Indeed, in more than 200 years of debate as to the proper scope of the Commerce Power, the Supreme Court has never suggested that the Commerce Power allows Congress to impose affirmative obligations on passive individuals, or to punish individuals for failing to purchase a particular product. To the contrary, every landmark Commerce Clause case has dealt with congressional efforts to regulate different kinds of activity under the Commerce power. In every significant Commerce Clause case the Supreme Court has always had to decide whether Congress may regulate a given form of activity.

Florida Attorney General Bill McCollum [official website] filed the lawsuit in March, which is joined by 20 states [JURIST report] and the National Federation of Independent Businesses (NFIB) [association website; JURIST report]. The suit was allowed to proceed [JURIST report] in October, despite an attempt to dismiss. On Thursday, McCollum sent a letter [text, PDF] asking 13 other state attorneys general to join Florida in the suit. A federal judge in Michigan ruled [JURIST report] in October that the law is constitutional under the Commerce Clause as it addresses the economic effects of health care decisions and it does not represent an unconstitutional direct tax. In August, a federal judge allowed a similar lawsuit filed in Virginia to proceed on narrow grounds [JURIST report], addressing only subject matter jurisdiction [Cornell LII backgrounder] and the legal sufficiency of the complaint. Several days later, McCollum cited the ruling in his response [JURIST report] to the Obama administration's motion to dismiss the Florida challenge, filed in June.