Sticking Up For Our Constitution

GOP senators to force vote on constitutionality of health care reform bill

I just received a release from someone in South Carolina Sen. Jim DeMint’s office. Apparently, he and Nevada Sen. John Ensign plan to force a Senate vote on the constitutionality of the Democrats’ health care reform legislation.

You know me — I’m a big fan of DeMint, and of any lawmaker who looks at a piece of legislation regardless of where it originates and asks, before anything else: “Where, exactly, in the Constitution does the federal government have the authority to do this?” It’s a responsible and patriotic mentality we need more and more right now, and it’s an attitude we’ll need just the same–if not more so–once the GOP has retaken the majority.

It came as no surprise to see DeMint’s name attached to this effort. That, in my opinion, says more about Jim DeMint than any single vote or speech or interview or appearance. Anyway, I’ve said enough — here’s the press release:

December 22, 2009 – WASHINGTON, D.C. - Today, U.S. Senators Jim DeMint (R-South Carolina) and John Ensign (R-Nevada), raised a Constitutional Point of Order on the Senate floor against the Democrat health care takeover bill on behalf of the Steering Committee, a caucus of conservative senators. The Senate will vote tomorrow on the bill’s constitutionality.

“I am incredibly concerned that the Democrats’ proposed individual mandate provision takes away too much freedom and choice from Americans across the country,” said Senator Ensign. “As an American, I felt the obligation to stand up for the individual freedom of every citizen to make their own decision on this issue. I don’t believe Congress has the legal authority to force this mandate on its citizens.”

“Forcing every American to purchase a product is absolutely inconsistent with our Constitution and the freedoms our Founding Fathers hoped to protect,” said Senator DeMint. “This is not at all like car insurance, you can choose not to drive but Americans will have no choice whether to buy government-approved insurance. This is nothing more than a bailout and takeover of insurance companies. We’re forcing Americans to buy insurance under penalty of law and then Washington bureaucrats will then dictate what these companies can sell to Americans. This is not liberty, it is tyranny of good intentions by elites in Washington who think they can plan our lives better than we can.”

Americans who fail to buy health insurance, according to the Democrats’ bill, would be subject to financial penalties. The senators believe the bill is unconstitutional because the insurance mandate is not authorized by any of the limited enumerated powers granted to the federal government. The individual mandate also likely violates the “takings” clause of the 5th Amendment.

The Democrats’ healthcare reform bill requires Americans to buy health insurance “whether or not they ever visit a doctor, get a prescription or have an operation.” If an American chooses not to buy health insurance coverage, they will face rapidly increasing taxes that will rise to $750 or 2% of their taxable income, whichever is greater.

The Congressional Budget Office once stated “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

A legal study by scholars at the nonpartisan Heritage Foundation concluded: “An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented– not just in scope but in kind–and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.”

Obviously, it’s not going to pass. But this is exactly what I was talking about when I came up with the Doctrine of Constructive Obstructionism. It’s one thing to say “no” and maintain that stance, but it’s more effective to say “no,” to offer alternatives, to maintain that position of “no,” and consequently to force the opposition to own whatever it is they’re selling.

In this case, Jim DeMint and John Ensign are putting the Democrats in the place where they will directly countermand the very same United States Constitution which they have sworn to uphold. They will either have to argue that forcing Americans to carry health insurance or face fines and imprisonment is somehow constitutional–good luck–or they will have to agree that the measure runs afoul of the Constitution, and yet support it anyway.

This is exactly the kind of thing we need to see from the Republican Party. On one side, it’s a great political move, as it goes a long way to show that the GOP can be a political vehicle for constitutional conservatives. More importantly, however, it’s the right thing to do — and that’s something we don’t see a whole lot of on Capitol Hill.

As you call your own senators about health care reform, put a call in or send an e-mail to the offices of Jim DeMint and John Ensign. Sticking up for the Constitution is more than deserving of a “thank you.”



  1. Anonymous says:

    Awesome. There may be some life in this party, after all. We're going to need to see more of this so we can point to it when the media starts talking up a third party.

  2. Anonymous says:

    This is the cart before the horse; they should do this before considering any legislation.
    This country makes no sense anymore.

  3. goddessdivine says:

    I'm glad DeMint is doing this; but where was this outcry at the beginning of the debate? This has been one of my biggest beefs all along.

    I'm sure Pelosi will respond with "Are you serious? Are you serious?" As she either can't answer the question as to its constitutionality, isn't familiar with that document…..or both!!


    There have been formal questions about this, but as far as I know, in order to do an actual procedural/parliamentary vote on this sort of thing, they need a bill to reference.

    Otherwise, I agree with you — cart before the horse.

  5. Anonymous says:

    Shouldn't conferences have a copy of the constitution, ya know, laying around? These people are clowns. What is their oath to?….. they should read the document once a week.

  6. Anonymous says:

    Perhaps DeMint could also check into the constitutionality of one part of the bill in particular:
    Check out this article I just read on American Thinker:
    "Harry Reid slips in a bombshell for Obamacare foes" by Rick Moran… "Reid wants to make this bill something like a royal decree where no one can change what has already been wrought."

  7. SICK OF IT says:

    Just as employers can give on-the-spot drug tests, we should be able to give congress on-the-spot pop quizzes on the constitution…. you fail, you're gone. Legislate that you buffoons.

  8. Giggle on this says:

    He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

    Is that talk of Obama, or Harry Reid?

    Ha, neither. It is talk of King George in The Declaration Of Independence.

  9. Ian Thorpe says:

    …but don't these Senators know it is unconstitutional to oppose the beloved President? LOL

  10. William A. Rose says:

    Great comments. Especially yours, Giggles.

    I'd really like to see DeMint's idea come to fruition. The 'former' Democrat, Rep. Parker Griffith, that jumped ship today definitely needs to be taken with a grain of salt. I saw his comments on the news as to why he jumped ship, and they were sound, but just way way too late in coming.

  11. Dee says:

    I most certainly will email DeMint and Ensign. I do hope that they have some success. Reid has put in the bill an admendment that would disallow any repealing of a certain section of the bill. I'm not sure which section. I think the GOP should all go home for Christmas before the vote and let the Dems totally own the bill. This administration has totally lost any brain cells that were still floating in their heads.

  12. William A. Rose says:

    I had to add this: Who, among us here at AR will refuse to buy the insurance?

    The language saying the government will require the People to buy a good or service as a condition of lawful residence in the USA just blows my mind. I have to admit, I'd heard something about this, but haven't read it in the bill. By the way, where is the latest version of the bill? Or are the Senators going to pass the fill-in-the-blanks-bill?

    I guess I had better crawl back out from under my rock and read a little more.

  13. Anonymous says:

    Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall BE UNIFORM THROUGHOUT the United States, excluding Nebraska;

  14. Anonymous says:

    Article IV, Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

  15. Anonymous says:

    We the People of the United States, in Order to form a more perfect Union, ESTABLISH JUSTICE, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

    -Where's the JUSTICE in Nebraska getting off cheap?

  16. Anonymous says:

    No Bill of Attainder or ex post facto Law shall be passed.

    I have no insurance today, how can they fine me or imprison me if this bill passes after today? Is that ex post facto?

  17. Anonymous says:

    I usually 'read the manual', before I 'write the computer program', but that's just me.

  18. Lilly says:

    I was soooo happy to see this and applaud DeMint! He also called out another part of the bill that states that once signed into law that future Congress' can't change nor repeal it – ever! That in itself is way to scarey and exactly why they didn't want it read!

  19. Anonymous says:

    Were the patriots of 1776, anarchists? Didn't they just want governance that would listen to em and get outta their lives a wee bit? And they were 'godly' men. It sure sucks to be labeled an anarchist when all I want is my country back, and a government being part of that is cool with me. Give me a proper label if I am going to be labeled. I prefer the term big dreaming liberty lover looking for a frugal government.

    A political theory advocating the elimination of governments and governmental restraint and the substitution of voluntary cooperation among individuals.

  20. REBOOT says:


    with that kind of language in the bill, they just might be putting us in a position where we have NO OTHER CHOICE than to start a new nation. That might be just what we need.

  21. Anonymous says:

    It's official, I'm a nerd, a loser. Starting a few days ago I keep two windows open while computing, one displaying the Constitution, and one The Declaration of Independence.

    Channeling our founders to try and keep my sanity.

  22. suek says:
  23. Chuck in San Diego says:

    This is officially not a good thing.

  24. William A. Rose says:

    Well, it’s done. The Senate passed the monster. Put on your seatbelts. It’s going to be one hairy ride to the end.

  25. 2010, 2012 says:

    They will either have to argue that forcing Americans to carry health insurance or face fines and imprisonment is somehow constitutional–good luck–or they will have to agree that the measure runs afoul of the Constitution, and yet support it anyway.
    sounds like something with teeth.
    we need to keep up this fight and use every possible angle at reversing this nonesense. greater things have been accomplished. lets look at it as just another RED SEA; ANOTHER GOLIATH in our path.

  26. Rob in Katy says:

    We are at a crises where 1/2 of the country has had 233 years of history and precedent of law ripped from under their feet while at the same time being expected to pay for the other 1/2. We need a Patrick Henry and need him FAST!

  27. Linda says:

    Senator DeMint is one of the 5 who I have on my list who absolutely should not be replaced: DeMint; Pence; Bachmann; Coburn; Inhofe. I wish him all the best in this endeavor against the takeover of our government.

  28. Ima SoBelle says:

    Senator DeMint is one of the few people that doesn’t give SC another black eye. I know-I live there. I am grateful for his courage in choosing the right. Wish there were 59 more of him. Maybe in 2010…

  29. Cory G says:

    If there is a serious, legitimate thought that the fundamentals of the bill are unconstitutional, can and will there be a challenge in court as to its constitutionality when and if it is signed into law?

  30. Jeff Schreiber says:


    It’ll come down to a matter of standing. A plaintiff will have to show that he/she is very specifically injured, that the injury can be attributed to and was proximately caused by the individual mandate (or whatever aspect of the bill is being challenged as unconstitutional), and that there is some sort of redress available. It’s not always easy. It’s designed to be that way.

    War Eagle, by the way.

    – Jeff

  31. Cory G says:

    I don’t understand what you say about injury. Are you saying that there would have to be proof of damage done to someone individually? The constitutionality couldn’t be challenged on the merits?

  32. Jeff Schreiber says:

    To have standing to challenge anything as unconstitutional in federal court–and that would be the venue for such a healthcare challenge, a plaintiff must satisfy a three-prong test. He or she must prove (1) injury in fact, (2) causation, and (3) redressibility — that they’ve sustained more than just general harm, that the harm can be traced to the conduct of the defendant, and that adjudication of the matter can provide a remedy to that harm. The biggest issues here are going to be the first and second prong. We know that the federal government does not have constitutional authority to force anybody to purchase insurance–this isn’t Switzerland–but unless someone shows that they were injured and that injury came from that mandate, the case wouldn’t survive a Motion to Dismiss filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which essentially says that the plaintiff has failed to state a claim upon which relief can be granted.

    It sounds insane, I know, but it prevents challenges to just about everything. There are public policy concerns behind requiring that only certain plaintiffs are qualified to sue in such regards.

    Now, while there is a three-prong test for standing, there is no such definitive test for establishing what exactly constitutes an injury in fact. Instead, whether or not a plaintiff has sustained an injury in fact depends upon how that plaintiff’s factual allegations are perceived by the judge on what has been described as a sliding scale of speculation, creativity and remoteness. In other words, if the factual support of a plaintiff’s claims is deemed too speculative, too remote, or too creative, then the judge may not find injury, and visa versa.

    In the past, the United States Supreme Court has held that a plaintiff must have a “personal stake” in the matter being adjudicated. This, of course, is to ensure that the matter belongs before the court in the first place. More recently, however, the Court has paid greater attention to, and awarded standing for, plaintiffs who can show enough of an injury so as to provide something along the lines of a good contest among legal rivals.

    In Constitutional Law class a few years ago, we studied a few cases while looking at the standing issue. One was a case in which a group of environmentalists were given standing by the Supreme Court because the need for preservation of “environmental well-being” was enough to prove injury. In another case, an association in Washington state was deemed to have standing even though it was the individual members, and not the association itself, which could be found to have had the requisite “personal stake.”

    It can’t just be an overall injury to the community at large. There’s a slippery slope which would come along with allowing that standard.

    I hope that makes sense. I know who you are, sir — call me sometime this week ;-)

  33. Rick M. says:

    Creativity is the answer Jeff. Oh, and a willing Judge that will understand where the plaintiff is coming from. Let’s say that this health care plan hurts me.. for instance jail time loss of freedom for not buying into this lie? Is that not enough to have standing. Once they make it criminal my injuries could be my freedoms. Anyways wouldn’t this scenerio cover rules 1,2 and 3 of standing ? I have always been facinated with the law but never faciated enough to be a lawyer. I think the rules for Standing must be reviewed and made clearer, and perhaps slightly more inviting to those that have valid points of law. As it is now the rules of standing provide a place for someone to hide their wrongs. Just my thoughts.. Have a Happy New Year.

  34. BITE ME says:

    So, if they pass a law outlawing cheeseburgers, we are screwed. How do you show ‘injury’ in not eating cheeseburgers? What a joke; all lawyers, justices and legislators, SHOVE IT.

  35. Patrick says:

    Rob in Katy 1:53,

    Don’t say “Give me liberty, or give me death” in here, it won’t make it past moderation.

  36. Jeff Schreiber says:

    Consider the alternative, though. If there were no standing qualifications, every single piece of legislative action would be challenged on the grounds that it injures some segment of the public.

    I think there can be a challenge on health care, though — it goes to the sliding scale of injury, and with the right judge, I think it can happen.

  37. Jeff Schreiber says:

    Don’t say “Give me liberty, or give me death” in here, it won’t make it past moderation.

    Wrong. Don’t call for the death of or injury to a public figure. Don’t cuss. Don’t write comments that have absolutely nothing to do with the topic discussed in the post. THEN it won’t make it past moderation.

  38. It looks and sounds lovely! Wonderful gifts :)

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