A recent report by the Wall Street Journal explains that those who argue against such a mandate claim that the federal government has no authority to mandate health coverage or impose fines for those who fail to obtain coverage. However, supporters of the bill say that such a mandate falls within legislators' ability to levy taxes — a power that is given to legislators in the constitution.
Florida Attorney General Bill McCollum was one of the first attorneys general to publicly question the bills' authority to mandate health insurance coverage. In a statement released Dec. 29, he said:
"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. Upon initial review, this appears to be contrary to the freedoms we, as Americans, have enjoyed for the past 233 years … 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."
Texas Attorney General Greg Abbott has sent letter to legislators within his state warning them about the potential unconstitutionality of the bills. In the letter, he calls Congress's power to levy taxes "not unlimited" and argues "...in United States v. Gerlach Live Stock Co., the court noted that 'Congress has a substantive power to tax and appropriate for the general welfare,' but this power is limited."
South Carolina Attorney General Henry McMaster and 13 other state attorneys general have also expressed constitutional concerns over the so-called "Cornhusker Kickback," which would have the federal government bear the cost of all newly eligible Medicaid enrollees in Nebraska. Opponents of the provision argue that it was included only to secure the vote of Nebraska Sen. Ben Nelson. The attorneys general questioned the constitutionality in a letter to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid and argued that "in Helvering v. Davis … the United State Supreme Court warned that Congress does not possess the right under the Spending Power to demonstrate a 'display of arbitrary power.' Here several other states apparently also received special deals to secure key Senate votes.
Several trade associations are also considering various grounds on which to challenge the final health reform bill on behalf of their members. These associations are expected to challenge the bill once passed, and it is likely they will argue that the federal government is beyond its scope of authority in passing the bill or that the bill violates the equal protection clause of the constitution.
Legal scholars contend that overturning a law on the basis of constitutionality is very difficult as courts usually defer to legislative bodies when determining the constitutionality claims. However, certain trade associations in recent years have had some success in challenging federal laws on similar grounds.