WASHINGTON -- As congressional Democrats try to iron out differences in the House and Senate health-care bills, Republicans are attacking the legal premise of the legislation, saying Congress has no power to make people carry health insurance or pay a penalty or tax.
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. However, courts usually defer to lawmakers, and Democrats could smooth the way further by using language in the final version that clearly asserts Congress's power under the Constitution to levy taxes -- which the House bill already does.
But the court has never considered a federal program structured like the health overhaul, which would require people without insurance to buy it or face a tax or penalty. The nonpartisan Congressional Research Service said in July that it was a "challenging question" whether the commerce power extends that far.
Democrats and their allies say that despite its novelty, the insurance mandate falls within the definition of interstate commerce. The Senate bill cites data to show the importance of the health-care industry to the national economy and the damage caused by leaving millions of Americans uninsured.
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