By Ben Pershing
Sunday, January 3, 2010; A03
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."
Conservatives make two primary arguments against the mandate. The first is that an individual's inactivity -- in this case, the failure to buy health insurance -- does not qualify as interstate commerce, and thus Congress does not have the power to regulate it under the Commerce Clause. The second is that the financial penalty the law would impose goes beyond Congress's ability to lay and collect taxes.
"All of these arguments don't work, but they're interesting to debate," said Jack M. Balkin, a constitutional law professor at Yale Law School.
Defenders of the mandate point out that the Supreme Court has ruled that Congress may regulate "activities that 'substantially affect' interstate commerce" and that individuals' purchasing (or not purchasing) health insurance clearly falls within that category. Besides, Balkin added, "it's a really easy argument to show that this is a tax designed to promote the general welfare. . . . The Commerce Clause issue is irrelevant."
Florida Attorney General Bill McCollum (R), a candidate for governor, announced that his office will "conduct a review of the constitutionality" of the individual mandate. Conservatives have advanced other constitutional arguments against the reform plans, including that regulating insurance companies represents the illegal seizure of private property and that the Senate bill's excise tax on high-cost health plans impermissibly affects some states more than others.
Both sides say that if a bill becomes law, it will quickly be challenged in federal court.
"I don't think you'll be able to control the throng of test cases," Barnett said, adding that it is "unavoidable" the Supreme Court will eventually take up the individual mandate issue.
Balkin agreed that the law will be challenged, but he said the Supreme Court is unlikely to take the case; even if it does, it "will not overturn the individual mandate."
The mandate has been a source of controversy not just on the right. Barack Obama criticized the idea during the 2008 Democratic presidential primaries, leaving it out of his reform proposal while Hillary Rodham Clinton included it in her campaign's health-care plan. More recently, influential liberal blogger Markos Moulitsas argued that it was "unconscionable to force people to buy a product from a private insurer that enjoys sanctioned monopoly status."
But conservatives have focused on the constitutionality question. In October, a reporter from a conservative Web site asked House Speaker Nancy Pelosi (D-Calif.): "Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?"
Pelosi responded: "Are you serious? Are you serious?"