Policy-ish

GOP Argues Insurance Mandate Violates Constitution

Unable to win the votes on health overhaul, Republicans are eyeing a battle in the courts.

Their strategy? Have the overhaul's requirement that everyone in the country have health insurance declared unconstitutional. If uninsured people don't buy coverage, they would be penalized to the tune of $750 under the Senate bill, for instance.

Republicans are forcing the issue with a Senate vote today on the constitutionality of the mandate. "What's next?" said Sen. John Ensign (R-NV), who's leading the challenge. "Will we consider legislation in the future requiring every American to buy a car? Will we consider legislation in the future requiring every American to buy a house?" he asked, according to the Wall Street Journal.

There's little chance the measure will get traction, given the Democrats' power bloc. But the Republicans will have a chance to drive home their opposition to health overhaul another time. And they may lay the groundwork for future court cases.

Ensign and his allies claim the mandate that everyone buy insurance "violates the Fifth Amendment's ban on the taking of private property for public purposes 'without just compensation,' " as CQ explains.

Oh, really? Democratic Sen. Max Baucus of Montana invoked the opinions of a bunch of constitutional lawyers to rebut Ensign's claim, saying on the Senate floor:

Most legal scholars who have considered the question of a requirement for individuals to purchase health coverage argue forcefully that the requirement is within Congress' power to regulate interstate commerce.

One of the scholars on Baucus' list, Erwin Chemerinsky of the University of California, Irvine, told CQ, "The Takings Clause requires just compensation; the value of the insurance gained could be seen as sufficient just compensation."

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