I’m going to go out on a limb here and say that the constitutionality lawsuits heading to the courts to challenge health care reform will fail, since they are based on contending that the government can’t require anyone to purchase goods or services, including health insurance. Currently a person must purchase a passport to travel outside the U.S., late filing of income tax incurs a penalty fee, and there are import fees for items purchased abroad. At the state level, most states (maybe all of them) require people to purchase auto insurance or pay an uninsured motorist fee.
Our Virginia Attorney General, Kenneth T. Cuccinelli, II, argues further that the federal government cannot regulate activities that are not commercial, and on this front there are several immediate examples of non-commercial regulation — there isn’t any commercial component to the Defense of Marriage Act that I am aware of. Purchasing goods abroad may be commercial, but bringing goods home in your suitcase, which is what you pay the federal government for, is not commercial. Wearing your seat belt, not having open alcohol in the car, and obeying speed limits are not commercial activities. Schools use money, but NCLB achievement goals are not commercial.
There are enough familiar long-standing examples of such laws on the books, and enough recent pieces of legislation from the Bush II administration, to make challenges on these grounds appear frivolous. If and when these challenges appear in the courts, the people bringing them will be the same people we have heard argue for tort reform to reduce frivolous lawsuits.
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