National Federation of Independent Business v Sebelius 132 S. 2566 (2012) Mandating Health Insurance under the Commerce Clause Case 5.

National Federation of Independent
Business v Sebelius
132 S.Ct. 2566 (2012)
Mandating Health Insurance under the Commerce Clause
Case 5.1
Congress passed the Patient Protection and Affordable
Care Act (also known as Obama Care) in order to
increase the number of Americans covered by health
insurance and decrease the cost of health care. One key
provision in the law is the individual mandate, which
requires most Americans to maintain “minimum essential”
health insurance coverage. Attorneys general from
several states, along with businesses, challenged this
requirement (and other provisions of the law) as being
unconstitutional under the Commerce Clause. From a
series of federal court decisions below, some finding
the law constitutional and others not, the affected parties
appealed and the Supreme Court granted certiorari.
Their cases were consolidated for the court’s review.
ROBERTS, Chief Justice
The Constitution grants Congress the power to “regulate
Commerce.” (Art. I, § 8, cl. 3.) The power to regulate
commerce presupposes the existence of commercial
activity to be regulated. If the power to “regulate”
something included the power to create it, many of
the provisions in the Constitution would be superfluous.
For example, the Constitution gives Congress the
power to “coin Money,” in addition to the power to
“regulate the Value thereof.” And it gives Congress the
power to “raise and support Armies” and to “provide
and maintain a Navy,” in addition to the power to
“make Rules for the Government and Regulation of
the land and naval Forces.” If the power to regulate the
armed forces or the value of money included the power
to bring the subject of the regulation into existence,
the specific grant of such powers would have been
unnecessary. The language of the Constitution reflects
the natural understanding that the power to regulate
assumes there is already something to be regulated.
Our precedent also reflects this understanding.
As expansive as our cases construing the scope of the
commerce power have been, they all have one thing in
common: They uniformly describe the power as reaching
“activity.” It is nearly impossible to avoid the word
when quoting them.
The individual mandate, however, does not regulate
existing commercial activity. It instead compels
individuals to become active in commerce by purchasing
a product, on the ground that their failure to do so
affects interstate commerce. Construing the Commerce
Clause to permit Congress to regulate individuals
precisely because they are doing nothing would open
a new and potentially vast domain to congressional
authority. Every day individuals do not perform infinite
number of things. In some cases they decide not to do
something; in others they simply fail to do it. Allowing
Congress to justify federal regulation by pointing to the
effect of inaction on commerce would bring countless
decisions an individual could potentially make within
the scope of federal regulation, and—under the Government’s
theory—empower Congress to make those
decisions for him.
Indeed, the Government’s logic would justify a
mandatory purchase to solve almost any problem. To
consider a different example in the health care market,
many Americans do not eat a balanced diet. That group
makes up a larger percentage of the total population
than those without health insurance. The failure of that
group to eat a healthy diet increases health care costs
more than the failure of the uninsured to purchase
insurance. Those increased costs are borne in part by
failure of that group to have a healthy diet increases
health care costs, to a greater extent than other Americans
who must pay more, just as the uninsured shift
costs to the insured. Congress addressed the insurance
problem by ordering everyone to buy insurance. Under
the Government’s theory, Congress could address the
diet problem by ordering everyone to buy vegetables.
People, for reasons of their own, often fail to do things
that would be good for them or good for society. Those
failures—joined with the similar failures of others—
can readily have a substantial effect on interstate commerce.
Under the Government’s logic, that authorizes
Congress to use its commerce power to compel citizens
to act as the Government would have them act.
That is not the country the Framers of our Constitution
envisioned. James Madison explained that the
Commerce Clause was “an addition which few oppose
and from which no apprehensions are entertained.”
The Federalist No. 45, at 293. While Congress’s authority
under the Commerce Clause has of course expanded
with the growth of the national economy, our cases
have “always recognized that the power to regulate
commerce, though broad indeed, has limits.” The
Government’s theory would erode those limits, permitting
Congress to reach beyond the natural extent
of its authority, “everywhere extending the sphere of
its activity and drawing all power into its impetuous
vortex.” The Federalist No. 48, at 309 (J. Madison).
Congress already enjoys vast power to regulate much
of what we do. Accepting the Government’s theory
would give Congress the same license to regulate what
we do not do, fundamentally changing the relation
between the citizen and the Federal Government.
[ The complicated decision resulted in the lower
court decisions being both affirmed and reversed, but
the individual mandate was declared unconstitutional
under the Commerce Clause but constitutional as a tax.]
1. What was missing that the Court indicated was
needed in order to find that the mandate was
2. What was the purpose of the court’s discussion of
a healthy diet?
3. What sources does the court rely on for constitutional
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