[S]weeping as congressional authority was under the Commerce Clause, even after [Gonzales v.] Raich, it was always tied to some activity—some decision made by the individual or entity being regulated that subjected it to Congress’ power. That changed with the enactment of PPACA. For the first time Congress attempted to further its goals by compelling activity or, put another way, by regulating inactivity. Until this the government had always said, “You are engaging in commerce, so we can regulate you.” PPACA turns that on its head. Now the government is saying, “We are going to force you to engage in commerce so we can regulate you.” The result was the individual mandate—Congress’ first literally inescapable law.
If you read the full column, you’ll encounter Mellor’s analysis of Wickard v. Filburn, the 1938 Commerce Clause case included in Mellor’s book The Dirty Dozen. Mellor discussed that chronicle of horrible Supreme Court decisions during a 2008 interview with Carolina Journal Radio/CarolinaJournal.tv.