Ensign Amendment (#3710) on Individual Mandate
Senator Ensign is expected to offer a motion to strike the penalty associated with the individual mandate of the health care Act. Please note this is subject to change.Numerous objections have been raised against the individual mandate, including an assertion that it violates the enumerated powers of the legislative branch.ConsiderationsCommerce ClauseIt has been argued that the individual mandate of the health care Act exceeds the federal government’s enumerated powers, even under existing Commerce Clause jurisprudence. The claim is that it regulates Americans simply for existing, not for entering into any economic activity. It purports to regulate inactivity by converting the inactivity of not buying insurance into commercial activity.
Additional background on this point is available in a writing from David Rivkin and Lee Casey, as well as a Heritage piece. These writings argue that if the federal government has the power to require individual to purchase health insurance, then federal power would essentially be unlimited.
Constitutional adjudicationSome commentators have noted that the Supreme Court has not struck down major legislation on Commerce Clause grounds in generations. The Rehnquist Court, however, in its rulings in Lopez and Morrison, made clear that the Clause was not a limitless grant of power. Stuart Taylor, writing in National Journal, has argued that the Court “would and should” defer to the judgment of Congress on the Constitutionality of the legislation.
The Senate voted on various Constitutional points of order when it was considering the health care bill, including one expressly directed at the individual mandate, which was turned away by a vote of 39-60.