(This started out as a comment addressed to Armando based on his diary here; as you'll see, it became long enough to warrant being a diary on its own. I still address it to him, but it's for everyone who's interested to read.)
Armando: I think that you're instructively wrong, but at least it helps to clarify the nub of our disagreement. I invite you, as an exercise, to describe how you would argue the other side of the case, if hired to do so, and see if it still sounds implausible to you.
My concern is that we (both Kosters and liberal legal thinkers) are fooling ourselves on this point. The only way out of the problem -- both with the Justices and with the American people -- is to articulate a clear limiting principle. Verrilli didn't; neither do you, because preventative health also impacts the health care market. But you gave it a good try, which is valuable.
"Regulate inactivity" is rough shorthand for "force people, as a consequences of their mere existence within the U.S. rather than due to their election to enter a market, to thus be subject to commercial regulation." Any lawyer worth his or her salt, as you certainly are, could muster a robust parade of horribles out of that rule of law. It should be taken seriously.
Jones & Laughlin is irrelevant because the entity under regulation was not merely "inactively existing," but was active in the marketplace. Pretty much all acts of a corporation (and I'm hedging only out of caution) are of necessity subject to commercial regulation, because attaining corporate status, hiring people, buying and selling merchandise, and intrinsically commercial activities.
You're talking about an entity engaged in commercial activity, including hiring labor, refusing to act in a certain way with respect to that labor. I don't think that I need to belabor the point that that is different from the sort of inactivity that derives from an average American simply being born -- and, under your rule, being subject to commercial regulation in the same sense as they are subject to taxation.
Some commenters state that because virtually all Americans will eventually use medical care at some point, they thereby "enter the market" and can be regulated as market participants. I'll note first that this idea is new. Whether or not can be argued to flow inexorably from existing law, it is not a simple and straightforward application of an existing power. It requires us, at a minimum, to overcome the intuition (both on the part of justices and the public) that people are here being dragooned into a market in a way that has not previously been the case -- that it changes the role between citizen and government. I wish that people would stop claiming that this leap of logic is effortless.
(I note, again, that there is no question but that one is "born into" the ability to be taxed (i.e. subject to Congress's Taxation power) -- but that Taxation power is more limited than that of the Commerce power. (And let me clarify -- when I talk about the Commerce power here, I mean "as amplified by the Necessary & Proper Clause.") A tax has to meet certain criteria to qualify as such. A commercial regulation, especially based on the analysis offered here, does not, so it's a potentially much broader power.)
The fundamental difference between me and Armando is that I accept that this is a matter of Commerce Clause power towards individuals who are not engaged in commerce as the term is traditionally used. It's the inverse of the Wickard v. Filburn case prohibiting a farmer from growing wheat for his personal use; it's more like asserting that the government has the power, because the farmer is part of a market, to order the farmer to grow wheat if it would serve the interests of the market. Armando sees it as a straightforward matter of the government's need to regulate commerce. If you start from where he starts, it makes sense why one ends up there: a loud "WE GOTTA DO IT" does not yield to a quiet "but you don't have the authority to do it under the Constitution."
If one makes Armando's above argument, then, one absolutely does need to address the "slippery slope" arguments rather than just waving them away. As I've argued recently, the government does in effect already have the right to force you to purchase broccoli through its taxation power; the question is whether it has the right to do so individually rather than as part of an aggregation of all taxpayers. By extending the commerce power, the government claims the right to regulate you individually.
Could it force you to buy -- not "consume," which runs into the countervailing liberty of maintaining one's bodily integrity, but just "buy" so that you have it personally available as needed or desired -- broccoli, vitamins, or health club memberships? I'm not at all sure that it couldn't. And if there is reasonable uncertainty, then you have to stop making fun of people who think that this is a broad new assertion of federal power.
Here's the logic: if you can regulate people by forcing them to enter the paid insurance market, can you also regulate them so that they enter that market in such a way that makes them more likely to reduce costs for other members of the market -- by, for example, maintaining the means to keep themselves healthy?
Most legal interpretation (constitutional, statutory, and otherwise) is an exercise in "line drawing" -- dividing concepts in such a way that the divisions between them make sense. So I ask you: is there a bright line between that and other forms of commercial regulation? Or is the brighter line between regulating people who do something affirmative to place themselves into the market and those who don't.
Here's a regulation about which I would be concerned about existing -- because I don't think that the government does have the power to command it -- under the sort of rule that Armando suggests. We all know that failure to exercise (an inactivity of which I am too frequently guilty) leads to worse health. Worse health means more expenses for everyone else. That's bad for everyone in the market (aka "everyone.")
So, given that, why couldn't the government force everyone to purchase health club memberships -- perhaps deeply discounted or free for the indigent -- so that they will be more likely to exercise? After all, under this rule to exist is now to engage in commerce -- the health insurance market -- so the argument that the government must show some deference to the needs of others in the commercial pool may flow just as easily from the Commerce clause. (Indeed, that federal regulation can force an entity in a market to be a "good market participant" by bargaining in good faith with labor is a possible rule to derive from Jones & Laughlin.)
Do I need to underline the point made by libertarian conservatives -- who are often crazy but not necessarily crazy here -- that such a prospect fundamentally alters the relationship between citizen and government?
Let's go even further. Can I force you to buy health insurance but then charge you a higher rate or deductible, if you use that insurance, if it becomes clear that you have not been exercising, have not been taking your vitamins or eating broccoli, etc.? (Can your blood serum levels be used as evidence against you?) Why not? You're a market participant (having been born and all), aren't you? This is a regulation of your involvement in commerce, isn't it? What bright line stops the government from doing this? And, if there isn't one, doesn't this fundamentally alter the relationship between citizens and government?
Worrying about the derivation of federal powers is one of the few areas where conservatives actually do a more conscientious job than liberals, who often just presume that there must be some justification for an exercise of federal power in there somewhere, so let's not sweat the details. After all, we liberals didn't have to do it between 1937 and the Lopez decision that signaled the rolling back of unlimited Commerce Clause power, and I'd personally be happy if the state of the law had remained there. But it hasn't. We have to face and accommodate that reality.
(Or -- maybe some of us think that we don't! I get the sense sometimes that the liberal legal elites care more about reclaiming the de facto unlimited regulatory authority that we had before Lopez than providing health care, in which case let me just say that I disagree with their priorities and that if that's the game, it would have been a lot smarter to wait until we had one more Democrat on the Supreme Court.)
I think that there's a legitimate argument to be had about the earlier part of Armando's post (and mine) regarding whether the Commerce Clause could, in principle, apply to inactivity. I think that there's NO legitimate argument that the line-drawing problem -- the need to figure out how to constrain the federal power to force people into markets and them regulating them because there in a market -- can be dismissed, ridiculed, or ignored. It's bad legal analysis, but it's horrible politics. It plays into every "nanny state"-related fear that conservatives try to sell the public about liberals.
While I sometimes enjoy being a contrarian, I'm not enjoying it this time. My life would be much easier and happier if I agreed with Armando that the other side is simply stupid, unreasonable, and vile. But I think that we're making a huge mistake here, and that we really need to think of ways to limit the damage.
I don't want to see PPACA overturned; I want Justice Kennedy to ignore the government's arguments and find its authorization in the Taxation power. If it is overturned at all, I want as little of it to be overturned as possible. But we impede our ability to achieve those ends -- in the court of public opinion, at least, if not in the hallowed chambers of the Supreme Court -- by sitting in an echo chamber and convincing each other that there's really no problem at all.