- Congress lacks constitutional authority to require individuals to buy health insurance;
- The special favors to individual states fall afoul of the general welfare clause;
- The requirement that states set up benefit exchanges "violates the letter, the spirit, and the interpretation of our federal-state form of government."
"All of these arguments don't work, but they're interesting to debate," said Jack M. Balkin, a constitutional law professor at Yale Law School. Defenders of the mandate point out that the Supreme Court has ruled Congress may regulate "activities that 'substantially affect' interstate commerce," and that individuals' purchasing (or not purchasing) health insurance clearly falls within that category. Besides, Balkin added, "It's a really easy argument to show that this is a tax designed to promote the general welfare. . . . The Commerce Clause issue is irrelevant."