HEALTH MEASURE'S OPPONENTS PLAN LEGAL CHALLENGES

Officials in a dozen states who oppose the health care bill say they
hope to block it in court by arguing that requiring people to buy
health insurance is an unprecedented intrusion by the federal
government into people's lives - the equivalent of going a step
beyond simply regulating automobiles to requiring people to buy a car.

They add that the bill would rewrite the relationship between federal
and state government, and they plan to make their argument in court
as soon as the legislation becomes law.

"We plan to file the moment Obama signs the bill," Greg Abbott, the
Texas attorney general, wrote on his Facebook page.

But constitutional scholars suggest that such cases would likely
amount to no more than a speed bump for health care legislation.

The reason, they say, is that Congress has framed the mandate as a
tax, which it has well-established powers to create. And Congress's
sweeping authority to regulate the nation's economy, they add, has
been clear since the 1930s.

"The attack on this bill," said Jack M. Balkin, a professor of
constitutional law at Yale University, "is not merely an attack on
the substance of this particular measure. It's also a challenge to
understandings that come with the New Deal."

Florida's attorney general, Bill McCollum, is leading the effort to
block the new bill, saying that it "violates the U.S. Constitution
and infringes on each state's sovereignty."

Mr. McCollum pledged to fight alongside attorneys general from
Alabama, Nebraska, North Dakota, Pennsylvania, South Carolina, South
Dakota, Texas, Utah and Washington. Louisiana announced it would join
the suit as well, and Virginia, which has passed a law barring
government mandates to buy health insurance, has said it will also file suit.

Their arguments in court are likely to focus on the scope of the
mandate and the intrusion of the federal government into state
affairs, said David B. Rivkin Jr., a lawyer advising Florida who
served in the Justice Department under President Ronald Reagan and
the first President George Bush.

"This really goes to the heart of the constitutional architecture
that the framers have devised" between the government and its
citizens, Mr. Rivkin said. He also said that it would represent "a
qualitatively unprecedented expansion of federal authority at the
expense of the states."

Whatever people feel about the worthiness of the bill's goals, "the
Constitution does matter," he added.

Prof. Randy E. Barnett, who teaches constitutional law at Georgetown
University Law Center and has been critical of the bill, said a
constitutional challenge to the individual requirement to purchase
insurance is a "a serious argument that might have success."

Still, Professor Barnett was careful not to predict that the
opponents of the bill would block the legislation completely. He said
that even if a court were to strike down the requirement to buy
insurance, such a ruling would still be likely to leave other
elements of the law in place.

Professor Balkin of Yale said the mandate did not run afoul of the
Constitution because Congress had carefully structured it as a tax -
and taxes are fully within its power.

"People have to pay taxes all the time," he said. "This is not new."

Courts generally defer to Congress's taxation decisions and
definitions so long as they constitute a "genuine revenue-raising
device," Professor Balkin said, and so the health insurance mandate
is likely to pass muster.

The broad extent of the government's power to regulate interstate
commerce has been recognized since the Roosevelt administration.

In fact, courts have backed Congress's ability to regulate under the
Commerce Clause of the Constitution, even when the issues might not
seem, at first blush, to even involve interstate commerce at all.

That is why Roscoe Filburn, a small farmer in Ohio, had to destroy
wheat that exceeded production quotas in a 1942 case, even though he
was growing the wheat for his own use and had no intention to sell it.

And in 2005, the Supreme Court ruled that Congress could prohibit
medical marijuana, despite some state laws that allow it. The people
who had filed suit argued that they had not bought the marijuana, but
the Supreme Court said the Commerce Clause still applied.

"In both cases, the Supreme Court said the cumulative effect of your
attempt not to participate in the market has an effect on markets -
and we can regulate it," Professor Balkin said.

Erwin Chemerinsky, a constitutional scholar and dean of the
University of California, Irvine School of Law, said the argument
that people should have the right not to buy health care was
"rhetorically appealing" because of its paean to personal freedom.
But "individual freedom not to purchase health care, I think, has no
basis in Constitutional law."

In fact, Professor Chemerinsky added, "there is no case law, post
1937, that would support an individual's right not to buy health care
if the government wants to mandate it."

Congress has often taken actions that impinge on personal freedom for
a national purpose, he noted, including the Civil Rights Act of 1964,
which required hotels and restaurants to serve minorities.

"If the court stays true to its Commerce Clause jurisprudence of the
last 15 years," Professor Chemerinsky said, "I think this will be upheld."