Columbia Law professor Henry Paul Monaghan writing about the constitutionality of the individual mandate in The New Republic.
The individual health mandate surely passes constitutional muster under settled judicial principles….The Court’s precedents establish without question that Congress may regulate intrastate economic activities that Congress (not the Court) reasonably concludes have a substantial effect on interstate commerce. The existence of such congressional authority is especially clear when the challenged provision itself is part of a comprehensive legislative scheme that regulates interstate commerce….
The same is decidedly not true of the testing hypotheticals raised by members of the Court concerning mandates to purchase broccoli or automobiles: Individuals who wait to purchase such goods until they are needed do not undermine a larger regulatory scheme or shift costs to other consumers of those goods or to any other third party. Nor is the health mandate comparable to a requirement to purchase burial insurance, because no showing can be made that Congress would be responding to any real national problem….
The purported limit on congressional power favored by the mandate’s opponents—between constitutionally permissible regulation of “activity ” and unconstitutional regulation of “inactivity ”—is simply unknown to Commerce Clause jurisprudence, is wholly unworkable, and makes no economic sense.