Is the Health Care Lawsuit For Real?

The Hill asked me the following question:

Thirteen state attorneys general have filled a lawsuit claiming that the new healthcare reforms are unconstitutional. Is this a real legal challenge or a political stunt?

Here’s my response:

The challenge is very real—and necessary—but we are in uncharted territory here
so it’s difficult to predict how courts will react.

The strongest and most important legal argument attacks the constitutionality of the individual mandate to buy a certain approved health insurance plan. Never before has the federal government—or any other—tried to force Americans to buy a particular good or service. Never before has it said that every man, woman, and child alive has to purchase a particular product, on penalty of civil or criminal sanction or
forfeiture. And never before have courts had to consider such a breathtaking assertion of raw power — not even during the height of the New Deal, when the
Supreme Court ratified Congress’ regulation of what people grew in their backyards on the awkward theory that such behavior affected interstate commerce.

The individual health care mandate is an even greater expansion of congressional power under the Commerce Clause. And it cannot be justified under the Necessary and Proper or General Welfare Clauses either, because these provisions guide the exercise of Congress’ enumerated powers without adding to them. In short, if the challenges to this health care “reform” fail, nobody will ever be able to claim plausibly that the Constitution limits federal power.

You can read here the responses of other pundits — including several non-lawyers, curiously.

CP: Cato's blog

Individual Mandate Is Constitutional – If You Rewrite the Constitution

House Judiciary Committee Chairman John Conyers (D-MI) was asked on Friday where in the Constitution Congress gets the power to force people to buy health insurance. He said, “Under several clauses, the good and welfare clause and a couple others.”

As it happens, there is no “good and welfare clause” — which Conyers should know, as both judiciary chairman and a lawyer. But even if you excuse his casual use of constitutional language, what he probably means — the General Welfare Clause of Article I, Section 8 — is not a better answer. What that clause does is limit Congress’s use of the powers enumerated elsewhere in that section to legislation that promotes ”the general welfare.” (So earmarks are arguably unconstitutional, though you can make a colorable argument that, when considering a pork bill as a whole, with all parts of the country getting something, that monstrosity is collectively in “the general welfare” — maybe.) In any event, the General Welfare Clause doesn’t give Congress any additional powers — and I’d be curious to know what the other “several clauses” are.

Conyers also noted that, “All the scholars, the constitutional scholars that I know . . . they all say that there’s nothing unconstitutional in this bill and if there were, I would have tried to correct it if I thought there were.” Well, Mr. Conyers, to start let me introduce you to three constitutional scholars — not fringe right-wing kooks or anything like that, but respected people who publish widely — who think Obamacare is unconstitutional. Now will you try to “correct” the bill?

For a survey of the various constitutional issues attending Obamacare, see Randy Barnett’s oped from Sunday’s Washington Post.

CP: Cato's blog