For these reasons, we conclude that the individual mandate contained in the Act exceeds Congress’s enumerated commerce power. This conclusion is limited in scope. The power that Congress has wielded via the Commerce Clause for the life of this country remains undiminished. Congress may regulate commercial actors. It may forbid certain commercial activity. It may enact hundreds of new laws and federally-funded programs, as it has elected to do in this massive 975- page Act. But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die…
Because the Commerce Clause is an enumerated power, the Supreme Court’s decisions all emphasize the need for judicially enforceable limitations on its exercise. The individual mandate embodies no such limitations, at least none recognized by extant Commerce Clause doctrine. If an individual’s decision not to purchase an expensive product is subject to the sweeping doctrine of aggregation, then that purchase decision will almost always substantially affect interstate commerce…
This lack of limiting principles also implicates two overarching considerations within the Supreme Court’s Commerce Clause jurisprudence: (1) preserving the federal-state balance and (2) withholding from Congress a general police power. Morrison, 529 U.S. at 617–19, 120 S. Ct. at 1754; Lopez, 514 U.S. at 566–68, 115 S. Ct. at 1633–34; Jones & Laughlin Steel Corp., 301 U.S. at 30, 57 S. Ct. at 621. These concerns undergird the Constitution’s dual sovereignty structure, ensuring that the federal government remains a government of enumerated powers.
