As Adam notes, the first circuit court to hear a case about the constitutionality of the Affordable Care Act has upheld it. The concurring opinion of the first Republican judge to find the legislation constitutional -- the George W. Bush appointee Jeffrey Sutton -- is particularly interesting. Unlike me, he thinks that the slippery slope arguments offered by opponents of the ACA raise "good questions." Unlike the other conservative judges to have raised these questions, however, he notes that there are perfectly good answers:
In most respects, a mandate to purchase health insurance does not parallel these other settings or markets. Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them. The very force of the intuition also helps to undo it, as one is left to wonder why the Commerce Clause does the work of establishing this limitation.
Sutton is also good on why the reading an "activity/inactivity" distinction into the key Wickard and Raich cases doesn't make any sense. If Anthony Kennedy votes to uphold the ACA, I would expect the opinion to look a lot like Sutton's.
