LAST EDITED ON 03-25-12 AT 09:26 PM (EST)

That question turns in part on your opinion about a case called Wickard v. Filburn. We've discussed it before, but here it is in a nutshell:

http://en.wikipedia.org/wiki/Wickard_v._Filburn

A farmer, Roscoe Filburn, was growing wheat for on-farm consumption. The U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.

The Supreme Court interpreted the United States Constitution's Commerce Clause under Article 1 Section 8, which permits the United States Congress "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". The Court decided that Filburn's wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn's production of more wheat than he was allotted was affecting interstate commerce. Thus, Filburn's production could be regulated by the federal government.

Wickard was the underlying issue in the Supreme Court "medical marijuana" case, Gonzalez v. Raich, from 2005. That's why the four Democratic justices and Justice Kennedy voted that the Supreme Court could regulate medical marijuana. (Justice Scalia concurred, but for a different reason). Of the three dissenters (O'Connor, Rehnquist and Thomas), only Justice Thomas is still on the court, so he's a certain "no" vote. With regard to the other justices, the argument is that there is difference between prohibiting sn economic activity and mandating one. Despite this argument, Justices Ginsburg and Breyer are unlikely to change their position, and Justices Sotomayor and Kagan are likely to vote with them, which gets Obamacare the entire liberal bloc. Justices Scalia, Roberts and Alito are seen as likely to agree with this differentiation between prohibition and mandating, which leaves the Court at 4-4 and looking to Justice Kennedy. Kennedy has been willing to hold that, even despite Wickard, the Commerce Power is not unlimited (U.S. v. Lopez), but he has also upheld Wickard. So who knows how he'll vote?

My view, like Justice O'Connor's, is that Wickard was wrongly decided, so I'd probably side with Justice Thomas. But who knows for sure how everyone else will vote? Certainly not me.

If I had to guess, I'd guess that Justice Kennedy would rule that requiring citizens to engage in economic activity is not one of the powers that Congress has, and so a majority of the Supreme Court will vote to strike down the mandate. Actually, I think that's what most liberals expect, and so they're trying hard to make a Supreme COurt decision to that effect seem like an illegitimate political decision instead of a principled reading of the Constitution. See, for example, this article by far left lawyer/blowhard Dahlia Lithwick:

So let’s start by setting forth two uncontroversial propositions.

The first proposition is that the health care law is constitutional. The second is that the court could strike it down anyway. Linda Greenhouse makes the first point more eloquently than I can. That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it. Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, “Are you serious?” And the fact that the Obama administration rushed the case to the Supreme Court in an election year is all the evidence you need to understand that they remain confident in their prospects. The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument.

Only an idiot or a politician could have written those words, and Lithwick isn't an idiot, despite how idiotic her statement is. The Obama administration spent little energy defending it because it does not believe in federalism. To them, Wickard, instead of being a controversial outer limit of Congressional power under the Commerce Clause, is an uncontroversial item well within the powers of the Federal Government. That's why it was the conservatives and libertarians, not the liberals, on the Supreme Court that supported medical marijuana.

Instead of a rational legal argument, Lithwick wants to paint this entirely in political terms. Frankly, this is the equivalent of saying that something controversial is "clearly" true, which I'll bet that most of us have done at least once or twice in college-level papers where we don't have the time or the skill to prove something.

But Lithwick also defers to Linda Greenhouse's argument, so let's see what she has to say in presenting the case:

http://opinionator.blogs.nytimes.com/2012/03/21/never-before/?scp=6&sq=health%20care&st=cse

Free of convention, and fresh from reading the main briefs in the case to be argued before the Supreme Court next week, I’m here to tell you: that belief is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance — specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause — is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there. . . .

So I want to unpack the challengers’ Commerce Clause argument for what it is: just words.

Basically just one word, in fact: “unprecedented.” . . . If the commerce power extends to backyard marijuana growing (as it did to backyard wheat growing in the famous New Deal case of Wickard v. Filburn), the notion that Congress somehow lacks the power to regulate, restructure or basically do whatever it wants in the health care sector, which accounts for 17 percent of the gross domestic product, is far-fetched on its face.

In other words, Greenhouse's argument comes down to this: if Wickard was OK, then anything goes. I personally don't think the court will buy that, because that's at odds with its recent statements that Wickard stands at the far limit of Congressional power.

In fact, to show how much precedent matters (despite Greenhouse's moronic statement that "unprecedented" is "just words") --- I'll bet that no one, not even Obama, would believe that this law was OK if Wickard wasn't on the books. So precedent does matter -- and Greenhouse knows that but refuses to make a serious case for her own political reasons, which are similar to Lithwick's.

Here's what I think will happen, but this is little more than a guess.

Issue 1: the court will reverse the opinion of the one circuit that ruled that no one would have standing until 2014 to challenge the law.
Issue 2: the court, by a 5-4 margin, will strike down the purchase mandate.
Issue 3: the court will nevertheless uphold the rest of Obamacare, despite striking the purchase mandate, under the normal rule that only the constitutionally infirm positions are nullified.
Issue 4: the court will rule that Obamacare's coercion goes beyond the limits of South Dakota v. Dole and will strike several of the law's proposed reductions in state aid on federalism grounds. As I said before, to show how the tide has shifted on federalism, the vote on South Dakota v. Dole was 7-2 approving of virtually any law that Congress required the states to pass or lose federal aid. Frankly, I'd like to see the current court take such a jaundiced view of these laws that it even reverses South Dakota v. Dole, but I'll take whatever I can get (considering that the only member of the current court who heard that case was Scalia, and he voted IN FAVOR of federal coercion at the time).

And your guess is probably as good as mine.