Some foes of health-care bill hope courts will stop legislation

By Ben Pershing
Sunday, January 3, 2010

Opponents of the health-care reform bill are not giving up the fight, and some think their last, best hope to halt the legislation lies not in the U.S. Capitol but in the court across the street.

A small but vocal contingent of legal scholars and many Republican lawmakers argue that the measures passed by both chambers are unconstitutional and will be ruled so by the Supreme Court. Their primary target: the individual mandate, which requires people to get health insurance or pay a financial penalty of at least 2 percent of their income to the government.

Although it would affect only those who do not get insurance from their employer, Medicare or Medicaid, the mandate is a central component of Democrats' reform plans, which operate under the assumption that bringing everyone into the national insurance pool -- particularly young, healthy people who do not have coverage -- will reduce premiums across the board. By adding millions of new customers, the mandate is also designed to make reform more palatable for insurance companies, which will face new restrictions and requirements.

But some critics dismiss the economic merits, saying the bills would force people to buy a particular product. Laws requiring drivers to carry auto insurance do the same thing, but people can choose not to own a car. The health insurance mandate includes no such alternative.

"In the history of this country, the federal government has never required every American to enter into a contract with a private company," said Randy Barnett, a professor of constitutional law at Georgetown University Law Center.

Barnett and two co-authors made the case against the individual mandate in a legal memorandum published by the conservative Heritage Foundation in early December. To uphold the constitutionality of the individual mandate, they argued, the Supreme Court would have to find that the Constitution's Commerce Clause has "no limits."

"If Congress can mandate this, they can mandate anything," they wrote. "Congress could require every American to buy a new Chevy Impala every year, or pay a 'tax' equivalent to its blue book value, because such purchases would stimulate commerce and repay government loans."

Democrats say the constitutionality argument is a stalking-horse for the GOP's broader opposition to reform. On Dec. 23, the day before the Senate passed its health-care bill, the chamber voted on a point of order raised by Sen. John Ensign (R-Nev.), who said the individual mandate made the measure unconstitutional. His effort was rejected along party lines, 60 to 39.

During the floor debate, Sen. Orrin G. Hatch (R-Utah) said the Senate "cannot ignore this question by simply punting it to the courts."

Senate Finance Chairman Max Baucus (D-Mont.), a co-author of the bill, responded, "We have looked at this question seriously and concluded that the penalty is constitutional. And those who study constitutional law as a line of work have drawn that same conclusion."

Indeed, a number of legal scholars have come forward to rebut conservatives' arguments, saying the individual mandate easily passes constitutional muster.

"There are many close constitutional questions. But this is not among them," Erwin Chemerinsky, dean of the law school at the University of California at Irvine, wrote in a recent online debate on the subject. "Congress clearly has the legal authority to require individuals to have health insurance."

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