There are only about four things any government can do (give or take a few esoteric things like declare you insane, which is kind of imprisoning you):
- Kill you
- Cancel citizenship (and deport you )
- Imprison you
- Tax you of money
The constitution does however have make it clear that the other 3 powers are different and the government can not do any of them without just cause.
The Healthcare bill very clearly only taxes people, and is set up to encourage a desired activity. There is no imprisonment (they even made it explicit), citizenship cancellation or death.
The Healthcare bill is NOT the first tax on an undesirable activity. We have federal taxes on the following undesireable activities: importing goods from undesirable countries (Custom duties vary by country), Alcohol, Tobacco, and Guns. The federal taxes on Tobacco are clearly punitive - we tax it a lot to discourage it's use.
In addition, the Health care taxes are not so onerous as to be defacto imprisonment. They are less than the cost of buying health care, and as compared to the Tax on Tobacco, it is relatively cheap.
The idea that it is somehow unconstitional to tax NOT doing something, but it is constitional to tax someone for doing something is patently ridiculous. Why, because we do it all the time as part of Income Tax, we call them exemptions. For example, the US currently has a Tax on not owning your own home. If you buy your own home, you get a tax break for the mortgage as well as the real estate taxes you pay. If you don't, you pay more taxes.
The idea that "idleness" is not commerce is just an attempt to create a loophole. When some idiot says "I did not poison my victim, I just failed to tell him I switched the labels on my sugar jar with my strichine jar 5 years ago", sane people laugh at the idiot. We do not support him in his ridiculous belief that failing to act is not the same as acting. There is zero difference in the eyes of the law.
Now for the important stuff. The US Supreme Court has rejected fast tracking the Healthcare challenges. This is a clear indication that they don't have enough votes to immediately rule it invalid. They simply are not seriously offended by it. That does not mean they won't invalidate it, but they are not jumping at the chance to deal with it. They want an appeals court to deal with the issue, so that they won't have to.
That leaves it in the hand of the Appeals Court. Right now, the Appeals Court consists of 2 Obama appointees and one Clinton appointee. The panel was chosen randomly by a computer. Note the panel has already dismissed a state challenge, based on the fact that the state has no standing (i.e. it was not subject to the law, so it could not sue, only the tax payers could sue). Next it is hearing a separate case (from a tax payer). They court is agreeing with my statement about idleness being the same as activity. They are recognizing that the Government has not only the right to tax people, but also the right to offer tax breaks, and that those actions are identical. It does not matter if you call it a tax of Y on not doing something, or a tax break of Y for doing something (combined with a general raise in taxes of Y), they are exactly the same thing in the eyes of the law.
So it looks like the Appeals court will rule it legal and the Supreme Court will be unwilling to over-rule them.