Senator Orrin Hatch has teamed up with two conservative legal commentators to summarize the battle plan for a Constitutional challenge to the health care plan which Democrats appear posed to cobble together out of differing House and Senate bills. The proposed challenges include one very good argument, and two much less promising avenues.

First, the critics focus on the mandate that all individuals buy health insurance policies as an unprecedented expansion of government power:

First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress’s powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress’s power to regulate interstate commerce…
Some have argued that Congress may pass any legislation that it believes will serve the “general welfare.” Those words appear in Article I of the Constitution, but they do not create a free-floating power for Congress simply to go forth and legislate well. Rather, the general welfare clause identifies the purpose for which Congress may spend money. The individual mandate tells Americans how they must spend the money Congress has not taken from them and has nothing to do with congressional spending.

This is the ground upon which the Constitutional argument over health care will probably be fought. The critics’ view that the Constitution limits Congress only to its enumerated powers is a view strongly held among many conservatives, and it is likely that four of the justices on the Supreme Court (Roberts, Scalia, Thomas, and Alito) would embrace it. On the other side, the four progressive justices (Stevens, Ginsburg, Breyer, and Sotomayor) would be highly unlikely to oppose the signature issue of the current progressive movement.

This would leave the question in the hands of the most doctrinally unpredictable justice, Kennedy. And on a wide range of issues, notably including interstate commerce, Justice Kennedy has been a large part of the apparent wild vacillations in the Court’s recent direction. Which Justice Kennedy would show up that day? The pro-federalism Justice Kennedy who sided with Justice O’Connor in striking down the overreach cited by the critics in Lopez? Or the Justice Kennedy who only a little while later switched sides to grant a stamp of approval to similar federal overreaching in Gonzalez v. Raich? There is simply no way to know, so even this most sound Constitutional challenge to the individual health insurance mandate has probably even odds of success.

But on the substance, the claim is sound. Regulation of interstate commerce does not include the power to compel individuals to spend their money in ways the Congress specifies. Otherwise, why would we need a stimulus bill, since Congress could just pass a law ordering everyone to go to their nearest mall and spend $1000 or else? And those progressives who try to rescue the notion (once you read past their unfortunately routine bile and contempt towards anyone who DARES to disagree with them) by pointing to the enforcement provisions in the health care bill as a use of Congress’ Taxing Power fail to recognize that while the Supreme Court has recognized only one limitation on the Taxing Power, it is precisely that the purpose of the tax must be to raise revenue rather than to punish non-compliance. Such a provision may be just as unconstitutional as overreaching on the interstate commerce clause.

The critics’ second argument is less promising:

A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states’ obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed “cash for cloture” because it secured the 60 votes the majority needed to end debate and pass this legislation.

Conservative ire about the so-called “Cornhusker Kickback” is legitimate, and has already placed Nebraska Democrat Ben Nelson first on a long list of endangered Democrats in electoral vulnerability. But whether it can be challenged on Constitutional grounds seems highly questionable. The fact is that, for better or worse, “earmarks” that favor particular states, localities, or even individual corporations and NGOs (remember ACORN?) are a long-standing part of the Congressional log-rolling process. There does not appear any reason on its face that the “Cornhusker Kickback” would not pass Constitutional muster on the same grounds as any number of thousands of other locality-specific payoffs, aid packages, or projects.

The third ground for Constitutional challenge appears promising, but is less so when viewed in a practical sense:

A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.

This violates the letter, the spirit, and the interpretation of our federal-state form of government. Some may have come to consider federalism an archaic annoyance, perhaps an amusing topic for law-school seminars but certainly not a substantive rule for structuring government. But in New York v. United States (1992) and Printz v. United States (1997), the Supreme Court struck down two laws on the grounds that the Constitution forbids the federal government from commandeering any branch of state government to administer a federal program. That is, by drafting and by deliberate design, exactly what this legislation would do.

While the critics are correct that the direct mandate on the states to establish regulations specified by Congress would run afoul of the cases mentioned, they overlook how easy it is to simply convert the current direct mandate language into a use of the Spending Clause as leverage to coerce the states into compliance anyway. When the federal government sought to force the states to adopt a 21-year-old minimum drinking age, for example, it simply informed the states that they would forfeit any highway maintenence funds from the federal government if they failed to do so. All the states quickly fell into line with that federal mandate. Using similar means, the federal government coerced states to adopt a 55mph speed limit during the late 1970s and early 1980s. And in South Dakota v. Dole, the Supreme Court approved these coercive uses of the Spending Power.

In this case, the federal government would only need to threaten to withhold Medicare and Medicaid funding from any state that failed to adopt the required insurance exchanges. It seems quite unlikely that any state — even those that might briefly posture in opposition as they did with regards to TARP funding — would actually accept such a price for standing in opposition to health care reform.

Thus, the bottom line comes back to Justice Kennedy and the Interstate Commerce Clause. Roll the dice.