Why the Health-Care Bills Are Unconstitutional

First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce.

Congress has many times stretched this power to the breaking point, exceeding even the expanded version of the commerce power established by the Supreme Court since the Great Depression. It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity. That is not a difference in degree, but instead a difference in kind. It is a line that Congress has never crossed and the courts have never sanctioned.

In fact, the Supreme Court in United States v. Lopez (1995) rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said it could not do.

Well, I'm convinced. Of course, my opinion doesn't matter. It's the 9 judges of the Supreme Court who count. And while the liberals may concur that the individual mandate is perfectly legal, as the court is constituted now I would anticipate a majority rejecting it.

It all depends on how fast such a challenge would move through the lower courts. If it took so long that Obama would be able to name one or more far lefties, then the chances are pretty good that any claim that the individual mandate is unconstitutional would probably be rejected.

Read the rest of the piece for some fine legal thinking.