Sunday, March 21, 2010

Sen. Ortman’s plea against the Federal Health Care Bill


Federal Health Care Bill

Today I have introduced a Resolution urging our Minnesota Congressional Delegation to oppose the passage of HR3590, the federal health care bill, which Congress has titled The Patient Protection and Affordable Care Act. Below is a column I have written on this bill and why it should be strongly opposed by the members of Congress and our federal government. I encourage you to watch for this issue to develop more fully over the next few days, as Congress is expected to attempt to pass this bill on Saturday. I welcome any comments you have on this issue!


Minnesota Should Be Heard in Health Care Battle

By State Senator Julianne Ortman


The federal health care bill (HR 3590) is unconstitutional. The State of Minnesota has a responsibility to act now to protect and defend itself and its residents from an abuse of power by the federal government. The U.S. Constitution was designed to protect against congressional over-reaching by a separation of powers, not just between the three branches but also in the form of governmental powers divided between the federal government's limited set of enumerated powers and the States' more expansive powers.


The Tenth Amendment reserves to the States the right to exercise all governmental powers not specifically granted to the federal government: "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the states, are reserved to the states,
respectively, or to the people." The State of Minnesota has an evident and compelling interest in opposing an usurpation of its sovereignty by a federal government run wild. The federal health care bill contains two substantial and unconstitutional provisions that encroach on the rights of the people and the State of Minnesota.


First, the mandate in the bill that would force U.S. residents to buy health insurance is unconstitutional. The bill identifies for the source of authority, the Commerce Clause in Article I, Section 8 of the U.S. Constitution, which authorizes Congress, in a limited role, to regulate commercial activity that affects interstate commerce.


While the Commerce Clause would allow regulation of health insurance companies and services, or the provision of healthcare, this is not what is proposed. Rather, the bill would compel private persons to buy insurance from a private insurance company. The Commerce Clause has never been used to force anyone to buy anything; it is used to regulate economic activity, not inactivity (i.e., not buying insurance).


In 1994, President Clinton proposed universal health care coverage; the Congressional Budget Office (CBO) reported that such a system likely would be unconstitutional under U.S. Supreme Court precedents interpreting the Commerce Clause, and warned that such an action by Congress would be unprecedented. "The government has never required people to buy any good or service as a condition of lawful residence in the United States." A Congressional Research Service Report in July, 2009 similarly questioned whether the Commerce Clause "will provide a solid constitutional foundation for legislation containing a requirement to have health insurance."


Second, the federal legislation imposes an unconstitutional tax on individuals who do not comply with the mandate to buy health insurance. It is called a "shared responsibility penalty," but it is a tax nonetheless, and will be imposed upon any non-exempt person in the U.S who fails, for one month or more, to maintain "minimum essential coverage."


This penalty is a "capitation tax" because it is imposed on a per-person basis (rather than on income), and thus is specifically prohibited by the Constitution in situations (such as this) where it cannot be applied proportionately among the States according to their population: "No capitation or other direct tax shall be laid, unless in proportion to the census…" and "direct taxes shall be apportioned among the several states…according to their respective numbers." U.S. Const. Article I, Sections 8 and 3. Given the numerous exemptions in the bill (for example the poor, the incarcerated, and illegal aliens) which cannot affect all 50

States to exactly the same degree, this tax cannot be implemented proportionally in a way that meets the constitutional requirement. Moreover, the Supreme Court is unlikely to stretch the contours of the Constitution to suffer such an unlawful capitation tax when other financing and enforcement options are available that would not offend the Constitution.


There are many other flaws in this legislation, among the most obvious of which are: 1) the fact that the CBO projects a 10–13% increase in premium costs by 2016 as a result of the scheme; and 2) it is overwhelmingly unpopular (53% of respondents to a recent Rasmussen poll oppose the plan and 46% strongly oppose it, while only 43% favor it).


In our constitutionally divided government, the different divisions are expected to control each other at the same time that each unit controls itself. See Federalist No 51 (James
Madison). Evidently the federal government has neither the will nor the ability to control itself, so now is the time for the State of Minnesota to speak to the issue.


Members of the Minnesota House and Senate took the same solemn oath, "to support the Constitution of the United States and the Constitution of the State of Minnesota." Fidelity to the Constitution is our highest obligation as elected officials. Now is the time for us to speak out to protect and defend our State and its residents against unconstitutional encroachment by the federal government.


Reasons to Oppose the Health Care Bill

1) The health care industry accounts for one-sixth (1/6) of the U.S. economy and (as of 2007) public and private health care spending in Minnesota totaled $32.5 billion (60% of which comes from private health insurance, consumer out of pocket, and other private spending).


2) Minnesotans don't want the comprehensive overhaul contained in this 2,700-page, 10,000- section bill. Instead, they strongly prefer incremental improvements to the health care system. Policymakers should proceed slowly and deliberately, so as not to disrupt what Americans have and want to keep, and do not result in costly, damaging, and unintended consequences.


3) Minnesotans want consumer-driven reform, and they want health care programs to deliver value to the taxpayers. The GAMC reform is a great example.


4) Minnesotans want to be able to buy health care across state lines or to have more insurers in our market. We want improved access to health savings accounts and medical liability reform.


5) Minnesotans want reforms that focus on increased choice and competition, not by turning control over to Washington, but by empowering individuals and families to control their health care dollars and decisions.


6) A proposal with this wide a scope, with this strong of public opposition, and containing certain legal challenges should have greater transparency and accountability.

a. The bill contains more than 10,000 sections and 2,700 pages.

b. The bill imposes more than 100 new government mandates on private individuals and private businesses.

c. The bill creates a Health Care Czar to impose health care price control.


7) The process for passing this bill is broken. Congress plans to pass the bill only on a procedural voice vote on Saturday, with no debate and no roll-call recorded vote.

a. The bill should be available with sufficient time for review analysis

b. The bill should have public hearings with sufficient notice for interested parties to participate and share their expertise about the impacts and implementation.

c. Members of Congress should have sufficient opportunity to amend the bill and debate the bill in public.

d. Congress should act only with a roll call vote on the substantive provisions.

e. Congress should enact a non-severability provision (if one provision is found unconstitutional, the whole bill should be struck down) so as not to leave a chaotic mess of mandates for health care without the corresponding revenues to pay for them.


8) There are better, more straightforward ways to raise revenues to pay for health insurance subsidies or create incentives to buy insurance.

a. The income tax is the most straightforward way to raise revenues to pay for health care for those without coverage.

b. Income tax credits can be used as incentives.

c. Neither would be unconstitutional, but both are politically and fiscally disastrous. Politicians are attempting to avoid the truth (the truth being that those in power really want to raise taxes to pay for spending), and the product of this avoidance is an extremely distorted bill.

d. By attempting to force individuals to buy insurance contracts, the federal government is attempting 'off the books' spending that will not affect the deficit.

e. If they raised taxes, and/or issued tax credits, they would be committing to uncontrolled spending and uncontrollable costs. Instead they prefer to keep the program and the costs off the books by channeling money through private insurance companies in the form of 'premiums.' This will lead to a result of no accountability, no governmental oversight for the costs, and no responsibility for the success or failure of the program.


9) The big expansion in coverage comes about 4 years from now, allowing 30 million people to sign up for insurance with financial help from the government for most. Rising med costs and an aging population will keep squeezing the federal budget.


10) In Nov. 2009 the Congressional Budget Office reported that the Senate Health Care Bill would raise premiums by more than $200 on family policies compared to the cost if Congress did nothing.

a. This is a 10-13% increase for individuals and families for the cost of health insurance.

b. In 2016, the projections for health care costs under this bill are $5,800/year/individual and $15,200/year/family as opposed to $5,500/year/individual and $13,100/year/family under the status quo.


Rasmussen Poll Results

11) March 1, 2010

A – 76% of respondents say their own coverage is 'good' or 'excellent'.

B – 48% believe the quality of health care will get worse if the bill passes.

C – Voters over age 65 have the lowest level of support of the bill.


12) March 15, 2010

A – 53% of respondents oppose the bill, 43% favor it.

B – 46% strongly oppose it, 23% strongly favor it.

C – Just 21% of voters believe the federal government has the consent of the governed.

D – 51% of respondents fear the federal government more than they fear private insurers; 39% fear private insurers more.


13) March 12, 2010: Unhappiness with Congress reached its highest level ever, with 71% saying the legislature is doing a poor job.


14) Feb. 18, 2010

a. 75% of voters are angry at the politics of the federal government.

b. Nearly half of all voters believe that people randomly selected from the phone book could do as good a job as the current Congress.


Thank you for reading. I welcome your responses to H.R.3590 and to my response to this bill. I encourage you to watch my YouTube Channel ( for updates on Senate Floor debate, press conference clips, and other clips of the actions of the Senate!



Julianne Ortman

State Senator

District 34