Health care reform challenge? It's the law

By John Eastman

In a recent editorial ("Nullify health law? Good luck with that," March 28), The Bee stated that the recent lawsuits filed by 14 state attorneys general challenging the constitutionality of President Obama's health care bill are "frivolous lawsuits that are more about policy differences or symbolic gestures than constitutionality."

The Bee's editorial board needs a primer in constitutional law.

The Bee's editorial board needs a primer in constitutional law.

There are two principal arguments raised by the state AGs, and both have merit. The first involves Congress' power to regulate commerce among the states. The Supreme Court has repeatedly held that this power has limits; that it only permits Congress to regulate the channels or instrumentalities of interstate commerce or economic activity that has a substantial effect on interstate commerce.

Our health insurance system is state-based, so the interstate component necessary for congressional authority is lacking. Nor is an individual's decision not to purchase a government-approved health insurance policy an activity that has a substantial effect on commerce + it is the absence of activity. Of course, the regulations themselves will undoubtedly have a substantial impact on interstate commerce + just witness the billion-dollar write-offs taken last week by some of America's leading corporations + but the Supreme Court has never before allowed Congress to bootstrap its way into Commerce Clause authority by relying on the impact of its own regulation.

The second challenge to the constitutionality of the individual mandate is that it amounts to a direct tax, not tied to income, which must be (but is not) apportioned among the states according to population, as required by Article I, Section 2, Clause 3 of the Constitution.

Even if the rate of compliance with this overreaching mandate were somehow identical in every state, the fact that illegal immigrants and incarcerated felons are exempt means that the direct tax will not be tied to state population in the same way representation is.

Ironically, the Obama administration's Census Bureau has defended its decision not to identify legal immigration status in its census questionnaire by noting that the Constitution requires an enumeration of all persons, not just citizens, for purposes of determining representation in Congress, yet the same clause also applies to direct taxes.

Obama's health care reform bill violates that important constitutional requirement. It would be nice if we had an attorney general here in California who knew something about the Constitution and would add California's voice to the litigation debate.