Amidst backslapping, vote tallying and questionable deal-making on Capitol Hill regarding the imminent passage of what is being called health care reform, few people, including constitutional scholars have weighed in. On the one hand, their reluctance to voice an opinion is understandable considering that the bill is something of an esoteric document. To date, Senate Majority Leader Harry Reid has yet to unveil this massive bill, that is, even if he’s finished writing it, in a process that all objective observers agree has been byzantine at best. Still, we can gather enough information from the broad outlines of the legislation to take a crack at its constitutionality.

As reported in the press, the bill will utilize the Commerce Clause in Article I, Section 8 of the Constitution to provide the legal basis for regulation in this area. This is hardly surprising since this grossly misconstrued provision is used to regulate almost every aspect of American life that is otherwise off limits to federal authority – the 10th Amendment notwithstanding. It is unclear precisely what approach will be taken here, but at a fundamental level it appears that the bill will require every American (and possibly non-citizen residents) to purchase, with their own money, a commodity (health insurance) from a private company, and penalize them with a tax if they do not. If this is indeed the bill’s basic structure, and that still remains a significant question, there can be little doubt that the product of what President Obama has called a “century-long struggle” is profoundly unconstitutional.

There is simply no basis in the United States Constitution that would provide the federal government with the power to force individuals to purchase commodities. While states have sufficient authority to mandate insurance based on their general legislative power, the federal government’s defined powers don’t provide for any legitimate mechanism to impose this burden. Moreover, the provision meant to enforce so-called universal coverage is being called a tax, but in reality only falls on those individuals who don’t purchase health insurance. Thus, what is deemed a tax is in fact a penalty, which runs directly afoul of the Bill of Attainder prohibition located in Article I, Section 9 of the Constitution.

Thus, the basic provisions of this bill don’t seem to pass constitutional muster on their face. While many liberals are rejoicing, and conservatives fretting about this massive government reordering or nearly 1/6 of the American economy, the only true accomplishment of this legislation may be as a jobs stimulus for constitutional lawyers who are sure to spend months and years fighting over its legality – a period in which Congressional majorities and even White House occupants may well change.