Rep. Phil Hare (D-IL) voted for Obamacare. When questioned by his constituents to identify what part of the Constitution empowers the federal government to force Americans to buy health insurance, Rep. Hare replies: “I don’t worry about the Constitution on this to be honest.” We applaud Rep. Hare for his honesty, but his vote for Obamacare already proved he does not care if the legislation he votes for is unconstitutional. As The Wall Street Journal explains this morning:

“All human activity arguably has some economic footprint. So if Congress can force Americans to buy a product, the question is what remains of the government of limited and enumerated powers, as provided in Article I.” “The only remaining restraint on federal power would be the Bill of Rights, though the Founders considered those 10 amendments to be an affirmation of the rights inherent in the rest of the Constitution, not the only restraint on government. If the insurance mandate stands, then why can’t Congress insist that Americans buy GM cars, or that obese Americans eat their vegetables or pay a fat tax penalty?”

This is why a 1994 Congressional Budget Office Memorandum wrote about the individual mandate: “The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”

As Constitutional scholars Randy Barnett, Nathaniel Stewart and Todd Gaziano have documented, the individual mandate can not be justified by the Article I, section 8 taxing clause either:

“Should it adopt any of these constitutional taxing and spending measures, Congress would have to incur the political costs arising from increasing the income tax and the long-term budget implications of issuing tax credits. Precisely to avoid incurring these political costs, Congress is calling fines in the Internal Revenue Code ‘shared responsibility penalties’ so that persons fund the cost of its new regulatory scheme by channeling money through private insurance companies in the form of ‘premiums.’ It is likely that the Supreme Court will find this effort to avoid political and fiscal accountability a pretextual assertion of Congress’s taxation powers and therefore, unconstitutional.”

But Rep. Hale says he does not care about any of this. Fair enough. But he has his facts wrong on what he says he cares about too. At the end of the video Hale says: “At the end of the day, I want to bring insurance to every person who lives in this country.” When the videographer points out that Obamacare does not do that, Hare replies: “Says who, you?”

No Rep. Crane. Says the Congressional Budget Office. According to the CBO, after nearly $1 trillion in new spending Obamacare would still leave 23 million Americans without health insurance.

As liberal groups begin plotting to spend millions of dollars to “sell” Obamacare to Americans in swing House districts, at least 12 state attorneys general are mounting an effort to stop Obamacare in its tracks on constitutional grounds.

At issue is the provision in Obamacare that forces Americans to buy health insurance or face an annual $750 fine. Richmond Times-Dispatch reports that Virginia Attorney General Ken Cuccinelli plans to sue the federal government on grounds that the mandate violates the Commerce Clause of the U.S. Constitution:

“At no time in our history has the government mandated its citizens buy a good or service,” Cuccinelli said.

Separately, attorneys general in 11 other states – Florida, South Carolina, Nebraska, Texas, Utah, Pennsylvania, Washington, North Dakota, South Dakota, Alabama and Michigan – plan to join together in filing a lawsuit as soon as President Barack Obama signs the legislation into law, according to a Jacksonville Business Journal and Associated Press reports.

In a press conference this morning, Florida Attorney General Bill McCollum said, “To fine or tax someone just for living … that’s unconstitutional. There is no provision in the Constitution giving Congress the power to do that.”

South Carolina Attorney General Henry McMaster said Sunday: “The health care legislation Congress passed tonight is an assault against the Constitution … A legal challenge by the states appears to be the only hope of protecting the American people from this unprecedented attack on our system of government.”

The Heritage Foundation’s legal scholars have documented why an individual mandate violates the U.S. Constitution, noting, “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.”

That fact, however, did not stop Congress from acting outside its authority. Now, it seems, states are taking up arms to defend the tenets of our Constitution that Congress has been so quick to ignore.

It is no coincidence that these record low ratings come amid current debate over health care in Congress. Yesterday, former U.S. Attorneys General Edwin Meese III and William P. Barr released the following statement:

“The convoluted and questionable method under discussion by both Houses of Congress for final passage of the long-debated health care legislation raises serious constitutional concerns, which, at best, will lead to protracted and wholly avoidable litigation and continued doubt about the bill’s validity. Members of Congress from both parties have criticized the use of such sleights of hand, and The Washington Post has rightly editorialized against such ‘unseemly’ and ‘dodgy’ maneuvers for the health care bill. Beyond the obvious practical concerns shared by all citizens, the use of such obscure “rules” for final passage is even harder to justify in light of the real constitutional doubt and the erosion of public confidence in government that it will cause.”

“Contrary to what President Obama and some congressional leaders have been repeating of late, the American people do care passionately that the process for consideration of health care reform be both constitutional and fair. At a bare minimum, article I, sec. 7, cl. 2 of the U.S. Constitution requires that before it becomes law ‘(1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President.’ Clinton v. City of New York, 524 U.S. 417, 448 (1998).”

“The ‘deem and pass’ and similar options under consideration in the House of Representatives plainly violate at least the spirit of the Constitution’s bicameralism and presentment requirements. Those constitutional requirements were intended to ensure democratic transparency with a straightforward up-or-down vote in each House on all bills that become law. More importantly, these requirements were designed to ensure that the new national government actually followed ‘the consent of the governed,’ which the Declaration of Independence had declared to the world was the only basis of legitimate government.”

“The ‘deem and pass’ options under consideration in the House and the subsequent use of a ‘reconciliation’ process that is reserved for budget issues in acts already signed into law further erode confidence in the rule of law. Some past uses of the ‘deem and pass’ or ‘self-executing’ rules raise similar concerns, but none was as convoluted as the proposed use, and significantly, there may have been no one with legal standing to challenge prior uses in court. Many individuals will have standing to challenge any health reform legislation that restructures one-sixth of the American economy, and the contemplated use of the ‘deem and pass’ maneuver in this instance may be combined with questionable procedural steps in the Senate that render it much more subject to challenge.”

“There is no need to engage in such procedural machinations, and no asserted reason for doing so exists other than to avoid the traditional legislative safeguards in the Senate and to obscure the appearance that Members of the House actually voted for the Senate bill, which is a prerequisite for genuine reconciliation. The constitutional requirement of bicameralism should not be jettisoned under any circumstances—and certainly not for such trivial and partisan reasons.”

“Members of Congress take an oath to uphold the Constitution. Members should violate neither the letter nor spirit of the Constitution, especially when there is so much at stake, not only as a policy matter, but when the very legitimacy of the legislative process is in question. Given that many parts of the underlying legislation itself raise substantial constitutional concerns, these ‘unseemly’ and ‘dodgy’ procedures underscore the justified concern the American people have that their elected representatives are blatantly disregarding the Constitution, and as a result, undermining the rule of law.”

The House Rules Committee will meet this afternoon to discuss what has been dubbed the “Slaughter Solution” to passage of the Senate health care bill. The precedent cited by Rules Chairman Louise Slaughter to justify the proposed maneuver (to “deem” passage of the Senate health care bill when in fact the bill has never been actually “passed”) simply does not support the planned manipulation of the House rules and may well violate the U.S. Constitution.

As early as 1933 House rules were interpreted to permit House acceptance of Senate Amendments in a bill simultaneously with House passage of a Resolution on a separate matter. But that precedent clearly included House concurrence in (or “passage” of) the Senate Amendments. The new maneuver planned for this week’s health care bill is not designed to be an up or down vote on Senate Amendments to a bill or a bill itself. Instead the proposed Rule will “deem”, or pretend, that a Senate bill that will never have been in fact “passed”, was instead “deemed” to have been passed.

The United State’s Constitution says:

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.”

House precedents do allow more that one matter to be “passed” by the same vote. But a member’s vote in favor of the bill and the other matter is a simultaneous vote on both the merits and passage of both propositions.

Either the U.S. House has had an actual vote to “pass” a bill, or it has not meet Constitutional requirements for a bill to become law. The House can not “deem” that a majority voted for a bill and simultaneously maintain that there was never actually a vote on the bill.

The House is ultimately the arbiter of its own internal Rules, but it cannot avoid Constitutional prerequisites for a bill to become law. Parliamentary slight of hand does not trump the U.S. Constitution.

The Honorable Thomas C. Feeney is Senior Visiting Fellow at The Heritage Foundation.

According to the official site of the House Rules Committee, “questions of privilege” relate to “matters affecting the safety, dignity or integrity of the House, or the rights, reputation or conduct of a member acting as a representative.”

House leaders are poised to use a procedural tactic of questionable constitutionality to move the single most consequential piece of legislation in over seven decades through the House without a vote. Here’s the idea: (1) pass a rule to bring to the floor a “reconciliation” measure that would detoxify certain provisions in the Senate-passed health-reform bill, and (2) insert in the rule a sentence that “deems” the Senate bill to have passed the House.

As Stanford law professor and former federal appeals court judge Michael W. McConnell explained in the Wall Street Journal:

“It may be clever, but it is not constitutional. . . . According to Article I, Section 7, in order for a ‘Bill’ to ‘become a Law,’ it ‘shall have passed the House of Representatives and the Senate’ and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.”

“To be sure, each House of Congress has power to ‘determine the Rules of its Proceedings.’ Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.”

That gets us back to the “questions of privilege” that are available to any House member who believes an action has maligned the “dignity” or “integrity” of the House, or the “reputation” of individual members. Because these motions are “privileged,” they preempt other House business and are brought up for debate and a vote immediately.

Has there been any proposed action in the House — ever — more likely to besmirch its dignity or integrity, or more likely to malign the reputation of individual lawmakers, than sidestepping the Constitution to enact such a consequential law? Never has it been more appropriate for an enterprising House member to defend the integrity and dignity of this hallowed institution. Will a majority of the House actually be willing to take ownership, not just of the substance, but of the dangerous precedent House leaders want to establish to achieve reform? I think not.

Raising such questions of privilege would be a dramatic procedural countermove and would require every member to let their constituents know in advance of the final vote exactly how they feel about this process. And there is precedent for it.

Roll the clock back to 1989. A commission had concluded that members of congress were woefully underpaid and required an immediate and eye-popping 51 percent raise. Thanks to a 1981 law, the proposed increase would take effect automatically — no vote required — unless both the House and Senate voted to rescind it. Knowing this, former speaker Jim Wright adopted a rope-a-dope strategy, keeping the House out of session during the period leading up to the February 9 deadline when the raise would take effect.

The Congressional Quarterly’s contemporary account makes for fascinating reading today:

“Editorial writers pummeled Congress not only for the size of the pay hike but for skirting a vote. Mail flooded the Capitol.”

“Some of the most vociferous criticism came from consumer activist Ralph Nader and a network of radio talk show hosts around the country who gave people a forum for venting their against the raise. One station urged its listeners to send tea bags to congressmen with the slogan, ‘Read my lips: No pay raise.’ Thousands did.”

Democrats were in disarray. Their retreat to the swanky Greenbrier resort in early February turned into a public-relations disaster, thanks to hostile questions from reporters and an unruly sendoff at Union Station by boatloads of protestors. California Republican William E. Dannemeyer complicated matters for pay-raise advocates by drafting a privileged resolution to force an up-and-down vote on the pay raise. [Full disclosure: I worked for Mr. Dannemeyer during this period and participated in the development of this strategy.]

Things unraveled quickly for Speaker Wright upon his return from the Greenbrier. In a series of one-minute speeches Dannemeyer’s allies linked the nefarious process by which the pay raise would become law and the public outrage it had provoked to the reputation of Congress.

“Mr. Speaker,” one Republican railed, “by our participation in this shameful pay raise conspiracy, we have deservedly brought down on this House the disgust of the American people…Mr. Speaker, save…what remnant of dignity and integrity we collectively have left by providing us the opportunity to vote on this burning issue. Only you, Mr. Speaker, can save us from ourselves.” Another bemoaned that “we are viewed as scoundrels who resort to sneaking pay raises through, while we publicly protest and point our fingers at others.”

Democratic and Republican leaders mistakenly thought they could block Dannemeyer and run out the clock by quickly moving to adjourn the House. Normally, such procedural votes are party-line, with Democrats required to support their leaders and Republicans theirs. But this time 108 Democrats rebelled and the House voted 88–238 not to adjourn.

The pay raise was formally interred the next day.

Fast-forward to our present dilemma. Thanks in large part to the debate over health reform, the congressional disapproval rating has soared since January to as high as 80 percent (Fox/Opinion Dynamics). To put this in perspective, Gallup’s most recent survey found that, at 78 percent, the current level of public angst is the highest it’s been since 1974. Mailing tea bags to Capitol Hill has given way to a national and increasingly sophisticated Tea Party movement. State governments too have begun to rebel, passing laws and resolutions to exempt their residents from any new federal health mandates. For one branch of government to knowingly provoke an unnecessary constitutional crisis on top of all this turmoil will scald the body politic in ways that will take generations to heal.

Surely health reform does not warrant such scorched-earth tactics.

Cross-Posted at The Corner

As written, the current health care bill before Congress already is guaranteed to face serious constitutional challenges on enumerated powers, 5th Amendment, racial discrimination, and unequal state treatment. Now the White House seems determined to add a whole new reason courts will throw out Obamacare on sight. Director of the Stanford Constitutional Law Center at Stanford Law School and former-federal judge Michael McConnell explains:

“To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a ‘Bill’ to ‘become a Law,’ it ‘shall have passed the House of Representatives and the Senate’ and be ‘presented to the President of the United States’ for signature or veto. Unless a bill actually has ‘passed’ both Houses, it cannot be presented to the president and cannot become a law.”

“To be sure, each House of Congress has power to ‘determine the Rules of its Proceedings.’ Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.”

“The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the ‘exact text’ must be approved by one house; the other house must approve ‘precisely the same text.’”

“These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 ‘the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.’ These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.”

In a letter to House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV), dated December 30, 2009, the Attorneys General of 13 States have objected to the so-called Nebraska Compromise that reportedly won the crucial support of Senator Ben Nelson (D-NE) for the Senate health care takeover bill. The deal is said to involve an agreement that the Federal Government’s taxpayers will assume indefinitely the full share of the costs that Nebraska will incur as the result of the expansion of Medicaid that is one of the Act’s effects. The result is not only preferential treatment for Nebraska but it also hurts the rest of us because the other States will have to make up the difference.

Such preferential treatment is constitutionally suspect; it cannot be reconciled with several important principles incorporated in the Constitution. The Founders would not have dreamed of taking a burden that all of the States should share and allocating it to only some of them. Likewise, they would not have seen the spending of taxpayer money for the benefit of only one State to be in the general interest. Instead, the Founders understood the notion that Congress can spend funds to “provide for the common Defence and general Welfare” to mean that the spending had to be for the general or national benefit, not for purely local or regional benefit. This understanding is reflected in veto messages from Presidents from Madison to Buchanan. In fact, the relatively free-spending ways of President John Quincy Adams contributed to his defeat by Andrew Jackson in the election of 1828.

The absence of an explicit prohibition on something like the Nebraska Compromise does not mean that it does not violate the letter or spirit of the Constitution. In particular, it runs afoul of the concept of the States’ equal standing that is incorporated in the Constitution at several points. Duties, imposts, and excises are to be “uniform throughout the United States,” (Art. I, § 1, cl.1), the bankruptcy laws that Congress enacts must be “uniform . . . throughout the United States,” (Art. I, § 8, cl.4), and the ports of one State cannot be given any “preference” with respect to regulation or taxation over those of other States (Art. I, § 9, cl. 6). In addition, there are limits to the conditions that Congress can put on States when they enter the Union because they do so on an “equal footing.” Then, once part of the Union, the States enjoy an “equal sovereignty” that can be taken away only in limited circumstances. Put simply, all of the States, not just 49 of them, are in this together.

We no longer think like the Founders when thinking about the ability of Congress to spend money. Moreover, the Supreme Court has chipped away at the clarity of the Uniformity and Ports Preference Clauses. Even so, there is something more than unsightly about the Nebraska Compromise, something beyond the general run of legislative logrolling and pork swapping. That something is the gnawing sense that the Attorneys General are right to question whether the Nebraska Compromise is actually unconstitutional or just violates the principles that it embodies.

This is an indication that many States are concerned that the Federal Government is overreaching and violating the constitutional rights of citizens. The New York Times reports, “Mr. McCollum’s stance places him in line with the attorneys general of South Carolina and nearly a dozen other states who have also threatened to sue over the mandate.” The bill is yet to be signed into law and many Members of Congress are threatening to introduce legislation to repeal Obamacare and lawyers are lining up to challenge the constitutionality of the legislation.

The issue of whether the individual mandate is constitutional is a new front against Obamacare. The NYT reports “The Heritage Foundation, for example, posted a lengthy legal analysis on Dec. 9 that argued that Congress had specific, limited powers that did not include ‘the distinct constitutional power to compel persons to purchase a contract of insurance from a private insurance company.’ That report said that the federal health insurance requirement differed from mandates requiring that drivers be insured because auto insurance is connected to the choice to drive.”

Although ObamaCare seems to be close to the goal line, many are saying the health care fight is not over yet. Either the House or the Senate, or both, need to make significant compromises before this bill can get to the President’s desk. With all the threatened lawsuits over the individual mandate, maybe this will become a hot issue during negotiations over the final version of the health care reform bill.

Also see:

Senator Orrin Hatch’s (R-UT) speech at The Heritage Foundation.

Hans Von Spakovsky’s analysis at NRO Online.

Brian Darling at Big Government.

The Congressional Budget Office (CBO) disagrees. In 1994, the CBO said of an individual mandate to buy health insurance:

“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. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”

As much as Speaker Pelosi may wish otherwise, the CBO is dead on: the Supreme Court has never validated a federal power as intrusive as forcing all Americans to purchase a service due to their very existence. Sure, the Supreme Court has said that Congress may regulate a farmer’s production of wheat even if he never plans to distribute it off of his farm, and the Supreme Court has said Congress may ban the possession of Marijuana even if it is for personal use, but never before has the Supreme Court said the power to regulate commerce enabled Congress to force an individual to do something just because he existed.

In fact, the Supreme Court has always been clear that the Commerce clause must have some limits. In United States v. Lopez (1995), the Court struck down the Gun-Free School Zones Act, which attempted to reach the activity of possessing a gun within a thousand feet of a school. In United States v. Morrison, it invalidated part of the Violence Against Women Act, which regulated gender-motivated violence. In both cases, the Court found the regulated activity in each case to be noneconomic; it was outside the reach of Congress’s Commerce power, regardless of its effect on interstate commerce. The case for the constitutionality of the individual mandate is far weaker than either of these two cases. Congress was at least trying to regulate an individual’s activity in the cases above. But the mandate does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. To the contrary, it purports to “regulate” inactivity.

If the individual mandate is Constitutional, then Congress could do anything. They could: require us to buy a new Chevy Impala each year to support the government-supported auto industry; require us to buy war bonds to pay for the Iraq and Afghan wars; require us to grow wheat (10 bushels each), or pay someone else to grow your share; require us to buy whatever they want.

Many on the left immediately point to state mandates that drivers purchase car insurance as proof of a mandate that all Americans buy health insurance is not new. But car insurance mandates are distinguishable in at least four ways: 1) they are state requirements and states have broader constitutional authority than the federal government; 2) they apply to drivers only, not all Americans (e.g. passengers are not required to carry insurance); 3) drivers use public roads; 4) states only require drivers to insure against injury to other drivers, not to insure themselves against personal injury.

Yesterday The Heritage Foundation’s Center for Legal and Judicial Studies released a Legal Memorandum written in conjunction with Georgetown University Law Center Professor Randy Barnett and Nathaniel Stewart explaining: Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional. Introducing the paper, Sen. Orrin Hatch noted:

“James Madison said that if men were angels, no government would be necessary and if angels governed men, no limits on government would be necessary. Because neither men nor the governments they create are angelic, government and limits on government are both necessary for ordered liberty. Politics may tell us what we want to do, but the Constitution tells us what we may do and we must keep those separate. The ends do not justify the means for one simple reason – liberty. Liberty requires limits on government power, it always has and it always will.”

Someone needs to explain this concept to Speaker Pelosi. Seriously.