DeMint to force vote on constitutionality of mandate

posted at 2:20 pm on December 22, 2009 by Ed Morrissey

Sen. Jim DeMint has had a busy week already, calling attention to the possibly-unconstitutional restriction on future Congresses in ObamaCare, and the very dangerous precedent it sets for future majorities desiring to lock out later modifications or repeals of their pet projects.  Now DeMint announces that he will demand a vote in the Senate on the constitutionality of the insurance mandate contained within ObamaCare — in fact, a key element of the bill.  DeMint has armed himself with a detailed analysis by Heritage that shows Congress’ overreach, but is DeMint shooting at a non-existent target?  Here’s DeMint’s statement:

Today, U.S. Senators Jim DeMint (R-South Carolina) and John Ensign (R-Nevada), raised a Constitutional Point of Order on the Senate floor against the Democrat health care takeover bill on behalf of the Steering Committee, a caucus of conservative senators. The Senate will vote tomorrow on the bill’s constitutionality.

“I am incredibly concerned that the Democrats’ proposed individual mandate provision takes away too much freedom and choice from Americans across the country,” said Senator Ensign. “As an American, I felt the obligation to stand up for the individual freedom of every citizen to make their own decision on this issue. I don’t believe Congress has the legal authority to force this mandate on its citizens.”

“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.”

A legal study by scholars at the nonpartisan Heritage Foundation concluded: “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.”

In fact, Heritage notes that a challenge to the Supreme Court on this point — almost certain to occur quickly — would expose the lack of foundation for Congress’ claim to jurisdiction in this matter.  The Court would have to agree to carve out a mandate from whole cloth, not a terribly likely occurrence with the current justices:

Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service and, as this paper will explain, no decision or present doctrine of the Supreme Court justifies such a claim of power. Therefore, because this claim of power by Congress would literally be without precedent, it could only be upheld if the Supreme Court is willing to create a new constitutional doctrine. This memorandum explains why the two powers cited by supporters of this bill–the power of Congress to regulate interstate commerce and the power of Congress to tax–do not justify an individual mandate, even under the most expansive readings given these powers by the Supreme Court. …

The very reason why an unpopular health insurance mandate has been included in these bills shows why, if it is held unconstitutional, the remainder of the scheme will prove politically and economically disastrous. Members need only recall how the Supreme Court’s decision in Buckley v. Valeo–which invalidated caps on campaign spending as unconstitutional, while leaving the rest of the scheme intact–has created 30 plus years of incoherent and pernicious regulations of campaign financing and the need for repeated “reforms.” Only this time, the public is aligned against a scheme that will require repeated unpopular votes, especially to raise taxes to compensate for the absence of the health insurance mandate.

These political considerations are beyond the scope of this paper, and the expertise of its authors. But Senators and Representatives need to know that, despite what they have been told, the health insurance mandate is highly vulnerable to challenge because it is, in truth, unconstitutional. And political considerations aside, each legislator owes a duty to uphold the Constitution.

They also need to explain a portion of the bill found in section 5000 by Michael W at QandO, as well as at Daily Kos.  On page 340, Section 5000A(g)(1) explains how the penalties shall be enforced for those who choose not to comply with the mandate to carry “minimum essential coverage.”  In short — they won’t be enforced at all:

(2) SPECIAL RULES.—Notwithstanding any other provision of law—
‘‘(A) WAIVER OF CRIMINAL PENALTIES.— In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
‘‘(B) LIMITATIONS ON LIENS AND LEVIES.—The Secretary shall not—
‘‘(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or
‘‘(ii) levy on any such property with respect to such failure.

In other words, this is a voluntary mandate — at least for now.  The IRS can fine you for flouting the minimum-coverage mandate, but if you refuse to pay, they can’t do anything about it.  They can’t fine you, prosecute you, or even put a lien against your earnings or property.  They apparently can still send you angry letters, but they’ll have the same impact as deadlines on the Iranian nuclear-weapons program.

Of course, it may not always remain a voluntary mandate.  What Congress passes today can be modified tomorrow (or perhaps not, considering Reid’s attempt to impose an out-of-order-in-perpetuity sign on the bill).  They can later amend this section to remove this language, unleashing the IRS on the public.  In its present form, however, it doesn’t actually mandate anything, which means that the insurance companies will not get the flood of young, healthy people into its risk pool to subsidize everyone else’s premiums, and that will mean skyrocketing insurance costs thanks to the new must-insure mandates which decidedly do exist in this bill.

Update: Matt Lewis reports that Sens. Lindsey Graham and DeMint have asked the South Carolina Attorney General to investigate Harry Reid’s buyoffs in the ObamaCare bill.  I doubt that much will come of it, but it’s worth watching.

Update II: Apparently I left my irony sliced a little too thin.  There is no such thing as a “voluntary mandate,” of course, which was my point.  If the bill blocks prosecution and fine collection for this mandate, then the mandate doesn’t exist.  And Democrats will absolutely remove this section in a year or two when they can schedule another midnight vote, which will make it a very real mandate then.

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The commerce clause deals with business, not individuals. It shouldn’t apply at all.

Itchee Dryback on December 22, 2009 at 3:51 PM

Read Wickard v. Filburn and or follow this link.

DrW on December 22, 2009 at 5:32 PM

This also appears to contain a bill of attainder by being taxed.

SnKArcbound on December 22, 2009 at 5:53 PM

Did you grow up in Omaha?

OmahaConservative on December 22, 2009 at 3:28 PM

You better believe it! American by birth, Husker by the grace of God! ;}

Dark-Star on December 22, 2009 at 5:57 PM

au contrair, dark-star….soon you’ll ALL be farming..if you want to eat, that is.

gordo on December 22, 2009 at 3:39 PM

We’re better off than many, we don’t have to live in a neighborhood with postage-stamp ‘yards’ and actually know a thing or two about growing something besides flowers or Mary Jane. Although I don’t know how far the produce would go for a family of seven even if our back AND front yards became oversized gardens, it sure wouldn’t hurt.

Dark-Star on December 22, 2009 at 5:59 PM

The Ronin Edge on December 22, 2009 at 6:27 PM

We’re not Europe. While there’s no guarantee freedom and liberty will prevail here, the battle is far from over. However, no man alone can win it. The patriotic thing to do is to join with others of like mind where your contribution will be useful rather than wasted.

Have you been to a Tea Party?

FloatingRock on December 22, 2009 at 6:56 PM

The Ronin Edge on December 22, 2009 at 6:27 PM

I hope your post is not serious. If it is, it is so sad that things are coming to this.

God bless you either way.

BierManVA on December 22, 2009 at 7:08 PM

Why did Americans fight to be free from a strong nation like Great Britain? Excessive taxation. Politicians who were not responsive to local needs. A strong central government that ruled arbitrarily, or worse, in its own interests. Sound familiar?

Thank you. I made this my Facebook status to shake up the liberals. They like to stop by and tell me I am selfish, egotistical, meeeeeeeean and all the usual smears. Yet, they never touch a status that brings history – actual history or facts – into play. I\’ve asked over and over but not one can tell me where in the Constitution they\’re guaranteed health care. One tried to end the argument by saying \”Okay, you can keep your guns and I can keep my health care, alright?\” Sometimes they make it too easy.

citrus on December 22, 2009 at 7:44 PM

But taxes aren’t allowed to target specific populations. It’d definitely be unconstitutional to levy a $500 tax on anyone who does not have health insurance. My guess is that they’d use the EPA or some other agency to declare the lack of insurance to be a “public health hazard” and levy a fine.

hawksruleva on December 22, 2009 at 2:59 PM

There is a legal method for accomplishing the same goal, but they would be loath to do it, as it would poke a glaring hole in their tax claims.

The way to do this is to raise a general tax, in the form of a capitation tax (which is legal so long as it is apportioned in accordance with the census), and then to offer a refundable tax credit to those who can demonstrate that they are carrying insurance which meets the guidelines they want to set.

This is politically unpalatable, as we currently have no capitation taxes in effect, and this would likely be seen as a radical change to current taxation strategy. That would shed huge, constant and ongoing attention on the taxation aspect of the mandate.

But it would technically be both legal and constitutional, I believe, in that particular form.

VekTor on December 22, 2009 at 8:15 PM

I believe the Senate has unchecked power to adopt an opinion of the constitutionality of a measure that is binding on Senators regarding their own motions. That is, the Senate may declare a Senate proposal dead because it is unconstitutional for the Senate to pass it. I think that’s actually essential to abide their oath of office.

I agree with Jimbo and Skywise that this penalty and mandate is not dead at all. Specifically, if you owe a $750 fine, there is no bar to civil or administrative penalities accruing…nor to levy, lien or prosecution for dodging those penalties plus interest. If you skip paying the $750 for five years then they might come after you for a whopping bill, seize your cars, garnish your wages, get you a felony conviction with a suspended sentence–except the $3750.00 specifically exempted by statute.

Chris_Balsz on December 22, 2009 at 9:01 PM

The problem here is that if the bill passes, but only the individual mandate is ruled unconstitutional, you can expect it to only hasten the left’s nocturnal emission of single payer. I’m an analyst for a major health insurance company and can tell you that if pre-existing condition clauses are outlawed, and there is no individual mandate, then people will just wait until they get sick, which will cause plan costs to skyrocket, and drive us out of business as our the number of sick vs. healthy individuals in a plan will jump in the wrong direction.

You can bet no congress will allow pre-existing conditions to become legal after they’re banned, it’s like attacking the handicapped, it’s just not something most politicians can even appear to do without risking their career.

Welcome to the machine my friends. Once this bill hits the desk of dear leader, we better hope that we can pull out massive victories in 2010 and 2012 so we can repeal this whole thing…

FireDrake on December 22, 2009 at 10:50 PM

The Ronin Edge on December 22, 2009 at 6:27 PM

Read: “My mom said I can’t post on HA anymore.”

crr6 on December 22, 2009 at 11:18 PM

This thing is passing one way or another. Polls DO NOT MATTER anymore. The GOP is constantly being lapped by the Dems.


LordMaximus on December 22, 2009 at 2:27 PM

I disagree…the dems have brute force but Republicans have the people on this…the real issue is, how long can the dems rule without the people…

The GOP needs to spend every day and every minute from now to election hammering the issues of unrestrained tyrannical power by the dems…Forget politeness…slam the buggers. The people will rewrd the GOP next November.

JIMV on December 22, 2009 at 11:18 PM

Remember folk, any law is Constitutional until a Judge says it isn’t and the dems have a long history of finding corrupt Judges.

JIMV on December 22, 2009 at 11:20 PM

Sarah Palain has a new facebook post up mentioning this new rule DeMint points out.
Palin calls them all out.
Boom, taste her nightstick!

lonestar1 on December 22, 2009 at 11:40 PM

lonestar1 on December 22, 2009 at 11:40 PM

Superb article. I like how she used the term “bend to cost curve”.

The Palin article should be a thread. It is timely and super critical.

Geochelone on December 22, 2009 at 11:50 PM

Geochelone on December 22, 2009 at 11:50 PM

“bend the cost curve”

Geochelone on December 22, 2009 at 11:51 PM

Washington has stopped listening to us. But we’re paying attention, and 2010 is coming.

Great line. She’s got some good writer(s) working for her. Don’t pin all your hopes on an election, though. It’s going to take a lot more than just a change of personnel in D.C. to straighten out this country. Ideas drive history in the long run and the country has been on a slide for over 40 years now. Change the culture. Throw out all Progressive ideas from the past century from the ground up, not just the politics.

JDPerren on December 22, 2009 at 11:58 PM

If this ever does get to SCOTUS, it’s a slam dunk for the good guys…and gals, of course.

Goldy1 on December 23, 2009 at 12:03 AM

The Ronin Edge on December 22, 2009 at 6:27 PM

Ronin, I hope you are kidding and if so, please don’t. The 10th anniversary of my dear friend who did this just passed and he devastated many lives by doing so, mine included. The pain that I feel will always be raw.

Is there any way Ed or Allah can track this guy to make sure he is OK? I am worried sick now.

margategop517 on December 23, 2009 at 12:26 AM

Is anyone else freaking out with Ronin’s post? I am beside myself with worry. It’s been 7 hours since he posted this and I am really, really, really freaking out about this.

margategop517 on December 23, 2009 at 1:16 AM

Come on, someone has to still be awake! I can’t sleep because I am worried about Ronin. Allah are you up? I have to be up early tomorrow and I am not sure what to do about this. Too many bad and horrific memories are coming back to me with my friends suicide and I want to make sure Ronin doesn’t do something that is going to hurt him and his family and his friends with a pain you will never forget. I still think back ten years ago and wonder what I could have done differently. I am truly sick with worry over this. Sorry everyone, but once you live through something as painful and horrific as suicide, you don’t want anyone else to go through that pain.

margategop517 on December 23, 2009 at 2:08 AM


Liberals don’t care.

It sounds strange, but it’s the truth.

scotash on December 23, 2009 at 3:21 AM

SCOTUS now let them argue it before the courts instead of behind locked doors!

shov74 on December 23, 2009 at 7:16 AM

Does this mean that we can choose to go to jail if we want?

d1carter on December 22, 2009 at 2:35 PM

No, they would rather just fine you. How can they soak you if you’re sitting in jail, silly?

SagebrushPuppet on December 23, 2009 at 7:54 AM

The IRS can fine you for flouting the minimum-coverage mandate, but if you refuse to pay, they can’t do anything about it.

The IRS can do whatever it wants, bill or no bill. If they don’t collect the fine, they’ll just pile on the interest and penalties.

SagebrushPuppet on December 23, 2009 at 7:56 AM

The Ronin Edge on December 22, 2009 at 6:27 PM

what? don’t you realize what is going on? you should read the back of The Book.

thats way over the top. you need to get a grip…you’re letting the libs defeat you. and violence from people like you is just the excuse they’re looking for.

this country hasn’t been that free for a long time, and our founders wouldn’t recognize it for a long time now. this is just more of the same.

right4life on December 23, 2009 at 7:56 AM

Why chip around the edges? 99% of what congress does is unconstitutional.

Section 8 – Powers of Congress:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


I don’t understand why any bill that passes containing authority that isn’t at least inferred among these powers isn’t immeately challenged in the Supreme Court.

Akzed on December 23, 2009 at 9:02 AM

Time for the Democrats to start including health provisions in their bill specifically for Supreme Court Justice Kennedy. Thats the way this administration works..

tflst5 on December 23, 2009 at 9:10 AM

When you have a “living breathing” Constitution, it means anything liberals want it to mean. Of course liberals are going to say it’s Constitutional to force people to buy insurance and to fund Nebraska and Nebraska only for Medicare costs. Why? Because they say so. Now shut up and pay your taxes. Dissent is patriotic only when liberals are out of power.

olesparkie on December 23, 2009 at 9:32 AM

To understand what needs to be done for us to regain U.S., I suggest just two key articles be reviewed and their contents digested. First the Heritage Article linked in this blog, and a piece written by ‘Said Me’ in Michelle Malkin’s site on December 12th. which succinctly outlines the functions we have allowed the Federal Government to carry out on our behalf. All other laws or functions are left to the States.

It are these enumerated powers that must be reviewed, and renewed to regain our control over our out of control government.

Be responsible and take back your rights and quit letting government taking them away, least Government controls you.

MSGTAS on December 23, 2009 at 9:39 AM

Read Wickard v. Filburn and or follow this link.

DrW on December 22, 2009 at 5:32 PM

How does that apply? That case had to do with a product that could be sold by an individual for individual profit..about 32,000 lbs of wheat.

How does that draw a parallel to an individual being forced to buy a product?

Apples to oranges imo.

Itchee Dryback on December 23, 2009 at 10:00 AM


And the Heritage Foundation isn’t really non-partisan.

Jimbo3 on December 22, 2009 at 2:50 PM

Good points.

Whats the penalty if an individual willfully refuses to comply with the IRS system? I think the IRS collection techniques could be applied without having anything whatsoever to do with the any untimely payment of what is owed…at least, it wouldn’t surprise me if they could intimidate a citizen with the threat. And they are very much about intimidation imo.

Itchee Dryback on December 23, 2009 at 10:19 AM

Ok, it’s the next day & no one said anything about Ronin. I thought I was going to stroke out last night after reading his distraaught post. Someone please let me know as one Christmas sucide memory is enough. We have to help him.

& no one is sayu

margategop517 on December 23, 2009 at 1:19 PM

We have to help him.

margategop517 on December 23, 2009 at 1:19 PM

I doubt anyone who isn’t family or very close friend will be able to change Ronin’s mind.

Dark-Star on December 23, 2009 at 2:41 PM

What’s to say? He chose not to use his real name.

Chris_Balsz on December 23, 2009 at 5:02 PM

The Senate just voted to table Jim DeMint’s proposed amendment.

RushBaby on December 23, 2009 at 5:30 PM

No I think it does too. I was just correcting the erroneous suggestion that Congress has no right to circumvent the SCOTUS’ appellate jurisdiction. They most certainly do and that much is as close to settled law as you can find.

russcote on December 22, 2009 at 4:15 PM

I just read an excerpt from the bill on the Palin thread…

It appears the senate is well aware of this power because they have written in a provision that decisions of the “Death Panel” (just to tweak noses) will be sacrosanct….

And let’s not forget that Section 323 of the House version of the bill reads:

(c) “Limitations on Review-There shall be no administrative or judicial review of a payment rate or methodology established under this section or under section 324.”

So even the U.S. Supreme Court will be forbidden from questioning any decision of the Death Panel.

snopercod on December 23, 2009 at 12:02 PM

Fighton03 on December 23, 2009 at 6:19 PM

Once I posed a question here to Ed & he sent me a personal e-mail. I didn’t put my e-mail address in the post so I know that someone at Hot Air can at least try to contact Ronin. I cried all night to my husband & all day wanted to call the police. I am trying not to over react but I am really shaken by this. It reminds me of the night of my friend’s birthday, waiting for our friend Ronnie to show. He never did though I called all night. 3:00 AM the phone did ring and his brother found him dead, with a gunshot to the head. Those guys were five brothers to us as we grew up together. We didn’t have brothers & they didn’t have sisters so we did everything together from climbing trees to first dates to college, marriage, etc. I watched all of us suffer & I was there a few weeks after when his mother locked herself in the bathroom with a knife trying to kill herself & this was not a family filled with insanity. This was a family I knew since childhood whose family was like our family. They lived in our neighborhood. Those five boys were not only like our brothers but were our best friends. When our mom died unexpectedly when we were in college when she was only 52, they wept with us, held our hands & stayed with us to let us cry through many a night. I don’t want Ronin or his family to go through that. It still hurts that my gorgeous big brother/friend would put a gun to his head. He had the world at his feet. He was the nicest, funniest, most handsome guy. Other girls used to buy us drinks if we would introduce them to him.

Someone please tell me there is a way to have someone at Hot Air to figure out who Ronin is and if he did something tragic. And it’s not just Ronin, but his post allude to suicide by cop, and that’s not just my emotions talking. I read that to my extremely level-headed husband and he thought the same thing.

Please someone tell me what to do here. I am really scared for him & others around him.

margategop517 on December 23, 2009 at 6:59 PM

Please someone tell me what to do here. I am really scared for him & others around him.

margategop517 on December 23, 2009 at 6:59 PM

Unless you’re ready and willing to call the police or the men in white coats on Ronin, the only way you can help is to pray. He’s the type that won’t be stopped except by superior force. Unfortunately, the kind he’s about to face will likely be permanently hazardous to not only his health, but to any poor soul who gets caught in the crossfire.

Dark-Star on December 23, 2009 at 8:23 PM

Oooh, if this should by some insane or inane reasoning be considered constitutional, what will happen if a conservative Congress forced everyone to buy a firearm?

desertdweller on December 23, 2009 at 11:47 PM