Published December 22, 2009
Organizations and lawmakers opposed to the health care reform package are getting their legal briefs in a bunch, threatening to challenge the constitutionality of the sweeping overhaul should it make its way to President Obama's desk.
Republicans have agreed to allow the Democratic-led Senate to move up the time for a final vote to 8 a.m. Thursday so that lawmakers and their staff can go home for Christmas. But GOP supporters aren't backing down on their threats to put a stop to the legislation using whatever legal means possible.
Two key issues seem to be attracting the bulk of the legal threats: a mandate for individuals to purchase health insurance and the special treatment that states like Nebraska are getting in the bill.
On the first issue, Sen. John Ensign, R-Nev., on Tuesday renewed the call to examine the constitutionality of whether the federal government can require Americans to purchase a product.
"I don't believe Congress has the legal or moral authority to force this mandate on its citizens," Ensign said in a statement, raising what's known as a "constitutional point of order." Such procedural challenges are rare and typically lead to a vote.
The non-profit Fund for Personal Liberty, as well as a Virginia-based group called the 10th Amendment Foundation, already have threatened to file suit in federal court over this issue if the health care bill passes.
The Constitution allows Congress to tax, borrow, spend, declare war, raise an army and regulate commerce, among other things. Proponents of the insurance mandate point to the Commerce Clause in arguing that Congress is within its rights to require health insurance and dismiss such potential legal challenges.
But foes say the across-the-board requirement is too broad.
"I personally do not believe the Congress has the authority to enact an individual mandate requiring a person to purchase a product from a private seller," said Kent Masterson Brown, lead counsel with The Fund for Personal Liberty. "I don't think the power is there. This is not regulating anything."
He said his group would be joined by the Washington Legal Foundation in filing suit against the health care bill.
"This thing may be stillborn, even if it passes," he said.
Even though Obama argues that the mandate is similar to laws requiring drivers to obtain auto insurance, opponents cite several key differences. First, the auto insurance mandate is avoidable, since anyone who doesn't want to pay doesn't have to drive. Second, auto insurance is mandated in large part so that drivers carry liability insurance to cover damages to other people and cars -- not themselves. Third, auto insurance regulation occurs at the state level.
When the Congressional Budget Office considered the idea of a health insurance mandate back in 1994 under the Clinton administration, it concluded that the mandate would be "an unprecedented form of federal action." The only congressional mandate close to that was the draft, the CBO concluded.
Ensign cited that finding in his complaint.
Still, the legislation does provide for federal subsidies for those who might have trouble affording insurance coverage, and it provides for exemptions for some individuals.
Other legal objections are emerging in the wake of a concession that Sen. Ben Nelson, D-Neb., won for his state as a condition for his support of the health care bill. Senate Majority Leader Harry Reid agreed to provide for full and permanent federal aid for Nebraska's expanded Medicaid population. It was only one of a slew of hand-crafted sweetheart deals for those senators who agreed to support the bill.
But the Nelson deal swiftly drew the ire of Sen. Lindsey Graham, R-S.C., who has asked his state's attorney general to give the issue a legal review. He told Fox News on Tuesday that other states can probably bring a "constitutional challenge" over the issue. He said it's unfair for one state to get special treatment while others pick up the tab.
"I don't believe most senators believe this is OK," Graham said. "I think it stinks. I think it's sleazy."
Graham said his state could file an equal rights suit under the Constitution. The Constitution calls for "equal protection" of all citizens.
Likewise, two Republican state representatives from Tennessee on Monday asked their state attorney general to look into the issue -- they called the Medicaid expansion an "unfunded mandate."
Rep. Debra Young Maggart and Rep. Susan Lynn claimed the Nebraska deal was unfair to other states and asked that Attorney General Robert Cooper take "appropriate legal action" against the federal government if the bill becomes law.
"It is clear by the wording of the legislation itself that not every state would face a similar and equal burden," they wrote. "We see this as a violation of equal protection of the law, an affront to our sovereignty, and a breach of the U.S. Constitution."
The non-profit Liberty Legal Institute is poised to assist states that are considering filing suit against the government over the health care bill. The group would not disclose where the suits might come from, but claimed great interest in putting health care reform to the legal test.
"There are a lot of states that are concerned that this violated the 10th Amendment and they are weighing their options," Kelly Shackelford, chief counsel, said in a statement.
The 10th Amendment declares that powers not delegated to the United States by the Constitution are "reserved" for the states or "the people."
Still another challenge is coming from Sen. Jim DeMint, R-S.C., who on the Senate floor raised concerns about a section in the health care bill that appears to say that the Senate cannot make changes to it in the future.
"It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection," the section says.
DeMint said he found that "particularly troubling."
"We will be passing a new law and at the same time creating a Senate rule that makes it out of order to amend or even repeal the law," DeMint said. "I'm not even sure that it's constitutional."
The overall section the senator referred to applied to the creation of an Independent Medicare Advisory Board.
But a senior Reid aide noted that the language restricting the repeal of the measure only applied to one subsection -- a subsection dealing with the manner in which the proposal for the board is introduced and considered in Congress. The aide said the language DeMint found "troubling" did not apply to board or its duties as a whole.
Plus the aide noted that the language can be waived by a 60-vote majority in the Senate.
"It's really a sign of desperation," the aide said.