HEALTH LAW HAS HISTORY AS ITS ALLY

Overturning the Insurance Mandate on Constitutional Grounds Is
Unlikely If Courts Keep to Precedent

Lawsuits from 14 states challenging the constitutionality of the new
national healthcare law face an uphill battle, largely due to a
far-reaching Supreme Court ruling in 2005 that upheld federal
restrictions on home-grown marijuana in California.

At issue in that case -- just like in the upcoming challenges to the
healthcare overhaul -- was the reach of the federal government's power.

Conservative Justices Antonin Scalia and Anthony M. Kennedy joined a
6-3 ruling that said Congress could regulate marijuana that was
neither bought nor sold on the market but rather grown at home
legally for sick patients.

They said the Constitution gave Congress nearly unlimited power to
regulate the marketplace as part of its authority "to regulate commerce."

Even "noneconomic local activity" can come under federal regulation
if it is "a necessary part of a more general regulation of interstate
commerce," Scalia wrote.

The decision throws up a significant hurdle for the lawsuit filed
last week in federal court by 13 state attorneys -- all but one a
Republican. The Virginia attorney general filed a similar, but separate suit.

The suits claim that the federal government has no right to force
individuals to have health insurance -- a central provision of the
new healthcare law.

"By imposing such a mandate, the act exceeds the powers of the United
States under Article I of the Constitution," according to the suit
from the 13 states.

But this week, Obama administration lawyers pointed to Scalia's
opinion as supporting the constitutionality of broad federal
regulation of health insurance, and most legal experts agreed.

In the healthcare legislation, signed by the president Tuesday,
Congress required virtually all Americans to have health insurance
beginning in 2014. Those who fail to do so could be assessed a tax
penalty of up to $750 per year.

Legislators argued that the "individual mandate" was necessary
because it would undercut the insurance market if individuals could
just opt out of having health insurance. Freeloaders could wait until
they were hurt in an accident or contracted a disease and then demand
insurance coverage for their "preexisting condition."

The court's ruling in the 2005 case, Gonzales vs. Raich, "is an
enormous problem" for those who contend that the healthcare mandate
is unconstitutional, said Simon Lazarus, a lawyer for the Washington,
D.C.-based National Senior Citizens Law Center.

"It clearly says Congress has vast regulatory authority over
interstate commerce," he said.

David B. Rivkin, a Washington lawyer who is representing the 13
states, said the legal challenge rests on the principle that the
federal government has limited powers.

"It is a matter of fundamental principle in the Constitution," he
said. "Ours is a government of limited and enumerated powers. And
there has to be a limit."

He also argued that the Constitution did not permit Congress to
regulate health insurance, which has been traditionally under state control.

While the Bill of Rights put clear limits on the government's power
to interfere with an individual's freedom of speech or free exercise
of religion, the Constitution does not put clear limits on Congress' power.

Article I says, "Congress shall have the power to lay and collect
taxes . . . [to] provide for the common defense and general welfare
of the United States . . . [and] to regulate commerce."

Since the New Deal era of the 1930s, the Supreme Court has repeatedly
said that the federal government can regulate almost anything that
involves economic or commercial activity.

Several constitutional law experts said this week that it is
somewhere between unlikely and hard-to-imagine that the Supreme Court
would strike down the new healthcare law.

"In my view, there is a less than 1% chance that the courts will
invalidate the individual mandate," said George Washington University
law professor Orin Kerr, a former clerk to Justice Kennedy.

But some said the high court's conservatives could decide that the
Obama administration and congressional Democrats had gone too far.

"When it comes to the hot-button, partisan issues that divide
Americans, precedent rarely dictates how the court will rule," said
Adam Winkler, who teaches constitutional law at UCLA.

The "court has already shown itself to be willing to break from
long-standing precedent in major cases, and it won't likely be
deterred by such case law in a challenge to healthcare reform," he said.

Critics of the new health insurance mandate often claim the Founding
Fathers could never have envisioned the federal government telling
individuals that they must take an action or buy a private product.

That, however, is not quite correct, experts said.

As one of its earliest actions, Congress passed the Militia Act of
1792, which was signed by President George Washington. It mandated
that "each and every able-bodied white male citizen" must "be
enrolled in the militia."

Hardly shy about imposing federal regulations on private citizens,
the militia law said that each new recruit must show up within six
months carrying "a good musket or firelock, a sufficient bayonet and
belt, two spare flints, a knapsack [and] a pouch to contain not less
than 24 cartridges suited to the bore of his musket or firelock."

Winkler also dismissed the argument that Congress cannot penalize
someone for "doing nothing," such as not buying health insurance.

"If you don't believe me, just 'do nothing' this April 15 when your
tax bill is due," he said.