In an interview with Judy Woodruff for Bloomberg about Congress, health care, and interstate commerce, former Solicitor General Paul Clement explains:
It’s two things. One is — it is funny, because you do look at programs like Medicaid and Medicare and you think, boy, the federal government plays a large role in health care. But if you look at the Supreme Court’s own cases, they talk about medicine and health care as being one of the traditional responsibilities of the states. And I think one way that you see those two propositions being reconcilable is that most of the federal government’s are cooperative programs with the states. They are at least nominally voluntary programs for the states. And so there aren’t that many programs in the medical area that actually mandate people to do things with respect to health care. That’s a little bit unusual.
But then the second thing that really is different here — and it’s what gets at the heart of the issue before the Supreme Court — is that what Congress did here really is unprecedented. Whether it’s medical care or something else, Congress has never before forced somebody to engage in a commercial transaction in the name of trying to regulate the resulting transactions. So that’s something that only the states have the power to do.
Clement will be arguing the case challenging the law before the Supreme Court next month.