Randy Barnett at the Volokh Conspiracy makes presents a solid case that the recently passed health care legislation should be deemed unconstitutional (though the Supreme Court likely won’t overturn it):
The individual mandate goes far beyond these previous acts. Congress has never before mandated that a citizen enter into an economic transaction with a private company, so there can be no judicial precedent for such a law. Telling someone how they must do something is one thing; commanding that they must do something is entirely different.
Imagine if Congress ordered the majority of American households without a firearm to buy a handgun from a private company, and punished their failure to do so with an escalating monetary fine, which it labeled a “tax.” Would the supporters of the health insurance mandate feel the same about the constitutionality of such a measure?
If the health legislation’s supporters were really so confident in their Commerce Clause theory, they would not immediately change the subject to the Tax Power. Nor would Democrats have dressed up their mandate to look like a tax.
Yet, here too, the Supreme Court has never upheld a “tax” penalizing private citizens who refuse to enter into a contract with a private company. The Constitution distinguishes between taxes and what the Eighth Amendment calls “fines.” Had the Tax Power been broad enough to allow Congress to fine any individual action or failure to act, wouldn’t Congress have discovered this power years ago.
Now that it has, supporters are betting there won’t be five votes on the court to thwart a popular act of Congress. Another safe bet.