Durbin auditions for subcommittee chair with legal defense of healthcare act

Senate Majority Whip Dick Durbin (D-Ill.) today offered a legal defense of last year's healthcare bill on the Senate floor in a speech that seemed also to serve as an audition to become the chairman of the Senate Judiciary Committee's Subcommittee on the Constitution.

Durbin admitted today that he is "aspiring" to chair that subcommittee, which will hold a hearing tomorrow to examine the constitutionality of the healthcare law. The chairmanship has not been decided since former chairman Russ Feingold (D-Wis.) lost his reelection bid in November.

In his remarks today, Durbin said yesterday's federal court decision against the law is "out of the mainstream" and a "plain case of overreaching," because Florida Judge Roger Vinson declared the entire law null and void, though he found that only that the insurance mandate violated the Constitution.

"This decision is at odds with decades of established Supreme Court law which has consistently found that courts have a constitutional obligation to preserve as much of the statute as can be preserved," he said. He said he does not believe this decision will be upheld.

Durbin also said Article 1, Section 8 of the Constitution can be read in a way that allows the insurance mandate, and said tomorrow's hearing would focus on this language. Durbin argued that the health insurance industry is properly seen as "commerce" that can be regulated, and said the insurance mandate is needed in order to eliminate discrimination against people with pre-existing conditions.

"You cannot eliminate exclusions on pre-existing conditions, and not move more and more people into the risk pool at an earlier stage," he said. Without the mandate, he said, people would move into the insurance pool only when they are sick, and this would destroy the insurance industry's risk model.

Durbin said he believes the tax imposed for not buying insurance and the mandate itself will be seen as "necessary and proper" rules that help the United States end discrimination against people with pre-existing conditions. This is a reference to clause 18 of Article 1, Section 8, which says Congress has the power to make laws "necessary and proper" to exercising its authority.

Opponents have argued that by requiring the purchase of health insurance, the law goes too far in its regulation of commerce, because it is the first time Congress has required individuals to engage in commerce. Those arguments persuaded Vinson and Judge Henry Hudson in Virginia to rule against the law. An equal number of judges have ruled in favor of the law, and most expect the Supreme Court to ultimately rule on its constitutionality.