But more importantly, something courageous, by stating that Massachusetts’ version of the individual mandate is “legitimate.” This is clearly right, but leads one wonder whether the Virginia Attorney General’s view of what kind of government regulation constitutes “socialism,” at odds with “liberty,” has any rational basis. If a state mandates the purchase of insurance, isn’t that just as much of an intrusion into personal liberty? If “liberty” is coextensive with the limits of federal activity, that’s a fairly cramped definition of a fairly important word, isn’t it? If so, maybe we should stop talking about commercial regulation as a matter of constitutional life & death.
Of course, his larger point, that the individual mandate in federal garb is “the end of federalism,” remains wrong, and odd, too. There’s no contention that purposeful inactivity can’t cause as much impact on interstate commerce as purposeful activity. Given that, I fail to see why the Necessary & Proper Clause shouldn’t apply. Isn’t this exactly why we have the damn thing?
Oh! And I have an argument before the Seventh Circuit Court of Appeals today. So… wish me (and my client) luck!