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Robert Bliss, Director of Communication, Department of Revenue

At the latest count, the attorneys general for 13 states have announced their intent to challenge the newly signed national health care reform law.

For instance, in the state of Washington, Attorney General Rob McKenna said he believed the requirement that everyone buy health insurance is unconstitutional. He told the Seattle Times: "I believe this new federal health care measure unconstitutionally imposes new requirements on our state and on its citizens. This unprecedented federal mandate, requiring all Washingtonians to purchase health insurance, violates the Commerce Clause and the 10th amendment of the U.S. Constitution."

Massachusetts passed an individual mandate for health insurance in 2006 requiring citizens to obtain health insurance and to pay a penalty if they could afford to purchase but chose not to do so. States clearly have the right to enact such laws within their borders, although none had done so previously.

But the question raised by these attorneys general is whether the federal government can pass legislation requiring all citizens of the United States to operate within rules very similar to those now in effect in Massachusetts.

In a recent Issue Brief titled "Mandatory Health Insurance: Is it Constitutional?," the American Constitution Society for Law and Policy took a detailed look at this very issue.

The brief's author, Simon Lazarus, Public Policy Counsel for the National Senior Citizens Law Center, concluded that: "No doubt, in some quarters, opponents' libertarian views are deeply felt. But they have no basis in law, neither in the grants of authority to Congress in Article 1 nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting those provisions … Opponents' real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in the current law. But their arguments appear unlikely to gain traction with the current Supreme Court, and, indeed, represent approaches and theories that have been repudiated by justices across the Court's ideological spectrum." 

Lazarus writes that "With respect to Congress' interstate commerce authority, the goals that drive this legislation – including achieving universal coverage, eliminating adverse selection, eliminating pre-existing conditions as a prerequisite for coverage, facilitating broad-scale pooling of individuals not covered by group health plans, and radically reducing costly emergency room visits by uninsured individuals – are eminently lawful objects for the exercise of that power."

Lazarus concludes with a survey of recent Supreme Court cases, none of which he sees as threatening the legal underpinning of the new law. His piece is extensively sourced and makes for compelling reading on this subject.

Not surprisingly, the Heritage Foundation has a much different view, and has published its own analysis arguing the new law is indeed unconstitutional. 

The Boston Globe has just published a survey of opinion on the subject in this story.

For an editorial in the Washington Post that links to the U.S. Constitution, link here.

Washington Post blogger Charles Lane offers these thoughts on why it might just be unconstitutional. 

And political columnist E.J. Dionne takes a look at this controversy through the lens of the Nullification Movement of the 1830s

 By the way, if you've got a little energy to spare after reading all this, the Kaiser Foundation has a fascinating new interactive time line reviewing the history of health care reform efforts and initiatives from Teddy Roosevelt and the Bull Moose Party in 1912 forward to today. 

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