Specifically, the Times explains:
South Carolina's attorney general said Tuesday his office was exploring whether the horse-trading used to secure the last few Democratic votes for the bill violates the Constitution; now a separate challenge is headed for a vote on the Senate floor on Wednesday.
Sen. John Ensign, Nevada Republican, has raised a constitutional point of order, arguing that the founding document does not give Congress the right to insist that Americans buy health insurance, nor to punish them with a tax if they don't.
While this is a welcome development in the juggernaut dragging this bill to its ultimate conclusion, there's a fat chance that this maneuver will actually prevent its passage. As the Times notes, "Democrats only need 50 votes to reject the point of order, and they are certain to muster that tally Wednesday as they rush to pass the bill." So as it stands, "The current schedule has a final vote on passage set for early Christmas Eve."
And if there were any doubts about where the Speaker stands on such an obscure concern, remember how she responded to a question about the constitutionality of an individual mandate back in October. As a refresher, when asked to identify where exactly in the Constitution Congress has the authority to force citizens to buy a specific product, Pelosi responded with the back of her hand: "Are you serious? Are you serious?"
Not surprisingly, the Democrats' answer to the constitutionality question is the all-inclusive Commerce Clause, located in Article I, Section 8 of the Constitution, which grants Congress the power to "regulate Commerce ... among the several States."
But as attorney Peter Urbanowicz, previously a Deputy General Counsel of HHS, and Dennis G. Smith, a Senior Research Fellow at the Heritage Foundation, explain in a brief analysis provided by The Federalist Society:
[S]uch an action would have to contend with recent Supreme Court precedent limiting unfettered use of Commerce Clause authority to police individual behavior that does not constitute interstate commerce ...
In the case of a mandate to purchase health insurance or face a tax or penalty, Congress would have to explain how not doing something – not buying insurance and not
seeking health care services – implicated interstate commerce.
Unfortunately, this latest effort will fail, and the Senate will vote on its version as planned. However, constitutional questions do remain, and will persist, as this nightmare becomes reality. Only time will tell how much this bill will eventually cost -- in terms of freedom, economic liberty, and the Constitutional Republic that lost its way.