STEVE INSKEEP, host:
And lets get an update on the top item on the presidents agenda: health care. The legislation includes a so-called individual mandate, a requirement that nearly everyone buy health insurance. And that requirement faces a challenge from those who say its unconstitutional. Hes NPRs David Welna.
DAVID WELNA: Last June, Iowa Republican Senator Chuck Grassley told Fox News Sunday he thought everyone should have to buy health insurance, since, as he put it then, theres no free lunch.
Senator CHUCK GRASSLEY (Republican, Iowa): I believe that there is a bipartisan consensus to have individual mandates.
WELNA: At the time, Grassley was still deep in negotiations with Senate Democrats on the Finance Committee over a health care bill. But by the time that panel's legislation came to a vote, Grassley had turned against both the bill and the requirement that everyone buy insurance, as well.
Sen. GRASSLEY: For the first time in the history of our country, 225 years, the federal government is saying you've got to buy something. That's never been before. You, as an individual, can do whatever you want to, buy whatever you want to, when you want to, where you want to get it. But now the federal government is saying you have to buy health insurance.
WELNA: Since then, a lot of other Republicans have joined Grassley in questioning the individual mandate.
Attorney General BILL MCCOLLUM (Republican, Florida): I view the individual mandate as a living tax. I call it a tax on living.
WELNA: That's Florida's Republican Attorney General Bill McCollum. Two weeks ago, he wrote fellow state attorneys general and urged them to explore a constitutional challenge.
Atty. Gen. MCCOLLUM: I'm assuming there will be a bill that becomes law and that it includes - and if it does include an individual mandate or what I call a living tax, then at that point, we have to make a decision. Do we challenge it in court? The first step would be to go into federal court and seek that challenge, and I would expect if that were to be the case, we'd have a sizable number of attorneys generals joining us.
WELNA: It's a legal battle that could end up in the Supreme Court, and already gearing up for that is Georgetown University law Professor Randy Barnett. He maintains Congress would be overstepping its powers enumerated in the Constitution if it required people to buy health insurance.
Professor RANDY BARNETT (Law, Georgetown University): Never in the history of the United States has the federal government ever required someone to engage in an economic activity with a private party. It's never been done, and anything that's never been done before has no precedent for it. So there's no judicial precedent upholding it. It would have to be a new decision by the Supreme Court to uphold this new extension of power. And if they uphold this, then there's pretty much nothing that Congress can't do, and that's the end of the enumerated power scheme.
Professor WILLIAM TREANOR (Dean, Fordham University School of Law): I'm very confident that this would be held constitutional because of the Supreme Court.
WELNA: That's the dean of Fordham University Law School, William Treanor. He says the mandate to buy health insurance would be seen by the high court as part of Congress' power to regulate interstate commerce.
Prof. TREANOR: The view that it's not consistent with the enumerated powers is at odds with well-established precedent that runs back more than 70 years. I think this is very clearly something that Congress can do under the Commerce Clause power.
WELNA: And Wake Forest University constitutional expert Mark Hall says almost every legal scholar he knows considers an individual mandate for health insurance consistent with Congress' power to regulate. Here's why.
Professor MARK HALL (Constitutional Expert, Wake Forest University): An individual who goes out and tries to purchase health insurance cannot buy a policy that covers preexisting conditions or that asks no medical questions. Such a product's simply not sold in most states. And it can't really be sold economically, unless we require most people to have insurance. So the requirement is really part and parcel of the regulation of the structure and conditions for the marketplace that would allow a very desirable kind of product to be sold.
WELNA: And Yale legal scholar Akhil Amar says the fact that a requirement by health insurance would be enforced through fines shows that Congress is exercising an even more fundamental constitutional power: Its power to impose taxes. Amar says courts should not be concerned that such a mandate had been used before.
Professor AKHIL AMAR (Legal Scholar, Yale University): There's a first time for everything. Before there was a federal bank, there was no federal bank. Before there was a Social Security Administration, there was no Social Security Administration. Have we ever had a law just like this before? No. That's why it's being proposed. That's true with many laws.
WELNA: Still, should the individual mandate become law, opponents are saying see you in court. David Welna, NPR News, the Capitol.
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