(Just a quick post to get this down for posterity, and in case you were curious.)

It certainly does strike one as odd that the federal government is requiring its citizens to buy a specific type of product—a health insurance plan—with the 2009 health-care reform. Even a fan of big guv’mint like me can, at first blush, jump back to his libertarian instincts when it’s described like that. It can really be boiled down to two questions: can they do something like that, constitutionally? And second, should they?

Well, on the first count, yes, they probably can. As Tom at FiveThirtyEight points out, we’re already required to contribute to social insurance programs with every paycheck; those would be Social Security and Medicare. In that case we’re not ony required to buy into a certain type of something, but a very specific government-run program. In short, if anything is unconstitutional, it would be that, which is more restrictive and carries criminal penalties for skipping.

Orin Kerr, blogger at the conservative-oriented Volokh Conspiracy, concurs:

In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. …In the unlikely event the Supreme Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.

Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it…

But with all of these caveats, I’ll stand by my prediction. I just don’t see lower courts finding these issues difficult, and I don’t see the Supreme Court likely to take the case.

Jack Balkin basically concurs, in outlining all the possible ways that HCR could be attacked in the courts (feel free to read it if you want a full view).

Now, as Orin Kerr points out, this is very different from the “should.” Not many Congress members are interested in requiring all US citizens to purchase chocolate scones, for example, no matter how logical delicious it may seem.

As Kerr says, “Legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.”

But don’t get too worked up, HCR supporters-and-opponents. The bill is very likely here to stay. The courts will probably give it a big shrug.