Focusing on the one justice who may end up writing the majority opinion, Justice Kennedy made the following comment:
"And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way."
Examples have been provided recently of instances in which the U.S. government requires citizens to act, or risk adverse consequences. It has been pointed out that citizens are required to contribute to Social Security and Medicare even if they don't elect to do so. It's mandatory.
So, here is the IP tie-in that may help Justice Kennedy understand that his observation is not rationally based. The U.S. Copyright Act, at Section 407, requires that all copyright owners shall deliver -- free of charge -- to the Library of Congress two best copies of a published work within three months of publication, or risk paying a fine. This obligation to donate two copies of a work applies whether or not the copyright owner seeks to register the copyright. This obligation applies to everyone who owns a work published in the U.S. The purpose of this "donation" requirement, of course, is to assist the Library of Congress in developing its collection.
Congress certainly has no problem requiring a tribute of two free copies of a work for its library -- with no quid pro quo to its citizens, other than a nicely developed federal library. And no one has previously expressed the view, as best as can be determined, that this donation requirement fundamentally changes a citizen's relationship with government.
Justice Kennedy, as you think through the issue of Obamacare, the Commerce Clause, and the power of Congress, reflect that there are many onerous obligations to act imposed on citizens by government, but ultimately Congress gets to decide if these are publicly beneficial.