Please read this excellent WSJ interview with Randy Barnett. It is quite thorough and covers all of the issues concerning the constitutionality of the mandate. And definitely check out the trippy-colorful-WSJ-illustration of Randy!
One argument that Randy has been advancing of late is whether the mandate can be viewed as a form of commandeering (think Printz v. United States).
“What is the individual mandate?” Mr. Barnett says. “I’ll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn’t there a rule of law preventing that? Because it’s never been done before. What’s bothering people about the mandate? This fact. It’s intuitive to them. People don’t even know how to explain it, but there’s something different about this, because it’s a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That’s all we commandeer the people to do. This is a new kind of commandeering, and it’s offensive to a lot of people.
Randy also discusses the risk of constitutional litigation, noting the setback that resulted from his loss in Gonzales v. Raich:
Therein lies the danger of constitutional litigation: If you lose, it is a lasting defeat for the principle on behalf of which you are arguing—something Mr. Barnett knows all too well from his experience in the Raich case. “My opening line in the Supreme Court . . . was: If this court upholds this extension of federal power, Gonzales v. Raich will replace Wickard v. Filburn as the outermost extension of federal power ever recognized by this court,” he says. “That’s kind of what happened, and I’m responsible for that. You know how badly that makes me feel?”
Don’t feel bad Randy. Liberty finds no refuge in a jurisprudence of frowns.