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.