Constitutional Challenges to health care "reform"

In case you haven’t heard, 11 state attorneys general have signed on to a lawsuit declaring the recently passed health care reform act to be unconstitutional. If you’ll recall, I mentioned just such a concern a few weeks ago: An Apple a Day...

Defenders of the bill claim the Congress has a Constitutional right to regulate interstate commerce. They are correct. With such a right, and responsibility, comes the ability to regulate health insurance companies and large multi-state health care providers. What the regulation of interstate commerce does not cover is the right to tell Americans that they must be insured or what form that insurance must take. Health care is not, on an individual level, an economic activity- it is a personal choice. The bill itself acknowledges the personal choice of individuals when it exempts from fines those with religious objections. If a person is guaranteed the First Amendment right to follow his religion, and thus refuse health care services or insurance, the decision to sign up for health insurance is, de facto, a personal freedom choice and not an economic activity.

The darker, and politically more volatile, constitutional dispute over the bill comes from its specific exemption of illegal aliens from fines or fees associated with mandated coverage. The 5th Amendment concludes:
....nor shall private property be taken for public use, without just compensation
The 14th Amendment states:
Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

One of the primary money sinks of our health care system is that hospitals and associated health care providers have to provide treatment to individuals regardless of their immigration status. From a humanitarian perspective this is a very good thing. We do not want, nor should we ever advocate, persons to suffer when care can be provided. There are also very real public health benefits to treating all residents, even non citizens. Contagious diseases do not stop to ask for immigration documents before jumping from one host to another. So, we currently treat all persons needing immediate medical care, and if they cannot pay then the government picks up the tab. The government pays that tab with tax dollars.

Many of the new fines and fees on uninsured individuals as set forth in this new legislation specifically exempt illegal aliens. Obviously it would be hard to enforce such fines on undocumented and transient persons. However, by paying for the treatment of these individuals the States, and the Federal government, effectively have jurisdiction over said persons. The states must, by the 14th amendment, treat all persons under their jurisdiction equally. There is an inherent inequality in creating an exempted sub-class of persons. Add to that the taking of private property: income, and using it for public functions (paying for the health care of those who do not pay into the systems themselves) without the just compensation of equal benefits and consideration, and you have a violation of the Constitutional “fairness’ clauses.