After the Democrats cleared the second of three 60 vote hurdles last night, Republicans ceded enough debate time back to the majority so that passage of Obamacare through the Senate will take place n Christmas Eve at 8 AM. Conservatives have every right to be disappointed that Senate Republicans did not force the maximum amount of debate possible. But they can take heart in a key point of order that will be voted on later today. Sponsored by Sens. Jim DeMint (R-SC) and John Ensign (R-NV), that vote will lay the groundwork for the possible legal dismantling of Obama’s health program.

As we’ve detailed before, the very core of the Senate health plan includes an unprecedented expansion of the power of the federal government over the lives of every American. For the first time in history, every American would be forced to buy federally regulated and approved health insurance or face a $750 fine. As the non-partisan Congressional Budget Office (CBO) wrote in 1994:

“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.”

The individual mandate and other questionable measures in the bill raise serious questions as to whether Obamacare could survive a Constitutional test:

Enumerated Powers: Article I allocates to Congress “[a]ll legislative powers herein granted,” which means that some legislative powers were intended to remain beyond Congress’s reach. The Supreme Court recognized and affirmed this fundamental principle from the earliest days of the republic, as Chief Justice Marshall famously observed: “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service. Democrats have pointed to both the general welfare taxing power and the commerce clause as possible justifications for the mandate, but as a recent Heritage Legal Memorandum details, neither justification withstands scrutiny.

5th Amendment: The Fifth Amendment of the U.S. Constitution reads in part: “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Sen. Ensign will argue today: “The Democrats’ health reform bill would require an American citizen to devote a portion of income – his or her private property – to health insurance coverage. … But, Mr. President, if a Nevadan 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 new requirement could be a “taking” of private property under the Fifth Amendment.”

Racial Discrimination: On December 10th, the United States Commission on Civil Rights sent a letter to the Senate regarding racially discriminatory provisions in Obama’s health plan. The letter reads: “No matter how well-intentioned, utilizing racial preferences with hope of alleviating health care disparities is inadvisable both as a matter of policy and as a matter of law. … Ensuring that all Americans, regardless of race, have access to quality health care requires both creativity and hard-nosed attention to data. It also requires staying within the requirements of the Constitution. The current race-based provisions of the Senate Health Care bill display none of these qualities.”

Unequal State Treatment: Speaking to Fox News, Sen. Lindsey Graham (R-SC) described Sen. Ben Nelson’s (D-NE) deal to support Obamacare in exchange for a bailout Nebraska’s Medicaid costs as “disappointing, sleazy, unconstitutional.” Graham is not the only one examining Cornhusker Kickback. The Attorneys General of Alabama, Colorado, Michigan, North Dakota, South Carolina, Texas and Washington state are jointly investigating the deal to see if special treatment for only one state in the nation at the expense of the other 49 violates the Constitution.

The leftist majority in the Senate is likely to vote down the DeMint/Ensign constitutional point of order, but the very objection itself will help build a record that courts will look at when determining whether or not Obamacare is unconstitutional. The Senate is not the final arbiter of whether or not the laws it passes are consistent with the United States Constitution. That question was settled over 200 years ago in Marbury v. Madison. Although it is always difficult for the Supreme Court to thwart what is perceived to be the popular will, polling consistently shows that this legislation faces strong popular opposition. If that remains true after enactment, the majority of the Justices who are inclined to preserve the enumerated powers scheme and adhere to the original meaning of the text will have little inclination or incentive to stretch the Constitution to reach so decidedly unpopular and far-reaching a law as this one.

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QUICK HITS

• The 150,000 member National Nurses United organization yesterday called the Senate plan, “a seriously flawed bill that could actually exacerbate the health care crisis and financial insecurity for American families, and that cedes far too much additional power to the tyranny of a callous insurance industry.”
• With unemployment in the construction sector already at 19.4%, the construction industry was surprised to learn a job killing employment tax especially targeting them made it into the Senate’s final version of Obamacare.
• Across all sectors of the economy, businesses worry that a series of new taxes and fees to pay for expanding health-care coverage will push up premiums, particularly for smaller employers.
• Sen. Ben Nelson (D-NE) says three other senators have told him they want to bargain for the same Medicaid bailout deal Nelson secured for Nebraska.
• In an Oval Office interview with The Washington Post, President Obama named the Wall Street bailout as the ‘most important thing’ of his first year.

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