Editor’s Note: The Senate’s passage of a health reform bill without a government-run option for Americans may be seen as a remarkable legislative achievement, but the Senate version also raises a troubling constitutional issue: Can the federal government compel a citizen to buy a product from a private corporation?

And, since the Senate bill passed without a single Republican vote, there is this question: Will the highly partisan Republicans who control the Supreme Court allow a Democratic political victory to stand? In this guest essay, David Swanson examines the legal issue:

The answer is a matter of debate, but there is little dispute that such an act of Congress would be unprecedented.

Sheldon Laskin, an Adjunct Professor at the University of Baltimore Law School who has argued that the Constitution forbids such a move, describes the new and dangerous can of worms it would open up:

"If Congress can compel the purchase of insurance from a for profit insurance company, it can compel the purchase of any commodity if there is an arguable public policy to support it.

“The auto industry is collapsing? Forget Cash for Clunkers, just order Americans to buy cars or tax them if they don't. Obesity crisis? Order Americans to join health clubs, or tax them if they don't. If Congress gets away with this, there is no stopping point and Big Business will have succeeded in making Americans into involuntary consumers whenever it so chooses."

Outlandish? Consider this: Many Supreme Court observers expect a ruling, quite possibly on Jan. 12, 2010, in the case of Citizens United vs. Federal Elections Commission that would lift all limits on corporate funding of elections, meaning that national and international corporations could swamp the election system with so much money that any influence from actual citizens would be utterly negated.

If you were a corporation and you owned the legislature, and laws were being passed requiring people to purchase products, and you owed it to your shareholders to maximize profits, what would you feel compelled to do?

Exactly.

The U.S. Department of Justice recently claimed that, for purposes of keeping illegal government-funded activities secret from the public and the courts, telecommunications corporations were effectively part of the executive branch of the government.

Might the same argument not be made, in the none-too-distant future, about "health" corporations funded by government mandate? If the federal government can force me to give money to major campaign funders, where does the government stop and the private business begin?

Of course most of those arguing that the government cannot do this are libertarians and/or opponents of the Democratic Party, since so many on the left who ought to be raising these concerns have sold their souls to that party and this is a Democratic proposal.

But the argument against an individual health insurance mandate is not an argument against a civilized healthcare system. The government can tax the public and/or corporations and pay for healthcare, even with those payments going to private businesses, without running up against the same Constitutional hurdles or the same concerns from observers wary of creeping corporatism.

The Constitution provides Congress with certain enumerated powers in Article I and explicitly leaves all other powers to the states or the people in the 10th Amendment.

So, the constitutional question, for those who still care whether laws are constitutional, is whether the power to force you to buy a horrible product you do not want from a disreputable monopolistic corporation that pays regular bribes to your elected representatives in the form of campaign "contributions" is specifically listed anywhere in Article I.

Article I gives Congress the power to "lay and collect taxes" as well as the power to "regulate commerce … among the several states." Interpretations of these clauses have varied.

Predictions as to where the current Supreme Court would come down vary. I find Laskin's arguments the most persuasive. Here's a lengthy two-sided debate and here are the cherry-picked opinions offered by Sen. Max Baucus (D., Blue Cross Blue Shield).

Is mandated health insurance commerce? It is not, like all other commerce, something that can be resold. It is not, like all other commerce, optional, if you force everyone to purchase it.

Is it interstate? That concept has perhaps been loosened enough to cover anything that counts as commerce, and the new legislation may allow the sale of health insurance across state lines despite candidate Obama's argument that doing so would create a race to the bottom in quality and accountability.

But you can't have interstate commerce with something that isn't commerce at all.

Is mandated health insurance a tax? President Obama swears it isn't. He calls its enforcement mechanism a "fine."

But perhaps that's for public consumption, whereas courts will be told it's a tax. Is it? How can it be, when it is not a payment to the government? If it is, there is the problem that Article I requires that "imposts and excises shall be uniform throughout the United States" which this would not be.

But the Constitution forbids the ongoing warrantless spying programs. The Constitution does not allow presidents to launch wars. In the Constitution everyone has the right to habeas corpus.

We have cases in which the Supreme Court has ruled our general public practices unconstitutional, and yet they blissfully proceed. Ultimately, the question is whether we will stand for fascistic policies or fascistic interpretations of the Constitution. Personally, I will not stand for either.

David Swanson is the author of the new book "Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union" by Seven Stories Press.  You can order it and find out when tour will be in your town: http://davidswanson.org/book. [This story previously appeared at afterdowningstreet.org]

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