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Obamacare is constitutional under the Court's existing precedents. The Supreme Court has had repeated embarrassments as it has tried to police Congress' commerce authority - Genuinely unimaginable that it would again make the same mistake

The New Republic
Bork-Backing, Activist-Hating Legal Expert: Obamacare Is OK
By Jonathan Cohn
April 16, 2012

Why Scalia Could Uphold Obamacare

Some excerpts :

If you're keeping score, that's five very prominent, very well-respected conservatives who have argued that the Affordable Care Act is constitutional. The other four are Charles Fried, Laurence Silberman, Jeffrey Sutton, and J. Harvie Wilkinson. Fried, a Harvard Law School professor, was solicitor general during the Reagan Administration. Wilkinson, a sitting federal judge, was on George W. Bush's short list of potential nominees to the Court.

Silberman and Sutton also sit on the federal bench. They made their statements via rulings, when lawsuits challenging the law came before them. "Appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent," Silberman wrote in his decision.

Some of the law's critics have suggested that, as appellate judges, both Silberman and Sutton might have been reluctant to overturn past decisions, preferring to leave that job to the Supreme Court. But that's precisely the point: Conservatives faithful to traditional interpretations of the Constitution believe the individual mandate, even if novel, falls well within the existing boundaries of constitutional power.

With virtual unanimity, less conservative legal experts seem to agree on this. Just last week, Harvard Law School's Lawrence Lessig weighed in on the case at the Atlantic:

Whether wise or not, Obamacare is plainly constitutional under the Court's existing precedents. That's not to say the Court couldn't make up a new rule by which the law was deemed unconstitutional. But against the history of the repeated embarrassments that the Court has suffered as it has tried to police Congress' commerce authority, it seemed genuinely unimaginable that it would again make the same mistake.

If five justices want to strike down the individual mandate, they can. But to do so honestly, they would have to admit that they were rejecting precedent and drawing new lines around federal power.

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