they key in lochner is we were talking about regulation of the states, right? the states are not limited to enumerated powers. the federal government is. it seems to me it is a different question when you ask yourself whether or not they're going to be limits on the federal power as opposed to the states which was the issue in lochner. >> i agree except the way in which the federal government stays in its sphere is by policing the boundary. is the government economic -- regulating economic activity? >> the reason this is concerning is because it requires the individual to do an affirmative act. our law has been you do not have the duty to rescue someone if that person is in danger. you do not have a duty to stop a man walking in from the car. absent some sort of relationship. there is severe moral criticism of that role but that is generally the rule. here the government is saying the federal government has the duty to tell the individual citizen it must act and that is different from what we have in previous phases. it changes the relationship of the federal g

illustrates one of the many reasons why justice holmes was wrong in his dissenting opinion in lock lochner in that the existing federalism makes it incompassible with certain ideologies which we would say are more all-embracing to the extent the public doesn't want them, people are free to flee within the united states and that provides a structural check on those policies which was one of the impetus for -- impeti -- >> i think it's impetuse. >> it's one of the motivations for why the federal constitution, the powers of the federal constitution had to be distorted in order to render it more powerful than otherwise would be to avoid the structural constraint built in our constitution. >> david silvers, georgetown university law center. this question is for professor karlan. a big part of the justification for health care is that the health care market is special, that's some sort of limiting principle, but is it functional to any sort of limit or will it be the case saying the court accepts health care as special it has to accept all future specialties if congress says cars are in fact spe