Republicans Lodge Constitutional Challenge to Health Bill

[Purveyor]

Source: CQ POLITICS

Senate Republicans, defeated at every turn thus far in their bid to prevent Senate passage of a health care bill before Christmas, are digging into their parliamentary tool chest.

John Ensign , R-Nev., lodged a constitutional point of order against the legislation on Tuesday, claiming its mandate that individuals purchase health insurance or pay a penalty falls outside the scope of congressional powers enumerated in Article I, Section 8, of the Constitution. It also violates the Fifth Amendment’s ban on the taking of private property for public purposes “without just compensation,” Ensign asserted.

While the Senate is unlikely to uphold his challenge, Ensign raised points that could very well resurface in litigation if the legislation becomes law.

The Senate will vote on Ensign’s challenge Wednesday.

Ensign argued that Congress does not have the power to require individuals to purchase a particular good, in this case health insurance. “Is it really constitutional for this body to tell all Americans that they must buy health insurance coverage?” Ensign asked. “And if so, what’s next? What personal liberty or property will Congress seek to take away from Americans next?”

Read more: http://www.cqpolitics.com/wmspage.cfm?parm1=5&docID=cqmidday-000003272367

[SpiralHawk]

1. Oh my, what a sordid AFFAIR the republicons are making out of this

I suppose they imagine they have Republicon Family Values on their side...

[Vincardog]

8. IT is a valid question. What if the US Government wanted to require everybody to purchase Palin's

book?

[timeforpeace]

11. They were keeping their powder dry for this. May have a point. Supreme Court, here it comes.

[Vincardog]

15. The question is who will the Corporate court back the Banks of the Insurance Parasites?

[Unvanguard]

14. Probably a freedom of expression issue there. None here. n/t

[Vincardog]

16. What does freedom of expression have to do with anything? If the Government can force us to buy one

thing why can't they force us to buy anything?

[Unvanguard]

23. Because a law or policy has to be more than within the scope of Congress's powers.

It also has to be consistent with the restrictions on what Congress can do with its powers, including the Bill of Rights. And the way the Supreme Court has interpreted the First Amendment to protect broad expressive rights, to force people to buy a political book would almost certainly be unconstitutional.

The mandate, on the other hand, is just social policy legislation: no different in allegedly "coercive" character from any tax deduction policy (which encourage all kinds of conduct, including buying health insurance, right now), and no different in purpose from taxation for various public goods.

[Vincardog]

30. no different in purpose from taxation for various public goods? What public good is PRIVATE PROFIT?

[Unvanguard]

34. That is not the purpose of the mandate. It may be an incidental effect, but so what? n/t

[Vincardog]

38. The effect of the mandate is to force people to enrich corporations with no guarantee of the

corporations actions.

[Garam_Masala]

79. One can avoid all federal income taxes by buying municipal bonds

You are not required by law to have "taxable income".
So in a sense it is your choice to derive taxable income and pay taxes.

The senate bill gives you no choice. You MUST buy health insurance else
the full might of federal government will come down on you.

[MUAD_DIB]

44. We have to pay taxes. No?

[DBoon]

58. they already force all kinds of purchases

If you want to conduct certain types of business, you can be required to buy various types of insurance

[Psephos]

74. Which leaves you with the choice of whether you want to proceed in business...

...under those conditions, or not. If not, then you don't have to buy anything.

You do not have a choice with the HCR mandate.

[Garam_Masala]

80. Aha...but it your CHOICE to conduct "certain" type of business

The senate bill gives you zero, zip, nada choice.
You will buy health insurance, period, no choice, no exceptions.

[SpiralHawk]

18. That would be another regretable republicon affair

fer sure.

[Downwinder]

20. What if they mandated auto insurance?

[girl gone mad]

29. Then you don't buy a car if you don't want it.

Duh.

[Psephos]

75. You don't get it. Under HCR, you must buy the insurance, whether or not you "own a car." n/t

[rasputin1952]

31. It is mandated in most of the states...

if this set precedence, mandatory auto insurance could be challenged in courts across the land. While state hold the power to do enact such law at this time...Federal precedent could force this issue.

The argument is essentially simple: If one form of "mandated insurance" is unconstitutional;. wouldn't it be reasonable to assume that all forms of mandated insurance are unconstitutional?.

In any case...this is the last gasp of a dying elephant. The GOP is in complete shambles at this point...they are shooting blanks, they aren't even trying to scare away the ghosts att his point.

[mike_c]

61. no it is NOT....

Auto insurance is only required in order to drive a car. If you don't own a car or drive, you are NOT required to purchase auto insurance. The circumstance that most people drive is immaterial. You are not required to purchase auto insurance as a consequence of citizenship-- only as condition for driving. You can easily-- and legally-- choose to not buy auto insurance. My daughter and SIL don't, for example. They live in a city, and have no need for a car.

[zogtheobvious]

42. UUuuuhhh pretty sure they do. n/t

[IndianaGreen]

82. The states can mandate car insurance. The federal government can't!

Tell the voters that the IRS will go after their homes and cars if they don't purchase health insurance, and watch their reaction.

[mike_c]

60. repug family values have nothing to do with it....

It is a valid question. The gov't should not mandate that all Americans purchase a commercial product.

[WriteDown]

2. The Republicans are the good guys?

For the wrong reasons, but this is the twilight zone.

[Unvanguard]

24. Not really. They want to undermine the new insurance regulations.

They know that without the mandate it will be difficult to sell rules like the bar on denying coverage to people with pre-existing conditions, because they will mean a greater increase in premiums for people with health insurance, and provoke the loss-aversion Obama and the Democrats have been trying so desperately to avoid ("if you like your insurance, we won't change it", etc.)

[WriteDown]

25. The mandate is evil..

Its a transfer of wealth to Big Pharm and Big Insurance. Regardless of the reasons, being against this is a good thing.

[Unvanguard]

26. Maybe, but it's a lesser evil: a politically-convenient target

that is unfortunately crucial to the success of the more popular and more clearly beneficial aspects of the legislation.

[WriteDown]

28. No, its the main evil...

A mandate without a public option is just a bailout in disguise .

[Unvanguard]

32. You and Howard Dean can keep saying that all you like

but it does not become any more true.

As Nate Silver and others have pointed out, it remains unclear whether this bill, even with the public option, is a net plus for the insurance companies at all, let alone whether that can be regarded as the main effect of the bill--as opposed to Medicaid expansion, hundreds of millions of dollars in subsidies for low-income families to afford health insurance, and tougher regulations of insurance companies to ensure that they don't deny high-risk people coverage and do spend their revenue on actually providing care.

[WriteDown]

39. That's fine. I'll be in the company of Dr. Dean.

Ever wonder why the taxes start now, but there are no benefits until 2013? Ever wonder why it had to be passed so quickly if it doesn't start until 2013. Ever wonder what gutting medicaid payments is going to do to dr. availability? Mysteries.

[boppers]

48. You're reading republican talking points.

"no benefits until 2013"?

A great number of benefits start Jan 1, 2010. Read up.

[WriteDown]

50. For a bill that hasn't even been passed?

That's impressive. Does Nebraska get benefits first? I really hate Dr. Dean for turning into a Republican.

[Synicus Maximus]

85. How can the benefits start when the bill has not and most likely will

not be passed by Jan. 1 2010.

[Iowa]

55. +1

[LiberalAndProud]

3. So I can quit paying for Workers' Compensation insurance now?

Awesome. Bet I had better not try it though, the state labor board will be on me like fire ants on a sugar hill.

[HuckleB]

9. +1

[marshall]

35. You said it--the state labor board, i.e. fed vs. state issue

The bill purports to be a federal mandate.

Similarly I don't believe there is a federal law requiring people who operate a car to have a driver's license.

And at any rate you aren't expected to pay worker's compensation insurance unless you actually have a job. This bill would require you to get health insurance with no respect to a job.

[LiberalAndProud]

41. True, it is a state mandate.

Workers don't pay for it directly. Employers are required to carry insurance on their employees (at least in my state). If you work for yourself, you can waive coverage, sort of. Surprisingly, it is very affordable insurance. I wonder why that is?

It will be interesting to see if this argument gets any traction in the courts. I will be manifestly flabergasted if it does.

[marshall]

49. I don't think it would have gotten this far if it wasn't a done deal

There's been too much sweat and tears put into this thing for them not to know that it would happen if they could just get togther long enough to get it passed.

[mike_c]

62. yes you can, and entirely legally....

Don't work for wages or salary. Lots of people don't pay workman's comp insurance. The self employed, those who make most of their income from investments, etc.

[ixion]

4. I can't recall a time that I've agreed with Ensign, or any other rethug, however

in this case I do agree.

[derby378]

5. Ensign's a dickweed, yes, but does he have a valid point?

Driving is considered a priviliege instead of a right, which is how many states demand that you carry proof of insurance on public roads.

But is an individual mandate a tax on your ability to breathe air?

[HuckleB]

6. Let them push this as far as they want to push it.

It may just bring back the public option.

Yeah, I know I'm dreaming, but...

[lldu]

7. Isn't Medicare Insurance? NT

[DURHAM D]

10. no

[lldu]

12. How about Social Security? NT

[Vincardog]

19. No SS is a retirement plan

[DURHAM D]

21. no - double no

[Unvanguard]

13. There are no genuine criminal punishments. Just a tax penalty. It's fine. n/t

[ThePhilosopher04]

27. the only reason it's "fine"

is because there's no teeth in the enforcement mechanism...there's no jail time nor is there any real means to collect the fine should one decide not to ignore it and not pay. It's essentially voluntary, and relies on the ignorance of the public.

[Freddie Stubbs]

53. Won't the IRS just deduct the fine from your tax rebate?

:shrug:

[babylonsister]

17. Whatever will he tell DeMint, who used to support a mandate?

http://theplumline.whorunsgov.com/senate-republicans/demint-once-backed-mandate-he-now-blasts-as-unconstitutional/

DeMint Once Backed Mandate He Now Blasts As “Unconstitutional”


Ever since Jim DeMint predicted that taking down Obama’s health care plan would constitute his “Waterloo,” the Senator has been one of the most vociferous critics of the proposal. Lately, he’s taken to denouncing the individual mandate as “unconstitutional.”

Turns out, though, that DeMint praised a health care reform plan that also had a mandate, hailing it as “innovative” — when it was pushed by a Republican, Mitt Romney.

DeMint recently denounced the mandate in the Senate bill as follows:

Not only is an individual mandate unconstitutional, but it will increase premiums for hard-working Americans — further making insurance coverage unaffordable — and will force more people onto government-run programs.

But during the presidential primaries, DeMint endorsed the health care plan Romney developed as Governor of Massachusetts, calling it “innovative” and claiming he supported Romney because he “believes all Americans should have a health plan that they can afford, own and keep.”

As it happens, one of the central features of Romney’s health care plan was that it included a mandate that individuals purchase insurance or face a penalty.

Now, it’s true that Romney’s plan was state-based, not Federal. But DeMint clearly denounced the basic principle of a mandate as — at least, the one in the Dems’ bill — as “unconstitutional.” And yet he didn’t seem to have a problem with the mandate offered by Romneycare.

Now that DeMint is playing Wellington to Obama’s Napoleon, things seem to have changed.

[WheelWalker]

22. Just a corollary

from the Birther fringe

[girl gone mad]

33. I wouldn't get my hopes up.

They'll make a show of it and then do their corporate masters' bidding.

[Wizard777]

36. That's up to SCOTUS to decide. JUST PASS THE DAMNED BILL!

[unblock]

37. as if constitutionality ever mattered to republicans!

notice how they only care about rules when they're enforcing them on democrats?

in any event, this is just a stall tactic. puting credits in the tax code is perfectly constitutional. this year there's a tax credit for anyone who spent money to reduce heating/cooling loss from their home. a health insurance credit could work the same way.

[Ozymanithrax]

40. Another plot by Corporations to convice us they really hate the bill...

so we won't know they really love it. There can be no other possible reason why they would do this.
:sarcasm:
Well, unless Corporations and Republians really do want to defeat Health Care.

[Swede Atlanta]

43. Commerce Clause

Congress has used the Commerce Clause to legitimize all kinds of regulations. I'm not of a mind to speculate how that argument would play out but I suggest it is a possibility.

[Abq_Sarah]

67. That's a tough sell

I'm not sure how they could apply the commerce clause to someone refusing to purchase a product. That seems a bit.... odd.

[CynicalObserver]

78. If the commerce clause is held as allowing mandated purchase

of insurance, there really is no limit to what FedGov can mandate, given incremental expansion of what is considered acceptable use of the clause. This bill, if upheld as constitutional on this issue (which is certainly possible) will greatly expand the assumed power of the commerce clause, and of the federal government in general.

Folks who are looking at this in terms of one or the other of the duopoly party are missing the point - both parties are going to use the power of government to the max of acceptability, and one day the duopoly party you don't like/are expected to not like is going to be in power.

edit - this language in the bill should scare anyone on this forum who doesn't want to live in a police state, as, if allowed, would presumably be used in other bills as well.

'Page 1,020" — "It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment or conference report that would repeal or otherwise change this subsection."

Am I the only person who finds the idea of unrepealable laws absolutely terrifying?

[Bette Noir]

45. For once, I agree with Ensign.

We shouldn't be forced to buy insurance from for-profit corporations. We should be given health care as a right of citizenship, financed by a progressive income tax.

[ramapo]

46. The Mandate is the Republicans Ticket Back to Power

I'm convinced that Democrats are not only gutless bastards but they are stupid politicians.

The mandate is going to piss off millions, tens of millions.

The allocation of our tax dollars to insurance companies is going to piss off millions, tens of millions.

The mandate is a ready-to-go campaign commercial. There is no upside to it.

Obama has really surprised me. He ran a politically astute campaign but I think he has gone deaf.

[Demeter]

84. I Agree Totally

What's wrong with Democrats? They've been bought and sold like soybean futures.

[Froward69]

47. Consedaring the mandate is republican Amendment...

DO away with it. especially as it forces us to purchase Private Health policies.

[JDPriestly]

51. Congress could "require" everyone to get healthcare by using its

tax and spend powers. But the way it is doing it may not work. You can receive a hefty tax credit or deduction for doing something -- like paying interest on your mortgage or buying your first house. But, I don't see how you can be ordered to buy something and then charged a tax if you don't buy it. Congress could set up a single payer plan by simply taxing everyone a percentage of their income and pooling the proceeds to pay for insurance. That would be tax and spend. But I too have questions about how they are going to pass the constitutional hurdle. I assumed that they were planning to use their tax and spend and appropriations powers, but that I just hadn't figured out exactly what they are doing.

The Republicans may be right on this one. In that case, I have some ideas about how to get business on our side for a robust single payer plan.

Have a single payer plan strong enough that it would wipe out employers' contributions and responsibility to worker's compensation for health care costs. Employers would still be responsible for the disability side of worker's compensation, but not for the pesky health care costs. That would really be helpful to small businesses, especially businesses that involve a lot of physical work. Worker's Comp is a huge problem for small businesses.

[NavyMom]

52. Hmm, could this backfire on the repugs to have single payer...

can any of the dems with a backbone tell the rethuglicans that ok during committee instead of mandates we will now have SINGLE PAYER or medicare for all.:o

[Laelth]

54. I hate agreeing with Ensign, but on this point he may be right.

Kill the bill.

Forcing people to buy insurance is no more the answer to a failed health care system than forcing people to buy houses is the solution to homelessness.

:dem:

-Laelth

[The Stranger]

56. Is filibustering constitutional?

[big poppa]

57. What the Constitution says

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

PROMOTE THE GENERAL WELFARE

[Uncle Joe]

66. Mandating the public purchase of corporate for profit

"health" insurance doesn't promote the general welfare, it promotes corporate welfare. Those profits benefit a narrow sliver of the population at the expense of the general public with an adverse growing dynamic working against the peoples' best interests.

Medicare for everyone from the cradle to the grave paid for by a progressive income tax; with a higher tax burden on the wealthiest; who benefit the most from society does promote the general welfare.

[Abq_Sarah]

69. The general welfare clause

Is in the preamble. It doesn't hold the force of law.

Article 1 Section 8, is a better fit but it still doesn't authorize congress to force me to purchase a private product as a condition of living in the USA.

[treestar]

59. "for public purposes"

The irony, with the left saying it is for corporate purposes!

[benld74]

63. taking of private property for public purposes “without just compensation,” ?

They would be receiving health insurance

[Xolodno]

65. that doesn't quite work....

They could take your house for a road and say "your compensation is the use of the road" with that argument. And of course, it won't fly in court.

If the court rules against this, this would instantly demonstrate that a single payer system would only be legal. If they rule in favor, I shudder at what else they could get away with. Imagine a Republican President and Congress make it required to buy "People and Pandas" in order to offset evolution....afterall, they would claim its for the public good of education.

[Abq_Sarah]

72. I don't know that it would be considered

"Just compensation". Generally speaking, just compensation is a monetary compensation based on a fair market value. For many people, having to pay money every year for a product they don't use or paying thousands per year and receiving a few hundred in services isn't considered just compensation .

[Xolodno]

64. Well, even a broken clock is right twice a day....

I would definitely like to see how this goes with the supreme court. This could set an interesting precedent no matter which way it goes.

[Thickasabrick]

68. Class Action waiting to happen nt

[Generic Brad]

70. So bills passed by Democrats are unconsitutional and our president is a foreigner?

Saying it does not make it so. This is just the latest whine and bitch by disgruntled teabaggers/birthers who want to de-legitimize Democrats. See it for what it is.

[Psephos]

76. With friends like you, the Democratic Party has no need of enemies. n/t

[Generic Brad]

88. Say what?

Are you calling me an enemy of the Democratic Party? Get real.

[Psephos]

89. Of course not.

I'm not calling you an enemy of the Democratic Party. I'm sure you are a friend of the party.

However, the bill is a howling mess of payoffs, broken promises, Enron accounting, and political cynicism about the actual and horrific cost stresses it will place on a budget already reeling from debt. The idea that Congress can pass a law making it compulsory to buy a private company's products is an affront to the Constitution and to progressive ideas of personal freedom and responsibility.

The Constitutional challenge is legitimate. Furthermore, the polls show a clear majority of US citizens are pissed as hell about this bill, and there is going to be hell to pay for cramming something as massive as HCR down their throats when most people don't want it.

When friends of the Democratic Party advocate or support legislation of this nature, they are (mistakenly) doing the work of our enemies.

[harun]

71. I've been saying the mandates were unconstitutional from the first day I heard

about them but being no one really listens to the Constitution anymore I doubt they will have much success defeating this on a constitutional basis.

[FVZA_Colonel]

73. So why didn't they unveil this "weapon" before?

[dflprincess]

77. So, maybe the Democrats should point the Constitutions clause about

"providing for the general welfare" and announce Medicare for All!

I can dream.

[David__77]

81. Exactly why there must be a public option.

Hopefully these things can be worked out in reconciliation.

[Demeter]

83. The Gentleman from the GOP Is EXACTLY Right

and if the GOP brings it to the Supremes, it will go down.

Otherwise, it will be massive popular rebellion and blood in the streets.

Thank you, John Ensign. You have redeemed yourself in no small measure.

[martymar64]

86. The Rethugs may be useful idiots in this issue

The bill in its current shitty form with the individual mandate will likely pass. The Rethugs should then go to court to enjoin the individual mandate portion of the by-then statute. The grounds can be on the takings clause, the douchebags do have a valid constitutional point. If this goes to the Supremes, which it likely will, they will declare that clause unconstitutional and the individual mandate will be gone.

Now if this happens concurrently with efforts to restore a public option or an expansion of coverage under Medicare or even a single payer system via the budgetary reconciliation process, which requires simple majorities to pass, real HCR might actually become a reality instead of the cruel joke that is its present form. The only downside is that any reforms performed under reconciliation fall under the Byrd rule, requiring a sunset provision. That would require sometime in the future for the provisions to be made permanent through the normal legislative track. This would likely succeed because once real public options are actually in place, they will be so popular that to vote against it would be political suicide.

That's how I think this could actually be resolved beneficially, but who am I?
Just some fringe schmoe on the internet.

[classysassy]

87. We the people

are being duped by the republican snake oil salesmen at the request of their masters,(not the voters) the insurance companies.Why can't the public see that a healthy america will be good for all our people,in the long run the money we spend today will benefit all of us.A healthy work force means more tax money,fewer days off due to being ill.The merchants of greed,( the insurance companies and the congress)are bedmates and they don't give a damn about the average citizen,just his or her money.