Hatch Delays Mark-Up By Questioning Constitutionality Of Individual Health Mandate

During last night’s walk through of the Senate Finance bill with Committee and Congressional Budget Office staff, Sen. Orrin Hatch (R-UT) delayed and obstructed the mark-up process by asking waves of repetitive questions — that the staff had already answered throughout the hearings — and insisting that the individual mandate provision was unconstitutional.

Hatch filibustered amendments by peppering the staff with detailed queries and dismissing answers that departed from his ideology. On several occasions, Hatch lectured Chairman Max Baucus (D-MT) for allegedly caving to White House pressure and ‘rushing’ — after nine months of grueling negotiations — the legislation through committee. “At some point we ought to understand what’s in this God dong bill,” Hatch exclaimed after Baucus announced that the committee would be moving to considering amendments. “You got a conceptual bill, that really doesn’t even have the final language, doesn’t have a score to it.”

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“I know what you’re trying to do and I know you have lots of pressure from the administration and elsewhere, but this is the United States Senate. This is the most important committee in the United States Senate. And we ought to look at these things seriously and we ought to ask all the questions that we have,” Hatch insisted, before proceeding to ask staffers with no experience in constitutional law, at least four separate questions about the constitutionality of the individual mandate.

At each turn, the staff replied that they were not qualified to answer Hatch queries, and directed him to the Congressional Research Service, which had concluded that the mandate and the penalty for not acquiring insurance were indeed constitutional. In fact, as Slate’s Timothy Noah explains, the Commerce Clause — which the federal government has used to “expand its power in various ways” since the New Deal — allows the government to regulate and penalize behaviors “by defining various activities as ‘interstate commerce.'” “When a person declines to purchase health insurance, that affects interstate commerce, too, by driving up health insurance premiums for everyone else,” he explains.

“I’ve been on the committee for 15 years, I’ve never seen a circumstance where any member just got unlimited questions,” Sen. Kent Conrad (D-ND) told Hatch during a heated exchange. “Have you ever seen a bill that’s one-sixth of the American economy,” Hatch asked. “Yes, I did,” Conrad replied. “I saw it with the tax cuts in the Bush administration, affected 100 percent of the economy, and we weren’t given unlimited questions. And you know, you talk about a disaster for the country, that turned out to be.”

Baucus reminded Hatch that “the 2001 tax cut bill was a $1.3 trillion bill, we spent, I don’t know how many days on that, not too many days. This is a $900 billion bill…this committee hasn’t spent actually more than two days in mark-up for ten years. But this is a big bill and we’re just trying to find away to find the right balance here, the balance between understanding the bill on one hand, and acting on the other,” Baucus said.