Some have responded to Justice Kennedy's concern by questioning his premises--for example, by noting that Congress has always exercised its article I authorities to impose affirmative obligations on citizens, such as the duty to register for and to engage in military service; to serve on juries; to respond to census questions; to submit tax returns; etc.

I think Randy and other challengers--and perhaps Justice Kennedy, too--would then reformulate the novelty claim to refer not to requiring affirmative acts simplicitur, but instead, and more specifically, to an obligation to "act to go into commerce" (transcript p.11), an affirmative duty that is certainly more novel in federal law.

It's not clear why such a requirement of entering into commerce would, unlike other, more common affirmative obligations, “change the relationship of the Federal Government to the individual in a very fundamental way”; after all, the very same novel requirement did not appear to fundamentally change the relationship of Massachusetts to its citizens when Governor Romney and the Massachusetts legislature enacted it. In any event, it's not obvious that this statute implicates that concern, because the ACA does not create such a duty: If there is someone out there who does not already maintain insurance and who has a moral or other objection to "go[ing] into commerce" just yet (i.e., before that person "goes into commerce" to consume health care), section 5000A gives that person an alternative means of satisfying the legal obligation--namely, by making a "shared responsibility payment" to the government itself. (The plaintiffs argue that making such a payment does not relieve someone from the so-called legal "duty" imposed by the insurance-maintenance requirement. But that's not so. As the Solicitor General explained in the Anti-Injunction Act argument, such a payment satisfies one's legal obligation under the Act. For example, as a formal matter Congress exempted members of Indian ]ribes--who obtain their health care through the Indian Health Service--only from the "penalty" provision, not from the insurance-maintenance provision. It would be absurd, however, to conclude that all such tribal members are federal lawbreakers by virtue of the fact that they do not maintain health insurance. This and other examples make manifest Congress's obvious intent that one can equally satisfy the law by engaging in either of the two options offered in section 5000A.)

Indeed, at least some of the Justices appeared to acknowledge that if Congress had reworded the statute to impose the exact same choice but through a different formulation of words--for example, by inverting the order of the subsections, so that 5000A(a) required everyone to make a shared responsibility payment to the IRS, and 5000A(b) then exempted from that obligation anyone who maintains health insurance--it would be plainly constitutional.

For this and other reasons, my sense from the oral argument was that Justice Kennedy was concerned not only about the implications of upholding the constitutionality of the law, but also about the implications of a holding that section 5000A is unconstitutional. Most importantly, both he and the Chief Justice appeared to agree that there would be something deeply counterintuitive about such a holding in light of the undisputed fact--stressed by Justice Kagan throughout the argument, emphasized by the Solicitor General in his rebuttal, and acknowledged by the plaintiffs--that Congress could impose the same exact requirement of insurance purchase "at the point of sale," when the individual shows up at the proverbial (and the actual) hospital door to consume health care (as virtually everyone eventually will). For obvious reasons, however, some of which I discussed here, such a "point of sale" requirement would not solve--indeed, would exacerbate--the commercial problems Congress was legitimately endeavoring to address about the availability of affordable health care for all Americans.

But if Congress could impose the requirement at the point of sale without fundamentally altering the relationship between the federal government and its citizens, what deep constitutional principle prevents it from imposing the same requirement earlier, when it would have its intended effect? As Justice Kagan pressed Paul Clement, "it seems as though you're just talking about a matter of timing . . . . And Congress surely has it within its authority to decide, rather than at the point of sale, given an insurance-based mechanism, it makes sense to regulate it earlier. It's just a matter of timing."

Nevertheless, I think it is safe to assume Justice Kennedy is, in fact, concerned about any holding of the Court that would imply a plenary power of Congress to require someone to affirmatively engage in a commercial transaction with a nonstate actor. Accordingly, it is worthwhile to consider how the Court might formulate a holding that would address that concern, while at the same time drawing upon the intuition that the constitutionality of such an important piece of legislation should not turn on such a seemingly arbitrary question of timing--and the related recognition that the "point of sale" alternative does not characterize many of the other hypotheticals that troubled some of the Justices.

It is possible, I think, to articulate a principled holding in favor of the constitutionality of section 5000A that would not commit the Court to anything like the broad ramifications that troubled Justice Kennedy, including in particular the conclusion that Congress may require the purchase of virtually any product.

I'll offer two such holdings, the first based on the Commerce Clause, and the second baed on the Necessary & Proper Clause. The two could, moreover, be conjoined, so that the Court's holding would be limited further still, to cover only cases in which both sets of predicates are satisfied.

Limited Commerce Clause Holding:

Even assuming arguendo that Congress cannot require any and every purchase of goods or services under any circumstances (but cf. Judge Silberman's "regulate"-includes-"require" argument to the contrary in Seven-Sky), Congress does have the Commerce Clause authority to control the means and timing of payment for goods and services that persons will consume, particularly so as to assure that the consumers do in fact pay for the costs of such goods or services. Thus Congress can at a minimum require everyone either (i) to maintain insurance for goods or services that virtually everyone will consume, that the government guarantees, and that many of the consumers will not otherwise be able to pay for (which would thereby shift substantial costs to the public at large); or (ii) to make a modest payment to the government (IRS) to help cover the costs the public will incur if and when the individual consumes services for which she cannot pay.

Such a formulation would not commit the Court to holding that Congress can require any and every purchase. Nor would it even imply that Congress can require a purchase whenever "non-purchase" has a substantial effect of any kind on interstate commerce--the principle that Randy assumes Justice Kennedy would have to accept in order to uphold the statute, and one that might justify a required purchase of GM cars since the failure to do so "causes" Detroit's economic woes.