Organizations and congress-critters are lawyering-up to field constitutional challenges to Obama-Care if it survives the sausage making of the House/Senate conference and makes its way to the desk of the temporary occupant of the White House.
The two key issues they are targeting are:
1. A mandate for individuals to purchase health insurance and;
2. The special treatment that states like Nebraska are getting in the bill.
Senator John Ensign, R-NV has called for an examination the constitutionality of whether the federal 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.” Procedural challenges such as this are rare and typically lead to a vote. This will force the Democrats to publicly state which side of the constitution they are on, something they do not wish to do.
Groups such as 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, among other things, Congress to tax, borrow, spend, declare war, raise an army and regulate commerce.
"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." "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.
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."
It is time to us to take back control of our country. The 2010 elections are the key. But we must keep unrelenting pressure on our lawmakers until it is time to vote them out and get "real Americans" in their place. Get mad - stay mad - vote and take a friend with you!
