Lawprof Jack Balkin says the individual mandate is constitutional because it's a tax.

Interesting argument:

The individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance....

The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional.

The mandate is also not a “direct” tax which must be apportioned among the states by population. Direct taxes are taxes on land or “head” taxes on the general population. The individual mandate does not tax land. It is not assessed on the population generally but only on people who don’t buy insurance and aren’t otherwise exempt. It is a tax on behavior....

But will the Obama administration want to defend the mandate this way? Millions of Americans are getting a big new tax hit? It's not just a question of whether this argument will work in court. It's a question of whether Obama wants to shout out loud that the supposedly beneficent new law is a huge new tax on the very people he assured — over and over — that he would not raise taxes on.



"I can make a firm pledge under my plan, no family making less than $250,000 a year will see any form of tax increase. Not your income tax, not your payroll tax, not your capital gains taxes, not any of your taxes."

ANY FORM.