The debate over healthcare reform moved into the legal realm Tuesday. Florida Attorney General Bill McCollum called for an investigation into the constitutionality of a congressional mandate that all Americans purchase health insurance or pay a tax penalty.

“I have grave concern about the constitutionality of this mandate,” Mr. McCollum said. If passed and signed into law, the individual mandate portion of the healthcare legislation would mark the first time Congress has imposed a tax on individuals for essentially doing nothing, he said.

McCollum sent a letter on Tuesday inviting his fellow attorneys general to join his investigation. “I believe our analysis is needed in order to provide Congress our input, and more importantly to protect our states and citizens from a potentially unconstitutional federal mandate,” he wrote in the letter.

The provision is a centerpiece of the healthcare bills currently pending in Congress. Conservative analysts have been debating the legality of the measure for months. Liberal analysts have dismissed these concerns as overblown and political posturing.

McCollum told reporters during a telephone conference call that it is “highly likely” the bill will become law, and that if it passes in its current form he would consider filing a constitutional challenge in court.

McCollum is running for governor

McCollum is a Republican candidate running for Florida governor in 2010. He denied that his efforts on the healthcare bill were politically motivated.

He said his aim was to protect the people of Florida. “I think it is a big thing,” he said.

“The mandate is especially troubling to Floridians who are guaranteed through the Florida Constitution to have ‘the right to be let alone and free from governmental intrusion into [their] private life,’ ” he said.

At issue is whether the Constitution’s commerce clause grants Congress broad enough powers to order Americans to comply with the health insurance mandate or pay a penalty.

Conservatives view it as a question of preserving individual liberty in the face of an increasingly powerful federal government. Liberals see it as an essential feature of effective government regulation. Wide participation in the insurance pool is necessary to help spread the cost of the healthcare reforms.

Earlier court cases went both ways

What gives the debate an extra measure of momentum is that the US Supreme Court has issued important constitutional decisions in recent years offering support to both liberals and conservatives.

On one side, the high court struck down acts of Congress seeking to create federal gun-free school zones in 1995 and allowing federal civil lawsuits under the Violence Against Women Act in 2000. In both those cases, the high court said the commerce clause is limited to economic activities that substantially affect interstate trade in goods and services. In effect, Congress overstepped its powers by trying to impose federal regulations in areas traditionally reserved to state governments.

But in 2005, the Supreme Court also handed down a decision that commerce clause powers are broad enough to support federal regulation of home-grown medical marijuana in California. That decision reaffirmed a landmark 1942 decision that the commerce clause allows federal regulation of home-grown wheat, even when the wheat is consumed on the farm.

How much can Congress regulate private life?

The question among constitutional scholars is which line of cases might the high court follow should the individual healthcare mandate arrive on its docket. A decision in such a case could dramatically limit federal power or expand it so that Congress would be free to regulate virtually every aspect of American life.

“This takes congressional power and control to a strikingly new level,” says a recent analysis by legal scholars at the conservative Heritage Foundation.

“Congress could require every American to buy a new Chevy Impala every year, or pay a ‘tax’ equivalent to its blue book value, because such purchases would stimulate commerce,” the Heritage report says.

“Even during wartime, when war production is vital to national survival, Congress has never claimed such a power, nor could it,” the report says. “No farmer was ever forced to grow food for the troops; no worker was forced to build tanks. And what Congress cannot do during wartime, with national survival at stake, it cannot do in peacetime simply to avoid the political cost of raising taxes to pay for desired government programs.”

Despite such arguments, many conservative analysts say they do not believe the Supreme Court is likely to overturn a healthcare reform law on commerce clause grounds.

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