Is the “individual mandate” component of the ACA unconstitutional?
In any kind of system where precedent matters, no. But the increasing politicalization of the judiciary by Republicans means that on high-stakes matters, judges cast political votes much more than they apply the law.
In other words, whether the individual mandate is constitutional is up to Justice Kennedy. I think he will uphold it because striking it down would essentially create open season on numerous government programs.
But it’s pretty obvious that this can be fixed if necessary. All the government need do is pass a tax of the same amount as the penalty/fine for not getting insurance, which anyone who has insurance is exempt.
There may or may not be the need for the government to do anything other than claim they acted under their taxing power and that this is in fact a tax. Normally, acts of Congress are deemed valid if they can be sustained under any of their powers.
But this doesn’t mean that it’s impossible that the right could conceive of some sort of rule that says forcing people to buy something that impacts their medical care is a bridge too far or something. There’s no limit to what they’ll argue.
Actually, I find this exercise a useful vent for bagger rage. They’re going to need it when they realize the people they elected don’t give a shit about repeal and are just interested in juicing the government for the rich.