National Federation of Independent

Business v Sebelius

132 S.Ct. 2566 (2012)

Mandating Health Insurance under the Commerce Clause

Case 5.1

FaCtS

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.

JUdICIaL OpInIOn

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.]

CaSe QUeStIOnS

1. What was missing that the Court indicated was

needed in order to find that the mandate was

constitutional?

2. What was the purpose of the court’s discussion of

a healthy diet?

3. What sources does the court rely on for constitutional

interpretation?