Con Law Question

I just heard a very interesting question and thought this would be a good place to raise it: Where does the Federal Government find the Constitutional authority to require individuals to buy health insurance? I would imagine the answer lies somewhere in the commerce clause but I'm interested to hear everyone else's thoughts.

P.S. Nancy Pelosi's answer to that question: "Are you serious?"

Nancy's answer is because she does not know and does not care.  Not many in Congress will be bringing a covered dish to the MENSA meeting.

Commerce is a possibility, but I have heard some over the years cite "promote the general welfare" to justify a myriad of interventions.  I suppose the Pres. could invoke some type of emergency power.

I'm surprised someone has not challenged the notion that there is any constitutional authority for a lot of the most recent actions; and I include Bush's economic actions.

It has been around 20 years since I took Constitutional Law in law school, but I seem to remember something about a "stream of commerce" rule formulated by the Supreme Court under the Commerce Clause, in a case where some farmer was trying to fight regulation of his egg farm where his eggs stayed intra-state, or even on his own farm or community, as best I recall.  I remember it being a tenous connection, but the argument was that if it had any affect at all interstate commence, it could be federally regulated.  So, after the New Deal stuff was ruled unconstitutional initially, eventually federal regulation got into all areas of commerece, including labor regulations, etc., even small businesses that are wholly intrastate or local.

(Sort of like "the butterfly effect," where the flutter of a butterfly's wings in one part of the world affects the wind currents and eventually has some sort of effect on the weather in an opposite part of the world.)

The more I think about it, the more I think that its not so clear cut. It is true that the commerce clause has been the basis for regulation where the connection to interstate commerce is tenuous at best. However, the Supreme Court has struck down legislation purported to get its authority from the commerce clause. The one case I can think of off hand wasn't so long ago. It involved legislation that attempted to impose a criminal sanction for possession of a fire arm within a certain distance from a school. The court said that this kind of regulation was primarily a state function. The court could have easily come down differently saying since guns are placed in the stream of commerce, Congress can legislate. As a practical matter, given the composition of the court and the importance of the issue, I doubt regulation in this area would be overturned. I am surprised, however, that more people aren't questioning this.... I think its a very valid inquiry.  

There may be another way it may be authorized; perhaps under the tax laws.  As best I recall, under some or most of the proposals, people aren't technically "required" to buy health insurance, but if they don't, they have to pay a fine or penalty.  Thus, they have a very strong "incentive" to buy the insurance.

I don't know how the proposed bills are worded so I don't know what source of authority they use.

As for the tenousness of the connection used to substantiate federal control of what is called "interstate commerce" under the Commerce Clause, I remember that being a big concern of mine as well as other students.  On the other hand, a lot of antidiscriminatory legislation to outlaw "separate but equal" segregation laws in the South (southeastern US) used the Commerce Clause as the basis of its authority; not to mention workplace safety rules, wage regulation, etc.; some of which affect the smallest employer or public accommodation.

Looking at things on a purely legal basis vis a vis the overall beneficial effect, one can arrive at different conclusions about what was the "right" thing to do.

I am also surprised no one has challenged the authority to do anything that has been done.  I am wondering that if people are required to either buy health insurance or pay a penalty/tax/??? then, once people realize this will really cost them money, someone may challenge.

In trying to fine an analogy:  could the government require everyone to have life insurance to protect their survivors; disability insurance, etc.??

You are right, there were plenty of "New Deal" challenges.  Perhaps now everyone substantially effected, with the means to challenge, is on the dole, or stands to substantially benefit.  

gotta be the commerce clause

 I have read a couple of articles that opine it is going to be the commerce clause.  The last one I read quoted several law professors saying it will not be a close call and actions will be found OK.