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I think your arguments are compelling. I especially like the idea that "mandating" something is a far cry from "regulating" something which did not previously exist before the mandate.

I suppose the statists will advance the argument that health care presently constitutes 1/6 of the American economy which means that one out of every six dollars which changes hands in America changes hands for healthcare. Surely, they will say, that is interstate commerce, nothing could be more in interstate commerce than such a sizable sector of the economy. The Constitution authorizes the regulation of that sector by all means which are "necessary and proper." The determination of that necessity is to be made by Congress so long as it is reasonable on its face.

To counter that I think we have to go to the philosophical level and say that if the feds cannot micromanage such a personal sphere, one that is so personal and so private that privacy "provisions" of the Constitution forbid even a state as well as the federal government from regulating early term abortions, then surely the feds cannot regulate every intimate procedure between doctor and patient. To grant the federal government such power means that there is virtually no activity in America immune from regulation by Congress. That certainly could not have been the intention of framers of the document granting only enumerated powers.

The federal government is prohibited from micromanaging our bodies not just because it is ultra virus article 1 section 8 but because it runs up against a more highly valued personal constitutional right-the right to have our bodies left free of intrusion from the state.

If the statists counter with the argument that the federal government already regulates the medicines we take and the procedures authorized under Medicare, for example, I think we ought to rebut by noting that no one is compelled to accept Medicare, everyone was free to negotiate his own healthcare with or without insurance until this law which takes that option away from the individual and substitutes a duty to accept an insurance company model approved by the federal government. In doing that, the government has effectively intruded into the private sphere of the patient's body and his relationship with his physician. That is repugnant to the higher value of privacy. Obviously, I am trying to set up a compelling positive value to compete with the formulaic approach which the government will advance relying heavily on the sheer momentum of the case law. If we could find such a value and related back to the language of regulation and mandating I think we have a compelling argument which will get to five justices on a moral level which is where big questions like this ultimately are won or lost.

“The Constitution authorizes the regulation of that sector by all means which are “necessary and proper.””

In reading portions of Scalia’s concurrence in Gonzales v. Raich (the medical mairjuana case) upholding the law, he alluded to the necessary and proper clause:

“Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.””

The power to regulate “extend only to those measures necessary to make interstate regulation effective.” That tells me that he wold find the mandate to be an ultra vires act under the necessary and proper clause.

The last sentence of the quote (national versus local) is key as well. What is truly national and what is truly local (or, to take it even further) personal.

What we could see is a decision striking it down in which Scalia and the strict constructionists strike it on Commerce clause grounds (perhaps necessary and proper clause) while the libertarians (or activists) on the Court, if there are any, choose to strike it on Right to Privacy grounds. It could be a hodgepodge of concurrences, which would suit me fine as long as the statute is eviscerated.

There is much wrong with this act, from a constitutional standpoint, and if the GOP uses its best lawyers to scrutinize it, I think there may be too much wrong with it to sustain it. At least that is my hope.

...I think we ought to rebut by noting that no one is compelled to accept Medicare...

An aside, do you think the passage of Medicare itself was Constitutional, whether voluntary or not? And what effect did it have on the healthcare insurance industry? Is it not pretty much a foregone conclusion that Medicare is a better "deal" for seniors than private insurance programs? And just what is that little Medicare "tax" I used to pay before I retired? Was social security Constitutional or necessarily a good idea since it discourages many people from planning for their own retirements? Which coincidentally takes what would be free market $$$'s and puts them in the hands of the feds.