The Hill asked me the following question:
Thirteen state attorneys general have filled a lawsuit claiming that the new healthcare reforms are unconstitutional. Is this a real legal challenge or a political stunt?
Here’s my response:
The challenge is very real—and necessary—but we are in uncharted territory here so it’s difficult to predict how courts will react.
The strongest and most important legal argument attacks the constitutionality of the individual mandate to buy a certain approved health insurance plan. Never before has the federal government—or any other—tried to force Americans to buy a particular good or service. Never before has it said that every man, woman, and child alive has to purchase a particular product, on penalty of civil or criminal sanction or forfeiture. And never before have courts had to consider such a breathtaking assertion of raw power – not even during the height of the New Deal, when the Supreme Court ratified Congress’ regulation of what people grew in their backyards on the awkward theory that such behavior affected interstate commerce.
The individual health care mandate is an even greater expansion of congressional power under the Commerce Clause. And it cannot be justified under the Necessary and Proper or General Welfare Clauses either, because these provisions guide the exercise of Congress’ enumerated powers without adding to them. In short, if the challenges to this health care “reform” fail, nobody will ever be able to claim plausibly that the Constitution limits federal power.
You can read here the responses of other pundits – including several non-lawyers, curiously.