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Can We Be Legally Forced To Buy Health Insurance We Can't Afford?

By James Donahue

Perhaps we can find irony in plans by the Republican opponents to the Health Care bill the skinned its way through the U.S. Senate Christmas Eve to challenge its legality in the courts once it clears the Conference Committee and gets signed into law by President Obama.

Among the key issues to be brought before the court will be the legality of a law that forces the people to buy a product from a private business. Also at question is the special expanded Medicaid program approved for the people of Nebraska as a concession to get Senator Ben Nelson to throw in that necessary sixtieth vote. It was said to be just one of many “sweetheart deals” awarded to hold-out Democratic senators in exchange for their vote.

It took all 60 Democratic votes in the Senate to pass the bill since Republicans stood solidly against it, right to the bitter end.

It was the Republican insistence that the Senate version of the health bill did not include a public option or open Medicare for people 50 years and older to buy into it that led to the decision to force working Americans to buy health insurance from privately operated insurance companies.

Now Senator John Ensign, a Nevada Republican, has called for a determination as to the constitutionality of the federal government requiring Americans to buy health insurance. “I don’t believe Congress has the legal or moral authority to force this mandate on its citizens,” Ensign said.

President Obama is arguing that such a mandate is similar to the laws passed in the 1960s requiring drivers to buy automobile insurance.

But opponents say there are some key differences. People who don’t want or can’t afford to buy automobile insurance don’t have to drove. Also the auto insurance is mandated mostly so drivers carry liability insurance to cover damage to other people and their vehicles, not necessarily themselves.

The Constitution grants Congress the power to tax, borrow, spend, declare war, establish a military and regulate commerce. Supporters of the insurance mandate suggest that the commerce clause grants Congress the right to require health insurance. But the question that would go before the courts is whether this interpretation is too broad.

Indeed, the bill in its existing form provides for federal subsidies for people who cannot afford health insurance payments and some citizens, especially the unemployed and poverty stricken, are exempt.

The Nebraska Medicaid deal also threatens to generate court challenges from the various states because they are not being treated equally.

Tennessee state representatives Debra Young Maggart and Susan Lynn have asked their Attorney General Robert Cooper to challenge the bill if it becomes law. “We see this as a violation of equal protection of the law, an affront to our sovereignty and a breach of the U.S. Constitution,” they wrote.

South Carolina Senator Jim DeMint, a Republican, says he also is concerned about a clause in the bill that he said appears to prevent the Senate or Congress from altering the wording of the bill once it becomes law.

The section reads: “It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment or conference report that would repeal or otherwise change this subsection.”

"We will be passing a new law and at the same time creating a Senate rule that makes it out of order to amend or even repeal the law," DeMint said. "I'm not even sure that it's constitutional."

Fortunately the Senate version is different from a health bill approved earlier this year by the Congress. Not both documents are heading for a Conference Committee comprised of representatives of both bodies whose job it will be to work out compromise versions and put the best of both bills into a final draft.

It may be possible that legal issues can still be resolved in committee before the bill gets to the president’s desk.

If not, the long awaited and long embattled health bill may be facing serious court challenges that could prevent the bill from ever going into effect.