While Democrats have the power to enact reform based on congressional numbers alone, evoking much GOP angst, at least one powerful Republican official is vowing to challenge key parts of the legislation once it is enacted and signed into law.
Florida Attorney General Bill McCollum said in a statement last week he is ready, willing and able to take healthcare reform to court.
After criticizing healthcare reform in general, McCollum said: "Most concerning is the individual mandate that a person must pay a fine or tax if he or she does not obtain federally required healthcare insurance. I have grave concerns about the constitutionality of this mandate. Such a 'living tax' is worrisome because it would be levied on a person who does nothing, a person who simply wishes not to be forced to buy health insurance coverage."
He adds: "Given these concerns, my office will conduct a review of the constitutionality of the healthcare bill's individual mandate, specifically in regards to the Commerce Clause and Taxing Power set forth in the U.S. Constitution, and will evaluate Florida's legal options. I have also written to my fellow (state) attorneys general encouraging them to join my office in this review."
McCollum is running for governor of Florida in 2010 -- and as a Republican congressman in the 1990s voted to cut Medicare and Social Security, and was a manager of the Clinton impeachment effort -- but insists his opposition now has nothing to do with politics.
The Commerce Clause, in Article I of the Constitution, gives Congress the authority to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes."
Whether McCollum's putative challenge to Congress using the Commerce Clause succeeds largely depends on whether the modern Supreme Court follows the lead of the Supreme Court under the late Chief Justice William Rehnquist, which pinned back the Commerce Clause in the 1990s and 2000.
McCollum's argument is strengthened as well by the high court's jurisprudence, which for the most part recognizes that the regulation of insurance, an intangible good, is the province of the states, not the federal government, which can regulate the interstate commerce of tangible goods.
For much of its history, the commerce power of Congress was limited to the regulation of the movement of tangible goods across state boundaries through roads and rivers. That power was vastly expanded in 1942's Wickard vs. Filburn, in which the Supreme Court ruled the Commerce Clause, for the first time, allowed the regulation of goods produced and consumed solely within a state.
The federal government, using the Commerce Clause, had restricted the amount of wheat a farmer could grow on an acre, hoping to drive up the price of wheat during the Depression. The allowed amount of wheat was calculated after "threshing." When an Ohio farmer violated that restriction, he faced a fine and was ordered to destroy his crop, even though interstate commerce ostensibly was not involved.
The unanimous Supreme Court opinion written by Justice Robert Jackson reasoned that since the farmer used the wheat to feed his own chickens, that reduced the demand for wheat on the open market, affecting interstate commerce. By that roundabout reasoning, the government had the power under the Commerce Clause to restrict the growing of wheat, and to fine the farmer and order his crop destroyed.
Wickard opened the floodgates. For more than 50 years, Congress used the Commerce Clause to enact a vast number of laws that only had a tangential connection to interstate commerce.
However, in 1995 the Rehnquist Supreme Court jerked back the reins, unexpectedly limiting the scope of the Commerce Clause. In a 5-4 vote, the justices struck down the federal Gun-Free School Zones Act of 1990, which forbade anyone from knowingly carrying a firearm in a school zone.
In the majority opinion, Rehnquist said the law was "invalid as beyond Congress' power under the Commerce Clause."
The "possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have ... a substantial effect on interstate commerce," the opinion said.
It adds: "To uphold the government's contention that (the law) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the states."
Rehnquist said the Supreme Court had identified three broad categories "of activity that Congress may regulate under its commerce power ... : Congress may regulate the use of the channels of interstate commerce. ... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. ... Finally, Congress' commerce authority includes the power to regulate those ... activities having a substantial relation to interstate commerce ... i.e., those activities that substantially affect interstate commerce."
A second major blow to congressional commerce power came in 2000's U.S. vs. Morrison, when the same five-justice majority struck down provisions of the federal Violence Against Women Act.
A woman who said she had been raped by two other students at Virginia Polytechnic Institute filed suit for damages under the civil provisions of the federal act. But the Rehnquist majority said the civil provisions of the act "cannot be sustained under the Commerce Clause or section 5 of the 14th Amendment," which allows Congress to use legislation to enforce "the constitutional guarantee that no state shall deprive any person of life, liberty, or property, without due process or deny any person equal protection of the laws."
The only blip on the steady curtailment of Commerce Clause power came in 2005's Gonzalez vs. Raich when a couple of conservatives apologetically joined the four-member liberal bloc to rule 6-3 that Congress had the authority to regulate home-grown quantities of prescribed marijuana under its commerce power.
The ruling did not invalidate California's medical marijuana law, or those of 10 other states, but meant that someone charged under federal drug laws could not use state law as a defense.
However, despite the ruling in the marijuana case, the weight of Supreme Court jurisprudence seems to favor a Commerce Clause challenge in a healthcare reform case brought by McCollum or anyone else with standing.
Three of the five-member majority justices in Lopez and Morrison -- conservative Justices Antonin Scalia and Clarence Thomas, and especially moderate Justice Anthony Kennedy -- are still serving on the high court.
The other two are gone, but their successors are equally conservative, if not more so.
Chief Justice John Roberts Jr. replaced Rehnquist after the old chief died of cancer in 2005. As a former clerk for Rehnquist, Roberts is not expected to depart from the old chief's jurisprudence.
Justice Samuel Alito replaced retired Justice Sandra Day O'Connor in 2006. While O'Connor would sometimes act as a swing vote, especially in cases involving abortion, Alito is seen as a solid member of the conservative bloc.
As a federal appellate judge in Philadelphia before ascending to the Supreme Court, Alito questioned the use of the Commerce Clause in congressional regulation of machine guns, and even its use in the enactment of environmental laws such as the Clean Water Act and the Endangered Species Act.
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