Defenders of the insurance mandate claim that health care is a special case because everyone eventually uses it. But this argument relies on shifting the focus from health insurance to health care. The same bait and switch tactic can justify any other mandate. For example, not everyone eats broccoli. But everyone does participate in the market for food. Therefore, the federal government’s position would justify a mandate requiring everyone to purchase and consume broccoli.MaxedOutMama has a particularly interesting analysis. She says, and I agree, that the mere fact that Congress hasn't previously claimed, and the Supreme Court hasn't said, the commerce clause covers "inactivity" doesn't establish it doesn't. See contra Printz v United States, 521 U.S. 898, 907 (1997), cited in majority opinion at 116. But, the majority opinion also highlights various Congressional Research Service memos on the arguments for and against the Constitutionality of the mandate (including a 2009 memo M_O_M doesn't cite). This is odd--the CRS papers are essentially legal advice to Congress. I don't see how one can imply anything about the mandate from CRS uncertainty--indeed, the fact that Congress chose to craft one after CRS found no clear answer is, if anything, an intimation that Congress rejected the CRS view.
M_O_M suggests an alternative argument against the mandate:
I would argue it under due process and equal protection grounds, and advance the claim that such a scheme must inevitably deny masses of individuals equal treatment before the law and an effective avenue of redress.But she doesn't explain why the treatment will be fatally unequal--the "fine" for failure to purchase approved health insurance is $750 annually for everyone. And Obamacare advocates, of course, argue that only a mandate can make health insurance "equal." Plus, due process claims were rejected in the District Court and not appealed. Majority opinion at 123 n.93.
Finally, M_O_M seems to have shifted her view. Formerly, she predicted the Supremes would uphold the mandate. Now she believes "the SC will strike this provision." I've always hoped for that; just doubted it. M_O_M says the court quietly will account for voter opposition to Obamacare, voiding the mandate to avoid calls for an Amendment that could create a crisis. Though I'm not so foolish to think the Court immune from politics, I'm not sure I agree. I still think that, to win, the government must articulate some type of economic regulation that would remain beyond Congressional authority under the commerce clause.
MaxedOutMama's analysis is thoughtful and worth reading--even if we're at odds on some points.