Republicans Challenge Constitutionality of Individual Mandate


As passage of the Senate's health care reform bill (HR 3590) seems all but assured, Republicans have thrown up a procedural roadblock by questioning the constitutionality of some measures in the bill, CQ Today reports.

Sen. John Ensign (R-Nev.) filed a constitutional point of order against the legislation Tuesday, arguing that the mandate that all U.S. residents purchase health insurance or pay a penalty is unconstitutional. The Senate is expected to vote on the challenge Wednesday. Fifty-one votes are needed to defeat it.

Republicans unsuccessfully have tried to use the technique several times this year, and Senate Majority Leader Harry Reid (D-Nev.) said he is confident that Democrats will defeat Ensign's challenge.

Ensign said that the federal government does not have the power to force individuals to buy a specific product. "(I)f one of my constituents in Nevada does not want to spend his or her hard-earned income on health insurance coverage and would prefer to spend it on something else, such as rent or a car payment, this requirement could be a taking of private property under the Fifth Amendment," Ensign said (Hunter/Perine, CQ Today, 12/22).

Sen. Orrin Hatch (R-Utah) and Ensign both delivered floor speeches Tuesday denouncing the constitutionality of the individual mandate, The Hill's "Blog Briefing Room" reports (Young, "Blog Briefing Room," The Hill, 12/22).

Sen. Kay Bailey Hutchison (R-Texas) also said Monday that a provision in the bill that would levy fees on insurance companies -- but would provide exceptions to benefit not-for-profit insurers in Nebraska and Michigan -- "will not stand the test of the Constitution" because it "cannot be considered equal protection under the law."

Some legal experts disagreed with Ensign and Hutchison, arguing that the mandate is constitutional because Congress is permitted to "regulate commerce… among the several states." In addition, the Equal Protection Clause of the 14th Amendment does not apply to Congress (CQ Today, 12/22).

Sen. Max Baucus (D-Mont.) also said that insurance is subject to the Interstate Commerce Clause of the Constitution, the Washington Times reports.

White House press secretary Robert Gibbs defended the deals in the bill that have come under GOP criticism, calling them part of the regular legislative process (Dinan, Washington Times, 12/23).

Attorneys General Challenge Reform Bill

State attorneys general in Alabama, Colorado, Michigan, North Dakota, South Carolina, Texas and Washington are examining the constitutionality of the Senate reform bill, focusing on a provision that would shield Nebraska from the expected $45 million annual cost of expanding Medicaid, the AP/Houston Chronicle reports.

Nebraska is Sen. Ben Nelson's (D) home state, and the provision is viewed as a concession used to help garner his support. Other states -- including Louisiana, Massachusetts and Vermont -- also would receive special Medicaid funding under the bill.

"The Nebraska compromise, which permanently exempts Nebraska from paying Medicaid costs that Texas and all other 49 states must pay, may violate the United States Constitution -- as well as other provisions of federal law," Texas Attorney General Greg Abbott said (Davenport, AP/Houston Chronicle, 12/22).

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