Even as conservatives have narrowed the Commerce clause in recent decades, the key recent precedent would be Raich v. Gonzales, which to lay readers
like me can be summed up as follows: if the court (including the
conservatives) found that the inability of the government to be able to
regulate an individual's marijuana plants in a backyard would have a
substantial effect on Congress's intent to ban the growth and sale of
medical marijuana, then it's very hard to argue that an individual
requirement to purchase health insurance is somehow less relevant to
Congress's intent to lower the cost of premiums. Congress's intent
matters here, and in Raich the Court deferred to Congress's
determination of what its regulatory regime should consist of.
Here is a key line from the majority opinion:
While the diversion of homegrown wheat tended to frustrate the
federal interest in stabilizing prices by regulating the volume of
commercial transactions in the interstate market, the diversion of
homegrown marijuana tends to frustrate the federal interest in
eliminating commercial transactions in the interstate market in their
entirety. In both cases, the regulation is squarely within Congress'
commerce power because production of the commodity meant for home
consumption, be it wheat or marijuana, has a substantial effect on
supply and demand in the national market for that commodity
when localized decisions have nationalized effects, then it is "squarely
within" Congress's purview to regulate it. (Wrote Justice Antonin
Scalia in a concurring opinion: "Congress may regulate noneconomic
intrastate activities only where the failure to do so "could ...
undercut" its regulation of interstate commerce.") Congress believes that the mandates, by creating a pool of healthy and unhealthy folks, will help contain the cost of health care. That's their intent; the court would be hard pressed to argue policy with Congress.
A secondary argument is that government can't fine people for failing to purchase an insurance plan; this would violate the "Tax and Spending" clause because it is not a valid reason to impose a tax. Trouble here is that there are numerous instances of taxes being levied by Congress but called something else -- like a penalty or a fee -- that would already violate the clause if every fee or fine were deemed a tax. Still, this argument seems to have a slightly stronger foundation -- and this is, in part, what Florida Attorney General Bill McCollum will base his argument around the idea that the requirement for this tax is simply being alive. The basic response is that Congress has the power to decide how to fund what it wants to fund.
In any event, the mandate kicks in in four years. So it would unusual
for one of the attorneys general to argue that the legislation ought to
be stayed immediately, because there is no immediate effect of the
constitutionally suspect provision. In effect, the nature of the
solution is built in to the
problem. (When the mandate kicks in, anyone subject to it might decide to file suit on their own, on the grounds that the federal government can't force them to buy something they don't want.)
There is a final argument that conservatives will use
in public and probably in court as well. It is that something like this
-- this behemoth of a health care bill -- would never have been
envisioned by the framers. But fine: in theory, judges would have to
rule on a stay based on the likelihood of this argument winning the day
down the line. That's unlikely.
Thumbnail photo credit: blmurch/Flickr