Obamacare May be Unconstitutional

Sunday, October 18, 2009 6:05 PM

By: David A. Patten

President Obama's healthcare proposals face serious legal problems and scholars expect at least some provisions will be ruled unconstitutional.

The legal vulnerability of ObamaCare -- assuming some version of healthcare reform is passed -- stems from the unprecedented powers it grants the federal government.

Constitutional challenges could arise on several fronts: the government's power to regulate interstate commerce; privacy concerns related to doctor-patient interactions that have their origins in Roe v. Wade; constitutional restrictions on the federal government's authority to levy taxes; and the plan’s numerous clauses promoting racial preferences.

Andrew P. Napolitano, the former New Jersey Superior Court judge and senior judicial analyst at the Fox News Channel, calls ObamaCare "unconstitutional at its core."

Hans Bader, senior counsel for special projects at the Competitive Enterprise Institute think tank, tells Newsmax it is probable that at least some provisions in the evolving legislation will eventually be nixed.

Bader adds courts could also invalidate the entire bill.

GOP Sen. Charles Grassley, R-Iowa, recently echoed Bader's concerns with NewsmaxTV, saying in an exclusive interview that reform marks "the first time in the 225-year history of our country" that the federal government has ordered its citizens to make a purchase – in this case, healthcare coverage under the individual mandate. Citizens who opt not to obtain coverage face tax penalties.

Grassley adds, "I don't think we've ever had this issue before of having to buy something. And a lot of constitutional lawyers are saying it is unconstitutional, or at least a violation of the 10th Amendment. Maybe states can do this -- but can the federal government do it? I have my doubts."

Writing in a Wall Street Journal op-ed, Napolitano stated, "What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with ‘free’ health care that the rest of us will end up paying for. The only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren't upholding the Constitution -- they are evading it."

Among the problems legal scholars see in the current healthcare bills:

The Commerce Clause

The 10th Amendment to the U.S. Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.â€