Ian Millhiser has a great post about the incoherent radicalism of James Graham's dissent in this week's Sixth Circuit ruling upholding the constitutionality of the ACA. The biggest problem for lower court judges who want to find the ACA unconstitutional is the Raich precedent, in which the Supreme Court upheld the conviction of people growing marijuana for their own medical use under a license granted by state law. Given that the relationship between the mandate and the national economy is much stronger, it's virtually impossible to square an argument that the ACA is unconstitutional with Raich (hence, the specious "activity/inactivity" distinction, which constitutes an unsuccessful attempt to pretend that the cases are different.)
What's striking about Graham's dissent is that he doesn't really pretend otherwise -- indeed, he quotes several times from O'Connor's dissent in Raich. But this is highly problematic behavior from an appeals court judge. Graham is free to believe that Raich was incorrectly decided, but he's not free to ignore it -- his job is to apply the majority holding, not the dissent. Inadvertently, Graham makes the case that the constitutionality of the ACA is an easy case under existing precedents as well as the majority opinions do.