Constitutionality of health law is not yet clear

Is the new health care law — or specifically the part of it that requires all Americans to buy health insurance later in this decade — constitutional or not?

We as regular citizens without a background in constitutional law have to rely on our own judgment in this matter and lots of people are taking sides on the issue. Predictably, there is disagreement about it.

But it is not much different when it comes to the "pros" — those with formal knowledge of the law.

Many appear to think it is constitutional, but not all. Even among those who are paid to make these kinds of decisions — state attorneys general — there is a split.

Many, like Arizona Attorney General Terry Goddard, don't believe there is a constitutional issue.

"Our lawyers agree with the overwhelming majority of constitutional scholars of both parties that the lawsuits have little merit and that participating in them would be a waste of scarce taxpayer dollars," Goddard said.

Goddard told the Capitol Media news service that that it isn't really a mandate (which he said might be unconstitutional) because Americans have a choice. The choice is to either buy health insurance or to pay a penalty which would be collected by the Internal Revenue Service. Goddard sees the penalty as a form of tax, which of course is constitutional.

Others disagree with that assessment. Shortly after the health law was signed, 13 state AGs joined to file a lawsuit claiming it was unconstitutional based on the individual mandate on insurance.

Arizona's Gov. Jan Brewer would like to join that lawsuit and may be given the chance by the Arizona Legislature despite Goddard's opposition.

The irony in all this, of course, is that if the Obama administration had been successful in getting a true government-style health care system like is in place in many other nations, there might be no question about the constitutionality.

After all, the legality of the Medicare government health care system for the elderly has long been established, along with the ability of the government to force people to pay for it through payroll deductions.

But by trying to meld government oversight with the private insurance system, it puts the issue in question in the minds of some. Opponents say it is the first time the federal government has ever forced all citizens to buy a product (insurance).

That is something of a Catch 22. Opponents of health care didn't want a single-payer government Medicare-style health care system so a compromise was reached to use the private insurance component. Now those same opponents say it is unconstitutional to have forced private insurance. Tricky.

The question that came to my mind was what about the requirement for drivers to have basic auto insurance, something that Arizona and some other states demand? Isn't that a mandate to buy an insurance product?

Of course, not everyone drives, so not everyone faces the requirement. Still, many are forced to buy private insurance and there is a penalty for not doing so. The principle behind the requirement seems pretty much the same to me as health insurance, and that mandate has not been found unconstitutional.

Health care opponents have an answer. Driving is a privilege, they say. You don't have to drive, so you can avoid the requirement so it really isn't a requirement. Hmm, sure it isn't.

That argument sounds mighty close to Goddard's argument that you have a choice because you can pay a penalty instead.

None of us are going to get to rule on this, of course. The real "big dogs" on this issue will be the U.S. Supreme Court justices, assuming the court considers the case worthy enough to accept.

Until we find out what they plan to do, things won't be fully settled.

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Terry Ross is director of the Yuma Sun's News and Information Center. E-mail him at tross@yumasun.com or phone him at 539-6870.