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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

The (Republican) Constitutional Challenge To Health Reform

Today we learn that a coalition of State Attorneys General–12 so far–plan to launch a constitutional challenge to the just-passed-but-not-yet-signed Senate health reform bill on grounds that imposing an individual mandate to buy health insurance is not justified by the powers Congress enjoys under the Commerce Clause of the U.S. Constitution.
Interestingly enough, the media reports I’ve seen on this story do not mention that eleven of the twelve AGs in question are Republicans. The one Democrat, Drew Edmondson of OK, is running for governor in this very conservative state.
FWIW, few constitutional experts find any merit for a Commerce Clause challenge to health reform. But the proposed suit is probably part of a longstanding conservative legal effort to slowly chip away at the expansive view of the Commerce Clause, which has been the basis for a variety of important congressional actions, including the Civil Rights Act.
While the challenge is unlikely to get anywhere, it is worth remembering that there wasn’t much if any precedent for the decision in Bush v. Gore, either.

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