Is the health care bill in Congress constitutional?

This past week our state's Republican attorney general, Bill McCollum, joined those of several other states in asking whether the big health care bill in Congress is constitutional.

McCollum naturally was booed by the Democrats. They said as a Republican running for governor, he is just trying to make political points.

And yet the questions he raises are interesting.

It is a little-understood aspect of our Constitution that Congress can't just pass any durn-tootin' law that it wants. To use a silly example, Congress cannot require all Americans to wear blue pajamas, or to eat ice cream on Sundays — unless it has a valid reason.

And what are those valid reasons? A list of Congress' authorized powers occurs in Article I, Section 8 of the Constitution. These powers include authority over national defense, federal taxation, coining money, incurring debt and establishing a post office, to name a few.

Admittedly, the list is broad. One of the biggest is the power of Congress to regulate interstate "commerce." That is the basis for many of our most important federal laws.

So, what authority does Congress have to require every American either to buy health insurance, or to pay a fee or tax for not buying it?

"It would be levied," McCollum notes, "on a person who does nothing, a person who simply wishes not to be forced to buy health insurance coverage."

I read a bunch of legal opinions by learned experts — who flatly contradict each other. Some say any idiot can see that health care is a matter of "interstate commerce," while others argue just as firmly that a private decision not to buy health insurance is not commerce.

Now and then, the U.S. Supreme Court will clip Congress' wings. In 1995 and 2000, the court struck down acts of Congress at least partly on the grounds they did not really regulate interstate commerce. One was a law against guns in schools; the other, a portion of the Violence against Women Act.

In the other direction, in 2005, the court upheld the power of Congress to ban marijuana — even in states that allowed it for medicinal purposes — as a valid regulation of "commerce." So how will the court settle this one?

If the Commerce Clause is not enough for you, here's something even more obscure. The House bill taxes the adjusted gross income of people who don't buy health insurance.

And yet, Article I, Section 2 of the Constitution puts a limit on the power of Congress to levy a "direct" tax on Americans. It says that any such tax has to be imposed on the states according to their population. So look for a court case on that issue, too.

Wait! There's one other thing. Is it constitutional for Congress to cut a sweetheart deal in this bill with Nebraska, to win one senator's vote? The bill says the feds will keep paying for certain Medicaid costs there even after cutting them off for other states.

Such a deal! Defenders say that laws affect states differently all the time. And yet every law is supposed to promote the "general welfare." How does this deal do that?

In today's climate, I suppose every Democrat is required to denounce such questions as idiotic. But as an independent, I am thinking that if a number of state attorneys general ask them, they are worth answering, even if the askers are, you know, Republicans.