Abu Wabu

Simple: inactivity is not interstate commerce. If it were, Congress could mandate anything. And it can't. The decision contains this analogy by Judge Vinson, which almost reads like a draft rule from Cass Sunstein's Office of the Czar of Regulatory Overload (and, as we will see, is drawn directly from Obama's 2008 primary campaign against Hillary Clinton):

Or what if two of the purported “unique” factors [of the health-care market] — inevitable participation coupled with cost-shifting — are present? For example, virtually no one can opt out of the housing market (broadly defined) and a majority of people will at some point buy a home. The vast majority of those homes will be financed with a mortgage, a large number of which (particularly in difficult economic times, as we have seen most recently) will go into default, thereby cost-shifting billions of dollars to third parties and the federal government. Should Congress thus have power under the Commerce Clause to preemptively regulate and require individuals above a certain income level to purchase a home financed with a mortgage (and secured with mortgage guaranty insurance) in order to add stability to the housing and financial markets (and to guard against the possibility of future cost-shifting because of a defaulted mortgage), on the theory that most everyone is currently, or inevitably one day will be, active in the housing market?

Further, the government lawyers argued that the Act was not severable; the court acknowledged their premise, declaring the entire monstrosity unconstitutional, with good reason:

In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which, as noted, were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone. Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress’ main purpose and primary objective in passing the Act. The statute is, after all, called “The Patient Protection and Affordable Care Act,” not “The Abstinence Education and Bone Marrow Density Testing Act.” The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.

If Congress intends to implement health care reform — and there would appear to be widespread agreement across the political spectrum that reform is needed — it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not. It is Congress that should consider and decide these quintessentially legislative questions, and not the courts…

Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled “The Patient Protection and Affordable Care Act.”

Big, big victory for the Constitution. It's all still headed for the Supremes but, in the meantime, per Nancy Pelosi, Judge Vinson read the legislation, saw what's in it, and rejected it on Constitutional grounds.

And yes, Nancy: he's serious.