John Ensign and Orrin Hatch may have forced the Senate’s hand on a key element of health care reform – the individual mandate.

GOP Sens. John Ensign (Nev.) and Orrin Hatch (Utah) delivered floor speeches Tuesday morning that the bill, in particular its individual mandate the nearly everyone obtain healthcare coverage, violates the Fifth Amendment and the Commerce Clause of the Constitution. Ensign then made a constitutional point of order on the floor, forcing a vote that will take place Wednesday.

Many experts believe that the individual mandate would not violate the Commerce Clause, but I’m not sure that this territory is well-charted. Lots of states force people who drive to carry auto insurance, but the ownership of a car is not mandated, so there is no prohibition on an individual going without auto insurance if they don’t have a car. In this case, the mandate would be on everyone, though in the Senate bill there are hardship exemptions.

There’s an excellent discussion of it here, and I would tend toward Jack Balkin’s side in the debate (He says the mandate is “a constitutional exercise of Congress’s power to tax and spend for the general welfare”). However, Ensign and Hatch didn’t secure a legal opinion, but a vote of the Senate through a point of order. So we won’t have a Supreme Court ruling on this, but a partisan Senate vote. And it will fail. It’s a tactic to delay debate and perhaps use as political fodder later.

UPDATE: Max Baucus quotes a series of law professors on the subject, all of them finding the mandate Constitutional.