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In its modern Commerce Clause cases, the Supreme Court rejects the argument that a petitioner's own conduct or participation in the activity is, by itself, either too local or too trivial to have a substantial effect on interstate commerce.

Rather, the Court has made clear that, "where the class of activities is regulated and that class is within the reach of federal power, the courts have no powers 'to excise, as trivial, individual instances' of the class."[19] Thus, for example, a potential challenger of the proposed mandate could not argue that because her own decision not to purchase the required insurance would have little or no effect on the broader market, the regulation could not be constitutionally applied to her.

The Senate bill asserts (erroneously) that: "[t]he individual responsibility requirement..commercial and economic in nature, and substantially affects interstate commerce....

The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased."[18] The second prong of the Court's Commerce Clause analysis requires a determination that the petitioner has in fact engaged in the regulated activity, making him or her a member of the regulated class.

But it is very unlikely that the Court would extend current constitutional doctrines, or devise new ones, to uphold this new and unprecedented claim of federal power.

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