Meanwhile, House Republicans passed the completely useless bill opposing national health care reform.

Adding yet another to the list of great efforts to address the critically important issues of the day, House Republicans approved Del. Mark Cole’s bill to make the implantation of a human tracking device into your body without your informed written consent a misdemeanor.

Most of those who are saying health reform is unconstitutional are conservative politicians and other ideologues. The Washington Post described them as “a small but vocal contingent of legal scholars and many Republican lawmakers.” Randy Barnett (Georgetown) wrote a legal memorandum published by the conservative Heritage Foundation. The Tea Party wing believes that Social Security and virtually everything else the federal government does (other than national defense) is unconstitutional.

According to the Washington Post “a number of legal scholars have come forward to rebut conservatives’ arguments, saying the individual mandate easily passes constitutional muster.” My original post linked to Erwin Chemerinsky (University of California at Irvine), who makes the legal case, and David Frum (of the conservative American Enterprise Institute), who makes the political case. The claim is also debunked by other nonpartisan constitutional law professors Orin Kerr (George Washington), Timothy Noah (Yale), and Jack Balkin (Yale).

On the other hand, you are correct that right-wing activist judges on the Supreme Court have not been shy about overturning precedents or making law. They put Bush in the White House and recently gave corporations the right to fund political campaign ads.

I followed the links you provided on the subject. The one that appears on POLITICO mentions an opposing viewpoint that also appeared on POLITICO.

The argument that forcing people to purchase private insurance is the same as forcing them to pay taxes and then providing them Medicare can be argued but the comparison falls short. I think the argument of precedence could more strongly be made if we decided to adopt a socialized health care system. In that case, instead of forcing citizens to purchase a service (new constitutional ground) taxes would be levied and services made available whether you like it or not just like Medicare.

I will also note that the current roster of the Supreme Court does not seem to have a major difficulty with over-ruling previous precedents as we witnessed in the recent decision on campaign finance reform.