A George W. Bush appointee has, surprise, found the health care mandate unconstitutional, claiming it overreaches Congress' power to regulate under the Commerce Clause. Of course, media will play this up as somehow a huge blow - and it's not good news to be sure. But they will probably not remind that more than one other judge has already found the provision to be perfectly legal.
This will all wind its way up the Appeals Court and ultimately be decided by the Supreme Court, like it or not. But that was going to be true no matter what this conservative judge in Virginia decided. Here's the argument, in a nutshell:
The Supreme Court’s position on the Commerce Clause has evolved through four signature cases over the last 68 years, with three decided since 1995. Two of the opinions established broad powers to regulate even personal commercial decisions that may influence a broader economic scheme. But other cases have limited regulation to “activities that have a substantial effect on interstate commerce.”
A major question, therefore, has been whether the income tax penalties levied against those who do not obtain health insurance are designed to regulate “activity” or, as Virginia’s solicitor general, E. Duncan Getchell Jr., has argued, “inactivity” that is beyond Congress’ reach.
Justice Department lawyers have responded that individuals cannot opt out of the medical market, and that the act of not obtaining insurance is an active decision to pay for health care out of pocket. They say that such decisions, taken in the aggregate, shift billions of dollars in uncompensated care costs to governments, hospitals and the privately insured.