With their procedural options in the Senate exhausted, Republicans are looking to the Constitution for a way to fight the Democrats' health care reform bill.
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.
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"Most people around here don't like to talk about whether something's constitutional. We just want to do what feels good, because we think we're helping people," he said. "But our Founders set forth in the enumerated powers limits on what this body and this federal government could do."
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. The current schedule has a final vote on passage set for early Christmas Eve.
With Senate passage virtually certain, Democrats and Republicans began to look toward the upcoming effort to square the Senate bill with the version that passed the House.
Moderate Democrats are looking to ensure the concessions they won on issues such as abortion and a government-sponsored public option won't be erased. Liberal Democrats are trying to erode some of those concessions, and Republicans are expecting a public outcry over some of the sweetheart deals to further weaken the Democrats' hand.
One new hurdle is South Carolina Attorney General Henry McMaster's announcement he's examining whether those deals violate the Constitution. He singled out a provision that exempts Nebraska from having to cover expanded state Medicaid costs - an effort to win the vote of Sen. Ben Nelson, Nebraska Democrat.
"I have instructed my attorneys to begin looking into the constitutionality of this provision and exploring the options that may be available to South Carolina and other states to defend taxpayers should this provision ultimately become law," Mr. McMaster, a Republican, said in a statement, arguing that federal laws should treat all states the same.
Mr. Nelson rejected the claim he got special treatment, and said that over the next decade, every other state will have the chance to come back and ask for similar treatment.
"What we've done is, we've drawn a line in the sand and said this is unacceptable, and it's unacceptable for all states as well," he said on the Senate floor.
But his colleagues have called the deal everything from a "bribe" to "sleazy," and have criticized other provisions that could protect nonprofit insurance companies in Nebraska and Michigan, and exempt seniors in Florida from Medicare payment cuts.
Even some Democrats who are voting for the measure have made it a point to distance themselves from the deal-making.
The White House said the deal-making is standard.
"The legislative is what the legislative process is and has been for several hundred years," said press secretary Robert Gibbs.
The main constitutional challenge to the bill, and the subject of Wednesday's Senate vote, is whether the founding document grants Congress the power to require nearly everyone in the country to buy insurance or pay a penalty tax.
Sen. Max Baucus, Montana Democrat and a key author of the Senate bill, said Congress has the power to regulate health insurance because it's economic activity and health insurers sell their products nationally or regionally. He said that means it's subject to the Interstate Commerce Clause in the Constitution.
Mr. Baucus pointed to a series of law professors who have concluded the Supreme Court has widened the definition of Congress' powers to include mandating insurance coverage.
Mr. Nelson, the Nebraska Democrat who was the key 60th vote to advance Democrats' bill, said he viewed the constitutional objection less as a philosophical issue and more as one of many roadblocks opponents are throwing in front of the bill.
He said nobody challenges where Medicare is specifically allowed by the Constitution, and said requiring individuals to buy coverage is no different than other types of insurance.
"Auto insurance - is that mandatory?" he said.
In a 1994 analysis, the Congressional Budget Office said an individual mandate would be unprecedented.
"The government has never required people to buy any good or service as a condition of lawful residence in the United States," Congress' official scorekeepers said.
And Mr. Ensign said the distinction between auto insurance and the health care bill is that only drivers are required to purchase auto insurance, but the Senate legislation makes all Americans - even those who never go to a doctor or hospital - buy in.