The Constitution empowers Congress to regulate interstate commerce. Now whether you believe this power should be interpreted broadly or narrowly may depend on your political stripes; however, the Court's earlier rulings in Wickard and Raich so broadened the interpretation of what constitutes "regulating interstate commerce" that I'd personally consider ANYTHING fair game. Normal judicial interpretation would be bound by precedent set by the earlier Court rulings-- but I'm sure the block of 5 are figuring a technical loophole so that they can say Wickard, et al. does not in fact apply.
What's interesting is, Congress could have EASILY mandated a flat tax on EVERY citizen (let's call it the Health Care Tax). They could have then offered an offsetting tax credit (equal to the original tax) for anyone that had qualifying health insurance. This would have easily fallen under Congressional authority to tax. This would have had the same practical effect as the insurance mandate. A lot of the Constitutionality of the mandate hinges upon whether it is in fact a tax or a penalty. The political distaste for being seen as "raising taxes" is coming home to bite the Democrats in the butt. If they had the foresight to simply levy a tax (and call it that), this bill wouldn't be in Court today (at least for the individual mandate).
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