Even in its formative stages, the constitutionality of health care reform is being questioned. A small contingent of legal scholars and many Republican lawmakers are arguing that the measures passed by both the House and Senate are unconstitutional and will be ruled so by the Supreme Court. Their primary target: the individual mandate, which requires people to get health insurance or pay a financial penalty of at least 2% of their income to the government.
Critics say the bills would force people to buy a particular product. Randy Barnett, a professor of constitutional law at Georgetown University of Law says that in the history of this country, the federal government has never required every American to enter into a contract with a private company.
Barnett and two co-authors have previously argued that to uphold the constitutionality of the individual mandate, the Supreme Court would have to find that the Constitution's Commerce Clause has "no limits."