Washington » Republicans, led by Utah Sen. Orrin Hatch, are challenging the very constitutionality of the health reform bill, focusing on a requirement that every American buy insurance or face a fine.
Hatch and other conservatives argue Congress has no right to tell people how to spend their money, while Democrats say the policy promotes personal responsibility, spreads risk and will help reduce costs.
What is now a political debate could turn into a full-blown courtroom drama with Congress on the verge of passing a final bill.
Hatch is calling for a swift legal challenge if the bill passes and Utah Attorney General Mark Shurtleff has threatened to join a suit brought by other states.
The two conservatives penned a recent op-ed where they claimed the bill is "a threat to liberty itself."
"Nothing in the Constitution gives Congress that much power over the decisions and lives of Utahns," they wrote.
Hatch summed up his argument during a committee debate: "If we have the power simply to order Americans to buy certain products, why did we need a Cash for Clunkers program? We can simply require Americans to buy certain cars."
Democrats say the proposal is not only good public policy, but also well within Congress's established powers to regulate commerce between states.
However, nonpartisan researchers are not as confident.
In a report released earlier this year, the Congressional Research Service said it "seemed possible" to create a constitutionally sound requirement to buy insurance, but that legitimate legal questions remain.
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Individual mandate » In Washington, this requirement is regularly called an "individual mandate" and the point of an individual mandate is to prod the uninsured who can afford coverage -- namely younger, healthier people -- to sign up. Supporters say this would have two positive outcomes.
First, it would greatly reduce the cost of caring for the uninsured, which hospitals now pass on to those who have coverage. And second, it would hand insurance companies millions of new customers, which would offset the cost of a whole slate of new government regulations. Some of those regulations would prohibit insurers from charging women more than men and from denying people coverage because of pre-existing medical conditions.
Both the House and Senate bills include an individual mandate, though the penalty for violating the mandate differs ranging from a few hundred to a few thousand dollars.
The bill's supporters have no problem debating the policy surrounding the mandate, but are much less interested in talking about its legal underpinning.
Hatch offered an amendment in the Finance Committee that would allow for an expedited legal review of the issue. Committee Chairman Max Baucus responded by saying, "These provisions in the bill clearly are constitutional. I think that is fairly clear." He then scuttled the amendment by saying it was out of the committee's purview.
Democrats later knocked down two attempts to bring up the issue on the Senate floor.
When a conservative news outlet asked House Speaker Nancy Pelosi to defend the constitutionality of a personal insurance requirement, she said "Are you serious?" then moved to the next question.
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Defending the mandate » But tucked deep into the thick Senate bill are five pages devoted to defending the constitutionality of the individual mandate and making a case that the requirement would benefit interstate commerce.
According to the bill: "If there were no requirement, many individuals would wait to purchase health insurance until they needed care."
The five pages include references to Supreme Court cases, statistics about nationwide health spending and descriptions of the Massachusetts health plan. It amounts to a pre-emptive legal defense against Republicans, like Hatch and Shurtleff, who consider the mandate heavy-handed government.
But not every member of the GOP opposes an individual mandate.
Sen. Bob Bennett, R-Utah, included the requirement as part of a bipartisan health reform bill he pushed with Democratic Oregon Sen. Ron Wyden. Their bill had a handful of other Republican sponsors as well.
The Senate never voted on their "Healthy Americans Act" and Bennett said the constitutional issue never came up as they crafted their health care fix. He said he looked at the individual mandate in health care as something analogous to the requirement to have car insurance.
Hatch, a lawyer and senior member of the Senate Judiciary Committee, said while people often make the comparison the two are legally quite different. He says states require people to buy car insurance in exchange for the privilege to drive. Under the health reform proposals, he argues, "individuals must buy health insurance whether or not they ever visit a doctor, get a prescription, or have an operation."
States also have much more constitutional leeway than the federal government in these matters, Hatch reasons, which is why he doesn't fight a Massachusetts law that requires its residents to buy health insurance.
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Constitutional justifications? » The Congressional Research Service (CRS) report sees two possible constitutional justifications for an individual mandate. Congress can rely on its power to tax or its power to regulate interstate commerce, which is commonly called the Commerce Clause.
The researchers found that opponents would find it difficult to challenge an individual mandate as a tax, but the ties to interstate commerce are not as clear-cut.
"Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal," the report said. "It is a novel issue whether Congress may use this clause to require an individual to purchase a good or service."
The CRS report also laid out an argument on both sides.
Supporters might argue that since most people become ill and require medical care at some point, requiring everyone to have coverage would "benefit the orderly flow of health care services in interstate commerce."
Opponents could counter that if the Commerce Clause can be used "to mandate the purchases of a private individual, it could be perceived as virtually unlimited in scope."
Politicians and law professors have keyed off of this report and continued the debate, which has become more intense in recent weeks.
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The key question » University of Utah law professor Wayne McCormack says the issue boils down to this key question: "Whether going without health insurance has a substantial effect on interstate commerce."
He said it shouldn't be hard to make a compelling case for an individual mandate, since taxpayers and insured people subsidize the emergency room care of those without health coverage.
Wake Forest law professor Mark Hall has also vigorously defended the legality of an individual mandate. He says the government already regulates the health care industry and a mandate is just a stronger form of regulation.
But even under Hall's argument an individual mandate may be successfully challenged by people who either "never access the health care system" or "are able to pay for their health care without using insurance," argued two former Health and Human Services officials writing for the conservative Federalist Society.
They are also supported by two former Justice Department attorneys working under previous Republican presidents, who wrote a piece for The Wall Street Journal earlier this year.
David Rivkin and Lee Casey say calling the penalty for not buying insurance a "tax" is a distortion of the word for the sole purpose of trying to shoehorn the policy into safe legal ground.
"A 'tax' that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority," they wrote. "If the rule were otherwise, Congress could evade all constitutional limits by 'taxing' anyone who doesn't follow an order of any kind -- whether to obtain health care insurance, or to join a health club, or exercise regularly, or even eat your vegetables."
