Something that's been bothering me...

The more I consider Obama's healthcare proposals, the more I keep coming back to the aspect of constitutionality--which, I realize, is a perilous thing for a non-lawyer to do. Nevertheless, there appears to be a fundamental disconnect between a) asserting that the interstate commerce clause gives the federal government the ability to mess with the health-insurance marketplace, and b) the fact that health insurance companies can't currently operate across state lines.

An editorial in today's WSJ, however, raises another interesting point: whether sticking the uninsured with a penalty "excise tax" is a form of punitive taxation:

Taxation can favor one industry or course of action over another, but a "tax" that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority. If the rule were otherwise, Congress could evade all constitutional limits by "taxing" anyone who doesn't follow an order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables...a tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress's constitutional power will present the question whether there are any limits on Congress's power to regulate individual Americans.

One further question: if the Obama reforms aren't scheduled to go into effect until 2013, how will the inevitable legal challenges impact their rollout? Politically, I wonder whether it would be better for Obama to get a reform bill passed sooner, so that lawsuits can be characterized as obstructionism for the 2012 campaign

Technorati Tags: Healthcare, Obama, Constitution