A major component of the health bills grinding through Congress right now is a new requirement that nearly everyone buy health insurance — a so-called individual mandate. But conservatives who oppose the health care overhaul have threatened to challenge this mandate on constitutional grounds.
"For the first time in the history of our country, 225 years, the federal government's saying you've got to buy something," Iowa Republican Sen. Chuck Grassley said. "That's never been before. You as an individual can do whatever you want to, buy whatever you want to, when you want to, where you want to get it, but now the federal government's saying you have to buy health insurance."
Grassley's position on the individual mandate has changed in recent months. Last June, he told Fox News Sunday he thought everyone should have to buy health insurance, because, as he put it then, "There's no free lunch."
"I believe that there is a bipartisan consensus to have individual mandates," he said.
At the time, Grassley was still deep in negotiations with Senate Democrats on the Finance Committee over a health care bill. But by the time that panel's legislation came to a vote, Grassley had turned against both the bill and the requirement that everyone buy insurance.
Since then, a lot of other Republicans have joined Grassley in questioning the individual mandate, including Florida's Republican attorney general, Bill McCollum.
"I view the individual mandate as a living tax. I call it a tax on living," he said.
To The Supreme Court?
Two weeks ago, McCollum wrote fellow state attorneys general and urged them to explore a constitutional challenge.
"I'm assuming there will be a bill that becomes law, and ... if it does include a individual mandate, or what I call a living tax, then at that point we have to make a decision: Do we challenge it in court?" he said. "The first step would be to go into federal court and seek that challenge, and I would expect, if that were to be the case, we'd have a sizeable number of attorneys general joining us."
A legal battle could end up in the Supreme Court. Georgetown University law professor Randy Barnett is already gearing up for that. He maintains Congress would be overstepping its powers enumerated in the Constitution if it required people to buy health insurance.
"Never in the history of the United States has the federal government ever required someone to engage in an economic activity with a private party. It's never been done, and anything that's never been done before has no precedent for it," he said. "It would have to be a new decision by the Supreme Court to uphold this new extension of power. And if they uphold this, then there's pretty much nothing that Congress can't do and that's the end of the enumerated power scheme."
But William Treanor, the dean of Fordham University's law school, said he's confident an individual mandate would be held constitutional if it went to the Supreme Court. Treanor said the mandate to buy health insurance would be seen by the high court as part of Congress' power to regulate interstate commerce.
"The view that it's not consistent with the enumerated powers is at odds with well-established precedent that runs back more than 70 years," he said. "I think this is very clearly something that Congress can do under the commerce clause power."
'A First Time For Everything'
Wake Forest University constitutional expert Mark Hall says almost every legal scholar he knows considers an individual mandate for health insurance consistent with Congress' power to regulate.
"An individual who goes out and tries to purchase health insurance cannot buy a policy that covers pre-existing conditions or that asks no medical questions. Such a product is simply not sold in most states, and it can't really be sold economically unless we require most people to have insurance," he said. "So the requirement is really part and parcel of the regulation of the structure and conditions of the marketplace that would allow a very desirable kind of product to be sold."
And Yale legal scholar Akhil Amar said the fact that a requirement to buy health insurance would be enforced through fines shows Congress is exercising an even more fundamental constitutional power: its power to impose taxes.
Amar says courts should not be concerned that such a mandate has not been used before.
"There's a first time for everything. Before there was a federal bank, there was no federal bank; before there was a Social Security Administration, there was no Social Security Administration," Amar said. "Have we ever had a law just like this before? No. That's why it's being proposed. That's true of many laws."
Still, should the individual mandate become law, opponents are saying: See you in court.