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The conventional wisdom is that the Supreme Court will soon agree to hear a case challenging the constitutionality of the healthcare law passed last summer.  I believe that the core issue with which the Court will need to deal is the limits of government power to compel its citizens to purchase health insurance.  Basic questions are at stake here:  If the United States government can force its citizens to purchase health insurance, what else can it force them to do?  As columnist Adam Liptak has observed, ?What can?t government compel its citizens to do?  In other words, has Congress overstepped its constitutional authority in enacting this part of the law?  What are the limits of government?  These questions and others are some of the most important stemming from President Obama?s healthcare legislation.  Fundamental issues about the nature of this Republic are at stake:  What exactly do we mean by limited government?  What is the nature of the power the national government has over its citizens?  Are there limits to that power and what exactly is the nature of that limit?

Liptak reports that even judges in lower courts who ultimately voted to uphold the law have honed in on the question of the limits of government?s power.  For example, Judge Laurence H. Silberman, who later voted to uphold the law, told a lawyer at an argument in September before the US Court of Appeals for the District of Columbia Circuit, ?What limiting principle do you articulate??  If Congress may require people to purchase health insurance, what else can it force them to buy?  Where do you draw the line?  Would it be unconstitutional, he asked, to require people to buy broccoli?  He asked, could people making more than $500,000 be required to buy cars from GM to keep it in business?  Judge Brett M. Kavanaugh, asked, ?How about mandatory retirement accounts replacing Social Security??  The most familiar justification for this requirement in the healthcare law is the Constitution?s interstate commerce clause.  If this is so, to use this part of the law must it be economic in nature, be concerned with true interstate commerce issues and must it address national problems?  I am not certain these matters are settled.

In another opinion that dealt with the expansion of federal power, former Chief Justice William Rehnquist wrote:  ?It is difficult to perceive any limitations on federal power.  If we were to accept the government?s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.?  As Liptak reports, when a divided three-judge panel of the US Court of Appeals for the 11^th Circuit, based in Atlanta, struck down in August the mandate that individuals purchase and maintain health insurance from private companies, they argued:  ?The government?s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life.?

In short, the primary constitutional issue at stake here is the power of the federal government.  What are its limits?  Is the interpretation of the interstate commerce clause so broad that it covers this mandate?  Is our understanding of limited government, so central to the democratic-republic of the US, being re-interpreted?  If Congress can regulate this dimension of its citizens? private lives, what else can it regulate?  These are most significant questions.  They are not tangential to the law!  They must be answered and they must be a part of the debate.  The future and the destiny of our Republic are at stake.

See Adam Liptak in the New York Times (14 November 2011). PRINT PDF