Even before the House and Senate health care bills are merged into one, opponents are threatening legal action. Several groups argue that at least two key parts of health care reform are unconstitutional.
House Speaker Nancy Pelosi says Democratic Congressional leaders and the White House are close to an agreement on a final version of a health care overhaul bill, but that significant issues remain to be worked out.
One group argues that the government simply doesn't have the constitutional authority to require individuals to obtain health insurance. The so-called "individual mandate" is a main part of health reform and has survived the House and Senate versions even though candidate Barack Obama opposed it during the primaries in 2008.
Authors of the health care bill say a mandate will lower the overall cost of insurance because it will force the youngest and healthiest to be insured along with the oldest and sickest. But Georgetown law professor Randy Barnett, who wrote an article for the conservative Heritage Foundation, said Congress doesn't have the power to force people to buy insurance.
"Never in the history of the U.S. has the federal government ever required every person to enter into an economic relationship with a private company," Barnett said. "Here, they're making people engage in commerce or economic activity who choose not to and that's something they've never done before."
Legal scholar Heidi Kitrosser said the government does have the power to impose such a mandate under Congress' broad authority to regulate commerce.
"Making that argument is a real uphill battle in light of decades of commerce clause jurisprudence by the U.S. Supreme Court," Kitrosser said. Kitrosser teaches constitutional law and the commerce clause at the University of Minnesota. She notes that in 2005, the Supreme Court ruled the government could regulate medical marijuana under the commerce clause even if no money changed hands.
"The court there said that as long as the regulated activity falls within a class, a larger class of regulated economic activity, even if the specific activity is not economic, that can be regulated," she said.
“Never in the history of the U.S. has the federal government ever required every person to enter into an economic relationship with a private company.”Randy Barnett, Georgetown law professor
The individual mandate isn't the only issue up for a constitutional challenge. A group of 14 attorneys general, all Republicans except for Oklahoma Democrat Drew Edmondson, have threatened to sue if a provision that favors Nebraska isn't dropped from the final bill. Nebraska Sen. Ben Nelson agreed to supply the senate's pivotal 60th vote, as long as Nebraska received about $100 million in Medicaid funding.
U of M Law Professor Fred Morrison said there's no constitutional requirement that federal money go to states equally. He said that's a political issue, not a legal one.
"We support different states to different degrees on different programs," Morrison said. "We provide a lot of railway aid to the northeast; we provide a lot of airport aid to sparsely-populated areas like Alaska and this is the same kind of thing."
Former Republican Sen. Dave Durenberger agrees. He said just because Nebraska got a break doesn't make it illegal. But he said the controversy is an example of what could be the first of many state conflicts down the road as details emerge about which states get more federal dollars than others under the health care overhaul.
"Once we get to see the consequences between the 50 states of what's going on here, I think that's where all hell is going to break loose, so to speak," Durenberger said. "It won't come from the people as much as it's going to come from governors, legislators and attorneys general."
Durenberger said it's unfortunate that both Republican and Democratic governors, attorneys general, and state lawmakers appeared to be sitting on the sidelines as such important issues were debated.