A One-Way Ticket
One of the arguments made in favor of the activity/inactivity distinction in the individual mandate litigation is that adopting this approach will not call into question the rest of the Supreme Court’s Commerce Clause jurisprudence or undermine any other federal statutes. The only federal statute that has ever attempted to regulate inaction under the commerce power is the Affordable Care Act, so this is that only law that would run afoul of the principle.
This is what makes me skeptical about the distinction. While the inactivity/activity distinction sounds neutral, it’s designed to knock out one law and one law only. Courts often deride “one-way” tickets as result-oriented, and I’m not sure why the same isn’t true in this case. The situation would be different if there was an established argument for drawing the inactivity/activity line before the enactment of the individual mandate. As far as I know, though, nobody thought of this until last year (or maybe 2009).
I now promise to refrain from any further individual mandate posts until: (a) the Fourth Circuit issues its opinion, or (b) the Supreme Court grants cert.