The issue of Commerce Clause application to Insurance Companies has already come under review by SCOTUS. United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=322+&page=533
Congress then passed the McCarran–Ferguson Act which exempts insurance companies from federal anti-trust legislation. It also places the states with the responsibility of regulating insurance within their borders.
http://www.law.cornell.edu/uscode/uscode15/usc_sec_15_00006701——000-.html
The issue of a mandate on the individual would not center around states rights regarding insurance since that was already addressed.
IMO the issue will follow the path of Roe v Wade and be challenged on the grounds of the 9th Amendmnet, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and equal protection granted under the 14th amendment regarding states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
The question I have wondered is how will a plaintiff be granted standing by the Court?
Will it be through the tax courts? In other words, I pay my penalty and then file a lawsuit in the United States Court of Federal Claims to recover the contested amount paid on the grounds the tax violates my rights under the 9th and the 14th Amendments. The appeals path is then clear.
That is how I see this going down.
Congress is supposed to specify the Constitutional authority they claim as part of the legislation. If they claim the authority to pass this under the Commerce Clause, then any argument against it will be a challenge to that authority.
With the mandates not in force until 2014, any damages could not be claimed until that time.I don’t know how quickly a court challenge could be mounted against the health care laws. My thought is that state legislatures could pass laws allowing intra-state insurance companies to sell bare bones catastrophic health insurance that do not meet specifications as federal “qualified” insurance plans.
Another approach could be the purchase of an insurance plan from a non-US international insurance company. This company could enter into a contract with a US citizen in another country and provide US or international coverage. Right now, some US companies provide insurance coverage to US citizens receiving treatment abroad (Costa Rica).
I see this going down with the election of a Republican president who refuses to enforce the mandates (active in 2014) and orders Treasury/IRS to stand down. Then SCOTUS will do something.