PRECEDENT SUGGESTS COURT WILL UPHOLD MANDATE IN HEALTH CARE LEGISLATION

Colorado citizens are entitled to ask whether the lawsuit Attorney
General John Suthers has joined serves valuable purposes. The suit
maintains it violates the rights of states under the Constitution
for Congress to require individuals to purchase health insurance.
Whatever the abstract merit of this position, its premises have been
clearly and recently repudiated by a majority of the justices who
currently sit on the Supreme Court. Unless the court departs from
the rule of law, the lawsuit has no reasonable chance of success.

It is true that the Constitution envisions limits on Congress' power
to regulate, relative to the states. But Article I gives Congress
the far broader power to tax to promote "the general welfare." Under
the new health reform law, financially able adults do not go
to jail for refusing to purchase health insurance. They must pay a
federal tax.

Under existing precedent, it is a long shot to claim that this is a
kind of tax the Constitution does not permit. But let's just assume
that, against all odds, the court holds otherwise.

Even as pure regulation, the individual mandate fits easily inside
the current court's understanding of Congress' authority to regulate
interstate commerce.

Suthers argues the health care bill is "the first time in history
Congress has used its interstate commerce power to regulate people
who choose not to engage in commercial activity. But that's not true.

Just five years ago, in Gonzales v. Raich, the court held that
Congress' may regulate persons who do not engage in commerce when
those persons threaten to undercut a larger scheme regulating
commercial activity.

Raich sustained a federal law criminalizing noncommercial
cultivation of marijuana for personal medicinal use. Such a law, the
court reasoned, was a sensible part of a broader scheme regulating
the commercial sale of illegal drugs. This 6 -- 3 decision was
joined not just by the court's "liberals" but also by Justice
Scalia, who is one of the most conservative justices, and by Justice
Kennedy, who is frequently a swing vote on the court.

The individual mandate is plainly part of a larger scheme regulating
economic activity, namely the purchase of health insurance and
medical services. Congress has good grounds for believing that this
scheme is undermined by solvent adults who refuse to purchase health
insurance.

Everyone knows that the uninsured receive medical treatment. Indeed,
almost all hospitals are legally required to treat patients in an
emergency condition regardless of ability to pay.

The issue is not whether the uninsured will receive treatment but,
rather, who will pay for it. Congress could reasonably conclude
that, if financially capable adults refuse to purchase insurance,
everyone else will pay for expensive treatment they receive. Such
freeloading, in turn, increases the cost of health insurance and
frustrates Congress' purpose of making health insurance affordable.

The attorney generals implicitly suggest this case is different
because the health reform law forces individuals to engage in
commerce. However, in cases every sitting justice regards as rightly
decided, the court has upheld a federal law forcing hotels, motels
and restaurants to engage in commerce with African American
customers, even when they do not wish to do so.

Nor is it true that it would be unprecedented for the court to hold
that Congress may require persons to purchase goods or services.

In 1942, the Supreme Court sustained a federal law restricting the
wheat a farmer may grow for himself and his livestock. By design,
the law forced many farmers to fulfill their needs by buying wheat
in the market. The court treated this forcing as a reason to
sustain the law, not invalidate it. The forced purchases increased
demand and gave Congress reason to believe that wheat's market price
would increase. In the 2005 marijuana case, the justices relied
heavily on the wheat case.

The attorneys general write as though Congress is regulating persons
for doing nothing, for merely being residents of the United States.
Let's get real. The law is aimed at activity, at Mr.
Too-Smart-To-Buy-Health-Insurance's seeking and receiving medical
treatment when he suffers serious injury and shifting the costs to
everyone else. It is strange to view the Constitution as permitting
federal authorities to seize his assets after-the-fact but as
prohibiting the much more effective means of requiring that he
contributed all along to a health insurance pool like everyone else.

Most constitutional scholars, including many conservatives, believe
that existing law clearly forecloses the conclusion that an
individual mandate is "an unconstitutional expansion of federal
power." One can still value the lawsuit as a contribution to the
debate over the Constitution's meaning. In a time of tight state
budgets, one can also question whether a lawsuit is the best way to
conduct a seminar in how the court should, but will not, interpret
the Constitution.