The next battle over the healthcare reform package may take shape in the courts. Eleven attorneys general have indicated an intention to file suit in federal court, alleging that the act is unconstitutional. I am no lawyer, but there is some intriguing legal reasoning here. In the words of Virginia Attorney General Ken Cuccinelli:

“With this law, the federal government will force citizens to buy health insurance, claiming it has the authority to do so because of its power to regulate interstate commerce,” Cuccinelli said. “We contend that if a person decides not to buy health insurance, that person – by definition – is not engaging in commerce, and therefore, is not subject to a federal mandate.”

Are there other instances where the federal government requires individuals to engage in such actions? It is surprisingly hard to think of any such precedents. There are plenty of examples where public safety is involved: commercial property owners required to purchase fire suppression sprinklers and car owners required to purchase seat belts, to name two commonplace examples. The legal distinction being made is that owning commercial property or a car is a voluntary act — you don’t have to own them, so you don’t have to buy sprinklers or seat belts. This act, by contrast, imposes a mandate on everyone, and there is no means to opt out. On the other hand, it is beyond conception that our entire nation could opt out of commercial property and car ownership; for tens of millions of Americans, there is no practical path to opt out. For them, sprinklers and seat belts are government mandates akin to health insurance under this new act. But it is hard to find a precisely applicable precedent for this.

Although constitutional validation may not be easily found in the commerce clause, that does not mean the act is without significant constitutional justification. Many acts of government have been justified (and upheld by the courts) under the so-called General Welfare language. Article I, section 8 of the U. S. Constitution grants Congress the power to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States.” Legal scholars have been debating the extent of this authority for the better of our nation’s history.

I have no doubt that there are “general Welfare” implications of the healthcare reform act. People without insurance drive up healthcare costs on the remainder of the population, shifting their obligations to others through bankruptcy, abuse of emergency rooms, consumption of charity care and other behaviors. The state has a valid interest in preventing these dysfunctions.

So I don’t know what the exalted legal minds of our time will say. From a pragmatic point of view, it seems highly unlikely that the courts will strike this down. Unless the legal issues all unambiguously point to unconstitutionality, the courts tend to grant wide berth to the other branches. Proving the inapplicability of the commerce clause is insufficient for the attorneys general to prevail; all the government needs do is find any constitutional justification for the act, such as general welfare. We’ll know soon enough.

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