Will Health Care Bill Clear Constitutional Hurdle?

Let's say for the sake of argument that Democrats in Congress are able to get their health reform legislation to President Barack Obama's desk. Will one key element–a mandate for everyone to buy insurance coverage–withstand a Constitutional challenge? I have my doubts.

This point is critical to the success of the entire reform initiative, but I can't help but wonder whether the conservative majority on the U.S. Supreme Court would permit the federal government to demand that every citizen fork over their cash to private companies for health insurance.

Given the fact that the bill requires carriers to offer coverage to all comers–even those with preexisting medical conditions–we must have mandatory coverage. Otherwise, many healthy folks would simply wait until they become ill before buying coverage.

Of course, such scams could be avoided if health insurers are permitted to charge whatever they want for coverage. If someone shows up with a serious diagnosis, they could simply be priced out of the market.

But I doubt that's how this reform plan will work. I don't see the point of Uncle Sam insisting that insurers offer everyone coverage no matter what their medical condition might be, but then allows insurers to charge so much that buying a policy just isn't possible.

So that brings us back to the mandatory purchase provision. Opponents are already promising court challenges. It will take years to work these suits up to their logical destination–the U.S. Supreme Court. But since many components of the bill do not take effect for a few years, we might actually have time for the lawsuits to play out before the most controversial provision–mandatory purchases–goes into effect.

Some may argue that state governments routinely require drivers to buy auto insurance, and make businesses buy workers' compensation coverage. But in both cases, citizens have a way out. People don't have to own a car, or open a business, if being forced to buy insurance is so objectionable to them (or unaffordable).

Plus, in both cases, the insurance is really being purchased by owners to protect others they may harm–those hurt by the driver in an auto accident, or employees injured on the job. In that case, it seems more reasonable to mandate the purchase of coverage–the government is simply protecting others from your mishaps.

That is not the case with health insurance–unless you think of mandating its purchase as protecting society from having to pick up your medical bills.

In addition, some may argue that the government already requires you to buy health insurance by deducting money from your paycheck to fund Medicare coverage. But that is to generate money for a government-run program, not a private insurer. There is a big difference between pooling money in a non-profit entity and being told you must pay your hard-earned money to a firm that pays millions to its executives, including hefty bonuses.

Since the public option won't pass this time around, that means the mandate will force people to fork over their money to the very insurers they love to hate. That is going to be a hard point to sell for the Democrats.

Would the Supreme Court rule that Washington stepped over the line in ordering everyone to pay private companies for health insurance? I think this court in particular, which has split 5-4 on the conservative side on numerous controversies lately, is likely to rule against such an expansion of government power over the private purses of ordinary citizens.

Of course, if that's how the court eventually rules, it could backfire on reform opponents. With millions more likely to be uninsured at that point, such a ruling could give Democrats the justification they need to create a public option, financed by payroll deduction–in essence, the Holy Grail of health care reformers: Medicare For All! 

What do you folks think?