Is health mandate constitutional?

The top prosecutors in Washington and 12 other states filed a lawsuit Tuesday challenging the landmark health-care legislation minutes after President Obama signed it into law.

In a suit filed in federal court in Tallahassee, Fla., the attorneys general claimed the requirement for all Americans to buy health insurance is unconstitutional — the equivalent of going a step beyond simply regulating automobiles to requiring people to buy a car.

"This bipartisan effort by attorneys general around the country should put the federal government on notice that we will not tolerate the constitutional rights of our citizens and the sovereignty of our states to be trampled on," Florida Attorney General Bill McCollum said. "I will pursue this litigation to the highest court, if necessary."

Louisiana Attorney General James "Butch" Caldwell is the only Democrat joining the lawsuit. The others represent Alabama, Colorado, Idaho, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas and Utah.

Virginia, which has passed a law barring such government mandates, filed a separate suit.

Balancing out system

Health insurers have argued that an individual requirement to purchase insurance is necessary to ensure that young, healthy people who consume fewer health-care services contribute to the financing of health care and balance out older consumers who need more care.

But Randy Barnett, who teaches constitutional law at Georgetown University Law Center, said a constitutional challenge to an individual mandate is "a serious argument that might have success."

He also noted that courts could be swayed by the unpopularity of the law with a large portion of the public.

Still, he was careful not to predict that opponents of the bill would block the legislation completely. Even if a court were to strike down the insurance requirement, he said, such a ruling would still be likely to leave other elements of the law in place.

Several other noted law professors, however, gave the legal challenge less standing. The reasons: Congress has framed the insurance mandate as a tax, which it has well-established powers to create, and the legislative branch's sweeping authority to regulate the economy has been clear since the 1930s.

"The attack on this bill is not merely an attack on the substance of this particular measure," said Jack Balkin, of Yale University. "It's also a challenge to understandings that come with the New Deal."

Sanford Levinson, of the University of Texas Law School, said Americans who choose not to purchase health insurance can pay a fine. Congress, he said, clearly has the authority to levy taxes and fines.

"As a technical matter, it's been set up as a tax," Levinson said of penalties. "The argument about constitutionality is, if not frivolous, close to it."

Mark Tushnet, of Harvard University, said the central premise relied upon by the law's opponents — that Americans who choose not to have insurance aren't involving themselves in the nation's commerce — is flawed.

"The failure to have health insurance doesn't mean the person won't be consuming health services," Tushnet said. Once they receive care, he said, they have become involved in commerce and are subject to the federal government's regulation.

There also is some question as to whether courts could hear challenges now, because the requirement to purchase insurance doesn't become effective until 2014. Courts typically require plaintiffs to show some sort of current injury for which redress is sought.

Interstate commerce

The broad extent of the government's power to regulate interstate commerce has been recognized since Franklin Roosevelt's administration.

In fact, courts have backed Congress' ability to regulate under the Commerce Clause, even when the issues might not seem, at first blush, to involve interstate commerce at all.

That is why Roscoe Filburn, a small farmer in Ohio, had to destroy wheat that exceeded production quotas in a 1942 case, even though he was growing wheat for his personal use.

And the Supreme Court ruled in 2005 that Congress could prohibit medical marijuana, despite state laws that allow it. The people who had filed suit argued they had not bought the marijuana, but the Supreme Court said the Commerce Clause still applied.

"In both cases," Yale's Balkin said, "the Supreme Court said the cumulative effect of your attempt not to participate in the market has an effect on markets — and we can regulate it."

Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Irvine School of Law, said the argument that people should have the right not to buy health care was "rhetorically appealing" because of its paean to personal freedom.

He noted, however, that Congress has taken many actions that impinge on personal freedom for a national purpose, including the Civil Rights Act of 1964, which required hotels and restaurants to serve minorities.

"If the court stays true to its Commerce Clause jurisprudence of the last 15 years," he said, "I think this will be upheld."

Compiled from McClatchy Newspapers, The New York Times and the Tribune Washington bureau.