Preliminary blog opinions on Comstock.

Eugene Volokh thinks the game is pretty much over:

Unlike the Kennedy and Alito concurrences, which at least stress the importance of constitutional limits on federal power — though they disagree with Thomas and Scalia about whether those limits were transgressed here — the majority has pretty broad language in support of nearly unlimited federal authority. And this language was joined by Chief Justice Roberts, and not just the four liberals. This suggests that the brief resurrection of the enumerated powers doctrine, under which courts would strike down some Congressional actions as going beyond the constitutionally granted powers (even without regard to, say, the First Amendment or similar express rights guarantees), may be largely over.

Randy Barnett says there's still hope...

I just finished reading the opinions in Comstock. While I disagree strongly with the majority’s analysis, and am disappointed that Chief Justice Roberts joined Justice Breyer’s opinion, the case has little or no import for the constitutional challenges to the individual health insurance mandate. The reason for this is simple. Comstock involved whether ample connection existed between the law incarcerating sexual predators after their federal criminal sentence had been completed and an enumerated power. The majority and concurring opinions found such a connection. Justice Thomas, joined by Justice Scalia, did not. In particular, the dissent contended that this law was not justified by its connection to any enumerated power.

With the challenges to the individual mandate, however, Congress is explicitly asserting that the individual mandate is “necessary and proper” to execute its power under the Commerce Clause. Moreover, the argument for “necessity” is reasonably straight-forward: it is necessary to compel all uninsured persons into the insurance pool to pay for the increased costs being imposed on insurance companies by the Act. Under the Court’s normal deferential approach, finding “necessity” won’t be hard.

The problem with the mandate is whether it is a “proper” means to achieve a constitutional end. The Court has previously held that mandating state legislatures (in New York v. U.S.) and executive officials (in Printz v. U.S.) is an “improper” commandeering of states and therefore violates the Tenth Amendment’s reservation of powers “to the states.” The challenges to the individual mandate raise the issue of whether mandating all persons to enter into a contract with a private company is “improper” commandeering of the people and therefore violates the Tenth Amendment’s reservation of powers “to the people.” Because such a commandeering has never been previously been attempted, the Court will have to address whether it is an “appropriate” (McCulloch) means to achieving an enumerated end, however “necessary” it may be. Deciding this question returns the Court to the scope of the Commerce Clause.