Problems with health reform

Can the federal government force you to buy health insurance? That seems to have become a looming question as Congress inches closer to a health care compromise it can pass on to the president for a signature.

It is one of many constitutional issues being cast about by legal minds concerning the House and Senate versions of health care reform. Should a bill similar to the two versions now being worked out — apparently in secret — become law, it seems clear a legal challenge, and perhaps several of them, could quickly develop. The arguments against health care reform are solid.

The Constitution clearly sets limits on federal authority, and it leaves all other powers to the states and the people. Over the past 75 years or so, the Supreme Court has broadly interpreted federal powers, which allow Congress to regulate interstate commerce and provide for the general welfare of Americans. But a vast difference exists between regulating the insurance industry so that people who voluntarily purchase policies can expect certain things, and actually forcing people to buy a policy. States can, and do, force people who choose to drive to buy auto insurance. But the Constitution grants states more leeway than it does Washington. The federal government exists as a creation of the collective states, not the other way around.

In a recent op-ed in the Wall Street Journal, Utah Sen. Orrin Hatch, along with a law professor and a legal analyst, argue this as well as other reasons the current health reform effort is illegal. Some analysts are dismissing the forced insurance argument, saying courts are unlikely to overturn the law on those grounds. But another of Hatch's arguments appears to be causing a stir.

In order to obtain the necessary 60 votes to end a filibuster, the Senate's Democratic leadership had to promise Nebraska that it would not have to pay for Medicaid the way other states do. This, Hatch argued, violates the general welfare clause because it serves a specific, not a general, welfare. A blog on CBSNews.com last week quoted a recent Supreme Court decision that said, "A departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets." The need to obtain a political vote probably doesn't meet that test.

It's clear that Democratic leadership has become more interested in passing a health care bill — any health care bill — than in solving the nation's health care woes and reining in costs. The result may be a bill so flawed it never gets enacted.