A couple of thoughts…

Brother Mark and I generally tend to agree on most constitutional matters, including his September post .  I may hold a constitutional viewpoint that tends towards a textualist or originalist interpretation but it is senseless to make those arguments when modern constitutional doctrine is anything but.  The ship known as the doctrine of enumerated powers sailed away by the mid 1930s.  Attempts to pull back at the margins (specifically 1995’s United States v Lopez and 2000’s United States v Morrison) were effectively forestalled in 2005’s Gonzales v Raich and, I would argue, 2007’s Gonzales v Carhart.

At the end of the day, Mark could be right when he suggests that an individual mandate, especially one that is not being described publicly as a tax, could pass constitutional muster.  However, I tend to be a little more skeptical.  Mark writes (my emphasis added):

My opposition notwithstanding, I suspect that even if the mandate is not a “tax” within the meaning of the Constitution, it would still withstand Constitutional muster under post-New Deal case law.  But it would be a much closer issue, particularly in light of the apparent death of the public option (for real this time!).  Such an argument would necessarily hinge on Congressional authority to regulate economic activity under the interstate commerce clause, but there is a counterargument to be made that a decision not to purchase something cannot be an “inherently economic activity” since it involves no activity whatsoever.  Moreover, it is possible to distinguish a health insurance mandate from Social Security or Medicare Part A because the mandates in those two programs require participation in government-run programs, whereas with the death of the public option, the health insurance mandate will require participation in privately-run insurance programs.  I don’t think this distinction is enough to make the mandate unconstitutional, but it is at least arguable that it is…

…Again, I think ultimately an individual health insurance mandate would likely pass Constitutional muster under post-New Deal precedent whether or not it is characterized as a tax.  The decision not to purchase health insurance clearly has an aggregate effect on interstate commerce in a way that even cases like Raich, where the Court upheld a federal law’s applicability to medical marijuana dispensaries even though the convoluted alleged effect on interstate commerce was merely a post-hoc rationalization for the law, rather than the law’s actual purpose, as would be the case with an individual health insurance mandate.  But it would be a much closer issue than if the mandate were deemed a tax, and there would be enough of a distinction with existing precedent that it would at least be possible for a Justice Kennedy to divine a rule under which the mandate is unconstitutional in a way that the legislation in Raich was not.

I would like to expand upon this a bit and suggest that regulating economic activity, as I understand it in the context of the Commerce Clause, provides the federal government with the authority to regulate an industry in the sense that it sets the rules of the playing field so to speak (or determines whether such a playing field is allowed to exist).    Participants in a given market can enter and exit at their own free will insofar as they follow the rules of the game.  Assuming the mandate is not seen as a tax, this has a different feel to it.   Mandating that individuals enter into a private market that they may not have otherwise chosen to enter and purchase an insurance plan that they may not have otherwise purchased would be Wickard v Fillburn on steroids.  Even in our most far-reaching Commerce Clause cases, cases like Wickard and Raich, the decisions were aimed at the prevention of certain activity from taking place because such activity impacted interstate commerce.  Even with our very broad reading of the Commerce Clause, upholding a law that effectively forces people to engage in transactions they may not have otherwise participate in the sense that 1) it is not a tax  and 2) relates to purely private sector activity is unprecedented and, in my opinion, does push the envelope a bit.

I can’t predict which way that question will be decided; however, it is worth mentioning that if a law of this nature is upheld on Commerce Clause grounds, then we are moving into new legal territory.