And now you're either going to have to buy health insurance or pay an extra tax for not doing so.
This is false. Anything that says otherwise is mere conjecture.
Wrong. The mandate is in.
The commerce power has certainly become capacious. Even lawyers whose last exposure to Constitutional Law was in law school are vaguely familiar with the ways in which the commerce power had been used to reach activity bearing, at best, a weak family resemblance to the transaction of business across state lines. Most recently, in Gonzales v. Raich, the Court held that Congress can prohibit persons from growing and consuming marijuana at home because of its posited impact on interstate traffic in weed.
Still, the individual mandate may be different. Professor Barnett writes that "[w]hile Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company." It's one thing to be subject to regulation because you are providing for yourself what you would otherwise buy in an interstate market. It's quite another thing to argue that, because your refusal to consume a product may affect interstate commerce (if the young and healthy do not insure, the old and sick will have to pay more), you can be made to buy it.
Some scholars and lawyers prefer to emphasize Congress' authority to tax and spend to promote the general welfare. Jack Balkin, for example, thinks that this makes the case for the constitutionality of the individual mandate "easy." For Professor Balkin, there is no need to construct Rube Goldberg-like scenarios of commercial impact. "The government can make you pay taxes," he says. Because the failure to insure will result in a tax (as opposed, I guess, to a stint in Leavenworth), there is nothing to see here.
Perhaps not. There is certainly case law that, while not mandating that conclusion, provides some substantial support. But it ought not to be that easy. The power to tax is, the power to destroy. While taxes may have a regulatory purpose, there should be some limitation on the ability of Congress to accomplish by taxation is there truly no limitation on Congress' ability to coerce through taxation what it cannot do through regulation? Should Congress really be able to take, as is the case here, up to two percent of a person's income because she has failed to do what Congress cannot compel her to do? Does a fine become permissible as long as it is connected through the Internal Revenue Service?
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Were I to wager on the question (which may turn out to be an exercise in reading the mind of Anthony Kennedy), I would expect the Court to uphold the individual mandate. But the day that it does will be a tragic one for the Republic.
The reason will not be the survival of ObamaCare. It is, I think, a poorly conceived proposal that will do more harm than good. As written, it seems likely to fail and, if not abandoned, may well lead to a single payer system. But we have survived worse.
It will be tragic because the notion of a Congress limited by the scope of its enumerated powers will have finally suffered the coup de grace. The Bill of Rights (once famously - and now ironically - thought to be unnecessary given the structural limits on the power of the national government) will become the only limitation on the power of Congress. If Congress can require you to buy health insurance because of the ways in which your uncovered existence effects interstate commerce or because it can tax you in an effort to force you to do anything old thing it wants you to, it is hard to see what - save some other constitutional restriction - it cannot require you to do - or prohibit you from doing.
(Source)Both liberals and conservatives far too often believe that if something is a good thing to do (in their opinion), it should be done by the government, without the slightest regard to whether the government has the constitutional authority to do it.
Whether or not you believe on ethical grounds that the government should have this power, the fact is that they don't. If you want to give them that power, you should seriously consider the implications of it. If the government is allowed to do something that they do not have the constitutional power to do and which the majority of the public opposes, simply because they think it's a good idea, especially something this big, you are giving them license to do whatever the hell they want. And keep in mind that that absolute power will still be available to Washington when Congress and the White House are controlled by Republicans in 2013.
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