Is the House healthcare reform bill unconstitutional?

Healthcare reform critics gathered at the Capitol Thursday for a very public “House Call” protest ahead of Saturday’s scheduled vote on the House bill.

Behind the scenes, however, lawyers connected with the Tea Party movement are planning a legal assault on healthcare reform.

If Democrats manage to push a comprehensive healthcare reform package onto President Obama’s desk, a group of lawyers file suit in federal district court, says Strother Smith, president of the newly founded 10th Amendment Foundation, a Tea Party-affiliated organization in Abingdon, Va.

To many constitutional experts, the effort would be futile. Congress’s bid to mandate healthcare for all Americans fits neatly into 70 years of Supreme Court precedent. The nation’s highest court has steadily broadened Congress’ power to tax, influence, and regulate the lives of all Americans.

But Tea Party activists see healthcare reform as something of a Waterloo. A successful legal challenge against the bill could stop – and perhaps even reverse – the expansion of congressional power, they say. A loss, they say, would cement the fact that Washington's national power has evolved in a way that the Founders would not recognize.

“The Constitution sets us up as a representative constitutional republic, and the Democrats, if they get by with doing this, they’re in effect doing away with us as a constitutional republic and establishing us as a pure democracy, meaning rule by man, not rule of law,” says Mr. Smith.

The legal argument against healthcare reform

The challenge is founded upon the argument that healthcare is not a right enshrined by the Constitution, and that by mandating health insurance for every American, Congress is overstepping the authority granted to it by the Constitution.

For one, they say, the commerce clause – which gives Congress powers to regulate commerce among states –does not give Congress the authority to regulate healthcare, which is about well-being.

The bill would not regulate any activity, per se, write former Justice Department lawyers David Rivkin and Lee Casey in a recent Wall Street Journal opinion piece: “Simply being an American would trigger it.”

Moreover, legal critics of the bill say a tax on Americans who refuse to buy healthcare insurance violates the 16th Amendment, which regulates how government can raise and spend taxes – a critical link to how Americans perceive individual liberty in their personal and business lives.

“A ‘tax’ that falls exclusively on anyone who is uninsured is a penalty beyond Congress’ authority,” write Messrs. Rivkin and Casey. “If the rule were otherwise, Congress could evade all constitutional limits by ‘taxing’ anyone who doesn’t follow an order of any kind – whether to obtain healthcare insurance … or even eat your vegetables.”

Healthcare reform unconstitutional? 'Ridiculous.'

House Speaker Nancy Pelosi has called constitutionality questions “ridiculous.”

Irvine School of Law professor Erwin Chemerinsky agrees. He disputes the commerce clause, states’ rights, and taxation arguments. He says an “unbroken line of precedents” going back 70 years has given Congress the power to regulate activities that cumulatively have an effect on interstate commerce, arguing that people not buying health insurance “unquestionably” has this effect, according to a Politico column.

Mr. Chemerinsky also adds that “Congress could justify this as an exercise of its taxing and spending power,” saying the Supreme Court has given Congress broad power to tax and spend for the general welfare, a term that Congress itself can define.

But Mr. Smith of the 10th Amendment Foundation is undeterred by such arguments. He says lawyers would file a complaint in federal court in Roanoke, Va., as well as a request to block implementation of a new law until the legal issues are settled.

Smith hopes that his group’s warning will get the attention of fence-sitting Democratic congressmen, especially those from conservative states. Election-time TV ads in home districts about lawmakers failing to uphold their oath to serve the Constitution could have a political effect, he says.

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