“If the Commerce Clause claim of power were a slam dunk, as previously alleged, would there be any need now to change or supplement that theory? Maybe the administration lawyers confronted the inconvenient fact that the Commerce Clause has never in history been used to mandate that all Americans enter into a commercial relationship with a private company on pain of a ‘penalty’ enforced by the IRS. So there is no Supreme Court ruling that such a claim of power is constitutional. In short, this claim of power is both factually and judicially unprecedented.”

“This essay argues that the Patient Protection and Affordable Care Act exceeds Congress’s authority to regulate interstate commerce and its taxing power, and infringes on state prerogatives. The lawsuits that have been filed by states and individuals arguing these points raise serious legal issues, not the least of which is whether there are any constitutional limits remaining on government power. Because the new law is unprecedented—in both its regulatory scope and its expansion of federal authority—it is difficult to predict how courts will react. However, a holding that these measures were in fact constitutional would fundamentally alter the relationship of the federal government to the states and the people, as there would seem to be no constitutional limits on federal power.”

Elena Kagan has spent the last year as the Solicitor General of the United States, where she is one of the government’s chief advocates. If she were a Supreme Court justice, she might need to recuse herself from deciding the fate of ObamaCare. “Ms. Kagan would sit as Mr. Obama’s nominee on the nation’s highest Court on a case of momentous Constitutional importance. If there is any chance that the public will perceive her to have prejudged the case, or rubber-stamped the views of the President who appointed her, she will damage her own credibility as a Justice and that of the entire Court.”

The lieutenant governor of Missouri filed suit against ObamaCare on the grounds that it interferes with individual freedom and state authority. “In his lawsuit, Kinder contends the federal health care law could cause Missouri to raise state taxes to pay for the expanded Medicaid program and that it improperly affects the compensation of state officials by making changes to the state health care plan. He also contends the law is unconstitutional because he says it interferes with Missourians’ personal health care choices.”

“Just a few months ago, President Obama signed the health-care bill into law amid much fanfare. But we’re hearing a different tune from small-business owners. They’re asking: How much is this going to cost me, how can I opt out, isn’t there any way to stop this from taking effect?”

The Patient Protection and Affordable Care Act represents more than a federal takeover of health care; it is a direct threat to federalism itself. Never before has Congress exercised its power under Article I, Section 8 of the Federal Constitution to force American citizens to purchase a private good or a service. Congress is also intruding deeply into the internal affairs of the states, commandeering their officers, specifying in minute detail how they are to arrange health insurance markets within their borders, and determining the products that will be sold to their citizens. If allowed to stand, this unprecedented concentration of political power in Washington will reduce the states to mere instruments of federal health policy. State legislatures and sympathetic Members of Congress should consider (among other actions) crafting a constitutional amendment to guarantee the personal liberty of every citizen in the area of health care. Given the trajectory of federal policy, state officials should take the lead in the next phase of the national health care debate, reclaim their rightful authority, and change the facts on the ground for Congress and the White House.

Robert A. Levy argues that Obamacare’s mandate to purchase health insurance is not authorized under Congress’s power to “lay and collect taxes.”

Richard Epstein argues that ObamaCare would unconstitutionally coerce the states.

The federal government responded to the lawsuit brought jointly by 20 state attorneys general who argue that ObamaCare is unconstitutional. In addition to claiming that the states lack the standing to sue and that ObamaCare is a valid regulation of interstate commerce, the Department of Justice argued that the individual mandate is part of Congress’s broad power to tax. This directly contradicts frequent claims, but Congressional Democrat leadership as well as President Obama, that suggestions that the individual mandate was a tax were misleading and disingenuous fear-mongering.

When selling Obama Care, the president “absolutely reject[ed]” the claim that the individual mandate is a tax, largely because the individual mandate heavily affects the middle class, and the president promised in the campaign not to raise any taxes on them. Now that the bill has passed, the Obama Administration is arguing that the individual mandate is Constitutional because Congress is empowered to levy taxes by the Constitution, contradicting his earlier position.