I've been getting a few emails in recent days about an interesting question, are some of the main reforms in the Democratic health reform bills even Constitutional?

One listener said they violated the First Amendment, which I found a bit hard to believe.  But I've always wondered how the Congress could set policy on certain insurance issues when the states are the regulators of insurance companies.

"Wouldn't it serve the public better for the Congress and Senate to pass a bill to allow Americans to go across state lines to purchase health insurance?" wondered Paul Barnes in an email.

That is something I have thought about, but then again, I'm no expert on these kind of things, so I don't know if that's a real remedy or not, or if that has its own legal concerns.

Then on Saturday in the Washington Post, two former Bush Justice Department officials wrote an op-ed that directly questioned a series of health reform plans and their constitutionality.

David Rivkin Jr. and Lee Casey argued that Congress does not have the power to require all Americans to buy health insurance, the so-called "mandate" in the bill.

"The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it," the pair wrote.

You can read their piece at http://bit.ly/2ULJyF -

The two argue that the Commerce Clause of the Constitution (Article 1, Section 8, Clause 3) would not allow for requirements that force the uninsured to buy health coverage.

The Bush duo also charge that another provision which levies a tax penalty on those who don't get health insurance is unconstitutional as well.

"Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision," Rivkin and Casey argue.

I have no idea whether these guys are right; I figure you could probably find a couple of Democratic-leaning legal experts to argue the other side (I didn't have time this weekend because of my kid's third birthday party.)

So, you legal types out there - any thoughts on this?  Just a lot of political blather?  Or something to actually worry about?