A variety of attorney generals are presenting two main arguments claiming the new health care bill is unconstitutional.

“The first is that it violates the commerce clause, which says Congress may regulate interstate commerce,” Mark Kende, director of the Constitutional Law Center at Drake University, said. “The second is that the taxing and spending clause to promote general welfare doesn’t go far enough.”

Health insurance will be required as of 2014 and if you don’t have it you will be assessed a penalty or tax.

“Is this permissible under the commerce clause?” Kende said.

Kende used the example of someone sitting on their couch at home, not doing much of anything or contributing in any way. If this person doesn’t have health care and gets sick, then he or she will go directly to the emergency room.

“There is no commerce or economic activity here,” Kende said.  “Nothing has ever gone this far to regulate what they call ‘inactivity.'”

But, Kende said, even if he or she doesn’t go to the emergency room, it will cause other health costs to be accrued, such as when he or she misses work.

The second argument involves the taxing and spending clause.

“There are 70 years of case law where nothing has been thrown out as violating this power,” Kende said. “The attorney generals’ case says this mandate involves sanctioning or penalizeing someone for engaging in no activity.”

Kende predicted the Obama administration will argue saying the penalty component will involve either income tax, excise tax or both.

“The income tax is based on adjusted gross income while the excise tax describes someone who is part of the market by his or her choice, or non-choice, to participate in things,” Kende said.

Kende said he doesn’t think these lawsuits are frivolous, though 70 years of case precedent is a pretty good record.

“It may not seem like that big of a burden but nonetheless may be problematic,” Kende said. “I’m leaning a bit in favor of, if these lawsuits go to the Supreme Court, that the national government might win.”

Kende laughed at the irony of the debate over this new bill.

“Only in the U.S. can I imagine people saying we have the right to not have health care,” Kende said. “To the rest of the world this must seem so bizarre.”