Yes, Mr. Reid, but is it constitutional?

It's good to see the HC mandate getting some traction in the blogosphere. It's bothered me for a while - mostly from a political standpoint - but also because the constitutional questions are so apparent. It seemed to me that the mandate needed some selling to go over. Instead it was ignored in the media and the public debates - which have focused on "government takeover" and expense. Yet, the imposition of a law to force the purchase of a product from a private entity is clearly the most radical element of the bills. It has never been done before on the Federal level. Even a public option or expansion of medicare pales in comparison. Both would have extended or expanded a structure already in place: A tax is imposed and a service is rendered.

The idea of a federal mandate is not settled law. Medicare-for-all invites the normal American arguments about the size of government. The mandate is something else entirely. The nonsensical car insurance analogies have been discredited. (The Feds don't demand one drive. The states merely say if you do you must be insured.) The mandate itself is weak - that does not matter though . The problem is the precedent. If Congress can force one to purchase health insurance - what else can it force one to buy? Stocks to support the private militias? Defense also provides a group benefit. What stops the congress from demanding that I spend less on Coke and more on bottled water - since it's better for me? Or more broccoli and fewer donuts? If we all ate more vegetables the country would probably be better off. Type 2 diabetes rates would plummet. That's bound to save some money.

Those who are pro mandate point to the commerce clause:

Article I, Section 8, Clause 3:
[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

I don't see how this covers the individual mandate. You and I are not states, countries or tribes. Both the Senate and House HC bills regulate an individual's use of a portion their money. YOU MUST BUY THIS. Again, if a tax was imposed to provide a service - paving the roads, a standing army, a public option - one could rightfully call it representative taxation. Our representatives are free to impose taxes then stand for reelection defending them. Congress cannot force us to buy private insurance any more that it can force us to buy cantaloupes. Or, if they can, I'd like to know on what constitutional basis.

A large number of conservative groups - and a few liberal groups - will contest the mandate in court. (I would not be surprised to see the ACLU bring a case on behalf of a mandate dissenter who refuses to either buy insurance or pay the fine.)

The mandate will become the lightening rod of the health care debate going forward. It's one of the few places where the over use of the word "liberty" is not disingenuous. Real Constitutional questions are raised. Even if courts initially side with the mandate, the politics on the ground will be ugly. If the GOP has any sense left it will hammer at the mandate. In GOP and "blue dog" districts it is red meat. Conversely, the best political argument for the Democrats is Social Security - though that is a weak. Whereas workers are forced to pay upfront - the money is not going to a privately held corporation.

The arguments over the mandate will be loaded and rich. I'm looking forward to the battle.