This was a vote on whether a point of order raised against an amendment to the major health care legislation should prevail. The point of order, made by Sen. Ensign (R-NV), was that the mandate in the pending amendment requiring Americans to purchase health insurance is unconstitutional. The point of order also was made against the provisions in the amendment imposing penalties against those who do not purchase health insurance.

Sen. Ensign, in support of his point of order, claimed that: “Congress has (never) required Americans to buy a product or service, such as health insurance, under penalty of law . . . I doubt Congress has the power to do that. Under this bill, if an American chooses not to buy minimal essential health coverage, he or she will face rapidly increasing taxes — up to $750 or 2 percent of taxable income, whichever is greater, by the year 2016.”

Ensign dismissed the argument by supporters of the mandate that it is analogous to states requiring their citizens to purchase car insurance as “a false comparison.” He argued that the Constitution gives to the states all powers not specifically delegated to the federal government, and this would include mandating its citizens to purchase insurance. He said that Congress could not do the same thing as the states because: “It is not within the enumerated powers given to this body and to this federal government in the Constitution.”

Ensign went on to argue that the mandate “is a real threat to liberty because of the precedent it sets on the federal government being able to tell individuals what to do.” He cited an academic article that said: “Congress cannot . . . simply avoid the constitutional limits on its power (and) . . . a ‘tax’ (or penalty) that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority.”

Sen. Baucus (D-MT), who was one of the leading supporters of the health care legislation, responded to Ensign. He noted the constitutional delegation to Congress of the power to regulate interstate commerce and to tax and spend for the general welfare. Baucus argued that, within this delegation of powers includes the authority to impose a health insurance mandate and to penalize citizens for not adhering to that mandate.

Baucus supported this position by saying: “Health care and health insurance . . . are distributed through interstate commerce (and) . . . (C)laims payments flow through interstate commerce. That gives Congress the power to legislate a coverage requirement using its commerce powers.” Baucus also cited an academic analysis that had been developed on the issue, which concluded, among other things: “Since there is no fundamental right to be uninsured, no fundamental right to challenge (a penalty for being uninsured) exists.”

The vote on the point of order was 39- 60 along straight party lines. All “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; the provisions in the legislation requiring Americans to purchase health insurance, and punishing those who do not, remained in the health care legislation.