It’s been reported that at least 38 states have passed or are working on various legislation that will likely lead to constitutional challenges.

The most likely challenge to succeed, and the one most states are focusing on, is the individual mandate.  This would result in an unprecedented extension of federal powers, where by the federal government can force US Citizens to purchase a product (in this case health insurance) or be penalized or taxed if they don’t.

The Washington Post laid out the case (or lack there of) of several court challenges that the health care bills could face.  Here is the WaPo analysis of the merits of the two most likely supreme court challenges:

The individual mandate.

Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power “to regulate commerce . . . among the several states.” Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That’s why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of “economic” activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that’s how the court would probably view the regulation of health insurance.

But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.

The Cornhusker Kickback, the Louisiana Purchase, Gator Aid and other deals.

Some states are threatening lawsuits to block the special deals brokered by individual senators in exchange for their votes. Unless the reconciliation bill passes the Senate, such deals could remain in place. Article I of the Constitution allows Congress to tax and spend to “provide for the common defense and general welfare of the United States.” Normally, this is no barrier to legislation benefiting a particular state or city. Congress can always argue that, say, an Air Force base in Nebraska benefits the United States as a whole. But the deals in the Senate bill are different. It is really hard to identify a benefit to all the states from exempting one state from an increase in Medicare costs or allowing only the citizens of Florida to get Medicare Advantage.

While it seems that there is probably wiggle room in regards to the special deals for Nebraska and other states, it is much harder to defend the individual mandate.   The Democrats will claim that the commerce clause will come into play, and therefore gives the federal government the right to regulate it and therefore require citizens to purchase insurance just for the right of living and breathing.  What’s next?  A requirement to by only GM cars?

One ironic side note.  The commerce clause is used to regulate interstate commerce, but the Democrats refused to even consider the interstate sale of insurance, or allowing insurance to be sold across party lines.

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