In an addendum to his post below, Orin writes “the existence of nonzero limits [on federal power] in no way implies the existence of major limits.” Fine. But this does not mean that the limits on federal power that survive Raich are only “symbolic,” nor does it mean that Judge Vinson is wrong. It is hard to see how a holding that would only prohibit a single federal enactment adopted in the nation’s 200-plus-year history constitutes a “major limit” on federal power. The federal government is hardly limited, and yet invalidating the individual mandate would not threaten any other past or present exercise of federal power.
I also think Orin’s argument that the individual mandate must be constitutional under existing precedent because dissenting justices argued that such precedents allow the federal government to regulate “virtually anything” is problematic. First, Orin is relying upon the opinions of dissenting justices, when the majority opinion in Raich maintained that limits on federal power remained. Second, the argument assumes what is at issue: Whether the failure to purchase government-approved health insurance is an activity that can be regulated. In other words, one of the questions in the case is whether inactivity is anything at all, or the absence of something that can be regulated. I agree with Orin that Raich is a problematic precedent, but I am not convinced it controls the outcome of this case.