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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Consti-what?

/Dems

mankai on December 22, 2009 at 2:25 PM

Abortion isn’t in the Constitution either.
But they still magically ‘interpreted’ to be a Constitutional right.
Nice try.
But the fox is guarding the henhouse here.

Badger40 on December 22, 2009 at 2:25 PM

“voluntary mandate”…?

d1carter on December 22, 2009 at 2:25 PM

What is this Constitution DeMint is talking about?

In the words of Harry Reid…The War is Lost

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

O

LordMaximus on December 22, 2009 at 2:27 PM

The Senate will vote tomorrow on the bill’s constitutionality.

We’re doomed.

NoFanofLibs on December 22, 2009 at 2:27 PM

The phrase “voluntary mandate” doesn’t even make sense.

uknowmorethanme on December 22, 2009 at 2:27 PM

Please, please, PLEEEEEEEEEZZEEE send me to jail for not accepting this crap sandwich! I’ll make a million dollars telling my story!

CurtZHP on December 22, 2009 at 2:27 PM

They’ll just vote to shut DeMint up, so what’s the point?

Knucklehead on December 22, 2009 at 2:27 PM

How much money is it going to take to buy off the parliamentarian?

Red Cloud on December 22, 2009 at 2:27 PM

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.

It is frankly unconstitutional for the Senate to vote on somethings ‘constitutionality’. That is solely the domain of the Supreme Court.

Mr. Bingley on December 22, 2009 at 2:28 PM

“voluntary mandate”…?

d1carter on December 22, 2009 at 2:25 PM

Yeah, you know, like Medicare and Income Tax contributions.

Fletch54 on December 22, 2009 at 2:29 PM

What are the skeletons in DeMint’s closet? Every time I hear about him, he seems to be standing up for conservatism and doing the right things. But nobody ever talks about him as a candidate for President. Why not?

hawksruleva on December 22, 2009 at 2:30 PM

Oh shut up Ed. We are trying to derail the communist takeover and you are haggling about details? Do you have a better plan? At least DeMint is doing something. If this was about the Dems, they would all latch onto the target whether it’s justified or not and fire their artillery. And here we are shooting ourselves.

promachus on December 22, 2009 at 2:30 PM

McConnel’s already done a deal with Reid so that everyone can get on their merry way home to enjoy a passionate moment under the mistletoe with their wife mistress

gatorboy on December 22, 2009 at 2:31 PM

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.

nah nah nah…

The fine stands. They can’t ADDITIONALLY fine/punish you for not paying that fine nor can they bring you in for not paying THIS fine. But they CAN force you to pay the additional fine if the IRS brings you in on something else.

(Back to the seatbelt laws… because in Indiana the original seatbelt laws were written the same way. You couldn’t be fined or pulled over for not wearing your seatbelt… but if you were pulled over for something else and not wearing your seatbelt…then you got fined. 15 years later they changed the law so that people could be pulled over for not wearing a seat belt because “people just weren’t getting the message”. That immediately stopped seat belt checkpoints… Papers citizen?)

No, this is a very real penalty.

Skywise on December 22, 2009 at 2:31 PM

This country is insane. Now, who is going to rule on the constitutionality of the provision . . . why of course, the same fools that are sponsoring the legislation. Why don’t we just open our hand, slap ourselves in the forward with an open palm and move on to the next ridiculous action?

rplat on December 22, 2009 at 2:31 PM

CMon Ed, you don’t really believe that “volunary mandate” crap will stick in there, do you?

Bruce NV on December 22, 2009 at 2:31 PM

What are the skeletons in DeMint’s closet? Every time I hear about him, he seems to be standing up for conservatism and doing the right things. But nobody ever talks about him as a candidate for President. Why not?

hawksruleva on December 22, 2009 at 2:30 PM

I think he’ll be our nominee – in fact if I had money I would put it down on Intrade right now.

gophergirl on December 22, 2009 at 2:32 PM

Of course, it may not always remain a voluntary mandate.

Really, Ed? C’mon. You tend to give the democrat socialists way too much leniency.

SouthernGent on December 22, 2009 at 2:32 PM

Perversely, but not enforcing the mandate, Congress sets up a situation that will kill the insurance companies. If you can get insurance for a pre-existing condition, then why pay for insurance before you need it?

I thought insurance was about risk. But insuring pre-existing conditions isn’t about unknowns, it’s about knowns. What’s the risk of getting cancer if you’ve already got cancer? Conversely, what’s the risk to having no insurance if there’s no risk of being denied coverage?

hawksruleva on December 22, 2009 at 2:32 PM

irk..

sorry “That immediately started seat belt checkpoints”

Skywise on December 22, 2009 at 2:32 PM

“They can later amend this section to remove this language, unleashing the IRS on the public.”

HA HA HA HA….. Very Funny!

Our elected politicians would NEVER do that, silly.

Did you see that American Idol starts next month?

Seven Percent Solution on December 22, 2009 at 2:33 PM

How can a mandate be voluntary? That makes no sense.

Joe Caps on December 22, 2009 at 2:33 PM

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

d1carter on December 22, 2009 at 2:35 PM

It is frankly unconstitutional for the Senate to vote on somethings ‘constitutionality’. That is solely the domain of the Supreme Court.

Not at all. All branches of government have the authority to self-check itself against it’s constitutional mandates.

Spirit of 1776 on December 22, 2009 at 2:35 PM

this is the soft point of obamacare. If conservatives destroy this Marxism is dead in USA

unseen on December 22, 2009 at 2:35 PM

Someone mentioned on another thread….isn’t this a clear violation of their oaths of office? To protect, and defend the constitution? Where is it written that they’re allowed to change, skirt, skew, override, overrule, topple, destroy, shred, and mangle the constitution?

If you break your oath, your job should be done. Go home, and don’t darken our doorsteps again.

capejasmine on December 22, 2009 at 2:36 PM

Socialism isn’t voluntary.

lorien1973 on December 22, 2009 at 2:37 PM

I’m sorry. Conservatives are like the proverbial frog in the pot of boiling water. We are just now thinking it’s time to jump, but it’s too late already. We’re screwed for a generation or sixteen. Look at the Russians. They had Stalin and Lenin and 80 years of communist oppression and they still don’t understand how freedom works. Now that 51% of the republic is on the government teat you think they are ever going to vote to turn it off?

Metanis on December 22, 2009 at 2:37 PM

How can a mandate be voluntary? That makes no sense.

Joe Caps on December 22, 2009 at 2:33 PM

Ask a liberal LOL They seem to be able to defacate on the American people, and call it a gift.

capejasmine on December 22, 2009 at 2:38 PM

The enforcement component of the mandate will not fall under the command of the IRS. That will be carried out by Americorps the Civilian National Security Force

Joe Caps on December 22, 2009 at 2:38 PM

Hahahahahahahahahaha!!!!!!!!!!!!! FREAKING FOOLS!

GarandFan on December 22, 2009 at 2:38 PM

Not at all. All branches of government have the authority to self-check itself against it’s constitutional mandates.

Spirit of 1776 on December 22, 2009 at 2:35 PM

Self-check, yes, but binding interpretations of constitutionality are the domain of the Supreme Court.

rplat on December 22, 2009 at 2:38 PM

It is frankly unconstitutional for the Senate to vote on somethings ‘constitutionality’. That is solely the domain of the Supreme Court.

Mr. Bingley on December 22, 2009 at 2:28 PM

The constitution does not provide for any body determining the constitutionality of laws. That power was usurp by SCOTUS via Marbury v. Madison.

I believe the founders thinking was that this form of government they created required moral people to run it. Thus, if those in government are not willing to follow through on their oath, it does not matter which arm of the government determines constitutionality.

WashJeff on December 22, 2009 at 2:38 PM

The enforcement component of the mandate will not fall under the command of the IRS. That will be carried out by Americorps the Civilian National Security Force

Joe Caps on December 22, 2009 at 2:38 PM

Oh come now, let’s call it by its proper name . . . “Gestapo”.

rplat on December 22, 2009 at 2:39 PM

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.

So, why is it in there? Like so many of our laws,…selectively enforced based on whim? I’m assuming if an enforcement attempt was made, the ensuing defense cost to the defendant would be prohibitive, so it becomes a valuable tool for government use to flog those not in compliance, even if no legal penalty is assessed.

a capella on December 22, 2009 at 2:39 PM

Self-check, yes, but binding interpretations of constitutionality are the domain of the Supreme Court.

rplat on December 22, 2009 at 2:38 PM

Hence not unconstitutional.

Spirit of 1776 on December 22, 2009 at 2:40 PM

An ice storm is coming. Some of the Republicans don’t want to get stuck in D.C. for Christmas fighting for freedom.

So Mitch McConnell and Harry Reid have agreed not just to vote on the health care package on Thursday morning, but also to lift the debt ceiling.

Then they’ll fly home.

Yes, the GOP got the Democrats to go to Christmas Eve. But only for show and face saving.

The GOP will vote against the health care package having not run out the clock, and then they’ll help the Democrats raise the debt ceiling.

Two blows for freedom with Mitch McConnell’s cooperation.

Redstate. It’s over?

Wethal on December 22, 2009 at 2:41 PM

Time to start preparing to “Go Galt” next year.

We just need to find our John Galt first. Too bad most of the big tech/smart people are all Libs whose principles are mutable for the right price.

Neo on December 22, 2009 at 2:41 PM

Related Headline: Foxes to vote on security of henhouse.

LibTired on December 22, 2009 at 2:42 PM

Hence not unconstitutional.

Spirit of 1776 on December 22, 2009 at 2:40 PM

Yes.

rplat on December 22, 2009 at 2:43 PM

I don’t know a whole lot about Mr. Demint….BUT, man do I love his decision to go down fighting. I am tired of sissy pols that just let the Dems get away with their assault on our liberties. We need more like him!

search4truth on December 22, 2009 at 2:43 PM

It is frankly unconstitutional for the Senate to vote on somethings ‘constitutionality’. That is solely the domain of the Supreme Court.

Mr. Bingley on December 22, 2009 at 2:28 PM

Ummm….no. The power of judicial review is solely an assumed power. However, the precedent set by a senatorial vote on what is ‘constitutional’ has the ability to shake up that precedent a bit.

Fighton03 on December 22, 2009 at 2:44 PM

have asked the South Carolina Attorney General to investigate Harry Reid’s buyoffs in the ObamaCare bill.

What can the SC AG do to smelly dingy harry?

OmahaConservative on December 22, 2009 at 2:44 PM

so the senate says it’s constituation or not doesn’t make it so…

Is DeMint really dense to think that it matters what the Senate ‘votes’ regarding whether something is constituation or not?

Last I checked, that power was reserved to the SCOTUS… then again, maybe our dynamic executive/legistative duo has changed that in the dark of night.

gatorboy on December 22, 2009 at 2:45 PM

It is frankly unconstitutional for the Senate to vote on somethings ‘constitutionality’. That is solely the domain of the Supreme Court.

Mr. Bingley on December 22, 2009 at 2:28 PM

While congress may “self-check” with a vote on constitutionality and the SCOTUS actually determines consitutionnality, Article III, Section 2 of the Consitution grants congress authority to determine what kinds of cases the Supreme Court may or may not have jurisdiction over. The Congress decides, from the subject-matter specified in Article Three, what jurisdiction the federal courts will have.

Am I way far out here, or could congress strip the SCOTUS of jurisdiction over health care matters?

Trafalgar on December 22, 2009 at 2:45 PM

In other words, this is a voluntary mandate — at least for now.

It’s a voluntary fine? WTF? The devil is always in the details and there’s thousands of pages no one has read. I bet there’s more to this than we know. A penalty you can ignore is not a penalty at all, so I suspect they’re hiding something.

Erich66 on December 22, 2009 at 2:45 PM

The msm will just call Demint’s tactic racist. Would that make me a racial constitutionalist or constitutional racist?

ConservativeTony on December 22, 2009 at 2:46 PM

Jews and Christians have supreme respect for words because their scripture is God’s word and the final say in all matters. Now that religion has been minimized in our American culture we no longer have respect for the constitution either. Libs simply don’t have a culture of respecting the written word, ie law. There’s is a culture where words simply meet the needs of the moment and nothing more.

Mojave Mark on December 22, 2009 at 2:46 PM

I don’t know a whole lot about Mr. Demint….BUT, man do I love his decision to go down fighting. I am tired of sissy pols that just let the Dems get away with their assault on our liberties. We need more like him!

search4truth on December 22, 2009 at 2:43 PM

Agree. If we would have had real fighters two years ago we may have avoided the sorry position we’re currently in.

rplat on December 22, 2009 at 2:47 PM

What force of law would this DeMint vote provide? Suppose the Senate vote shows that the ObamaCare clause is Constitutional. Does that mean the SCOTUS would defer, since the Senate specifically said it was Constitutional?

Is DeMint usurping the power of Judicial Branch by pre-supposing the Senate decides what is and what is not Constitutional?

Bad play, DeMint. Lets’ call it a line fault on first serve.

BobMbx on December 22, 2009 at 2:47 PM

What about Christian Scientists and others whose religious beliefs require them to reject traditional health care? Won’t the mandate/fine be an impermissible government intrusion into their religious beliefs?

LASue on December 22, 2009 at 2:48 PM

so the senate says it’s constituation or not doesn’t make it so…

Is DeMint really dense to think that it matters what the Senate ‘votes’ regarding whether something is constituation or not?

Last I checked, that power was reserved to the SCOTUS… then again, maybe our dynamic executive/legistative duo has changed that in the dark of night.

gatorboy on December 22, 2009 at 2:45 PM

DeMint is doing whatever he can to stop this thing. Isn’t that what we all want?

gophergirl on December 22, 2009 at 2:48 PM

It is frankly unconstitutional for the Senate to vote on somethings ‘constitutionality’. That is solely the domain of the Supreme Court.

Mr. Bingley on December 22, 2009 at 2:28 PM

The constitution does not provide for any body determining the constitutionality of laws. That power was usurp by SCOTUS via Marbury v. Madison.

I believe the founders thinking was that this form of government they created required moral people to run it. Thus, if those in government are not willing to follow through on their oath, it does not matter which arm of the government determines constitutionality.

WashJeff on December 22, 2009 at 2:38 PM

I believe that the Veto was originally viewed as the arbiter of constitutionality.

Fighton03 on December 22, 2009 at 2:49 PM

Bad play, DeMint. Lets’ call it a line fault on first serve.

BobMbx on December 22, 2009 at 2:47 PM

So you would rather he gives up? This is one Senator with some balls and guts. I applaud him for doing everything he can think of – regardless of how absurd it may seem.

At least he’s trying.

gophergirl on December 22, 2009 at 2:49 PM

They’ll just vote to shut DeMint up, so what’s the point?

Knucklehead on December 22, 2009 at 2:27 PM

When challenging a law as unconstitutional, it’s helpful to have had its unconstitutionality challenged on the legislative record prior to its passage, even though the argument was lost.

Sometimes it’s persuasive that a warning was provided early on.

TXUS on December 22, 2009 at 2:49 PM

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.

Better start building more prisons.

FireBlogger on December 22, 2009 at 2:49 PM

It is frankly unconstitutional for the Senate to vote on somethings ‘constitutionality’. That is solely the domain of the Supreme Court.

Mr. Bingley on December 22, 2009 at 2:28 PM

Correct, but it will be fun to watch the Democrats make that argument after bringing McCain’s natural-born citizenship status to the senate floor last year.

Buddahpundit on December 22, 2009 at 2:50 PM

Is DeMint usurping the power of Judicial Branch by pre-supposing the Senate decides what is and what is not Constitutional?

BobMbx on December 22, 2009 at 2:47 PM

No, I think what he’s doing is forcing senators to go on record with what they think of the Constitution and their power to over-ride it..

Trafalgar on December 22, 2009 at 2:50 PM

‘‘(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.

–Those are criminal penalties being waived, not civil penalties. Here are some civil penalties that can still be assessed:

Filing late. If you do not file your return by the due date (including extensions), you may have to pay a failure-to-file penalty. The penalty is based on the tax not paid by the due date (without regard to extensions). The penalty is usually 5% for each month or part of a month that a return is late, but not more than 25%.

Fraud. If your failure to file is due to fraud, the penalty is 15% for each month or part of a month that your return is late, up to a maximum of 75%.

Return over 60 days late. If you file your return more than 60 days after the due date or extended due date, the minimum penalty is the smaller of $100 or 100% of the unpaid tax.

Paying tax late. You will have to pay a failure-to-pay penalty of 1/2 of 1% of your unpaid taxes for each month, or part of a month, after the due date that the tax is not paid.

Accuracy-related penalty. You may have to pay an accuracy-related penalty if you underpay your tax because of either “negligence” or “disregard” of rules or regulations, or you substantially understate your income tax.

The penalty is equal to 20% of the underpayment.

Substantial understatement of income tax. You understate your tax if the tax shown on your return is less than the correct tax. The understatement is substantial if it is more than the larger of 10% of the correct tax or $5,000.

——————–

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

Jimbo3 on December 22, 2009 at 2:50 PM

In the words of Harry Reid…The War is Lost

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

Hey, at least we purged most of the RINO’s… We have some rock-ribbed republicans now who are getting plowed over by the super majority of democrats.

Conservatives are like the proverbial frog in the pot of boiling water. We are just now thinking it’s time to jump, but it’s too late already.

Metanis on December 22, 2009 at 2:37 PM

So we probably shouldn’t have embraced the idiotic plunging the frog into boiling water concept after all.

Boxy_Brown on December 22, 2009 at 2:51 PM

Sometimes it’s persuasive that a warning was provided early on.

TXUS on December 22, 2009 at 2:49 PM

Yeah. I think it’s a good move.

Spirit of 1776 on December 22, 2009 at 2:51 PM

I don’t understand why people are bitching about his actions. So what if they just vote to shut him up. Make enough stink and even the communist media will have to cover it. I don’t know about anyone else…but I want to go down fighting. You can cower in a corner if you want, but we have watched too many freedoms evaporate in silence. To quote Top Gun…”I WANT SOME BUTTS!!!!!!”

search4truth on December 22, 2009 at 2:52 PM

What are the skeletons in DeMint’s closet? Every time I hear about him, he seems to be standing up for conservatism and doing the right things. But nobody ever talks about him as a candidate for President. Why not? hawksruleva on December 22, 2009 at 2:30 PM
I think he’ll be our nominee – in fact if I had money I would put it down on Intrade right now. gophergirl on December 22, 2009 at 2:32 PM

Yes! I have been thinking that for the last couple of weeks (a DeMint/L.Cheney ticket?) but hesitated to say anything because that always brings out the eeyores and bashers. But I’m with you.

LASue on December 22, 2009 at 2:52 PM

What can the SC AG do to smelly dingy harry?

OmahaConservative on December 22, 2009 at 2:44 PM”

I think we’re in some murky water here but if any politician, regardless of his position, violates the laws of a sovereign state they can be prosecuted. Tom Delay is but one example.

rplat on December 22, 2009 at 2:52 PM

gatorboy on December 22, 2009 at 2:45 PM

It is frankly unconstitutional for the Senate to vote on somethings ‘constitutionality’. That is solely the domain of the Supreme Court.

Mr. Bingley on December 22, 2009 at 2:28 PM
Trafalgar on December 22, 2009 at 2:45 PM

Federalists 78 written by Hamilton seems to imply that the constitution intended to give the SCOTUS the power of judicial review, but Hamilton puts the caviot that ultimately it is up to the people.

WashJeff on December 22, 2009 at 2:52 PM

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

Jimbo3 on December 22, 2009 at 2:50 PM

And neither is anything about this legislation.

highhopes on December 22, 2009 at 2:53 PM

While congress may “self-check” with a vote on constitutionality and the SCOTUS actually determines consitutionnality, Article III, Section 2 of the Consitution grants congress authority to determine what kinds of cases the Supreme Court may or may not have jurisdiction over. The Congress decides, from the subject-matter specified in Article Three, what jurisdiction the federal courts will have.

Am I way far out here, or could congress strip the SCOTUS of jurisdiction over health care matters?

Trafalgar on December 22, 2009 at 2:45 PM

Art. III, sect 2 does not allow Congress to prohibit any case from being heard by SCOTUS. It establishes SCOTUS as an appellate court except:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.

Congress has no power to restrict any case from the SCOTUS.

BobMbx on December 22, 2009 at 2:53 PM

Yeh but isn’t this gonna set up a showdown with Nancy’s $250,000 fine and 5 years in jail for “willful” failure to pay the penalty? That provision wasn’t removed from the House bill was it?

Keep fighting Jim.

russcote on December 22, 2009 at 2:54 PM

As others have noted…DeMint is doing what he can to buy time, to stave off ObamaCare, and for that I’m grateful.

JeepGirl on December 22, 2009 at 2:54 PM

Is DeMint usurping the power of Judicial Branch by pre-supposing the Senate decides what is and what is not Constitutional?

BobMbx on December 22, 2009 at 2:47 PM

I would think Congress has a duty to ONLY pass laws that it thinks Constitutional. They’re sworn to uphold the Constitution, after all. You’re saying that they should ignore the potential legality or illegality of their laws, because it’s “not their department”?

In that case, they could just pass a law saying “the Congressional seats of Democrats are now hereditary.” After all, they should do what they can do, and let the Supreme Court figure it out later, if they ever do rule on it.

hawksruleva on December 22, 2009 at 2:54 PM

(

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.

Am I missing something here? Because it seems like this bill will actually result in more uninsured. If you can just wait until you get really sick with heart disease or cancer and then are able to get insurance just like any healthy person, there is no incentive at all for anyone to actually buy insurance. When everyone finds out that there is, in fact, not just a small penalty for not having insurance, but no penalty whatsoever, people will actually start dropping insurance they already have.

WarEagle01 on December 22, 2009 at 2:55 PM

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

Jimbo3 on December 22, 2009 at 2:50 PM

Heritage is conservative\limited government. By extension they will, by default, be assocaited with the GOP. They are not an arm of the GOP, though.

How can the IRS collect the fines if, as it appears, they cannot place liens on property or income?

WashJeff on December 22, 2009 at 2:55 PM

I don’t know about anyone else….but I am tired of losing freedoms in silence. You raise enough stink and even the communist media will have to cover it. Open some minds? Maybe. But you go down fighting, not cowering in a corner. Time for the meek to step aside. To quote Top Gun: “I WANT SOME BUTTS!!!!!!!”

search4truth on December 22, 2009 at 2:55 PM

As others have noted…DeMint is doing what he can to buy time, to stave off ObamaCare, and for that I’m grateful.

JeepGirl on December 22, 2009 at 2:54 PM

Me too, even though it doesn’t go into effect until 2014… Why the rush Dem’s? Why the rush?

oh, never mind – it’s all a shell game – I get it.

gatorboy on December 22, 2009 at 2:55 PM

Here’s another gem that is probably unconstitutional: The Senate bill specifically excludes construction businesses from the small-business exemption from the employer mandate. Consstruction businesses with more than 5 employees will be required to provide health insurance to their employees. For every other kind of business, the threshold is 50 employees. This is a huge, job-killing, discriminatory mandate for only one industry in America.

rockmom on December 22, 2009 at 2:56 PM

It is definately getting interesting out there. At least someone (regardless of motivations) is willing to stand up and call a spade a spade.

TKSnider on December 22, 2009 at 2:56 PM

Congress has no power to restrict any case from the SCOTUS.

BobMbx on December 22, 2009 at 2:53 PM

That is absolutely false except where the Supreme Court has original jurisdiction in the provision you quoted. Congress can stop any appellate case from being heard by the Supreme Court.

russcote on December 22, 2009 at 2:56 PM

If it goes against them they will just change it from mandate to a tax.
Same thing, different name.

ouldbollix on December 22, 2009 at 2:56 PM

What are the skeletons in DeMint’s closet? Every time I hear about him, he seems to be standing up for conservatism and doing the right things. But nobody ever talks about him as a candidate for President. Why not?

hawksruleva on December 22, 2009 at 2:30 PM

Probably because he doesn’t want to be POTUS. Heck, he didn’t think he would win the Senate senate. But he did.

He’s a citizen legislator. He was a successful small business owner. He’s a lot like Palin.

Frankly, he’s doing yeoman’s work in the Senate, and as long as he will continue that’s where I want him. Is he POTUS material? Yeah, I think he is, but my definition is different. I want someone who plods along always looking out for Americans, not some dancing fool on American Idol. He may not excite an idiot public, but DeMint has my heart.

Cody1991 on December 22, 2009 at 2:56 PM

I’m glad to see DeMint doing something, pathetically useless as it may be.

Where the hell was he a couple of months ago when this was being talked about? As of now, I see this as posturing in the face of certain defeat.

MrScribbler on December 22, 2009 at 2:56 PM

The very same parliamentarian who allowed Bernie Sanders to interrupt the reading of his amendment, in order to withdraw same, will now announce that Senator Franken has the floor and Senator Demint is “out of order”. Sounds about right.

GoldenEagle4444 on December 22, 2009 at 2:57 PM

Can they garnish wages?

Or deduct the fine from your refund check?

Jon0815 on December 22, 2009 at 2:57 PM

What force of law would this DeMint vote provide? Suppose the Senate vote shows that the ObamaCare clause is Constitutional. Does that mean the SCOTUS would defer, since the Senate specifically said it was Constitutional?…BobMbx on December 22, 2009 at 2:47 PM

As someone else pointed out, this helps set the stage for the later challenge and, probably more importantly, it forces the senators to publicly declare their view on how this mandate is constitutional (they’ll all likely cite the commerce clause, but I don’t think that argument will hold water). At a minimum, they’ll have to go beyond Pelosi’s “are you serious” response.

LASue on December 22, 2009 at 2:57 PM

The last thing Obama wants is to have to defend anything in the US Supreme Court. It is the one entity he does not own. (yet)

He will have his minions fight to their death to kill this.

ConservativeTony on December 22, 2009 at 2:57 PM

Trafalgar:

Am I way far out here, or could congress strip the SCOTUS of jurisdiction over health care matters?

The issue was decided early in our history by the ruling in Marbury vs Madison. The case established the principal of judicial review, which grants the courts the power to decide if Federal laws violate the Consitution.

MJBrutus on December 22, 2009 at 2:58 PM

Jimbo3 on December 22, 2009 at 2:50 PM

If you read the whole thing, it says “or penalties” or “liens” – so beyond criminal prosecution, there are no penalties.

Secondly, it’s not a tax. Obama and democrats have said as much. It’ll be the basis of the constitutional challenge.

lorien1973 on December 22, 2009 at 2:58 PM

While congress may “self-check” with a vote on constitutionality and the SCOTUS actually determines consitutionnality, Article III, Section 2 of the Consitution grants congress authority to determine what kinds of cases the Supreme Court may or may not have jurisdiction over. The Congress decides, from the subject-matter specified in Article Three, what jurisdiction the federal courts will have.

Am I way far out here, or could congress strip the SCOTUS of jurisdiction over health care matters?

Trafalgar on December 22, 2009 at 2:45 PM

THAT is a very interesting read. Using that view, congress could strip the power of judicial review completely by simply passing legislation (that gets signed into law) requiring the SCOTUS to seek consitutional clarification from either/both of the other branches before rendering a decision.

Fighton03 on December 22, 2009 at 2:58 PM

We just need to find our John Galt first. Too bad most of the big tech/smart people are all Libs whose principles are mutable for the right price.

Yes but selling information doesn’t put any real goods on the table when the shit hits the fan. Manufacturing, energy production, and food production without unions will be what changes the new economy.

jukin on December 22, 2009 at 2:58 PM

Am I missing something here? Because it seems like this bill will actually result in more uninsured. If you can just wait until you get really sick with heart disease or cancer and then are able to get insurance just like any healthy person, there is no incentive at all for anyone to actually buy insurance. When everyone finds out that there is, in fact, not just a small penalty for not having insurance, but no penalty whatsoever, people will actually start dropping insurance they already have.

WarEagle01 on December 22, 2009 at 2:55 PM

Of course it will result in more uninsured people. I may drop my own insurance if this thing goes through; I can insure my kids for free under S-CHIP and take my chances with my own health until I need insurance. Anyone with half a brain will do the same. This will bankrupt all the insurance conmpanies in short order – which I have to conclude is exactly the goal here.

rockmom on December 22, 2009 at 2:58 PM

If it goes against them they will just change it from mandate to a tax.
Same thing, different name.

ouldbollix on December 22, 2009 at 2:56 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

I called the offices of both of my Republican Senators yesterday and got the feeling that they were ready to cave and go home. I was told that the votes to stop it just are not there. Thank God for DeMint, at least he is fighting for us.

farright on December 22, 2009 at 3:00 PM

The Congress decides, from the subject-matter specified in Article Three, what jurisdiction the federal courts will have.

Am I way far out here, or could congress strip the SCOTUS of jurisdiction over health care matters?

Trafalgar on December 22, 2009 at 2:45 PM

It’s a thought but the donks surely know they won’t be in control of Congress forever.

a capella on December 22, 2009 at 3:00 PM

The issue was decided early in our history by the ruling in Marbury vs Madison. The case established the principal of judicial review, which grants the courts the power to decide if Federal laws violate the Consitution.

MJBrutus on December 22, 2009 at 2:58 PM

Again, that’s not true. Judicial review does not preclude Congress from expressly cutting off any appellate review entirely by the Supreme Court. All Marbury says is that if a case gets there, they have the Constitutional right to review it and declare it good or bad.

russcote on December 22, 2009 at 3:00 PM

I doubt that much will come of it, but it’s worth watching.

at least 1 popcorn bowl full

cmsinaz on December 22, 2009 at 3:00 PM

For those you asking “where was Demint” before? Consider the fact that nobody even knew what the freakin bill said until Happy Harry came out of hiding, hours before the vote, and released the text. It’s impossible to make a Constitutional challenge if you haven’t read the bill!! You have to cite the verbiage and nobody knew what it said!

GoldenEagle4444 on December 22, 2009 at 3:00 PM

Congress has no power to restrict any case from the SCOTUS.

BobMbx on December 22, 2009 at 2:53 PM

Read on Bob….

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Fighton03 on December 22, 2009 at 3:00 PM

So you would rather he gives up? This is one Senator with some balls and guts. I applaud him for doing everything he can think of – regardless of how absurd it may seem.

At least he’s trying.

gophergirl on December 22, 2009 at 2:49 PM

Grasping at straws? Can’t think of anything else? What’s next, a series of b?mb threats at the Capitol to delay a vote?

I understand and support what he’s trying to do; I disagree with the way he’s doing it (a constitutionality vote in the Senate?) Use parlimentary procedure to disrupt and delay. Endless Points of Order. Lack of quorum. Spelling error amendments. Use the rules at hand.

BobMbx on December 22, 2009 at 3:01 PM

THAT is a very interesting read. Using that view, congress could strip the power of judicial review completely by simply passing legislation (that gets signed into law) requiring the SCOTUS to seek consitutional clarification from either/both of the other branches before rendering a decision.

Fighton03 on December 22, 2009 at 2:58 PM

They can’t do it now, because there isn’t any such provision in either the House or Senate bill, and they can’t add anything new in conference that isn’t in one bill or the other.

This is a serious “nuclear option” that neither party has ever really considered, though they certainly could do it anytime. A few conservatives had suggested this option for the Bush Administration to avoid Supreme Court jurisdiction over terrorist detainee issues. But even Dick Cheney wouldn’t go there.

rockmom on December 22, 2009 at 3:01 PM

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