the question by observing that States such as Massachusetts have required that individuals purchase health insurance. As I noted regarding the example of car insurance, our Federal and State system allows States to do many things that the Federal Government may not. That is one of those limits on the Federal Government that is necessary to protect liberty. The findings fail to answer the question by mistakenly focusing on whether Congress may regulate the sale of insurance. That misses the point in two respects. Simply because Congress may regulate the sale of health insurance does not mean that the Congress may require it. Simply because Congress may regulate the sale of health insurance does not mean that Congress may regulate the purchase of health insurance. This legislation requires you to believe that nonactivity is the same as activity; that choosing not to do something is the same as choosing to do it; that regulating what individuals do is the same as requiring them to do it. That notion makes no common sense, and it certainly makes no constitutional sense. If Congress can require individuals to spend their own money on a particular good or service simply because Congress thinks it is important, then the Constitution means whatever Congress says it means and there are and will be no limits to the Federal Government's power over each and every one of our lives. That version of Federal power will be exactly what the Supreme Court in Lopez prohibited; namely, that there would be no activity by individuals that the Federal Government may not control. Neither the power to regulate interstate granted by the Constitution nor the power to regulate activities that substantially affect interstate commerce granted by the Supreme Court go that far. They don't go that far. The American people agree. A national poll conducted last month found that 75 percent of Americans believe that requiring them to purchase health insurance is unconstitutional because Congress's power to regulate commerce does not include telling Americans what they must buy. By a margin of more than 7 to 1, Americans believe that elected officials should be more concerned with upholding the Constitution regardless of what might be popular than enacting legislation even if it is not constitutional. Some defenders of this legislation such as the House majority leader have said that Congress may require individuals to purchase health insurance because it can pass legislation to promote the general welfare. The only thing necessary to dismiss this argument is to read the Constitution. Read the Constitution. That dismisses this argument. Just read it. Read the Constitution. Article I refers to general welfare as a purpose, not as a power. It is a purpose that limits rather than expands Congress's power to tax and to spend. The requirement that individuals purchase health insurance is not an exercise of either the power to tax or the power to spend, and so even the purpose of general welfare is not connected to it at all. Needless to say, it makes no sense to include in a written Constitution designed to limit Federal Government power an open-ended, catchall provision empowering Congress to do anything it thinks serves the general welfare. If America's Founders wanted to create a Federal Government with that much power, they could have written a much shorter Constitution, one that simply told Congress to go for it and legislate well. That is what they could have done. They didn't do that, thank goodness. The Heritage Foundation has just published an important paper arguing that this health insurance mandate is both unprecedented and unconstitutional. It is authored by Professor Randy Barnett, the Cormack Waterhouse Professor of Legal Theory at the George Washington Law Center; Nathaniel Stewart, an attorney with the prestigious law firm of White & Case, and Todd Gaziano, Director of the Center for Judicial and Legal Studies at the Heritage Foundation. I ask unanimous consent to have the conclusion portion of the Legal Memorandum published by the Heritage Foundation printed in the Record.

Mr. HATCH. I also wish to share with my colleagues a letter I received from Dr. Michael Adams and attorney Carroll Robinson. They are on the faculty of the Barbara Jordan Mickey Leeland School of Public Affairs at Texas Southern University. Mr. Robinson, a former member of the Houston City Council, was named by the Democratic Leadership Council in 2000 to its list of ``100 to Watch.'' I ask unanimous consent their entire letter, which is dated October 25, 2009, be printed in the Record following my remarks.

Mr. HATCH. Let me share just an excerpt from these two people. This is an excerpt from Michael Adams, Ph.D., and Carroll G. Robinson, Esquire, from the Barbara Jordan and Mickey Leland School of Public Affairs, Texas Southern University: Our reading of the Constitution and Supreme Court precedent could not identify any reasonable basis, expressed or implied, for granting Congress the broad, sweeping and unprecedented power that is represented by the individual mandate requirement. In fact, we could not find any court decision, state or federal, that said or implied that the Constitution gave Congress the power to mandate citizens buy a particular good or service or be subject to a financial penalty levied by the government for not doing so. That is pretty impressive stuff. It is certainly possible to achieve the goal of greater health insurance coverage by constitutional means, not unconstitutional means. I am quite certain, however, that those means are politically impossible. Liberty requires that the Constitution trump politics, but in the legislation before us, politics trumps the Constitution. Another provision in this legislation that is inconsistent with the Constitution is section 9001, which imposes an excise tax on high-cost employer-sponsored insurance plans differently in some States than in others. The legislation imposes a tax equal to 40 percent of benefits above a prescribed limit but raises that limit in 17 States to be determined by the Secretaries of the Treasury and Health and Human Services. My colleague from Ohio, Senator Brown, spoke against this provision on policy grounds earlier. The Constitution allows Congress to impose excise taxes but requires that they be ``uniform throughout the United States.'' This is one of those provisions that will be dismissed with pejorative labels such as archaic by those who find it annoying. But it is right there in the same Constitution that we have all sworn to uphold. We have all sworn that same oath to protect and defend, and we are just as bound today to obey it. Frankly, a good test of our commitment to the Constitution is when we must obey a provision that limits what we want to do. The Supreme Court has had relatively few opportunities to interpret and apply the uniformity clause, but its cases do provide some basic principles which I think easily apply to the legislation before us today. The Court has held, for example, that a Federal excise tax must be applied ``with the same force and effect in every place where the subject of it is found.'' The Congress has wide latitude in determining what to tax and may tailor a regional solution to a geographically isolated problem, but laws drawn explicitly in terms of State lines will receive heightened scrutiny. By the plain terms of the legislation before us, insurance plans providing a certain level of benefits in one State will be taxed while the very same plans providing the very same benefits in another will not be taxed. We do not yet know what States will be treated differently, but we do know, according to this bill, that 17 of them will. That actually makes the constitutional point more clearly by identifying the State-based discrimination more starkly. Congress may decide to tax insurance plans with benefits that exceed a particular limit, but the tax must have the same force and effect wherever that subject of the tax is found. That is the clear meaning of the constitutional provision and the clear holding of the Supreme Court's precedents. Taxing the same insurance plans differently in one State than in another is the opposite of taxing them uniformly throughout the United States. I commend to my colleagues the work of Professor Thomas Colby of the George Washington University Law School, whose comprehensive work on the uniformity clause was published in volume 91 of the Virginia Law Review. I asked the Congressional Research Service to look at this uniformity clause issue. Its report confirmed that this differential tax on high- cost insurance plans is drawn explicitly along State lines and that a court will more closely scrutinize the reasons for the State-based distinction. It also concluded that Congress has not articulated any justification for singling out certain States for different treatment. I have raised this issue over and over throughout the process of developing and considering this legislation. I serve on both of the Senate committees that are involved in this process. In fact, I can say I have served on three: not only the HELP Committee--the Health, Education, Labor and Pensions Committee--but also the Finance Committee, as well as the Judiciary Committee that, for some reason, has some great interest in the Constitution. I have never heard any justification for singling out certain States for different tax treatment. The attitude seems to be that this is what the majority wants to do, so they are going to do it no matter what the Constitution says. That may be politically possible, but that does not make it constitutionally permissible. Other legal analysts and scholars who are examining this health care takeover legislation are raising additional constitutional objections. Professor Richard Epstein of the University of Chicago School of Law, for example, focuses on provisions that restrict insurance providers' ability to make their own risk-adjusted decisions about coverage and premiums. He argues these restrictions amount to a taking of private property without just compensation and in violation of the fifth amendment. Others have observed that the legislation requires States to establish health benefit exchanges. It does not ask, cajole, encourage, or even bribe them. It simply orders State legislatures to pass legislation creating these health benefit exchanges and says if States do not do so, the Secretary of Health and Human Services will establish the exchanges for them. How thoughtful. But as the Supreme Court said in FERC v. Mississippi in 1982: This Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations. The Supreme Court reaffirmed a decade later in New York v. United States that ``the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.'' In that case, the Court struck down Federal legislation that would press State officials into administering a Federal program. More recently, in Printz v. United States, the Supreme Court stated: We have held, however, that State legislatures are not subject to Federal direction. Yet this legislation does what these cases said Congress may not do. It commands States to pass laws, it regulates States in their capacity as States, and it attempts to make States subject to Federal direction. Let me return to the principles with which I began. Liberty requires limits on government power. Those limits come primarily from a written Constitution which delegates enumerated powers to Congress. We must be able to identify at least one of those enumerated powers to justify legislation, and those powers should not mean whatever we, in our delightful wisdom, want them to mean. Those principles lead me to conclude that Congress does not have the authority to require that individuals purchase health insurance, and that Congress cannot tax certain health insurance plans in some States but not in others. These, and the others I have mentioned, are only some of the constitutional issues raised by this legislation. Any of these, and others I have not mentioned, could well be the basis for future litigation challenging this legislation should it become law. Writing for the Supreme Court in 1991, Justice Sandra Day O'Connor reminded us: The Constitution created a Federal Government of limited powers. America's Founders, she wrote, limited Federal Government power to ``protect our fundamental liberties.'' Here is the way Justice O'Connor put it, writing for the Supreme Court in New York v. United States in 1992: But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location, as an expedient solution to the crisis of the day. That is a pretty remarkable statement. I could not have said it better myself. Those are either principles we must obey or cliches we may ignore. If the Constitution means anything anymore, if it does what it was created to do by not only empowering but, more importantly, limiting government power, then now is the time to stand on principle rather than to slip on politics. I yield the floor. Exhibit 1 October 25, 2009. Hon. Orrin G. Hatch, U.S. Senator. Dear Senator Hatch: We support reducing the cost of health insurance and expanding access to quality, affordable prevention, wellness and health care services for all Americans. Despite our support for health care reform that empowers consumers, we have serious concerns about the constitutionality of the individual mandate requirement being proposed by Congress. At least one scholar has argued that the individual mandate requirement is constitutional because Congress has unlimited authority under the Commerce Clause to regulate the economic activity of individual American citizens no matter how infinitesimal. We do not agree with that position. In Philadelphia, the Framers established a federal government of limited powers. If Congress has unlimited power under the Commerce Clause to regulate the economic activity of citizens, then the Constitution is no longer (and never was) ``a promise . . . that there is a realm of personal liberty which the government may not enter.'' We believe that this promise still exists and is not a mirage. The Supreme Court said so, at least as recently as 2003. It has also been argued that the individual mandate is constitutional because citizens have ``no fundamental right to be uninsured'' or ``to decline insurance.'' These are strawman characterizations intended to distract attention from the real constitutional question: Does Congress have the power to mandate citizens buy a specific good or service or be subjected to a financial penalty for not doing so? Our reading of the Constitution and Supreme Court precedent could not identify any reasonable basis, expressed or implied, for granting Congress the broad, sweeping and unprecedented power that is represented by the individual mandate requirement. In fact, we could not find any court decision, state or federal, that said or implied that the Constitution gave Congress the power to mandate citizens buy a particular good or service or be subject to a financial penalty levied by the government for not doing so. There are cases that say Congress can tell consumers what products to buy if they choose to buy, but no cases that say Congress can mandate that a citizen must buy a particular good or service or be fined for not doing so. The individual mandate requirement directly burdens the fundamental meaning of being an American citizen as embodied in the Ninth Amendment reaching back through the Declaration of Independence to the Magna Carta and its expansion coming forward from the 3/5ths Clause of Article I of the Constitution and the Court's Dred Scott decision to the Thirteenth, Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth and Twenty-Sixth Amendments as well as through Supreme Court decisions related to these amendments, legislation adopted pursuant to them, the Bill of Rights and its penumbra. The Supreme Court has ruled that freedom of speech, expression and association are constitutionally protected. Our right to freely move around the country is also constitutionally protected. Congress can regulate the size of political donations but has no authority to tell a citizen which political candidate or party they can lawfully contribute to. Like political donations, how a citizen legally spends their money in the market place is clearly a form of expression and association that requires strict scrutiny, or heightened, protection. Calling the individual mandate a tax raises another constitutional concern. Under the mandate, American citizens are essentially subject to a financial penalty simply for being a citizen of the United States residing in a state of the Union. It is essentially an existence fee, a fee for existing. Under the Fourteenth Amendment, the definition of citizenship does not include any requirement that Americans pay a ``tax'' simply because we are citizens. In fact, the Twenty-Fourth Amendment and related Supreme Court decisions expressly prohibit financially burdening the rights of citizens to prevent them from exercising a right of citizenship. Citizens have a liberty interest in deciding when to buy a good or service and which to buy form the legally available options. The Supreme Court has said, ``Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and . . . laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.'' We believe that reducing the cost of health care insurance and expanding coverage can be achieved without opening the constitutional Pandora's Box of the individual mandate requirement. Sincerely, Carroll G. Robinson, Esq. Michael O. Adams, PhD.

Mr. HATCH

Mr. HATCH. Mr. President, I appreciate my colleague's great remarks. I rise today to discuss an important aspect of this multifaceted health care reform bill that is now pending on the Senate floor. It is tax increases and who will bear the burden of those tax increases. I have actually heard some stand on the Senate floor and say there are tax reductions. Who are they kidding? The gargantuan piece of legislation laying before us provides plenty of fodder for debate and discussion. This debate and discussion is taking place all over the country among Americans everywhere: over the family breakfast table, during breaks at work around the water cooler, in corporate boardrooms, and bowling alleys, and during Christmas shopping trips. Of course, right here in the Senate we have already had many hours of debate about the health care bill, with many more likely to come. As one peruses the 2,074 pages that comprise the Patient Protection and Affordable Care Act--this bill--it quickly becomes obvious that this bill encompasses many topics and touches on a comprehensive array of issues dealing with our health care system. However, it is not until near the very end of the bill, starting on page 1,979, that we find title IX, which deals with revenue offset provisions. Perhaps it is because this title is near the end of this seemingly endless bill that we have heard relatively little discussion about the new taxes it creates or perhaps it is because the tax title is relatively short, a mere 67 pages. No matter the reason, I believe it is vital that the American people understand something about these new taxes before we are asked to vote on this legislation, this gargantuan legislation. Before I get into the specifics of the new taxes and tax increases in this bill, I need to inform my Utahns and Americans everywhere that they are being sold a bill of goods when it comes to these taxes. Based on what President Obama promised during his campaign last year, every individual American taxpayer earning less than $200,000 per year, and every family making less than $250,000 per year is justified in believing that this health care bill, which has been endorsed by the President, would not raise their taxes. Here is the direct quote from candidate Barack Obama in New Hampshire on September 12, 2008: I can make a firm pledge. Under my plan no family making less than $250,000 a year will see any form of tax increase. Unfortunately, this bill places the cost of health care reform squarely on the backs of the taxpayers and mostly on the 98 percent of Americans the President promised to protect from new taxes. That is what it said. President Obama's exact words were: I can make a firm pledge. Under my plan, no family making less than $250,000 a year will see any form of tax increase. The President went on to promise: Not your income tax, not your payroll tax, not your capital gains taxes, not any of your taxes. However, when one looks at the list of revenue offsets beginning on page 1,979, we see all but 5 of the 14 revenue raisers included there would hit families making less than $250,000. There is a cornucopia of new taxes on middle-income Americans in this legislation: a limitation on itemized medical expense deductions for medical expenses; an excise tax on the high-cost health insurance plans; a new tax on medical devices such as wheelchairs, breast pumps, and syringes used by diabetics for insulin injections; a limit on contributions to flexible spending accounts; an increase on the penalty for unqualified distributions from a health savings account; an increase in the payroll tax, and on and on. Look at all these taxes: itemized medical expense deduction, fees on drug manufacturers, high-cost plan tax--by the way those are passed on to you and me and every other consumer, most of whom are less than $250,000-a-year earners--fees on health insurers, nonqualified HSA distribution from 10 percent to 20 percent, fees on medical device manufacturers, fees on FSAs--a $2,500 cap on FSAs--people who have suffered from disabilities and other problems, they can't live with that kind of cap--and an individual mandate penalty excise tax, all of those. That is just mentioning a few of them. It goes on and on. Some of these would directly hit many taxpayers who make less than $200,000, such as this 5 percent excise tax on cosmetic surgery, while others would in the form of higher fees and penalties that would ultimately be passed on to the consumer. This is certainly the indication with the new ``industry fees'' that would be assessed on several sectors of the health care industry. Who do they think is going to pay for those? It is you and me and everybody else. Look at this chart, the biggest single tax increase in this health care bill is also one of the most insidious. This is the 40-percent excise tax on high-cost insurance. By 2019, 88 percent, or $30.5 billion will be borne by individual taxpayers. Eighty-four percent of those will be individuals who make less than $200,000 or families who make less than $250,000. That is according to the Joint Committee on Taxation, upon which I sit. It is a nonpartisan committee. This is the 40-percent excise tax on health insurance coverage that exceeds $8,500 for single families or $23,500 for families. The unions in this country are going crazy over that, and with good reason. The proponents of this idea tell us it is necessary in order to ``bend the cost curve'' downward and get the cost of health care under control. However, in reality, this is simply a bastardized version of the concept that might have been effective in discouraging employees from bargaining for too much insurance because it is a tax-free benefit; that is, for corporations that provide it, a cap on the value of tax-free, employer-provided health insurance. The original concept, which was discussed at length in the finance committee earlier in the process of developing health care reform legislation this year, has merit if done correctly. By providing a direct disincentive to the very individuals who would suffer the tax increase, this original idea would have discouraged purchasing or bargaining for higher cost insurance simply because of the tax benefit. However, this bill and the one approved by the Finance Committee does not take this route. Instead, it takes the cowardly approach and applies the tax increase at the insurer level. Why is this a bad idea? For one thing, the tax increase occurs at a level two steps removed from the individual employee, which is where the decision to buy a less costly plan is made. Rather, the tax is assessed on the insurance company which has no choice but to pass the cost of the tax on to the employer and the employee who, together, pay the cost of the policy. Instead of providing a disincentive for purchasing more health insurance than is necessary, applying the tax at the insurer level simply increases the cost of insurance without the employer and employee necessarily even knowing why the cost has gone up. You wonder why insurance costs go up? So for the sake of avoiding what appears to be a direct tax increase on workers, this approach loses the benefit of the original idea of bending down the cost curve by providing a disincentive. But make no mistake, this increased cost of these insurance plans will be passed on to the employees. ``Forty percent excise tax on high-cost insurance''--which most people will have. This is not even-- . . . by 2019, 88 percent or $30.5 billion will be borne by individual taxpayers; 84 percent of those will be individuals who make less than $200,000 or families who make less than $250,000. The Joint Tax Committee. My gosh, when does it end? Moreover this tax burden would not be just on those whom the President says he wants to target for tax increases, those making over $200,000 per year as individuals or $250,000 per year for families. Far from it. Data from the staff of the Joint Committee on Taxation showed that only 16 percent of the $30.5 billion borne by individual taxpayers in 2019 would be paid by those making over $200,000 per year. This means that 84 percent or almost $26 billion for this 1 year only would be paid by those whom the President promised to protect against tax increases. Unfortunately, the excise tax on high-cost insurance policies is not the only way the health care bill would increase the cost of health insurance. To add insult to injury, the bill also includes a $6 billion annual fee assessed on providers of health insurance. I have heard the other side just condemn health insurers, day in and day out. Yet they are adding all these costs to the health insurers that have to pass them on to the individual citizens, or insurees. As I understand it, the rationale behind this misguided idea is that health insurance companies will be enjoying a windfall from this bill in that millions of new customers will become insured for the first time. Therefore, the reasoning goes, the health insurance industry will be earning billions of dollars that they would not have otherwise made, all because of the beneficial aspects of this health reform bill. Therefore, since these companies will be reaping all of this extra profit, why should we not tax them on this windfall in the form of this annual fee as though those costs are not going to be passed on? This is a bad idea on so many levels. First, it assumes that the insurance companies will actually be gaining all of these new customers. Secondly, it assumes that the insurance companies will be making money from these new customers if they indeed gain them. Keep in mind, they are talking now in the back rooms. Nobody knows what they have concluded. They are talking about putting people into Medicare from 55 years old on, where today you have to be 65 years of age to be able to qualify for Medicare. Now they want to do that at 55. What does that mean? That means the sickest of the sick will go into Medicare. People are going to push them out of regular policies and others will go into Medicare, so these insurance companies aren't going to make all the money the Democrats say they are. The third assumption is the most troubling. That is that it would be the insurance companies themselves that would bear the burden of these fees. These are all dangerous assumptions. The third one is downright fallacious. It assumes that corporations suffer the incidence of taxation. As anyone with a modicum of economic training knows, corporations do not bear the burden of taxes, people do. Specifically, it is the people who work for the corporation, who own the corporation, and who are the customers of the corporation who ultimately pay the tax. They are passed right on to the people. This is not the only dangerous new excise tax in this bill. We have a whole passel of them. A new excise tax on health insurance providers. Look at this, excise taxes in the health care bill, excise tax on health insurance providers, new tax on pharmaceuticals, a new tax on medical devices, a new tax on high-cost insurance plans, and a new tax on cosmetic surgery. In the case of competitive markets, an excise tax is generally borne by consumers in the form of higher prices in the long term. At least this is what the staff of the Joint Committee on Taxation said to me in a letter on these insurance industry fees, dated October 28, 2009. Why in the world would we want to add a fee to the health insurance industry when we know it will be passed right on to consumers of the health insurance in the form of higher insurance costs? That means you and me. That means the employee. That means the person who bears the burden. I thought the purpose of this health reform bill was to rein in health care costs. How much does this so-called health care reform bill harm taxpayers and violate President Obama's promise not to raise taxes on the middle class? Let me tell you about one of the most egregious tax increases in this bill. I have always believed that one of the major purposes of health care reform is to lower the cost of medical expenses to American families and especially to vulnerable American families. Therefore, it makes no sense to me that this bill should include this next tax increase which would largely hit the sickest Americans. This proposal would increase the threshold for deducting medical expenses from today's level of 7.5 percent to 10 percent of adjusted gross income. This seemingly small change is projected by the Joint Committee on Taxation to cost taxpayers over $15 billion over 10 years. Which taxpayers would suffer this tax increase? The ones earning more than $250,000 per year that President Obama pledged would be the only Americans to be saddled with a tax hike under his administration? Hardly. Of the many millions of families affected by this change, only a few thousand have incomes over $200,000. Think about that. The vast majority of the victims of this tax hit would be below that figure, with many of them being far from wealthy. In fact, a high percentage of the taxpayers affected by this change make less than $75,000 per year. Look at this. If your income equals $100,000, then you need to incur $10,000 worth of medical expenses before you become eligible for the deduction. Millions of taxpayers making less than $200,000 will be affected. The deduction for medical expenses has been in the Tax Code for decades. Its purpose is to provide relief to Americans who face catastrophic medical expenses in relation to the size of their income. It is designed so that an average or usual amount of health care costs will not trigger the relief. Like I say, a family earning $100,000 this year would have to have medical expenses exceeding $7,500 before the deduction kicks in. This does not count what insurance pays but only what the family would fork over in out-of-pocket costs. Even for those with the most basic health insurance, 7.5 percent of family income spent for medical expenses is a large amount. In many cases, this much medical cost relative to income is caused by chronic health conditions or serious accidents or injuries, and this is exactly the point. The current tax law rightly says that if a family has to pay catastrophic or near catastrophic amounts for health care during the year, relief is available. By design this deduction is there only for those who need it. So the big question is: Why we would want to increase taxes on those with already high medical expenses by making it tougher for them to get relief from catastrophic medical expenses. But the real conundrum is why would we do this as part of a bill that is supposed to rein in health care costs. It is no wonder my fellow Utahns and Americans everywhere are questioning the wisdom of this bill. As with so many other features of this so-called health reform plan, this doesn't make sense. There is much more I want to say about the tax increases in this bill. American taxpayers need to know the truth about what is about to hit them, if the majority has its way. I have not yet mentioned the new industry fee on medical device companies. Because my home State of Utah has many such companies, I plan to address this new fee in a separate floor statement as this debate progresses. Let me summarize by reminding my colleagues that the tax increases in this bill fly in the face of the promises made by the President, the leader of the majority party in Congress who has explicitly endorsed this legislation. The staff of the Joint Committee on Taxation recently conducted a distributional analysis of how four of these tax increase provisions affect American taxpayers. Under that analysis, in 2019, individuals making over $75,000 and families making over $75,000 will see their taxes increase under this bill. That is equal to 42 million middle-income taxpayers. Think about that: 42 million middle-income taxpayers all making less than $200,000 per year and all of them, told by the President that they would be protected from tax increases, will be hit and hit hard by this bill. This is after taking into account the tax effects of the advanced refundable tax credit for health insurance. Think about this: Millions more middle-income taxpayers will be hit by indirect tax increases from the health industry segment fees included in this bill. There is no question that these fees and other excise taxes will be passed through to the individuals who are consumers of the health care products that are being passed. As we debate this health care bill, it is imperative that the American people know what is in the legislation and how it will affect them. It would be a travesty for us to vote on this before these things are fully understood and debated. This is one of those few bills that come along only once in a generation or so. It is one of those bills that has the potential to change our country forever, for good or bad. In this case, it is not for good. The tax increases in this bill are unprecedented in many ways and not well thought out. They will have a devastating effect on the people the President has promised to protect. The tax increase aspect alone of this leviathan is enough to demand its defeat here in the Senate. But there are so many more ill-advised provisions in the other 2,007 pages as well. I urge my colleagues to take a good and honest look at these tax increases and make sure they are ready to face the vast majority of their unsuspecting constituents once they discover what has been done to them with this bill, should it pass. I am very concerned about this bill. The American people are very concerned about this bill. Polls show they don't support this bill. I can't believe my colleagues on the other side are trying to present it as though it is a tax deduction bill when, in fact, it raises taxes in billions and billions of dollars, most of which go to the middle class or lower in transferred payments, and causes other problems added to their woes in health care and their very lives, as we go through all of our lives here in the United States. I am very concerned about it. I think everybody ought to be concerned about it. This is one-sixth of the American economy. If we can't get 75 to 80 votes in a bipartisan way, you know it is a lousy bill. This is a lousy bill. From what I have heard of the one that even Democrats don't know what form it will be in, it is going to be even more lousy. I yield the floor.

Mr. HATCH

Mr. HATCH. I thank the Senator so much. The current Hyde language contained in the fiscal year 2009 Labor-HHS Appropriations Act says the following: Sec. 507. (a) None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for any abortion. (b) None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for health benefits coverage that includes coverage of abortion.

Mr. HATCH. I know a little bit about CHIP. That was the Hatch-Kennedy bill. I was one of the original authors of the program and insisted that the following language be included in the original statute: limitation on payment for abortions (A) In general.--Payment shall not be made to a State under this section for any amount expended under the State plan to pay for any abortion or to assist in the purchase, in whole or in part, of health benefit coverage that includes coverage of abortion. (B) Exception.--Subparagraph (A) shall not apply to an abortion only if necessary to save the life of the mother or if the pregnancy is the result of an act of rape or incest. That is what the CHIP bill said, and that was the Hatch-Kennedy bill.

Mr. HATCH. The reason I mentioned Senator Kennedy is because he was the leading liberal in the Senate at the time, and yet he agreed to that language. As to the Federal Employees Health Benefits package, the following language appears in the Financial Services and General Government Appropriations Act for fiscal year 2009: Sec. 613. No funds appropriated by this Act shall be available to pay for an abortion, or the administrative expenses in connection with any health plan under the Federal employees' health benefits program which provides any benefits or coverage for abortions. Sec. 614. The provisions of Section 613 shall not apply where the life of the mother would be endangered if the fetus were carried to term, or the pregnancy is the result of an act of rape or incest.

Mr. HATCH. You are absolutely right. Let me read the language for you in the Nelson-Hatch-Casey amendment. In general.--No funds authorized or appropriated by this Act (or an amendment made by this Act) may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion.

Mr. HATCH. Right. The reason it is so critical we pass the Nelson- Hatch-Casey amendment is that it is the only way to guarantee that taxpayers' dollars are not used by the insurance plans under the Democrats' bill to pay for abortions. In other words, the Hyde language is in the appropriations process. We have to do it every year rather than making it a solid amendment. But this bill is not subject to appropriations. So if we leave the Hyde language out of this bill, the language we have in the amendment, the Nelson-Hatch-Casey amendment, then we would be opening up a door for people who believe that abortion ought to be paid for by the Federal Government to do so. And we should close that door because that has been the rule since 1977.

Mr. HATCH. I appreciate the Senator from Texas pointing this out. The current bill has language that looks like it is protective, but it is not. That is what we are trying to do: close the loophole in that language and get it so we live up to the Hyde amendment, which has been in law since 1977. To be honest with you, I do not see how anybody could argue that the taxpayers ought to be called upon to foot the bill for abortions. Let's be brutally frank about it. The taxpayers should not be called upon to pay for abortions. The polls range from 61 percent of the American people, including many pro-choice people, who do not believe taxpayers should pay for abortions, to 68 percent. The polls are from 61 to 68 percent of those who do not believe the taxpayers ought to be paying for abortion, except to save the life of the mother or because of rape or incest. And we have provided for those approaches in this amendment. So anybody who argues otherwise is plain not being accurate.

Mr. HATCH. Sure.