SCOTUSblog is running a series of essays from constitutional lawyers on both sides of the healthcare question. From Dawn Johnsen's "simple case" for the upholding the Affordable Care Act:
The Constitution expressly confers on Congress the authority to regulate commerce among the several states. The Supreme Court long has held that this power is “plenary” – a word that means full, unqualified, absolute – and gives Congress wide discretion to choose how to address national economic problems. The Court set forth the basics of how to interpret congressional powers almost two centuries ago, in landmark cases every law student studies: McCulloch v. Maryland and Gibbons v. Ogden. In Gibbons, the Court said of the commerce power: “This power . . . is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.”
Applying these bedrock principles to the Affordable Care Act: Congress quite simply is regulating interstate commerce, just as the Constitution authorizes. Congress is regulating the interstate insurance market and addressing critical problems of health care – a very large and troubled segment of the national economy.
Oregon Attorney General John Kroger is on the same page:
The first argument raised by opponents of the Act is that the Commerce Clause, by its own terms, only regulates commerce. Declining to get health insurance, they argue, is not commerce but rather refusing to engage in commerce. Therefore, they conclude, it falls outside the power of Congress to regulate. This argument is exceptionally weak. It was explicitly rejected in Gonzalez v. Raich, a 2005 case in which the Supreme Court held: “Congress can regulate purely intrastate activity that is not in itself commercial.” That holding was stated not just in the majority opinion, which Justice Kennedy joined, but also in Justice Scalia’s concurrence.
The Dish 