In particular, he nicely rebuts the Lawrence Tribe argument that regulating "inactivity" is constitutionally legitimate because those who fail to purchase health insurance are choosing to become free riders on the rest of us:
In addition to being simply incorrect, this argument is ahistorical as well as insulting.(Read the full text of "Obamacare and the Ratchet Theory of History".)
Until quite recently in American history, most people, when they became ill, went to a doctor, and, upon receiving a bill for the doctor's services, they paid it. Nowadays, most people who choose not to buy health insurance do so not because they are poor, but because they are young. They are betting (and usually the odds are in their favor) that they will stay relatively healthy. But still, in most cases, when such people get sick, they pay their doctor. To say that their intention upon not buying health insurance is to bilk the rest of us is to fail to realize that most people in America take their financial obligations seriously.
The most pertinent fault of Tribe's argument, however, is to establish a chain whereby the regulated activity, in some cases, is causally linked with an undesirable economic consequence. It is not failing to buy insurance that causes economic damage -- it is failing to pay the doctor's bill. Thus, an ultimately statistical argument is being used as a moral arbiter of behavior...
