Michele Bachmann asserts health care reform is unconstitutional. Is she right?

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The massive health care reform bill signed into law by President Barack Obama faces all sorts of legal challenges. Thirteen state attorneys general -- Republicans all -- filed a lawsuit this morning enumerating a litany of them, and a separate lawsuit was filed by the Virginia Attorney General.

Separately, Rep. Michele Bachmann has been complaining loudly about one of them: The law's provision that all citizens be required to purchase health insurance.

"There is no precedent for requiring an American citizen, as a condition of citizenship, to purchase a product or service against their will because government mandates they must buy it," she said yesterday.

She recently admitted she was wrong about another legal issue surrounding the health care debate -- the Slaughter Solution -- so we couldn't help wondering whether she was off base again.

Georgetown law professor Randy E. Barnett -- a "right-wing lawyer" according to the left-wing folks at Media Matters -- says she's right, and her position presents a legitimate constitutional argument.

"It's literally true. There is no precedent," he said.

Whether the mandate survives a Supreme Court challenge will likely depend on how the justices interpret the Commerce Clause in the U.S. Constitution, which allows Congress to regulate economic activities that cross state lines, he said.

Clearly, the Capitol Hill lawmakers who wrote the bill, and their supporters, believe that it passes muster. But Barnett says it's no slam dunk, citing auto insurance as an example. As opposed to laws requiring drivers to purchase auto insurance if they choose to own and drive a car, the mandate to purchase health insurance applies to all adult Americans simply because they exist, Barnett said.

David Orentlicher, writing at Politico, sums up the position of the law's supporters:

The Supreme Court would have to overturn 70 years of case law to side with the attorneys general challenging the health care legislation. To be sure, there is a germ of truth to the argument that the federal government may not require people to buy an insurance policy. If Congress passed a law whose only provision entailed a mandate to purchase a product, and violators of the law were automatically subject to incarceration, constitutional concerns would arise. Imagine a criminal law that required people to buy an American-made automobile to bolster the domestic car industry. But that is not the kind of mandate that Congress passed. Rather, the obligation to purchase insurance, with its financial penalty of $750, falls readily within the commerce clause authority of Congress.

Whether the court would take an expansive, or restrictive, view of the Commerce Clause to accommodate the individual mandate remains to be seen. People who oppose the mandate should not be 100 percent confident the courts will strike it down, Barnett said. Similarly, people who support the law should not be 100 percent confident that the mandate will be upheld.

"They are wrong if they think this is not a serious challenge," he said.


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