It seems that there is a consensus among non-right-wing legal thinkers that the constitutional challenge to the Affordable Care Act based on the commerce clause was more or less totally spurious — the distinction between regulating activity and regulating inactivity doesn’t stand up to even momentary scrutiny. There has also been considerable hand-wringing about the possible effects of this new precedent.
Yet is this really a big deal in practice? It seems as though the objection was a totally ad hoc “principle” that was adopted opportunistically in order to oppose this particular piece of legislation. It also seems as though the health insurance mandate is a pretty sui generis policy (read more in the insurance blog) — there aren’t a ton of policy wonks out there crafting plans to force Americans to buy things in the service of social justice or whatever. (The only parallel I can think of would be if Social Security were privatized and all Americans were required to invest in private retirement funds, a policy that I doubt liberals would support simply out of their new-found devotion to the idea that the government can make us buy things.) If the objection was developed in an ad hoc way to respond to this particular policy, which is itself fairly unique in terms of the relevant underlying structure in question, then does it actually have any consequences beyond this particular ruling?
(I mean, I know it signals that the court wants to limit federal power, but it’s not as though we were suddenly shocked to learn that conservative justices want to limit federal power — that’s just what it means to be a conservative judge. Having one more argument in their arsenal doesn’t seem to make any practical difference if it was always a question of making post-hoc rationalizations for what they wanted to do anyway.)