The latest health care ruling from the 11th Circuit, striking down the individual mandate, uses the word "unprecedented" to describe the mandate more than a dozen times*. The opinion concludes that "It cannot be denied that the individual mandate is an unprecedented exercise of congressional power." The 2-1 ruling is significant in that it marks the first Democratic appointee to vote to strike down the mandate, and the second Republican to vote to uphold it. It also upheld the rest of the law, striking down only the mandate.
The thing is that the individual mandate is um, quite "precedented." The opinion rationalizes the precedent set in Wickard that Congress has the authority to regulate activity that has "substantial economic effect on interstate commerce." The 11th Circuit judges, like the other opinions before them, argue that people not purchasing health insurance "have not made a voluntary choice to enter the stream of commerce," which is an odd argument, both because not buying health insurance ultimately impacts everyone else when the individual ultimately does need medical care, and because the farmer in Wickard wasn't trying to enter the stream of "interstate" commerce either.
Likewise in Raich, the medical marijuana case in which Justice Antonin Scalia wrote that Congress can regulate "noneconomic activity closely connected to the intended market," and "where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective." The individual was growing medical marijuana for personal use, they weren't trying to "enter the stream of commerce" in any sense, local or intrastate. It's an absurdity to suggest that the Commerce Clause regulates noneconomic activity, but not a spurious definition of economic "inactivity."
Many libertarians argue honestly that interpretation of the Commerce Clause has grown too broad, and that these prior precedents should be overturned along with the mandate. But to suggest that the mandate is "unprecedented" isn't accurate. And what conservative judges have been trying to do quite plainly, is figure out a Bush v. Gore like way of striking down the mandate without unraveling decades of prior precedent. This is the purpose for which the "activity/inactivity" distinction was created.
The conservative argument, repeated in the opinion, that upholding the mandate "would allow Congress to regulate anything," is a issue the attorneys defending the mandate need to find out how to effectively rebut. But legal precedent is not their problem.
*corrected
