United Liberty

Sen. Jim DeMint (R-SC) and Sen. John Ensign (R-NV) raised a point of order yesterday to force a vote on the constitutionality of the individual mandate that is a central piece of ObamaCare:

“Forcing every American to purchase a product is absolutely inconsistent with our Constitution and the freedoms our Founding Fathers hoped to protect,” said Senator DeMint. “This is not at all like car insurance, you can choose not to drive but Americans will have no choice whether to buy government-approved insurance. This is nothing more than a bailout and takeover of insurance companies. We’re forcing Americans to buy insurance under penalty of law and then Washington bureaucrats will then dictate what these companies can sell to Americans. This is not liberty, it is tyranny of good intentions by elites in Washington who think they can plan our lives better than we can.”

Americans who fail to buy health insurance, according to the Democrats’ bill, would be subject to financial penalties. The senators believe the bill is unconstitutional because the insurance mandate is not authorized by any of the limited enumerated powers granted to the federal government. The individual mandate also likely violates the “takings” clause of the 5th Amendment.

The Democrats’ healthcare reform bill requires Americans to buy health insurance “whether or not they ever visit a doctor, get a prescription or have an operation.” If an American chooses not to buy health insurance coverage, they will face rapidly increasing taxes that will rise to $750 or 2% of their taxable income, whichever is greater.

The Congressional Budget Office once stated “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

DeMint and Ensign are using study by scholars from the Heritage Foundation that says, “An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented— not just in scope but in kind—and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.”

It’s worth noting that the Heritage Foundation worked with former Massachusetts Gov. Mitt Romey to implement an individual mandate in his version on health insurance reform. That often gets missed when the Heritage Foundation speaks out in opposition to ObamaCare. While I agree that the individual mandate in ObamaCare is unconstitutional, consistency matters and Heritage has been horribly inconsistent.

Separately, Richard Epstein, author of Takings: Private Property and the Power of Eminent Domain and How Progressives Rewrote the Constitution, has penned a great column on how the Senate health care bill is unconstitutional due to the regulatory burden placed on insurers. It’s worth a read if you find the subject interesting.