Still working on second "Courts and the individual mandate" post

I have changed my approach and analysis several times in working on the "second post." Part of what I have been working on is an approach under which the individual mandate could be held unconstitutional. I will likely still include that, but I have just concluded that under current law, the individual mandate is constitutional via the Necessary and Proper Clause. In support of my current opinion, I will discuss in detail the case of Gonzales v. Raich. Here's a summary: if the Supreme Court upheld as constitutional the law at issue in Gonzales, there is no way the individual mandate is unconstitutional.

If the Supreme Court is to strike down the individual mandate, the Court will have to make changes in the law as it currently exists. The Court is absolutely free to do that, but the task is going to be even more difficult than I first thought.

It is also my opinion that Judge Hudson's rulings in the Virginia case are wrong under the current law. In short, 1) his rulings are based on the Commerce Clause when the issues really depend on the Necessary and Proper Clause, and 2) he misses the mark in analyzing the Necessary and Proper Clause.

All shall be explained--or at I least I will try to do so--in the "second post." Stay tuned...

UPDATE (1-14-2011): Well, I have modified my opinion slightly. I still think that based on current law, the individual mandate is constitutional. However, my opinion is based on arguing that the PPACA has as its overall objective the regulation health care, not health insurance. Also, ruling against the individual mandate might not be as difficult as I originally stated in this post.