Here we are trying to organize our society to solve some of the most difficult problems of war and peace, one of which is the hideously expensive health care system. Congress took a whack at it and came up with an imperfect solution, but one that at least could form the basis for something better later on.
Now along comes conservatism and revives case law going back to the much despised twins of case law, Hammer vs. Dagenhart (1918) and Lochner vs. New York (1905), where the commerce clause (Dagenhart) and 14th Amendment's due process cause (Lochner) were perverted by the !% of the day, some of whom, such as the Bush and Walker families, were the direct ancestors of the current crop of 1%'ers.
We see people like law professor Richard A. Epstein, lovers of Lochner, who from a tax-payer subsidized 501(c)(3) university, mount an attack on the ACA which, as Epstein himself here states:
The mandate is not necessary for that purpose because there are other devices that do a far better job in coping with that omnipresent danger [that only sick people will sign up to pay health insurance premiums]. And it is surely not proper to use an extraordinary remedy that expands the scope of Congressional power to achieve an end that could be controlled by more traditional means. Thus, restrictions on the power to pull out of an insurance plan can deal with adverse selection and general taxes can deal with the need to subsidize high-risk individuals —if that is thought to be a legitimate government function.
What Epstein is saying is that it is the courts who should decide what means are employed to resolve the health insurance crisis, and they are free to second guess Congress. He also hints that payment of health care costs for "high risk individuals" (women of child-bearing age, perhaps?) may not be a legitimate government function. And who would make that choice? The courts again?
Back in the '30s was the last time that conservatives mounted such a broad-based attack. And just as then, when a dispute about social policy is made into a constitutional matter, it halts all discussion. Hence, today, people like my family, which should have as much say in how health care is run as anyone on the the Supreme Court, are swept aside, like hundreds of millions of other people, and dependent on a few unelected cranks to make this ruling for us.
One may ask -- why is conservatism, which complained for decades about judicial activism, suddenly seeking refuge in the courts? It's because the conservatives have a long-term plan to control how votes are counted (via Voter ID, various racists ploys such as S 1070, and other suppression measures) and how the political system can be conquered by unlimited wealth. The fruits of such an effort include the power to appoint judges -- hence one gets Citizens United.
In short, the plan is simply to
1. Narrow down the vote.
2. Empower the wealthy.
3. Seize the judiciary.
4. Return to step one, and repeat until sufficient plutocracy is obtained.
I don't think the ACA will be held unconstitutional. But I do caution that if it is, get ready for more of the same.
UPDATED: Here are more of the august views on the validity of Hammer v. Dagenhart of Professor Epstein, who BTW is not some isolated legal quack or a dude proclaiming the sovereignty of his trailer out in Malheur County, Oregon. (Dagenhart, which was overruled by the New Deal court, had found that Congress could not bar the interstate shipment of goods produced by child labor.)
.. the New Deal transformation of long-established Commerce Clause jurisprudence has introduced a set of unprincipled (but fine-grained) distinctions that turn the law into a mass of linguistic absurdities that should lead ordinary people to question the collective sanity of the legal profession.
In other words, according to Professor Epstein, to the extent any federal law is based on the Commerce clause, it should be open to constitutional attack. Later in the linked piece he proposes that the standard should be whether it is truly a "national" problem, and he specifically finds that both agricultural regulation and the National Industrial Relations Act would not be national problems and hence would be unconstitutional.
One other thing, and that is that Professor Epstein resorts to the time-honored conservative legal device of arguing that contrary precedents were decided "only bh a 5-4 vote" and thus can be ignored. This of course need not apply to Bush v. Gore, Citizens United, and the rest of the love letters from SCOTUS to the wingnut fringe.
If Rmoney is elected, you may expect to see this sort of reasoning find a foothold among the judges he nominates.