One of the parts of Judge Jeffrey Sutton's opinion upholding the constitutionality of the individual mandate that I think hasn't gotten enough attention is his dig at the idea that states, under some kind of incoherent, muddled Tenth Amendment reasoning, would be able to mandate purchases of health insurance even though the Federal government can't:
How, moreover, would an action/inaction line work with respect to individuals living in States that already mandate the purchase of medical insurance or States that conceivably might do so in the future if the mandate is invalidated? One of the central premises of the claimants' argument is that, under the Framers' design, the regulation of health care and health insurance is primarily, if not exclusively, a prerogative of the States. That is why the claimants presumably believe that, when the States exercise this power, they have broad discretion to try out different ways to regulate health care. And that is why the claimants apparently have no constitutional objection to States that seek to solve this problem with individual mandates or something similar. Yet individuals in such States already would have entered the health-insurance market, permitting Congress to regulate them further by increasing the minimum coverage already required by state law or by requiring them to comply with other components of the Affordable Care Act. How strange that individuals who live in States with mandates would be subject to federal regulation but others would not be—with the difference in treatment having little to do with the concerns about federal intrusions on individual autonomy that led to this challenge in the first place. How strange, too, that, if other States opted to enact individual mandates in the future, the federal commerce power would spring into existence as to individuals living there.
Strange or not, this theory of commerce power at a minimum creates a serious hurdle for a facial challenge. If nothing else, it suggests that the minimum-essential coverage provision is constitutional as applied to individuals living in States with mandates, undermining the notion that the mandate is unconstitutional in all of its applications.
Liberals have been making a similar argument all along of course, but it's one thing to hear it from the left and another to hear a Republican appointed judge demolish Mitt Romney's claim that somehow his state health insurance mandate is the purest expression of federalism while the ACA's mandate is unconstitutional tyranny. Based on the "activity/inactivity" reasoning, the federal government would be able to impose a mandate on Massachusetts' citizens because they've already been "forced into the stream of commerce" by their own state government!
