Jim DeMint Fundamentally Misunderstands Constitutionalism

Yesterday, we learned that Senator DeMint would force a “vote” on the constitutionality of one of the key provisions of the health care bill, the “individual mandate,” which would require most persons to buy or otherwise belong to a qualified health insurance plan. But, the legislature has neither the power nor the duty to exercise constitutional oversight. While legislators should  endeavor to pass only constitutional laws, interpreting the Constitution is the judiciary’s job, in cooperation with the executive (the Founders intended the President to act as a last, best defense against unconstitutional laws, through the power of the veto). A legislative declaration that a law is constitutional, or otherwise, is a legal nullity, making DeMint’s call to action a case of grandstanding and misplaced pathos at its finest.

Further, the constitutionality of the individual mandate isn’t really up for serious debate. As a matter of law, Congress has the power to regulate in this area, pursuant to even a post-Rehnquist reading of the Commerce Clause, and no legitimate due process interest is implicated by forcing citizens to participate in a public welfare scheme. And as a matter of policy, no Supreme Court has gone toe-to-toe with a President over sweeping regulatory reforms since the New Deal. If I recall, that ended poorly.

It is emphatically the province and duty of the Judicial Branch Legislature to say what the law is.

— Chief Justice John Marshall, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

Apparently, this is how Jim DeMint (R-S.C.) reads the immortal words of Chief Justice Marshall.



  1. I have heard some rumblings that this violates the “Takings” clause by potentially forcing insurance companies to run at a loss. Although I don’t see quite how the insurance companies lose money on this, I’d be interested in your thoughts. Also, some legal types are claiming that the insurance industry would become a “virtual public utility.”

  2. Ah, you’re referring to Richard Epstein’s article. I’m working my way through that :)

  3. Even without the constitutional issues, from a procedural point of view, this is just pure playing to the gallery. Surely Congress wouldn’t consciously pass a bill which a majority thought was unconstitutional. So effectively, the vote on constitutionality is already implied in the vote on the bill itself.

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