Sen. John Ensign (R-Nev.) filed a constitutional point of order against the legislation Tuesday, arguing that the mandate that all U.S. residents purchase health insurance or pay a penalty is unconstitutional. [California Healthline]
Ensign said that the federal government does not have the power to force individuals to buy a specific product. “(I)f 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,” Ensign said.
Sen. Kay Bailey Hutchison (R-Texas) also said Monday that a provision in the bill that would levy fees on insurance companies — but would provide exceptions to benefit not-for-profit insurers in Nebraska and Michigan — “will not stand the test of the Constitution” because it “cannot be considered equal protection under the law.”
Some legal experts disagreed with Ensign and Hutchison, arguing that the mandate is constitutional because Congress is permitted to “regulate commerce… among the several states.” In addition, the Equal Protection Clause of the 14th Amendment does not apply to Congress (CQ Today, 12/22).
Interesting constitutional question. Congress can pass any bill they want, constitutional or not. At any rate, the case is not yet ripe. A challenge could only be filed by someone who was penalized for not purchasing insurance, and the fine (or tax) portion of the overhaul won’t kick in – if the bill becomes law – until 2014 as the measures now stand.
We won’t know for sure until the United States Supreme Court decides it.
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