Fourth, and most important: Judge Steeh offers no limiting principle to the “economic decisions” theory. His acceptance of the government’s argument that the health insurance market is “unique” is window dressing. Allowing Congress to regulate all “economic decisions” in the country because Congress has a rational basis for thinking such mandates are essential to its regulation of interstate commerce cannot and will not be limited to the sort of public goods argument offered in support of this mandate. Given that his decision, on his own account, is expanding federal power beyond existing Supreme Court doctrine, was it not incumbent upon him to deal with the slippery slope issues raised by his newly-minted “economic decisions” doctrine?
Yet, like the government, Judge Steeh is silent on the radical implications of accepting this new doctrine. Imagine all the slippery slope questions in oral argument when the “economic decisions” doctrine is more seriously considered than it was by Judge Steeh. Conversely, there are zero slippery slope objections to striking down all economic mandates that reach inactivity. Why? Because the individual insurance requirement is the only such economic mandate ever enacted. So it is the only law that would be unconstitutional if the Supreme Court concludes that Congress has no such power to impose economic mandates under the Commerce and Necessary & Proper Clauses.