While the debate over health care has at times bordered on the absurd, some opponents of the bills passed by the Democratic-led Congress have raised questions of fundamental importance to American democracy - namely, whether some of the proposals are constitutional.
While the arguments have hinged on a variety of components of the bills, the most oft-repeated concern relates to the individual mandate. Because the individual mandate is part of all three health care proposals, those passed by the House and the Senate and the one proposed by President Barack Obama, this challenge is potentially the most serious.
As wrangling over the fate of health care reform continues, the CNN Fact Desk takes a look at the concern that a provision of the health care bill violate the governing document of the United States.
Fact Check: What are the arguments concerning the constitutionality of the individual mandate? Do they have any validity?
– The individual mandate would require people to have a certain level of health insurance coverage. This mandate would be enforced by charging those who do not obtain coverage around 2 percent of their annual household income as a penalty.
– Sen. Orrin Hatch, R-Utah, argues the individual mandate is an unconstitutional congressional action: "The question is not whether Congress can regulate the sale of health insurance, but whether Congress may require the purchase of it," Hatch told the Heritage Foundation, a conservative think tank, in December.
– Republican Sens. Jim DeMint of South Carolina and John Ensign of Nevada pushed a vote on this issue late last year, arguing the individual mandate is not among the enumerated powers granted to Congress under the Constitution. The point-of-order vote, which could have held up the individual mandate, failed 60-39.
– Cornell University constitutional law scholar Michael Dorf weighed in on the issue of enumerated powers, arguing that the courts have often upheld congressional actions outside of those specifically spelled out in the Constitution. These actions have been held constitutional when they are considered "necessary and proper" for carrying out those duties which are specifically spelled out.
– A Congressional Research Service report spelled out a number of different constitutional justifications for the individual mandate as well as some constitutional challenges. "It appears Congresses may have the ability to enact an [individual mandate] as part of its taxing and spending power, or its power to regulate interstate commerce," they write. However, they add that challenges could be raised under two amendments to the Constitution.
– A challenge could be raised under the Fifth Amendment's Due Process Clause, but the CRS report casts doubt on the success of such a challenge. Additionally a challenge could be raised under the religious protections offered by the First Amendment's "Establishment" and "Free Exercise" clauses. This challenge could be overcome by allowing certain tailored exemptions to the individual mandate on religious grounds, the report notes.
– A valid challenge to the individual mandate could eventually be heard by the Supreme Court. However, such a challenge would not be heard for several years, since lower state and federal courts would get first crack at any lawsuits.
While the ultimate test of the constitutionality of the individual mandate lies with the Supreme Court, these arguments are serious enough to have prompted a robust discussion. Given that some version of the individual mandate is present in all three health care proposals should the health care reform package become law, the individual mandate is likely to be a part of the debate on these issues for quite some time.
– CNN Supreme Court Producer Bill Mears contributed to this report.
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