Ilya Somin is offering analysis on a constitutional question near and dear to the right: Does the commerce clause really give Congress the power to pass an individual mandate to buy health care? In his opinion, the answer is no. But what's more interesting is the argument being made by defenders of the law.
The Supreme Court’s 2005 decision in Gonzales v. Raich ruled that Congress’ power to regulate interstate commerce gives it the power to ban possession of medical marijuana that had never crossed state lines or been sold in any market anywhere. It was easily the broadest-ever Supreme Court interpretation of the Commerce Clause. When I first considered the question, I thought that Raich’s reasoning was expansive enough to justify the individual mandate. I still believed that the mandate was unconstitutional (primarily because I have always argued that Raich was a horrible decision). But I thought that it could probably go through under Raich. And the government has in fact relied heavily on Raich in its brief in the Virginia case challenging the mandate.
This is a good time to remind conservatives that the War on Drugs has undermined limited government in all sorts of ways over the years. If you want to stop a federal mandate for healthcare, you might just have to stop federal enforcement of marijuana Prohibition as well.