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is one reason you know that the Iranian president has more power than the Iranian Supreme Leader or that the Supreme Leader has more power than the president?So is the bill unconstitutional? The most honest answer is no knows for sure. A law like this has never been passed and therefore no clear precedent applies. Georgetown law professor Randy E. Barnett seems to give credence to the constitutional challenges to reform but others such as Professor Timothy Jost at Washington and Lee University suggest the legislation is clearly constitutional. So some very knowledgeable people have contrary opinions.
Here is a breakdown of what we do know about the Constitution as it relates to the legislation.
The Individual Mandate and the Powers of Federal Government
First the legislation does present a new case in that it proposes to force individuals to buy insurance from a private companies. If individuals do not purchase insurance they will be fined approximately $700 or 2.5% of their income whichever is greater. There are some exceptions granted based on religious objections and financial hardships.
Now there are some similar laws but nothing that goes quite this far. For example states require individuals to have insurance in order to drive a car but if individuals do not want to obey that law they simply can chose not to drive. Under health care reform everyone would need to purchase insurance. People are also automatically taxed for Social Security and Medicare but these taxes are on income and not technically a fine for not engaging in some kind of behavior.
However just because the federal government has never done something this does not mean that it is unconstitutional. The Department of Justice is likely to point to many parts of the Constitution in defending the legislation. Article 1, Section 8 proscribes the powers given to Congress. The relevant powers in this case could be:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof"
The government's power to tax is generally interpreted very broadly by the courts so if the Obama administration was able to effectively argue the mandate was in fact a "duty" or "tax" the courts would probably approve the mandate. Of course the state attorneys generals will argue the legislation does not fall under this power since a "fine" is different in nature than a tax.
The Department of Justice could also argue that the legislation is merely an attempt to "regulate Commerce." The commerce power is certainly not unlimited but generally Congress can regulate anything which has a substantial relation to interstate commerce. The Obama administration would have a strong argument here since health care makes up over one-sixth of the economic activity of the entire nation.
A Challenge Based on the Tenth Amendment
Idaho has already passed a law which states their citizens are not bound by the health care laws. While this is likely a nice political tactic in general states can not simply exempt their citizens from federal law. For example if Missouri passed a law exempting their citizens from the federal income tax the IRS will still be able to demand my payment next year. Under the Supremacy Clause (Article VI, Clause 2 of the U.S. Constitution) federal law generally trumps state law.
A reader may have noticed how I emphasized the "generally" part of my last analysis. There are exceptions to the Supremacy Clause rule. If a power is considered "reserved" for the States under the Tenth Amendment then theoretically a federal law could be nullified if it conflicted with state law.
The problem for the attorneys general is that once again a regulation of health care seems perfectly within the federal government power either to tax or to regulate interstate commerce. Given the vast nature of Medicare and Medicaid it will be hard for the states to argue that the regulation of health care is a power reserved solely for them.
A Challenge Based on the Fourteenth Amendment
The Supreme Court has interpreted the 14th Amendment as granting substantive due process rights to American citizens. Basically what this means is that citizens have certain rights which are not explicitly enumerated in the Bill of Rights. For example the Supreme Court determined a woman has a limited right to have an abortion based upon a right of "privacy" under the Fourteenth Amendment even though privacy is never explicitly mentioned as a right in the U.S. Constitution.
In order to challenge the health care bill a U.S. citizen would have to allege the bill violates a fundamental right they have as part of the "liberty" interest under the Fourteenth Amendment. Generally something is determined to be a "fundamental right" if it is "deeply rooted in American history and traditions." A claimant would have to identify a right such as "the right to make one's own health care decisions" or "the right to abstain from purchasing insurance." They would then have to show that this right has been deeply rooted in American history and traditions. The Department of Justice would of course argue to the contrary.
Even if the court agreed that a "fundamental right" was at issue the government could still argue the legislation is constitutional. Even legislation affecting fundamental rights is constitutional if it is necessary to advance a compelling state interest. The government would argue the individual mandate is necessary to meet the compelling state interest of providing affordable health care for all or something to that effect. It would then be up to the court to determine which side was right.
The hardest step in this process would be convincing a court that a "fundamental right" was at stake. Generally the courts are reluctant to create new fundamental rights since it opens the door to challenges of all sorts of other laws. For example if a court determined an individual has a "fundamental right" not to purchase insurance it could lead to a challenge of automobile insurance laws among other things.
Conclusion:
Anyone who says they know for certain how the court system will rule on an issue this complicated does not know of what they speak. Having said that the lawsuits that seek to have health care reform overturned are facing some long odds. The Department of Justice has a large staff of experienced and qualified lawyers who have many credible legal arguments to make for the bill. I have just scratched the surface of the legal arguments they are sure to come up with in defending the legislation. A federal court is unlikely to declare such a bill unconstitutional without a really good basis for doing so. Faced with such obstacles it is hard to imagine opponents of reform succeeding in getting rid of the law through the court system.
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under Kremlin control. In 2004, after the school siege in Beslan, in North Ossetia, Mr Putin scrapped regional elections. Using examples from the reading, what would the author predict for Russia's new north Caucasus policy? Why would this be a mistake according to the author? Do you agree?2. When the author realises, early on, that she is not allowed the freedom to think, she says this is “only the beginning of my real awakening, a painful process that would take several years more.” Why was her awakening such a slow process?
3. If the author had grown up in China, do you think her doubts and questions would not have arisen in her student years? Or do you think her classmates went through similar “awakenings”?
4. In theory at least, the workers had better living conditions than intellectuals in China in the early 1970s. Does this strike you as any more unfair than the opposite situation?
5. Having completed the book, what are your feelings about Jan Wong’s informing on Yin (the girl who wanted help getting to the West) while she was 
still an unquestioning Maoist?
6. Could you characterize the four sections of the book? Do they differ in tone as well as content?
7. Broadly speaking, the first half of the book avoids overviews or hindsight, but in the second half the author adopts a more knowing perspective. What effect does this have for the reader?
8. What fresh insights have you obtained from Jan Wong’s analysis of the Tiananmen Square demonstration and the detailed description of the subsequent massacre?
9. The author says that the Tiananmen massacre could have been avoided: “An experienced mediator could have solved things so easily.” How different do you think life in China might have been after the demonstration if there had been no violence?
10. At the beginning of the book the author is writing largely about herself and her reactions to the political system. The last part of the book is more concerned with the stories of individuals living in post-Tiananmen Square China. What can you deduce from this? How much do you think she has changed, and how much has China changed?
