1. inactivity is not interstate commerce
2. taxes must be to raise revenue
3. can't buy insurance across state lines, therefore even buying insurance is not interstate commerce
4. upsets the balance of power as it is a huge power grab by the executive branch
The recent health insurance reform bill must pass two tests in order to be deemed constitutional:
1. The penalty fines for failure to comply with the individual mandate must be deemed to be for a legitimate revenue raising purpose
2. Not buying health insurance would need to be deemed to be interstate commerce
If it fails either of those two tests, the new law is unconstitutional.
Supporters of a requirement to buy a service from a private, for-profit corporation have repeatedly said there is no case in the past 70 years "that would support an individual’s right not to buy health care if the government wants to mandate it”-UC Irvine's SOL dean. Past the 70 year mark is a completely different story.
Between 1935-1937 the US Supreme Court found 6 out of 8 of the main components of the New Deal to be unconstitutional. Two in particular, the National Recovery Act with widespread price controls, and the Agricultural Adjustment Act with penalties for farming too much, are good (albeit not perfect) precedents to what will be argued in the coming months. The AAA case in particular said that a tax had to be for the purposes of raising revenue and the AAA failed this test because it fined farmers for growing to much and paid farmers who grew less.
Inactivity is not commerce: Two Supreme Court decisions, Wickard V Filburn, and Gonzales V Raich both ruled that even growing something for personal consumption (in one case wheat, in the other weed) made you a market participant and constituted interstate commerce. Both however had activity i.e. growing something. Gonzales (2005) was a split decision 5 in the majority, 1 concurrence, and 3 dissenting, and this was on the individual's right to grow WEED free from the reaches of the Commerce Clause. UNLESS YOU WANT TO DEFINE SIMPLY LIVING AS COMMERCE, this would be a huge overreach of the Commerce Clause. There is no case law attempting to discern whether or not the Commerce Clause applies to inactivity because the Federal Government has never tried to regulate inactivity. There is no perfect legal precedent because requiring individuals to buy a service from a private, for-profit corporation is so unprecedented.
Additional arguments against the mandate's constitutionality:
Since you cannot buy health insurance across state lines, even the purchase of health insurance does not constitute interstate commerce.
Separation/balance of powers: This is a huge power grab by the executive branch.The IRS is part of the Treasury Department which along with the Department of Health and Human Services is part of the Executive Branch. The IRS will enforce the new penalty fines and the Secretary of HHS will deem what is "acceptable minimum insurance."