Some opponents of the congressional health bills "think their last, best hope to halt the legislation lies not in the U.S. Capitol but in the court across the street," The Washington Post
reports. "A small but vocal contingent of legal scholars and many Republican lawmakers argue that the measures passed by both chambers are unconstitutional and will be ruled so by the Supreme Court. Their primary target: the individual mandate, which requires people to get health insurance or pay a financial penalty of at least 2 percent of their income to the government." Critics argue that "the bills would force people to buy a particular product" and are not constitutional. In a legal memorandum published by the Heritage Foundation, several constitutional scholars wrote that "[t]o uphold the constitutionality of the individual mandate … the Supreme Court would have to find that the Constitution's Commerce Clause has 'no limits.'"
But "Democrats say the constitutionality argument is a stalking-horse for the GOP's broader opposition to reform. On Dec. 23, the day before the Senate passed its health-care bill, the chamber voted on a point of order raised by Sen. John Ensign (R-Nev.), who said the individual mandate made the measure unconstitutional. His effort was rejected along party lines, 60 to 39." And "a number of legal scholars have come forward to rebut conservatives' arguments, saying the individual mandate easily passes constitutional muster" (Pershing, 1/3).
But some critics on the left are also concerned about the individual mandates, complaining "that Americans will be locked into buying a product that threatens to become ever more expensive -- especially if, as seems likely, the final bill does not contain a government-run insurance program to compete with private firms, the so-called public option," The Los Angeles Times
reports. "'We'd like to see the individual mandate stripped,' said Jim Dean, chairman of the liberal Democracy for America, which was founded by his brother, former Vermont Gov. Howard Dean." The insurance industry is also worried about the mandate, but for a different reason. They worry that "the penalty for failing to buy insurance is too mild. That could result in young, healthy people choosing to pay a relatively small tax penalty rather than buy insurance" (Oliphant, 1/2).