There Were No MRIs in 1780
The Cato Institute's Roger Pilon was on TV earlier saying:
Nowhere in the constitution does it authorize the congress to enact a health care bill.
Nowhere in the constitution does it authorize the Federal Aviation Administration or the Center For Disease Control either, so I guess they're out too. The fact that the founders weren't psychics or time travelers is a real problem for us, apparently.
Ian Millheiser from CAP pointed out that if you used this logic, then Medicare and Medicaid are unconstitutional as well. Pilon agrees, saying that the entire New Deal is unconstitutional. So, there you have it.
This discussion was about the various ambitious AGs who are pressing a lawsuit against the individual mandate. And we have known for months that the mandate was going to be subject to court challenge. I wrote about it way back when. I assume that legal minds have been engaged in this for some time and that we'll get a Supreme Court decision at some point on the issue. (It would be very useful to have a Medicare buy-in plan at the ready in case they overturn this --- which they could. Counting on them to be intellectually consistent at this point is pretty naive.)
Here's a good overview of the legal issues. They seem to think that it would be akin to Bush vs Gore if they overturned. I doubt it, but even if it were, I don't see why that would stop them.