CQ POLITICS NEWS
Dec. 22, 2009 – 1:19 p.m.
Republicans Lodge Constitutional Challenge to Health Bill
Senate Republicans, defeated at every turn thus far in their bid to prevent Senate passage of a health care bill before Christmas, are digging into their parliamentary tool chest.
John Ensign , R-Nev., lodged a constitutional point of order against the legislation on Tuesday, claiming its mandate that individuals purchase health insurance or pay a penalty falls outside the scope of congressional powers enumerated in Article I, Section 8, of the Constitution. It also violates the Fifth Amendment’s ban on the taking of private property for public purposes “without just compensation,” Ensign asserted.
While the Senate is unlikely to uphold his challenge, Ensign raised points that could very well resurface in litigation if the legislation becomes law.
The Senate will vote on Ensign’s challenge Wednesday.
Ensign argued that Congress does not have the power to require individuals to purchase a particular good, in this case health insurance. “Is it really constitutional for this body to tell all Americans that they must buy health insurance coverage?” Ensign asked. “And if so, what’s next? What personal liberty or property will Congress seek to take away from Americans next?”
He added, “If one of my constituents in Nevada does not want to spend his or her hard-earned income on health insurance coverage and would prefer to spend it on something else such as rent or a car payment, this requirement could be a taking of private property under the Fifth Amendment.”
Majority Leader Harry Reid , D-Nev., voiced confidence that Democrats can defeat the point of order. “We feel very sound in our position,” Reid said.
Harvard Law School professor Mark Tushnet said that the individual mandate is within the scope of Congress’s constitutional powers and does not violate the Fifth Amendment’s Takings Clause, because “you’re getting something in return for what you’re paying.”
Erwin Chemerinsky, dean of the University of California, Irvine School of Law, agreed. “The Takings Clause requires just compensation; the value of the insurance gained could be seen as sufficient just compensation,” he said.
Comments
I for one will NOT be PURCHASING any HEALTH CARE.. It is my right to choose where I want to buy my healthcare, and I will choose, not the GOVT. I will NOT pay ANY Fine, Fee or penalty for not purchasing it Either. I guess My forwarding address will be in the Local JAIL, because I am using my RIGHTS and Freedoms to Choose what I want for Myself and family. It's gonna be a nightmare if this takes hold. The Govt has no business being in the Healthcare Industry.
They are asking the question wrong. Under what enumerated power does the Federal Government claim to have authority to tell the American People what to do? It is not an illegal taking but slavery. Also, a contract signed under threat and duress is no contract at all and not enforcable. All contracts have to be entered into under the free will of the signers. Why do they always go after the wrong thing? So they can lose and set a precedent? These CONgress critters are so dumb!
They are asking the question wrong. Under what enumerated power does the Federal Government claim to have authority to tell the American People what to do? It is not an illegal taking but slavery. Also, a contract signed under threat and duress is no contract at all and not enforcable. All contracts have to be entered into under the free will of the signers. Why do they always go after the wrong thing? So they can lose and set a precedent? These CONgress critters are so dumb!
The "Party of No" is at it again. It is pathetic that a cadre of right-wing zeros who have no proposals at all choose to obstruct Congress with this sort of nonsense.
If the Government tries to force me to buy health insurance they will have to put me in jail and I still will not buy it!!! What happened to freedom in this Country does it only pertain to illegal aliens??!! The illegals have more "RIGHTS" than the American Citizens do!! Obozo and CO. must start enforcing the laws of OUR Country or they should be impeached for not doing their jobs protecting Americans (CITIZENS) !!!! Just this Health Care issue will cost the tax payers Billions of dollars when they let the illegals use the credits!!! What do you think Amnesty will cost the tax payers in lost jobs, social services, increased crime, health care, subsidised housing, federal spending to hire people who are bilingual to process the paperwork, back ground checks (I can see this being waved), ETC. ATTRITION THROUGH ENFORCEMENT !!! NOT AMNESTY !!!!
Not only is the constitutionality in question, but what about what 'special perks' and 'pay backs' are hidden in the 2000 pages of jibberish. We are just finding out about the so called 'stimulas' bill and its many so called 'perks'. This is not as much as a health care bill but as a bill to grease the palms of certain individuals.
These so called democrats are really marxistcommies and dont care about what the american people what one way or the other and the raghead in chief needs to be impeached for treason and shot to death, just my humble opinion. How can our millitary just stand by and let this happen, Let us see a millitary coup to take out all the people who are trying to change america to what its never been. These people will burn in hell!!!!!!!
In regards to the Constitution, where does this leave the Redress of Grievance Clause. The majority of the people are against this bill. The socialist in the Congress refuse to answer for the reasons they are ignoring the will of the people and they have resorted to defamation and name calling to make themselves feel better. We the people should demand redress of grievances and sue those who have participated in bribery and skullduggery go get their way!
Not only does it violate the Constitution, but also basic black letter contract law. No one can be forced into a contract against his willingness to enter into said contract. Such contract is void ab initio.
Both Tushnet and Chemerinsky have anti-liberty and pseudo-dictatorial views of federal power and are neo-marxists. It would be nice if this author has cited to real constitutional scholars and not cherry picked. For example, citations to Barnett at Cato Institute (Goergetown constitutional scholar) who argues this is unconsitutional because it essentially holds that inaction (the choice to not buy health insurance) is an act that affects interstate commerce and hence is within federal power. Just think about the implications of this bill if upheld -- the federal govt would literally have unlimited power over every individual, i.e., it could force you to buy a chevy impala because your failure to do so (i.e., inaction) would negatively affect interstate commerce by hurting the federally owned auto companies! This is directly analogous. Go to Volokh Conspiracy website, go to heritage foundation website where real arguments are laid out against this government takeover and don't take neo-marxisats Chemerinsky and Tushnet as authoritiies. They wish this to happen and then hide behind illogical and marxist interpretations to justify their deeply held subjective beliefs.
Let me first say thanks to the Honorable Senator Ensign from Nevada who has demonstrated a true belief in our Constitution and a page in true leadership. He has started a process that I have long asked that our Congressional leaders to take by challenging the merit of the health care bill as being unconstitutional. I ask that he continue to pursue this course of action straight to the U.S. Supreme Court. In support of Sen. Ensign's argument, the health care bill is a clear violation of the United States Constitution and if passed and signed by the President of the United States should be considered an act that violates his oath as President and legal proceedings should follow. Article I, Section 8 of the Constitution states "The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States". The collection and taxation that this bill is intended to initiate is not "uniform" throughout the United States. There are some states such as Nebraska, Vermont, and Massachusetts that will receive special consideration under the taxation of this bill. This is a clear example of how this piece of legislation is a violation of Article I Section 8 of the U.S. Constitution. The Fifth Amendments states: "Nor shall private property be taken for public use, without just compensation" The legal question at hand is what "private property" the government is taking for public use without just compensation. The argument can be made to some degree that people will have to sacrifice their homes or other tangential property to pay for this compensation. Unfortunately it will take someone to literally loose their property for the Supreme Court to hear the case. The reality is that the government is taking another form of property that is just as tangible and this is "money". Congress is taking money from the people without "just" compensation. Just compensation is legally defined as 1) in general a fair and reasonable amount of money to be paid for work performed or to make one "whole" after loss due to damages. 2) the full value to be paid for property taken by the government for public purposes guaranteed by the Fifth Amendment to the U.S. Constitution, which states: "...nor shall private property be taken for public use without just compensation." If the amount offered by the governmental agency taking the property is not considered sufficient, the property owner may demand a trial to determine just compensation. How is it legally "just" for Congress to take my property and compensate me "just" as much as it plans to equally compensate every social economic class in America with language in the bill determining what procedures and benefits it will cover and not cover especially as it relates to my current health care compensation package. As concerned and active citizens in our government it should be a grave concern to us when Congress is looking to pass legislation at any cost, making any deal, or at any hour of the night with out full transparency to the public. I strongly support that the President of the United States request a National Referendum on this Health Care Debate and let the people voice their approval. If he is so confident that we are in support of it then it should be no problem making this happen prior to his signature if it should pass. If he should choose to ignore our request and sign the bill then I would recommend that the House seek legal injunction against the President on the basis of disqualification for "High Crimes or Misdemeanors". The president took an oath that he would preserve, protect and defend the Constitution. If he signs this unconstitutional bill he is not protecting and preserving the Constitution but knowingly doing the opposite which is reason for disqualification and can be considered a high crime since the Constitution is the ultimate law of the land. The reality once again is that our elected officials are violating the Constitution of the United States and the elected President is ignoring the law of the land as well by supporting such legislation. These actions not only weaken our credibility as a sovereign nation but question the fidelity of our form of government. If Congress cannot demonstrate legitimate representation and self restraint then the states and the people of this country should invoke Article V of the Constitution and call for a Constitutional Convention and Amend the Constitution limiting the powers of the federal government without the consent of the states as it relates to programs created for the general welfare of the country especially as it applies to what the states are mandated to follow.
It's not a matter of passing this bill by Christmas; Good Grief ! It's the issue of passing bad legislation -- which everyone admits this is ! The bill needs to be dumped. Start over with something the American people support and respect.
I doubt the "value" of the insurance we get in return for our money will be deemed to be worth it.
It is time for all citizens to take off the political correctness gloves and hand tying ropes that are allowing our liberties to be taken away. Every constitutional challenge that is possible should be pursued right now. No waiting! We must fight to retain our liberties. The patriots who froze through a Valley Forge winter would not understand the Americans of today. Let's get off our complacncey and fight the good fight of liberty.
Really? Mark Tushnet and Erwin Chemerinsky? Those are the only two "Constitutional scholars" we could find here? Good grief ...
This is so cool... By Harvard Law School professor Mark Tushnet's and Erwin Chemerinsky's , dean of the University of California, Irvine School of Law interpretation of the US Constution, Congress can mandate the every individual give up a lung, kidney and part of their liver for transplant patients and in return be given a congressional medal in just compensation...:-)
Bravo to Sen Ensign for pointing out the obvious. If the Constution doesn't grant the power, the the Federal Government simply doesn't have it. 'All powers not granted to the federal government.... are reserved to the people or the states, respectively.' Only liars & sophists could read the limted, enumerated 17 powers given the Federal Government, and come out with a blank 'we do anything we want' ethic ! The scammers on the Hill are playing to the people's worst impulses; if not resisted, the destruction of our Republic is near at hand. Dr. Ron Paul now is seen for the prophet he was during election -08 - every thing he said coming true in spades. Fellow would be Patriots: Read the Declaration of Independence, turn of your boob tube full of lies & distortion. Great Constitutonal educational course: www.IOTConline.com Have you taken this Pledge ?: PLEDGE OF RESISTANCE As a free human being and in full support of the Constitution of the United States of America, for the purpose of securing God-given rights for myself, my family, my children and future generations, be it known to all that in regard to (1) A mandate to purchase health insurance or participate in a government-run plan, (2) Regulatory and taxation schemes designed to reduce carbon dioxide emissions, (3) Further infringements of the right to keep and bear arms or (4) Any sanctioned U.N. Treaty this current administration shall pledge to support, sign or ratify: I will not abide by this law I will not recognize this law I will openly oppose this law I will not pay the associated taxes within this law I will not pay the fines associated with this law I will not go to jail I will come to the aid of any other patriot whom also pledges. So I pledge without hesitation and with faith. And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, I mutually pledge to my fellow patriots my life, my fortune, and my sacred Honor. Signed __________________________________ Date _________
So, how does one view comments on your articles ? I simply cannot believe this article has 0 comments. Samuel
Mark Tushnet said, "you're getting something in return for what you're paying." Really? Not in my house. Yesterday my husband, who is president of his company, came home in a foul mood. He shared with me the fact that this monstrosity of a bill will cost his company an extra 8%, money that they cannot absorb. Once this goes through, he and over 200 others are out of a job.
Why didn't your so-called "expert" lawyers bring this up? Amendment 10 - Powers of the States and People. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ---------------------------------------------------------- Article 1 Section 9: No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. Nelson's payoff for Nebraska may have killed this bill, let's hope.
There is nowhere in the constitution specifically delegated such a power to the Congress. -But there is also no specific authorization for the things they put into the Patriot Acts. -There is also no authorization for going to war without a declaration. --Beware you corrupt Congressmen! The same warlords that bought you off and intimidated you into this, have no compunction about sacrificing you to the dogs too!
Reminds me of similar efforts by conservatives to break unions and avoid regulations. The basic concept is "If it's not in the constitution I don't have to do it!".
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