I just finished a quick read of the petition for certiorari in TMLC v. Obama. For those who have read the lower court briefs in this case, there is nothing new. Here are the essential points:
1. In the exercise of its power to regulate interstate commerce, Congress can only regulate "economic activities."
2. Even if Congress can regulate non-economic activities under it's commerce power, what it regulates must still be an "activity," and not merely a decision to do nothing.
3. These limitations apply even when Congress is regulating a discrete practice on the ground that doing so is integral to a larger regulatory scheme, which scheme plainly regulates interstate commerce (e.g., in Wickard and Raich).
4. This limitation must exist, for without it, Congress would have a plenary police power to regulate anything and everything, and the Constitution's basic structural principles would be lost.
5. The facial/as-applied distinction is beside the point in this context; either the minimum coverage provision is valid or it is void as exceeding Congress's enumerated powers.
To be sure, there are some additional details to the arguments. But the petition has little truck with subtlety. These are the basic points, as they have been since the plaintiffs filed their complaint sixteen months ago.
