Is the Mandate Unconstitutional?

The answer is a resounding no according to David Cole. You should read the whole argument, but let me see if I can summarize correctly.

First, although the people that oppose health reform, and the mandate particularly, seem to do so form a libertarian perspective, there is nothing in the constitution that guarantees the freedom these people want. Instead, their only hope is to appeal to state's rights. In fact, the states themselves clearly have the right to have an individual mandate.

So does state's rights argument work? No. The necessary and proper clause, as it has been interpreted since the New Deal allows Congress to pass such a mandate, as does the interstate commerce clause. The courts have found that the federal government has the ability to regulate individual interactions if they affect bigger interstate interactions. Marijuana laws and laws restricting growing of wheat for individual consumption show that the federal government can regulate people who are not ingaging in the market.

Cole goes on to say that the federal judge that struck down the law did so using jurisprudence that is no longer in use. He therefore thinks the law will be upheld and not by a close vote.

While I am convinced by Cole's argument, I am only moderately reassured. What seems like clear cut legal reasoning, the Supreme Court, especially one as conservative as this one is, is capable of finding arguments for political decisions. My gut is that this decision comes down 5-4, hopefully with Kennedy deciding in favor of the law. Anything more than that is too much to expect.