The Congressional Research Service Doesn't Know If ObamaCare Is Constitutional
Is the new federal health care law constitutional? The Congressional Research Service took an initial look and decided that, so far, it's not entirely clear.
Here's the problem: The law imposes fines on employers whose employees take advantage of the bill's available subsidies. In theory, that could include some state governments. The question the report attempts to answer is: If those fines do indeed apply to state governments, would the imposition of those fines "run afoul of the Tenth Amendment?"
On one potential challenge, CRS says the argument is "unlikely" to be successful in court. On another, CRS says recent rulings "might suggest" the Supreme Court would look harshly at the relevant provision in the law.
Overall, writes CRS, "any conclusions as to the unconstitutionality of the employer mandate…would be premature." Regardless of how this eventually plays out, it's important to note that what Congress did was pass a law that overhauls much of the health care system without certainty that it was constitutional. But I suppose when you have pro-ObamaCare legislators like Rep. Phil Hare telling reporters things like, "I don't worry about the Constitution on this, to be honest," that's hardly a surprise.
I looked at ObamaCare's chances under constitutional challenge here. Jacob Sullum wrote about the crazy constitutional logic of the individual mandate here. Damon Root looked at how the mandate has revived debates about the Commerce Clause here.