A scholarly article dated December 9, 2009, article by Randy Barnett , Nathaniel Stewart and Todd Gaziano called “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional.” Here is the summary of the article:
“A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”
The easy fix would be to lock people out of access to the exchanges for a specified period of time if they opt out of the mandate, so that then you’d just be denying non-participants a benefit of the law rather than enforcing a mandate.
Good luck on that one, though.