NRO (National Review Online)
The silver lining in the health-care-reform nightmare that is taking place in America might be the unconstitutionality of certain aspects of the bill. According to this morning’s Wall Street Journal, “constitutional-law scholars say that if the health-care overhaul becomes law, it could give courts an opportunity to test the limits of congressional authority in areas that haven’t been examined since the New Deal era.”
Preeminent legal scholars have written and made this point before. Here are some very useful links compiled by Manny Klausner.
Also, Richard Epstein recently published a detailed analysis of the Senate version of the bill, “Impermissible Ratemaking in Health-Insurance Reform: Why the Reid Bill is Unconstitutional.” Epstein concludes that there is “little doubt that its central arrangements are unconstitutional, and will face serious legal challenge for years to come.”
Epstein notes that “that the Fifth Amendment affords regulated health-insurance companies protection against the taking of property without compensation and without due process of law” — but “the Reid Bill emphatically fails this test by imposing sharp limitations on the ability of health-insurance companies to raise fees or exclude coverage.”
Overall, it seems obvious that there are serious constitutional problems with Reid’s bill. Yet, can we trust the courts that gave us rulings such as Kelo to deliver justice this time around?