Sen. Nelson: Constitutionally, Congress Can 'Probably' Mandate Health Insurance In ‘Same Place’ States Can Mandate Car Insurance

By Chris Neefus | December 23, 2009 | 6:12 PM EST

Sen. Ben Nelson, D-Neb., arrives for a cloture vote on the Democrats’ health care bill early Monday morning, Dec. 21, 2009. (AP Photo/Harry Hamburg)

( – Sen. Ben Nelson (D-Neb.) said Wednesday that Congress is given the constitutional authority to mandate that individuals buy health insurance in "probably the same place” that states get the power to mandate that people purchase auto insurance.
Both the House and Senate health care reform bills require that individuals purchase health insurance, punishable by a penalty or incarceration. Republican Senators forced a vote Wednesday, called a “point of order,” on whether this provision is outside the constitutional authority of Congress. The point was defeated along partisan lines, 60-39.
At the Capitol, asked Sen. Nelson: “Where in the Constitution do you think that Congress gets the authority to create an individual mandate?”
Nelson said: “Well, you know, I – probably the same place that states have the authority to require, mandate if you will, compulsory auto insu--liability insurance.” "A follow-up [question]?"

Sen. Nelson: "If you're asking a question and not debating me." “I’m just wondering: Could a state require you to purchase auto insurance without an auto?”
“Probably not,” Nelson said, “but they -- they might be able to require that you carry liability insurance just for any general happening.” "So you'll vote down the point of order?"

Nelson:  "Yes, I am."
The Senate version of health care reform imposes an historic mandate on all Americans, requiring them to have government-approved health insurance, either through an employer or individually. The mandate also can penalize people with a surtax ranging from $500 to nearly $1,500 per year if they do not have a health insurance policy.
Sens. John Ensign (R-Nev.) and Jim DeMint (R-S.C.) believe the provision falls outside the constitutional purview of the Congress. In a floor speech on Tuesday, DeMint said the provision was nothing like state-mandated auto insurance.
“Forcing every American to purchase a product is absolutely inconsistent with our Constitution and the freedoms our Founding Fathers hoped to protect,” he said. “This is not at all like car insurance. You can choose not to drive but Americans will have no choice whether to buy government-approved insurance.”
“This is nothing more than a bailout and takeover of insurance companies,” said DeMint. “We’re forcing Americans to buy insurance under penalty of law and then Washington bureaucrats will then dictate what these companies can sell to Americans.”
“This is not liberty,” he said. “It is tyranny of good intentions by elites in Washington who think they can plan our lives better than we can.”
When Nelson was asked about the constitutionality of the individual mandate in November, he said he was “not going to be able to answer that question.”
“Well, you know, I don’t know that I’m a constitutional scholar,” Nelson told then. “So, I, I’m not going to be able to answer that question.”
Democrats, who hold a 60-vote majority with 2 independent senators voting with them, also completed a “cloture” vote, which ends debate on the health care bill. The Senate is schedule to vote for final passage of the bill at 8:00AM on Christmas Eve.
While certain to pass, the health care bill is unpopular with the public, garnering the support of barely 40 percent of Americans, according to recent national polls.
In 1994, when the Clinton administration tried to pass its own health care reform legislation, also with  an individual mandate included, the Congressional Budget Office reported that it was “unprecedented” in legislative history.

“The government has never required people to buy any good or service as a condition of lawful residence in the United States,” the CBO analysis said. “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”
To listen to’s exchange with Sen. Ben Nelson (D-Neb.), click here.