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Is the Health Care Bill Unconstitutional?

Posted Jan 5, 2010 9:58 AM CDT
By Debra Cassens Weiss

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Critics of the health care bill are raising concerns that Congress is overstepping its constitutional bounds in the far-reaching legislation.

One naysayer is Florida Attorney General Bill McCollum, who says he will evaluate the constitutionality of the bill and the state’s legal options, United Press International reports. He says he is most concerned about the mandate to buy health insurance, and the fine or tax on those who don’t comply.

“Such a 'living tax' is worrisome because it would be levied on a person who does nothing, a person who simply wishes not to be forced to buy health insurance coverage," McCollum said in a statement.

Writing in the Wall Street Journal, Sen. Orrin Hatch, R-Utah, joined with two other legal scholars to outline their constitutional concerns.

They wrote that Congress doesn’t have the power to require health insurance. “Congress' powers to tax and spend do not apply because the mandate neither taxes nor spends,” they say. Nor does Congress have the power under the commerce clause, they assert. “It is one thing,” they say, “for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity.”

They also nix the argument that Congress has the power to serve the general welfare. “Those words appear in Article I of the Constitution, but they do not create a free-floating power for Congress simply to go forth and legislate well,” they write. “Rather, the general welfare clause identifies the purpose for which Congress may spend money.”

The Wall Street Journal Law Blog covers other constitutional concerns, including questions surrounding a deal to win over a Nebraska senator that exempts the state from new Medicaid costs.

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