Thursday, December 24, 2009
Just before this morning's vote on the health reform package, the Senate voted 39-60 against a point of order raised by Senator Ensign that the health insurance mandate exceeds congressional authority under Article I, Section 8, and violates the Fifth Amendment.
Senators Ensign and Hatch yesterday raised the constitutional objectionson the floor (beginning on page S13721 of the December 22, 2009, Congressional Record); Senator Leahy defended the constitutionality of the mandate (beginning on page S13751 of the December 22, 2009, Congressional Record).
The constitutional arguments are by now familiar. Ensign and Hatch argued that the mandate amounts to a regulation of inactivity by requiring the purchase of insurance; this exceeds congressional authority under the Commerce Clause (which permits Congress to regulate interstate commerce). They read David Rivkin and Lee Casey's WSJ op-ed, their Washington Post op-ed, and Randy Barnett, Nathaniel Stewart, and Todd Gaziano's Heritage Foundation piece into the record. Leahy argued that the mandate is well within congressional Commerce Clause authority as defined by the Court in Gonzales v. Raich, among other authorities--that health insurance, and, by extension, the mandate, has a substantial effect on interstate commerce. Leahy read Erwin Chemerinsky's LA Times op-ed into the record.
The debate is an excellent example of the Constitution outside the courts--a good supplement to your Spring Term classes on congressional authority.