The new healthcare law is “absolutely” unconstitutional, says Robert Alt, senior legal fellow at the Heritage Foundation.
“There an awful lot of constitutional difficulties with the bill as it was passed,” he told Newsmax.TV.
The first issue is the mandate that most every citizen must purchase a health insurance plan or be taxed, says Alt, who is deputy director of Heritage’s Center for Legal and Judicial Studies.
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“Never before in the history of the country has the federal government demanded that individuals enter into a contract with a third party under the threat of taxation,” he said.
And never before has the government “claimed to do so under the most spurious of grounds that your decision not to purchase something in fact implicates interstate commerce.”
While the constitution gives Congress the power to regulate interstate commerce, the new healthcare law doesn’t constitute such commerce, Alt says.
“In every other case, the court has found that so long as Congress had the authority to regulate a larger commercial class of activity, if there was incidental conduct that wasn’t commercial, they could go ahead and regulate it,” he said.
But, “In this case, the larger class of activity that they’re seeking to regulate is the non-purchase of insurance. This is unprecedented. That’s not commercial activity.”
The healthcare law matches a series of cases in the last 20 years where the Supreme Court rejected Congress’ attempt to regulate activity that isn’t truly commercial, Alt says. Those cases include the Gun Free School Zone Act and the Violence Against Women Act.
“Where the overall conduct being regulated isn’t commercial in nature, the court has shown little deference to Congress,” Alt explained.
The other main issue is the 10th amendment, which protects state and individual rights, Alt says. Several state attorneys general are filing cases to have the healthcare law overturned for violating the amendment.
“This bill regulates the state operations of the insurance market so much, that you’re functionally commandeering state officers to perform federal functions,” Alt said. “The federal government can’t tell state officials to perform federal functions.”
Insurance companies also can challenge the law, he says. They can argue that it converts them into something resembling a public utility, which entitles them to a fair rate of return.
“There are strict regulations with regard to fee structures and the like, and this could limit the ability of insurance companies to make a fair rate of return,” Alt said.
The fact that many provisions of the new law don’t become effective until 2014 could delay constitutional challenges until then, Alt says.
“It does present something of a hurdle in the courts,” he pointed out.
“Particularly since there is so much talk about repeal, you could see the courts say the case isn’t quite ripe for adjudication yet because the political process could sort itself out before it (the law) ever kicks in. It could be repealed.”
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