According to one law professor, the answer is a pretty clear no:
[T]he constitutional difficulties are profound. This is certainly so for those who believe the Constitution means what our Founders understood it to mean. But it is even true for those interested only in modern Supreme Court jurisprudence.
Natelson goes on to list four areas in which the bill currently before Congress seems to clearly violate current Constitutional understanding.
First, it isn’t based on any of the enumerated powers set forth in the Constitution:
The greatest Chief Justice, John Marshall, once wrote that if Congress were to use its legitimate powers as a “pretext” for assuming an unauthorized power, “it would become the painful duty” of the Court “to say that such an act was not the law of the land.” But health care bills such as the Obama-favored HB 3200 do not even offer a pretext. The only reference to the Constitution in HB 3200 is a severability clause that purports to save the remainder of the bill if part is declared unconstitutional. HB 3200 contains no reference to the Commerce Power or to any other enumerated power.
Second, it relies on delegation of executive powers of a type previously found to be unconstitutional:
The Constitution “vests” legislative authority in Congress. Congress is not permitted to delegate that authority to the executive branch. This is another realm in which the modern Supreme Court has been lenient, while affirming that there are limits. Thus, in Schecter Poultry Corp. v. United States (1935), a unanimous court struck down a delegation of authority that looked much like the delegations in some current health care proposals.
Third, it impermissibly interferes in the doctor-patient relationship, in violation of substantive due process:
The most famous modern Substantive Due Process case is Roe v. Wade, which struck down state abortion laws that intruded into the doctor-patient relationship. But the intrusion invalidated in Roe was insignificant compared to the massive intervention contemplated by schemes such as HB 3200. “Global budgeting” and “single-payer” plans go even further, and seem clearly to violate the Supreme Court’s Substantive Due Process rules.
And, finally, it imposes coercive mandates on the states in violation of the Tenth Amendment:
It is permissible for Congress to condition grants of funds to the states, if the conditions are related to the funding program and are not “coercive.” Thus, in 1986 the Court ruled that Congress may, because of highway safety issues, reduce highway grants by five percent to states refusing to raise their drinking ages to 21. But the mandates that some health care plans would impose on states certainly could be found “coercive,” both because they are excessive (HB 3200, for instance, would withdraw all Public Health Service Act money from non-cooperating states) and because they are unrelated to the program.
The blatant unconstitutionality of HR 3200 should be enough to require every Member of Congress to vote against it. In reality, it’s likely to be an afterthought for most of them.
H/T: Volokh Conspiracy
