Are health mandates unconstitutional? - First Read - msnbc.com

by Mark Murray

Filed Under: Congress , Courts

From NBC's Doug Adams
This weekend in the Wall Street Journal ,Sen. Orrin Hatch (R) co-authored an op-ed arguing that the health-reform bill passed by the Senate and House may be unconstitutional.

The main argument: The "individual mandate" for health insurance is unconstitutional because there is no power granted to Congress in the Constitution to require Americans to spend their money to purchase a good or service (in this case, health insurance.)

This is an argument that has been kicking around in conservative legal circles for several months now, and senators have occasionally made mention of it on the floor. Now some Republicans are considering a Supreme Court challenge if the bill becomes law.

While President Obama has defended a health insurance mandate by comparing it to the requirement to buy car insurance, conservatives point out they are not the same. State laws requiring car insurance are legal because states have far reaching powers to make law (to protect public health and safety for example), while the federal government's authorities are more limited.

Here's how the conservative legal argument goes: Congress must be able to point to one of its constitutional powers as the authority for any legislation it passes. Critics say Congress' powers to tax and spend don't apply because the mandate neither taxes nor spends. The other constitutional power granted to Congress is the authority to "regulate Commerce ... among the several states" -- commonly referred to as the "commerce" clause.  While this power has traditionally been given a broad definition by the Supreme Court, it has been narrowed in recent years. 

Conservative legal scholars argue that a mandate to purchase health insurance is not "interstate commerce," because there is no economic action. They say it is merely an attempt to dictate personal behavior. While the Supreme Court has upheld laws under the commerce Clause that involve private citizens voluntarily choosing to engage in economic activity, this is "coercing" economic activity, they argue, not regulating it.

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