concurring in part and dissenting in part.
I concur with the majority’s opinion as to standing and the Anti-Injunction Act, as well with Judge Sutton’s opinion that the challenged statute is not an exercise of Congress’s taxing power. I write separately because I disagree with Judge Martin’s Commerce Clause analysis and do not share Judge Sutton’s view that plaintiffs’ challenge is undone by United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).
If Congress exceeded its authority by enacting the mandate, then the mandate is “legally stillborn” and cannot be valid in any application. Virginia v. Sebelius, 728 F.Supp.2d 768, 774 (E.D.Va.2010). “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution can be valid.” The Federalist No. 78 (A. Hamilton). As cases in point, Lopez and Morrison struck down statutes as facially unconstitutional under the Commerce Clause and did so without reference to Salerno. United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).
I.
This case presents the issue whether Congress acted within its powers under the Commerce Clause when it passed legislation requiring nearly all citizens to maintain health insurance coverage begin*567ning in 2014. See Patient Protection and Affordable Care Act (“ACA”) § 1501 (codified at 26 U.S.C. § 5000A(a)). Individuals who fail to satisfy the “individual responsibility requirement” must pay a monetary penalty. 26 U.S.C. § 5000A(b)(l).
The mandate is a novel exercise of Commerce Clause power. No prior exercise of that power has required individuals to purchase a good or service. This fact alone does not answer the constitutional question, but it does highlight the need for judicial scrutiny. Federal courts have the duty to construe and enforce the “outer limits” of congressional power. Lopez, 514 U.S. at 556-57, 115 S.Ct. 1624 (finding the Gun-Free School Zones Act unconstitutional).
The Commerce Clause authorizes Congress “[t]o regulate Commerce ... among the several States.” U.S. Const., Art. I, § 8, cl. 3. The Supreme Court has interpreted the power as reaching three areas: (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, and (3) “activities that substantially affect interstate commerce.” Lopez, 514 U.S. at 558-59,115 S.Ct. 1624.
Because the mandate regulates decisions not to purchase health insurance — conduct falling outside the ordinary sense of the word “commerce” (the trade or exchange of a good, see Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 72, 6 L.Ed. 23 (1824)) — -Congress expressly invoked the third category of Commerce Clause power as its authority for enacting the mandate. See ACA § 1501(a)(1). And in various suits across the nation challenging the constitutionality of the mandate, the government has consistently defended the mandate under Congress’s power to regulate activities that substantially affect interstate commerce.
II.
In evaluating the mandate’s validity, one must identify what market or conduct it regulates. Plaintiffs argue that the health insurance market is the immediate subject of the mandate, while the government contends that the mandate represents but one component of the ACA’s broader regulation of the market for health care services.
The challenged statute is a requirement to obtain health insurance. The text of § 1501 reflects Congress’s view that it was regulating the insurance market when it enacted the statute. In the legislative findings, Congress found that the insurance requirement is what “substantially affects interstate commerce,” ACA § 1501(a)(1), and it specifically noted that “insurance is interstate commerce subject to Federal regulation.” § 1501(a)(3) (emphasis added) (citing United States v. South-Eastem Underwriters Ass’n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944)). The findings further state that the federal government “has a significant role in regulating health insurance,” § 1501(a)(2)(F), and the mandate will serve to “broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums.” § 1501(a)(2)(G). Moreover, the findings provide that “[t]he requirement is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs.” § 1501(a)(2)(H).1
The government now attempts to recast the exercise of power as regulating the market for health care services. The ACA’s numerous provisions seek to widen access to health care services and improve *568the quality of those services. The mandate itself rests among provisions aimed at reforming the health insurance market. See ACA, §§ 1001-1563. Other parts of the Act make changes to public programs like Medicaid, see §§ 2001-2955, and enact reforms intended to improve the quality and efficiency of health care, see §§ 3001-3602, strengthen the health care workforce, see §§ 5001-5701, and encourage innovative medical therapies, see §§ 7001-7Í03. The government argues that the mandate is best viewed as regulating one aspect — financing—of the overall health care market.
The government’s argument for viewing the mandate as regulating health care in general suffers from many flaws. First, it gives “Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause — nestling questionable assertions of its authority into comprehensive regulatory schemes — rather than with precision.” Gonzales v. Raich, 545 U.S. 1, 43, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (O’Connor, J., dissenting). Within the ACA as a whole, the mandate represents a separate exercise of congressional power. To say that the mandate simply concerns the financing end of health care proves the point — it is insurance that the mandate requires of all citizens.
Second, the government’s argument ignores what Congress itself said about the mandate. Congress found that the insurance requirement in particular is what substantially affects interstate commerce, and it referenced a Supreme Court ruling that the insurance industry is subject to Congress’s Commerce Clause powers. As noted above, other findings in § 1501 demonstrate that Congress had its sights on the health insurance market. When Congress has spoken so clearly on the basis for its attempted exercise of power, the exercise should be judged on those terms, even if its ultimate conclusion need not be accepted at face value. See Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 311, 101 S.Ct. 2389, 69 L.Ed.2d 1 (1981) (Rehnquist, J., concurring in judgment) (“Moreover, simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.”).
Third, the government’s argument turns the mandate into something it is not. The requirement that all citizens obtain health insurance does not depend on them receiving health care services in the first place. Individuals must carry insurance each and every month regardless of whether they have actually entered the market for health services. Simply put, the mandate does not regulate the commercial activity of obtaining health care. It regulates the status of being uninsured.
III.
Congress’s legislative finding that the “individual responsibility requirement ... substantially affects interstate commerce” turns the analysis on its head. ACA § 1501(a)(1). Without question, forcing all individuals to purchase a product that not everyone would otherwise purchase will have an effect on commerce. But Congress cannot be tolerated to justify its exercise of power by creating its own substantial effects. In determining whether the substantial effects test is satisfied, the focus must be on the existing economic activity Congress seeks to regulate, not on the impact the regulation would have. See Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 87 L.Ed. 122 (1942) (examining whether “appellee’s activity,” together with the activities of those similarly situated, “exerts a substantial economic effect on interstate commerce”); Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624 (holding that Con*569gress may regulate an activity that substantially affects interstate commerce).
The inquiry then is whether plaintiffs’ “activity,” as it were, substantially affects interstate commerce. Much has been made in this litigation of the distinction between activity and inactivity. The Supreme Court has often employed the word “activity” to describe the regulatory subjects of Congress’s power over interstate commerce. See Wickard, 317 U.S. at 125, 63 S.Ct. 82; Lopez, 514 U.S. at 559, 115 S.Ct. 1624; Morrison, 529 U.S. at 609-10, 120 S.Ct. 1740; Raich, 545 U.S. at 17, 125 S.Ct. 2195. Yet I do not interpret those cases as drawing a constitutional line between activity and inactivity. That distinction would suffer from the same failings as the “direct” and “indirect” effects test of prior Commerce Clause jurisprudence. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-38, 57 S.Ct. 615, 81 L.Ed. 893 (1937) (rejecting the direct/indirect distinction and stating that the question of Congress’s authority is “necessarily one of degree”); Lopez, 514 U.S. at 579, 115 S.Ct. 1624 (Kennedy, J., concurring) (noting that questions of constitutional law are often “not susceptible to the mechanical application of bright and clear lines”). Imposing an activity/inactivity line could hinder Congress in future cases from removing burdens on commerce that certain classes of individuals have passively enabled. See United States v. Faasse, 265 F.3d 475, 487 (6th Cir.2001) (upholding the constitutionality of the Child Support Recovery Act and rejecting the argument that the willful failure to make a court-ordered, out-of-state child support payment from California to Michigan was insufficient for Commerce Clause purposes).
The inquiry should start by considering the “economic nature of the regulated activity.” Morrison, 529 U.S. at 610, 120 S.Ct. 1740; see also Lopez, 514 U.S. at 559-61,115 S.Ct. 1624 (finding that possession of a gun in a school zone was not an economic activity); Raich, 545 U.S. at 25, 125 S.Ct. 2195 (finding that growing and consuming a crop was “quintessentially economic”). Congress here attempts to regulate a class of individuals who have refrained from purchasing health insurance. The conduct being regulated is the decision not to enter the market for insurance. Plaintiffs have not bought or sold a good or service, nor have they manufactured, distributed, or consumed a commodity. See Raich, 545 U.S. at 25-26, 125 S.Ct. 2195 (defining “economics” as the “production, distribution, and consumption of commodities”). Rather, they are strangers to the health insurance market. This readily differentiates the present case from others cited by the government. See Wickard, 317 U.S. at 128, 63 S.Ct. 82 (Filburn cultivated wheat); Raich, 545 U.S. at 19, 125 S.Ct. 2195 (Raich cultivated marijuana); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 243, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (appellant operated a motel). Certainly there is an interstate market for health insurance, but, unlike the plaintiffs in Wickard and Raich, plaintiffs here have not entered the market. In no other instance has Congress before attempted to force a nonparticipant into a market.
The government contends that virtually every American has or will participate in the market for health care services. The timing of the need for health care can be unpredictable and the costs substantial. By not purchasing insurance, individuals like the plaintiffs have made a decision to accept risk. In the government’s view, plaintiffs’ financial planning choices and position on risk are quintessentially economic in nature because they inevitably lead to cost-shifting when the uninsured obtain care they cannot afford. The mandate concerns a failure to pay for services *570obtained, argues the government, not a failure to engage in economic activity.
This argument deftly switches the focus from the private, non-commercial nature of plaintiffs’ conduct (the decision to be uninsured) to the perceived economic effects of their absence from the insurance market. Certainly, plaintiffs’ conduct may be considered in the aggregate with the conduct of similarly-situated individuals, see Raich, 545 U.S. at 20, 125 S.Ct. 2195; however, the Commerce Clause cannot be satisfied when economic activity is lacking in the first instance.2 “Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” Lopez, 514 U.S. at 560, 115 S.Ct. 1624; see also Morrison, 529 U.S. at 611, 120 S.Ct. 1740 (“[I]n those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor.”); Raich, 545 U.S. at 17, 125 S.Ct. 2195 (Congress may regulate “purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce”).
It is true that decisions not to purchase insurance are in some sense economic ones. They are choices about risk and finances. When viewed in the aggregate, these decisions have economic consequences. Congress, for instance, has found that:
The cost of providing uncompensated care to the uninsured was $43,000,000,000 in 2008. To pay for this cost, health care providers pass on the cost to private insurers, which pass on the cost to families. This cost-shifting increases family premiums by on average over $1,000 a year. By significantly reducing the number of the uninsured, the requirement, together with the other provisions of this Act, will lower health insurance premiums.
42 U.S.C. § 18091(F). In an amicus brief, certain economic scholars point to other cost-shifting effects caused by decisions to be uninsured. The first relates to adverse selection, or the positive correlation between demand for insurance and the risk of loss. When healthy individuals opt not to buy insurance, the pool of insured persons is smaller and less healthy as a whole, thus raising premiums. Second, when previously uninsured individuals do obtain insurance, they tend to do so when they have a significant medical need and thereby consume more and costlier services.
Lopez and Morrison rejected a view of causation whereby the cost-shifting to society caused by violent conduct can satisfy the substantial effects test. See Lopez, 514 U.S. at 564, 115 S.Ct. 1624 (rejecting the government’s “costs of crime” and loss of “national productivity” reasoning); Morrison, 529 U.S. at 615, 120 S.Ct. 1740 (same). The government fails to show why a view of cost-shifting caused by risky conduct should fare any better. The problem with the government’s line of reasoning here is that it has no logical end point, and it illustrates precisely Justice Thorn-*571as’s concerns with the substantial effects test. See Morrison, 529 U.S. at 627, 120 S.Ct. 1740 (Thomas, J., concurring) (calling the test “rootless and malleable”). That test, when paired with the aggregation principle, invites manipulation and “draw[ing] the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce.” Lopez, 514 U.S. at 600, 115 S.Ct. 1624 (Thomas, J., concurring).
The government insists that a decision not to buy insurance is more clearly financial in nature than the acts of crime at issue in Lopez and Morrison. But the statutes struck down in Lopez and Morrison at least waited to impose their criminal penalties until the commission of the acts that allegedly caused the cost-shifting. Here, several layers of inferences must materialize for the government’s cost-shifting reasoning to work, but the mandate waits for none of them. See Lopez, 514 U.S. at 567, 115 S.Ct. 1624 (rejecting as too attenuated a substantial effects theory that “pile[s] inference upon inference”). The mandate and its penalty are not conditioned on the failure to pay for health care services, or, for that matter, conditioned on the consumption of health care. Congress instead choose a more coercive and intrusive regulation. The proper object of Congress’s power is interstate commerce, not private decisions to refrain from commerce.
The ACA represents Congress’s attempt to solve national problems in the health insurance market. That problems are felt nationwide does not mean that Congress can try to solve them in any fashion it pleases. Congress must choose from the limited powers granted to it by the Constitution, and federal courts have a duty to uphold the Constitution when Congress has exceeded its authority. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L.Ed. 60 (1803) (“This is of the very essence of judicial duty.”). Lopez and Morrison firmly establish that the Commerce Clause power is “not without effective bounds.” Morrison, 529 U.S. at 608, 120 S.Ct. 1740 (citing Lopez, 514 U.S. at 557, 115 S.Ct. 1624); see also Lopez, 514 U.S. at 574, 115 S.Ct. 1624 (Kennedy, J., concurring) (“[T]he Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point.”).
The “hard work for courts” is identifying “objective markers for confining the analysis in Commerce Clause cases.” Raich, 545 U.S. at 47, 125 S.Ct. 2195 (O’Connor, J., dissenting). When dealing with the outer limits of Congress’s powers, “first principles” must be heeded. See Lopez, 514 U.S. at 552, 115 S.Ct. 1624. The federal government is one of enumerated powers. Congress’s authority must have limits, lest the Tenth Amendment’s reservation of powers to the States and the people be without meaning. Principles of federalism thus should guide a court’s examination of novel exercises of Commerce Clause power. See id. at 580, 115 S.Ct. 1624 (Kennedy, J., concurring) (“[W]e must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.”); Raich, 545 U.S. at 48, 125 S.Ct. 2195 (O’Connor, J., dissenting) (noting that “fundamental structural concerns about dual sovereignty animate our Commerce Clause cases”).
Here, Congress’s exercise of power intrudes on both the States and the people. It brings an end to state experimentation and overrides the expressed legislative will of several states that have guaranteed to their citizens the freedom to choose not to purchase health insurance. See Idaho Code Ann. § 39-9003; Utah Code Ann. § 63M-1-2505.5; Va.Code Ann. § 38.2-*5723430.1:1. The mandate forces law-abiding individuals to purchase a product — an expensive product, no less — and thereby invades the realm of an individual’s financial planning decisions. Cf. Maryland v. Wirtz, 392 U.S. 183, 196 n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968) (“Neither here nor in Wickard had the Court declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities.”). In the absence of the mandate, individuals have the right to decide how to finance medical expenses. The mandate extinguishes that right.
Congress may of course provide incentives (in the Tax and Bankruptcy Codes, for instance) to steer behavior, and it may impose certain requirements or prohibitions once an individual decides to engage in a commercial activity. See, e.g., Wickard, supra (Congress had power to impose a harvesting limit on farmer who grew wheat); Heart of Atlanta Motel, supra (Congress had power to impose anti-discrimination requirement on individual who operated a motel). It is a different matter entirely to force an individual to engage in commercial activity that he would not otherwise undertake of his own volition.
The government recites the common refrain that the health insurance market is unique and attributes this to some blend of free-riding, adverse selection, universal participation, and unpredictability as to when and how much care might be needed. This should comfort the court, the government says, because Congress will not need to resort to such measures as the mandate again, or at least not very often.
This assurance is troubling on many levels and should hardly be heard to come from a body with limited powers. The uniqueness that justifies one exercise of power becomes precedent for the next contemplated exercise. And permitting the mandate would clear the path for Congress to cause or contribute to certain “unique” factors, such as free-riding and adverse selection,3 and then impose a solution that is ill-fitted to the others.4
To the fatalistic view that Congress will always prevail and courts should step back and let the people, if offended, speak through their political representatives, I say that “courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” The Federalist No. 78 (A. Hamilton). In this arena, the “public force” is entrusted to the courts. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L.Rev. 457, 457 (1897). “[Wjhere the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.” The Federalist No. 78.
This is the “hard work” Justice O’Con-nor referred to in her dissent in Raich. It is hard work in part because it can place a federal court in the position of choosing *573between powerful competing political ideologies with the risk that the court’s judgment may be branded as “political.” We must not lose sight of the fact however that the Constitution we interpret and apply itself embodies a resolution of powerful competing political ideologies, including the extent of the power of the federal government — a resolution that the States and the people accepted in the ratification process. See The Federalist No. 45 (J. Madison) (“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”).
In Lopez the Supreme Court recognized that the direction of its existing Commerce Clause jurisprudence threatened the principle of a federal government of defined and limited powers, and it began the process of developing a new jurisprudence more compatible with the Constitution. That process was interrupted by Raich, where a majority of the Court was unwilling to expressly overrule a landmark Commerce Clause case in, Wickard, which had been the law of the land for over sixty years.
Notwithstanding Raich, I believe the Court remains committed to the path laid down by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so.
If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power? The ultimate issue in this case is this: Does the notion of federalism still have vitality? To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does. See Lopez, 514 U.S. at 565, 115 S.Ct. 1624 (“[Depending on the level of generality, any activity can be looked upon as commercial.”). Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people. A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.
. Congress has since amended the statutory section in which the legislative findings are codified, 42 U.S.C. § 18091, but the language quoted above remains unchanged.
. Justice Scalia has stated that under the Necessary and Proper Clause, “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.’’ Raich, 545 U.S. at 37, 125 S.Ct. 2195 (Scalia, J., concurring).
I do not believe that this view of the Necessary and Proper Clause would save the mandate. As Judge Vinson correctly explained, an attempted exercise of power — the mandate — cannot be justified because it is “necessary” to cure the economic disruption caused another part of the legislation — the "guaranteed issue” provision, ACA § 1001. See Florida v. United States Dep’t of Health and Human Services, 780 F.Supp.2d 1256, 1296-97, 2011 WL 285683, at *31 (N.D.Fla. Jan. 31, 2011).
. The free-riding problem is substantially one of Congress's own creation, see Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (requiring hospitals with emergency departments to provide the care necessary to stabilize patients with emergency medical conditions, without regard to a patient's ability to pay for the care received), and the adverse selection problem will be exacerbated by the guaranteed issue provision, in that supply will be guaranteed to high-risk individuals. Though these policies might be reasonable, Congress’s compassion does not allow it to exceed the limits of its constitutional powers.
. Again, the mandate does not wait until an individual participates in the market for health care.