Orin worries that the Supreme Court will need to grapple with Congress pushing up to the line if it finds the regulation of “inactivity” beyond its powers. He need not worry. Since Congress has never imposed economic mandates on the people before, it will be easy for it to avoid doing so in the future. And it will retain its full panoply of powers — including its power to tax — that have been greatly expanded beyond the original meaning of the Constitution with which to address problems in the future, as it has done in the past. It will be no harder for Congress to obey this injunction, and for the Court to police it, than it has with any other judicial restriction on legislative power — such as the anticommandeering doctrines of New York and Printz. Indeed it, it is likely to be a good deal easier. Just as the power “to regulate commerce . . . among the several states” does not include the power to “commandeer” the states to enact laws, nor does it include the power to “commandeer the people” by requiring them to engage in economic activity. I have confidence that even an “A” law student will be able to figure this out.
But I entirely agree with him about the well-known fair weather nature of concerns about federalism. I plan to say something about this in regards to the House Republican’s tort reform bill now being developed which belies their expressed commitment to found all legislation in an enumerated federal power. But that will have to wait for another time, hopefully soon.