We all knew this would end up happening:

Unable to win the votes on health overhaul, Republicans are eyeing a battle in the courts.

Their strategy? Have the overhaul’s requirement that everyone in the country have health insurance declared unconstitutional. If uninsured people don’t buy coverage, they would be penalized to the tune of $750 under the Senate bill, for instance.

This is really going to be an interesting case. Honestly I can see it go either way. Ensign brings up an interesting argument though:

Ensign and his allies claim the mandate that everyone buy insurance “violates the Fifth Amendment’s ban on the taking of private property for public purposes ‘without just compensation,’ ” as CQ explains.

In the end only one court will matter – the Supreme Court. Given the slant to the right of the top court, there is a good chance they could rule this unconstitutional. The closest case I could really think of is Kelo v. City of New London in 2005, in which the court ruled in the favor of eminent domain. The merits of the two cases are very different, but the ideological basis of them are very much the same, pivoting around the “takings clause”. In that case the court ruled 5-4 in favor of New London, enforcing their right to take the property of Kelo away.

The shift of the court since 2005 really wouldn’t make a difference if the vote was the same. Rehnquist and O’Conner both sided with Kelo and they have been replaced by Bush appointees. However one key issue that isn’t present in the case of mandates that was in the Kelo case is the issue of compensation.

Here’s a summary of the conclusion in that case:

No. In a 5-4 opinion delivered by Justice John Paul Stevens, the majority held that the city’s taking of private property to sell for private development qualified as a “public use” within the meaning of the takings clause. The city was not taking the land simply to benefit a certain group of private individuals, but was following an economic development plan. Such justifications for land takings, the majority argued, should be given deference. The takings here qualified as “public use” despite the fact that the land was not going to be used by the public. The Fifth Amendment did not require “literal” public use, the majority said, but the “broader and more natural interpretation of public use as ‘public purpose.'”

The same arguments can hold up in support of mandates, but we are dealing with some pretty significant differences and given the 1 justice swing, the case really could end up going either way. In all honesty I would rate it about 80/20 – 80 for the court upholding it. One big reason is that the Democrats were smart in adding in the fines for the mandates. They aren’t technically a “fine” but rather a “tax”. Having insurance is a way to lower that tax, much the same way owning a house is a way to lower your taxes.

I really hate the mandates without guarantees to hold insurance costs down, but I also think our only real hope at getting rid of them is for them to be removed by legislation. None the less this will be one very interesting court case to watch.