Opponents of healthcare reform failed to prevent bills passing in the Senate and the House of Representatives. These Democratic-sponsored bills seek to provide health insurance plans to the millions of uninsured Americans. Republicans, among those opposed to reform, raised the specter of socialized medicine and drew attention to the soaring cost of the legislation. Although they managed to kill the government-run public option in the Senate bill, their protests largely fell on deaf ears.

When it comes to this issue, conservatives are down but not out. President Obama has vowed to sign the combined bill once it reaches his desk, thereby making it into law. At that point, healthcare reform is open to a judicial challenge. Some people are now considering the possibility that parts of the healthcare reform bill, as enacted, may be unconstitutional. Moreover, they are willing to bring the issue to the Supreme Court if need be.

The proposal of involving the court system appears slightly unusual. After all, much of the contingent that has expressed vociferous disapproval for healthcare reform has also railed against what they consider to be “activist judges” who are “legislating from the bench” in the past. Nevertheless, some constitutional questions have been raised.

For example, some conservative legal scholars have said that the individual mandate–which requires all Americans to buy health insurance plans or pay a fine–is unconstitutional. They believe that such a mandate would only be constitutional under a far too loose interpretation of the Commerce Clause, and would allow the federal government to require any kind of purchase from a private company. If that provision was struck down as unconstitutional, it would be a severe blow to both the House and Senate legislation. The insurance mandate is essential for insurers’ cooperation with new regulations and a centerpiece in their reform strategy: bringing healthier, uninsured individuals into the nation’s health insurance pool would supposedly lower costs for all.

If the mandate for individuals to acquire health insurance plans sounds like state laws that force individuals to buy auto insurance, it is because the two are very similar. The latter has been found to be legal, even though it mandates the purchase of a particular project. On the other hand, unlike people who don’t own a car in order so they don’t have to pay for auto insurance, there is no way to forgo the human body in order to avoid paying for one of the many health insurance plans available. Opposition to the mandate on legal grounds is largely based on the opinion that the fines that would be imposed for noncompliance are not included in the right of Congress to levy and collect taxes. Moreover, the inactivity of individuals who fail to buy health insurance plans would not qualify as interstate commerce, and as a result cannot be regulated by the federal government.

Regardless, the issue is probably moot. As an important, high priority piece of legislation, the healthcare reform bill has most likely gone through stringent vetting to ensure the legality of all its provisions. Supporters would not want to see their efforts fall short due to a constitutional law mishap anywhere in the 2,000-plus page legislation. Senator Max Baucus and other Democrats have made this very point, while accusing Republicans of grasping at straws to stop the nation’s reform of health insurance plans. Nevada Republican John Ensign recently proposed that the Senate vote on a point of order acknowledging that the healthcare reform bill was unconstitutional due to the individual mandate. Unsurprisingly, it failed strictly along party lines; the entire Democratic caucus voted against it, while all Republicans were in favor.

Most mainstream legal scholars reject these arguments against the healthcare reform bills. They point to the fact that past Supreme Court rulings have allowed Congress to regulate activities that, even if they are not interstate commerce in and of themselves, “substantially affect” such commerce. By that definition, there is no doubt that whether or not people buy health insurance plans qualifies. Therefore, the case is unlikely to reach the Supreme Court. If healthcare reform legislation actually made it past the lower courts and reached them, how would the Court rule? Most likely, the ruling would be split among ideological lines. With liberal Justice Sonia Sotomayor replacing fellow left-leaning Justice David Souter, the balance between conservative and liberal justices has been maintained. Justice Anthony Kennedy tends to be the swing voter; on business issues, he has tended to lean conservative and take positions in favor of free markets. Still, the Court must judge based on precedent, and would probably uphold the legality of the individual health insurance mandate.

(Image: Kyle Rush under CC 2.0)