This was a vote on whether a point of order raised against the major health care legislation should prevail. The point of order, made by Sen. Hutchison (R-TX), was that provisions of the legislation setting rules for state employee insurance plans would be an unconstitutional incursion by the federal government into the rights of the states. The point of order was part of the effort being made by Senate Republicans to delay consideration of the health care bill.

The Democratic majority, which supported the bill, was making an effort to pass it before the Senate adjourned for the year. The Republican minority, which opposed the legislation, was using a variety of procedural tactics to slow down the consideration of the measure. Raising points of order such as this one against amendments to the health care bill was one of those delaying tactics.

Arguing on behalf of the point of order, Sen. Hutchison first noted that the 10th amendment to the Constitution “says: The powers not delegated to the United States by the Constitution . . . are reserved to the states.” She also noted: “In this (health care) bill, (a number of) . . . states that have taken full responsibility for insurance plans for their employees and teachers will have to justify any change in those terms to the federal government.” Hutchison went on to argue: “This (required justification) is an encroachment of the federal government into a role left to the states in the Constitution. The 10th amendment is being eroded by an activist Congress, and it is time to stop it now.”

Hutchison also noted that supporters of these and other provisions of the bill said Congress had the authority to enact those provisions under its constitutional power to regulate interstate commerce. She then went on to argue that “what they fail to mention is the power to regulate interstate commerce has not been the basis for a robust role in insurance regulation.” Traditionally, insurance regulation has been a matter left to each individual state.

Sen. Baucus (D-MT), who chairs the tax-writing Finance Committee and was among those leading the support for the health care legislation, opposed the point of order. He claimed the goals involved in the health care bill are “clearly an appropriate exercise of the commerce clause . . . Congress has power to enact this legislation pursuant to the taxing and spending powers. This bill does not violate the 10th amendment because it is an appropriate exercise of powers delegated to the United States, and because our bill fundamentally gives states the choice to participate in the (insurance purchase) exchanges themselves or, if they do not choose to do so, to allow the federal government to set up the exchanges fully within the provisions as interpreted by the Supreme Court of the 10th amendment.”

The vote was 39-60 along party lines. All thirty-nine “aye” votes were cast by the Republicans present. All sixty “nay” votes were cast by Democrats. As a result, the point of order did not prevail and provisions remained in the health care bill setting rules for state employee insurance plans.