Instant Analysis: NFIB v. Sebelius (all of Roberts, most of Ginsburg)

July 2nd, 2012

Instant Analysis: NFIB v. Sebelius

This may be the longest I have ever waited for a Supreme Court opinion. I mean that in two senses. One, the buildup since March 28 for this case has been quite unreal. Second, I waited 9 hours after the case was released to get it (I was flying to London and took off as the opinion was being announced, but before I could get the PDF). Without further ado.

First, let me break down the portions of the opinion.

Only parts of Roberts’s opinion are for the entire Court (that is for Roberts, Ginsburg, Breyer, Sotomayor, and Kagan):

The introduction (the stuff that comes before Part I) was for Roberts alone.
Part I (pp. 1-11)was for Roberts, joined by Ginsburg, Breyer, Sotomayor, and Kagan.
Part II (pp. 11-15) was joined by GInsburg, Breyer, Sotomayor, and Kagan, which rejected the AIA argument.
Part III-C (pp. 33-35) was joined by Ginsburg, Breyer, Sotomayor,and Kagan, and concluded that the mandate may be upheld as within Congress’s Taxing Clause power.

Part III-A (pp. 16-30) was written only for Roberts, concluding that the mandate was not a valid exercise of Congress’s power under the Commerce Clause (16-27) and N&P Clause (27-30). Roberts effectively agrees with pp.4-16 of the joint dissent.
Part III-B (pp. 31-32) was written only for Roberts concluding that the mandate must be construed as imposing a tax if it can be.
Part III-D (pp. 44-45) was written only for Roberts, in response to Ginsburg with respect to construing the mandate as a tax or an unconstitutional regulation of inactivity.

Part IV (pp. 45- 59) was written for Roberts, Breyer, and Kagan, holding that the Medicaid expansion violates the Constitution (pp. 45-58). Ginsburg, joined by Sotomayor, more-or-less agrees with Part IV-B (pp. 55- 58) of Roberts’s opinion, which concludes that Medicaid’s severability clause is the appropriate remedy.

Justice Ginsburg’s lengthy dissent was joined in its entirety by Justice Sotomayor. Breyer and Kagan only joined Parts I, II, III, and IV.

Part I (pp. 2- 12), joined by all four, talks about the importance of ACA, and the problems it was aimed at solving.
Part II (pp. 12-31) joined by all four, rejects the Chief’s Commerce Clause argument.
Part III (pp. 31-36), joined by all four, rejects the Chief’s Necessary & Proper Clause Argument
Part IV (pp. 37), joined by all four, harkens back to Lochner.
Part V (pp. 38-61), joined only by Ginsburg and Sotomayor, rejects the Chief’s Medicaid argument.

The dissent is jointly written by Scalia, Kennedy, Thomas, and Alito, though Kennedy read it from the bench (I checked, O’Connor, Kennedy, and Souter took turns reading from their joint opinion in Planned Parenthood v. Casey. Curious that Nino did not also chime in on the dissent).
Part I (pp. 4-16) focuses on the individual mandate and the commerce clause/N&P Clause.
Part II (pp. 17- 26) focuses on the taxing power.
Part III (pp. 26- 28) focuses on the AIA.
Part IV (pp. 28- 48) focuses on the Medicaid Expansion.
Part V (pp. 48- 64) focuses on severability.
The conclusion (pp.64-65) wraps it up.

Thomas dissented solo to write that he would grant asylum to the Constitution in Exile (pp. 1-2).

I’ll fill in the rest later when I have time.

Chief Justice Owner, Err, John Roberts’s Controlling Opinion


Roberts opens up by noting that he is not second-guessing the legislature.

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

And the narrow, limited role of the Courts to police the boundaries:

Resolv- ing this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries.

Roberts succinctly states the notion that our liberties are protected in conjunction by the prohibitions in the Bill of Rights, as well as the structural limitations on what Congress can do (many only care for the former, and not the latter):

Today, the restrictions on government power foremost in many Americans’ minds are likely to be affirmative pro- hibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.
Indeed, the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enu- meration of powers sufficed to restrain the Government.

There is a brief discussion of the police powers, reserved to the states, including “punishing street crime, running public schools, and zoning property for development.” The last item is governed by the 5th Amendment. But, “This case concerns two powers that the Constitution does grant the Federal Government, but which must be read carefully to avoid creating a general federal authority akin to the police power.”

At some point Ilya Somin will use this quote in his “voting with your feet” work:

Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed.

Has the Court ever applied the Necessary & Proper clause power to the taxing power? He cites McCulloch, but that involved the commerce clause.

The reach of the Federal Government’s enumerated powers is broader still because the Constitution authorizes Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

And more on the limited role of the Court, and the need to defer to Congress’s decisions.

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices

Roberts cites his predecessor, John Marshall three times in this paragraph, including one Marshall wrote pseudonymically. The Chief is really trying to wrap himself in Marshall’s robe.

Our deference in matters of policy cannot, however, become abdication in matters of law. “The powers of the legislature are defined and limited; and that those lim- its may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803). Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed. “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Mary- land 190–191 (G. Gunther ed. 1969). And there can be no question that it is the responsibility of this Court to en- force the limits on federal power by striking down acts of Congress that transgress those limits. Marbury v. Madi- son, supra, at 175–176.

You ready?

The questions before us must be considered against the background of these basic principles.

Part I

Just a general recitation of the provisions of the ACA and the procedural posture of the different litigations.

Part II

This part rejects the Anti-Injunction Act argument. This is an argument that no one, including the federal government accepted. Oh yeah, Judge Kavanaugh bought it. He looks a lot better than the Chief now. I wonder how this case will affect the next Republican nomination. David Bernstein blogged that GWB’s sole criterion was detainee cases. Maybe federalism and limited government will be the litmus test for the next Republican president?

So, we get to the bizarre contradiction. The responsibility provision is a tax for purposes of the taxing power, but not for purposes of the AIA.

Amicus contends that the Internal Revenue Code treats the penalty as a tax, and that the Anti-Injunction Act therefore bars this suit.
The text of the pertinent statutes suggests otherwise. The Anti-Injunction Act applies to suits “for the purpose of restraining the assessment or collection of any tax.” §7421(a) (emphasis added). Congress, however, chose to describe the “[s]hared responsibility payment” imposed on those who forgo health insurance not as a “tax,” but as a “penalty.” §§5000A(b), (g)(2). There is no immediate reason to think that a statute applying to “any tax” would apply to a “penalty.”
Congress’s decision to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.” See Thomas More, 651 F. 3d, at 551. Where Congress uses certain language in one part of a statute and different language in another, it is generally pre- sumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983).

The dissenters wrote their own analysis on the AIA, even though they agreed with Roberts’s outcome, if nothing else, because this inconsistency does not make much sense. Even Sotomayor expressed befuddlement at the Solicitor General’s position during oral argument.

And what’s interesting is that Roberts defers to the governments–and not the challengers–construction of the AIA. I think this is a win for the Administration that hasn’t been given much attention.

In light of the Code’s consistent distinction between the terms “tax” and “as- sessable penalty,” we must accept the Government’s in- terpretation: §6201(a) instructs the Secretary that his authority to assess taxes includes the authority to assess penalties, but it does not equate assessable penalties to taxes for other purposes.

So that’s that. Onto Part III.

The Affordable Care Act does not require that the pen- alty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits.

Part III-A

In this part, Roberts writes for himself about the commerce power, and the necessary and proper clause argument. While Roberts accords the joint dissent, the joint dissent does not agree with, let alone even *mention* Roberts. Jan Crawford says this was an intentional slight of Roberts.

Roberts begins by explaining the guaranteed issue and community rating provisions, and why the mandate was created to solve the cost-shifting problems.

Part III-A-1

This sub-section focuses on the commerce clause.

Robert’s recitation of the standard uses the word activity over-and-over again.

We have recognized, for example, that “[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states,” but extends to *activities* that “have a substantial effect on interstate commerce.” United States v. Darby, 312 U. S. 100, 118–119 (1941). Congress’s power, more- over, is not limited to regulation of an *activity* that by itself substantially affects interstate commerce, but also extends to *activities* that do so only when aggregated with similar *activities* of others. See Wickard, 317 U. S., at 127–128 . . . The power to regulate commerce presupposes the existence of com- mercial *activity* to be regulated. . . . Our precedent also reflects this understanding. As expansive as our cases construing the scope of the com- merce power have been, they all have one thing in com- mon: They uniformly describe the power as reaching *“activity.”* It is nearly impossible to avoid the word when quoting them. . . .
Our precedents recognize Con- gress’s power to regulate “class[es] of *activities*,” Gonzales v. Raich, 545 U. S. 1, 17 (2005) (emphasis added), not classes of individuals, apart from any activity in which they are engaged, see, e.g., Perez, 402 U. S., at 153

Roberts then quotes from Lopez, Perez, Wickard, NLRB v. Jones & Laughlin, which all use the word “activity.”

In response to RBG’s citation of two eminent domain cases from the late 1890s that do not use the word “activity,” Roberts writes “The fact that the Fifth Amendment requires the payment of just compensation when the Government exercises its power of eminent domain does not turn the taking into a commercial transaction between the landowner and the Government, let alone a government-compelled transaction between the landowner and a third party.”

You know, usually the Chief’s writing is so, so crisp and persuasive. Reading this footnote, and the other one in response to RBG’s line about compelled mandate was unclear and cloud. I had to read it twice. I found neither persuasive, and struggled to understand it. This was certainly rushed. And the fact that all points in response are buried in footnotes shows how quickly this was put together.

Here is the first appearance of some form of an unprecedented argument–though he does not use the magic word.

But Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product.3 Legislative novelty is not nec- essarily fatal; there is a first time for everything.

Roberts–for the first time–responds to RBG’s examples of congressional mandates

The examples of other congressional mandates cited by JUSTICE GINSBURG, post, at 35, n. 10 (opinion concurring in part, concurring in judgment in part, and dissenting in part), are not to the contrary. Each of those mandates—to report for jury duty, to register for the draft, to purchase firearms in anticipation of militia service, to exchange gold currency for paper currency, and to file a tax return—are based on constitutional provisions other than the Commerce Clause. See Art. I, §8, cl. 9 (to “constitute Tribunals inferior to the supreme Court”); id., cl. 12 (to “raise and support Armies”); id., cl. 16 (to “provide for organiz- ing, arming, and disciplining, the Militia”); id., cl. 5 (to “coin Money”); id., cl. 1 (to “lay and collect Taxes”).

So what? This seems entirely unpersuasive. The only argument here is that it is unpersuasive. Roberts does not all address why mandates could be done under these other provisions. And a thought just occurred to me. Could a flat-out purchase mandate be imposed as necessary and proper incidence to the taxing power? That is no longer unprecedented. As the Court kind did this. Forget penalties or taxes.

Roberts buys Mike Carvin’s argument–regulating commerce presupposes commerce exists. If congress can create regulate commerce it creates, the other enumerated provisions in Article I, s. 8 would be superfluous.

The power to regulate commerce presupposes the existence of com- mercial activity to be regulated. . . .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 unneces- sary. The language of the Constitution reflects the natu- ral understanding that the power to regulate assumes there is already something to be regulated.

Ah, the old “mere surplusage” argument from Marbury. More Marshall citations.

You know, I’ve thought similar things about federal question jurisdiction. If Congress can make any statute involving some federal question, it can create unlimited federal court jurisdiction. This ties into my thinking about the constitutionality of exclusive jurisdiction. Anyway back to the question at hand. . . .

So, Roberts works his way to the point that the mandate compels individuals to become active, and ties it into a nice slippery-slope-unprecedented-argument:

The individual mandate, however, does not regulate existing commercial activity. It instead compels individ- uals 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 Con- gress to regulate individuals precisely because they are doing nothing would open a new and potentially vast do- main to congressional authority. Every day individuals do not do an 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.

And here comes the broccoli mandate, except substitute wheat (from Wickard) with broccoli

The aggregated decisions of some consumers not to purchase wheat have a substantial effect on the price of wheat, just as decisions not to purchase health insurance have on the price of insurance. Congress can therefore command that those not buying wheat do so, just as it argues here that it may command that those not buying health insurance do so. The farmer in Wickard was at least actively engaged in the production of wheat, and the Government could regulate that activity because of its effect on commerce. The Government’s theory here would effectively override that limitation, by establishing that individuals may be regulated under the Commerce Clause whenever enough of them are not doing something the Government would have them do.

Limiting. No limiting principle.

And here he gets closer to broccoli–just “vegetables.”

Under the Gov- ernment’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.

This libertarian portion is couched in Madison.

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.”

Is that even an originalist argument? This isn’t what our Founders expected? Eh, methodology, feh. At some point I’ll add up all the citations to the Federalist. This seems to be the extent of any originalist research (unless on counts citations to Marshall).

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

In other words, giving congress the power to compel mandates through its commerce power is bad. But letting congress do it through its taxing power is ok. Got that?

And this footnote from the Chief in response to RBG seems so, so weak.

In an attempt to recast the individual mandate as a regulation of commercial activity, JUSTICE GINSBURG suggests that “[a]n individual who opts not to purchase insurance from a private insurer can be seen as actively selecting another form of insurance: self-insurance.” Post, at 26. But “self-insurance” is, in this context, nothing more than a de- scription of the failure to purchase insurance. Individuals are no more “activ[e] in the self-insurance market” when they fail to purchase insurance, ibid., than they are active in the “rest” market when doing nothing.

What is the rest market? And really, when I am resting, it is because I chose to rest. That is a decision. Choosing to sleep is a decision. Unless I fall asleep against my will. Not sure what the mens rea requirements are for a nap.

This section is a reverse Herbert-Spencer argument. We don’t care what economists think, we look to the Constitution.

To an economist, perhaps, there is no difference between
activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not meta- physical philosophers.

What kind of ridiculous argument is that? WTF does that even mean. Are we asking what the Founders would have thought of health insurance markets? Practical statesmen? Meta-physical philosophers? (Thomas Jefferson–though not a framer–would probably subscribe to that group). We are talking about standard economics. The Founders read Adam Smith. The Wealth of Nations was standard reading. It is basic supply and demand. This argument is insulting. See, if a GMU law & econ clerk was there, this would’ve been much better.

Anyway, that previous statement does not support what comes after

South Carolina v. United States, 199 U. S. 437, 449 (1905). The Framers gave Congress the power to regulate com- merce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this un- derstanding. There is no reason to depart from that un- derstanding now.

What understanding? Roberts speculated, with no evidence, about understanding the framers would have had about the insurance market, and then said he won’t depart from it! That is like bundling some straw, building a straw man, knocking it down, and then putting up another straw man in its place.

Roberts cites this line from Oral Argument. When the Court cites an argument in the transcript, that is not in the briefs, that probably means you should not have said it at arguments. Hear that SG?

The Government regards it as sufficient to trigger Congress’s authority that almost all those who are unin- sured will, at some unknown point in the future, engage in a health care transaction. Asserting that “[t]here is no temporal limitation in the Commerce Clause,” the Gov- ernment argues that because “[e]veryone subject to this regulation is in or will be in the health care market,” they can be “regulated in advance.” Tr. of Oral Arg. 109 (Mar. 27, 2012). The proposition that Congress may dictate the conduct of an individual today because of prophesied future ac- tivity finds no support in our precedent.

Prophesized future? Is that something like the doctrine of inevitable discovery in Fourth Amendment law? Where a search is valid, even if the Constitution was violated, because the cop would have found evidence anyway? Or what about the doctrine of anticipatory repudation in contract law? I digress.

But we have never permitted Congress to anticipate that activity itself in order to regulate individuals not currently engaged in commerce. Each one of our cases, including those cited by JUSTICE GINSBURG, post, at 20–21, involved preexisting economic activity. See, e.g., Wickard, 317 U. S., at 127–129 (producing wheat); Raich, supra, at 25 (growing marijuana).

That is just unprecedented, stated differently.

Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.

And he returns to the police power of the state, which was addressed earlier. And Roberts says that health care is no different from broccoli.

But cars and broccoli are no more purchased for their “own sake” than health insurance. They are purchased to cover the need for transportation and food.

This sounds a bit like a prognostication of the future:

And for most of those targeted by the mandate, significant health care needs will be years, or even decades, away. . . . The proximity and degree of connection between the mandate and the subsequent commercial activity is too lack- ing to justify an exception of the sort urged by the Gov- ernment. The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sus- tained under a clause authorizing Congress to “regulate Commerce.”

Part III-B-2

Next Roberts turns to N&P clause. In other words, the Court is deferential except where it’s not deferential.

As our jurisprudence under the Necessary and Proper Clause has developed, we have been very deferential to Congress’s determination that a regulation is “necessary.” We have thus upheld laws that are “‘convenient, or use- ful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’” Comstock, 560 U. S., at ___ (slip op., at 5) (quoting McCul- loch, supra, at 413, 418). But we have also carried out our responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution.

Has Court ever struck down a law as a violation of N&P? I mean, N&P standing by itself, not like a case like Printz or New York that were really 10th amendment cases

Applying these principles, the individual mandate can- not be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause in- volved exercises of authority derivative of, *and in service to,* a granted power. . . The individual mandate, by con- trast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enu- merated power.

Talk about a weak QED. The “in service to” language is not to be found in Breyer’s Comstock opinion. I like that Gloss, but Roberts added it. Breyer just had some feckless multi-factor balancing test.

Ultimately, Roberts keeps going back to a slippery slope argument.

Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it.

Really poor choice of words with “preexisting activity.” Just makes me think of “preexisting condition.”

Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.

This was the point of Ilya Somin’s Amicus for WLF. But it is here weakly developed. No citations or explanation. Weak sauce.

Roberts distinguishes away Raich in like 3 sentences.

Raich thus did not involve the exercise of any “great substantive and independent power,” McCulloch, supra, at 411, of the sort at issue here. Instead, it concerned only the constitutionality of “indi- vidual applications of a concededly valid statutory scheme.” Raich, supra, at 23 (emphasis added).

That is a pitiful distinction.

Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure to purchase health insurance, neither can it be upheld as a “necessary and proper” component of the insurance re- forms. The commerce power thus does not authorize the mandate.

What do you mean “just as.” Would you care to explain to us (you are writing for yourself, so you have to convince no one ) what your link is between Commerce and N&P?

And then, he closes that section with this!

Accord, post, at 4–16 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting).

I usually ignore blue book symbols, but is really important here. My blue book is sitting 3,000 miles away across the pond, so I cite wikipedia:

“Accord” is used when two or more sources state or support the proposition, but the text quotes or refers to only one; the other sources are then introduced by “accord.” In other words, accord means “I just cited something that supports my proposition, and now here’s another thing that supports it too.”

So what does this mean? He didn’t at any point mention the opinions of the 4 dissenters. He only responded directly to Ginsburg. Similarly, the four-dissenters never mention Roberts’s opinion. It is like they are giving each other the silent treatment. All the Chief-Umpire could muster was a frickin accord.

So where does this leave us? The 4 dissenters clearly didn’t join JGR’s opinion. JGR gave a weak bluebook cite, but didn’t join their opinions. Their rationales are similar, but not totally reconcilable.

I don’t think there is any solid 5-vote rationale for commerce clause or N&P jurisprudence in this frickin 200 page opinion.

The dissenters may have done themselves a huge disservice by not joining the Chief’s opinion. At the least they could have salvaged some commerce clause limitations for the future.

So let’s go to JGR’s transition section.

Part III-B

That is not the end of the matter. Because the Com- merce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to “lay and collect Taxes.”

Why? If it is constitutional as a tax, why waste 30 pages discussing commerce and necessary and proper? Perhaps if he wrote it in response to a dissent, that would be fine, but he doesn’t mention the dissent (really the concurring opinion here). That entire section seems inconsequential dicta. Judges (both of them) frequently deleted stuff I wrote that was not necessary to the disposition of cases. This even further weakens any claims that the Chief’s opinion can be cited in the future.

The Government does not claim that the taxing power allows Congress to issue such a command. Instead, the Government asks us to read the mandate not as order- ing individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.

Why couldn’t the government issue a mandate as a necessary and proper incident of its enumerated taxing power?


Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a rea- sonable one.

Why not just start at the alternate grounds. This isn’t a law review article Chief, where you are supposed to opine on stuff that doesn’t matter to Courts (you see what I did there).

Ah, no vehicles in the park! I always wished it would make it into a judicial opinion. Just not this one.

The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads “no vehicles in the park” might, or might not, ban bicycles in the park.

But to waste this away as a segue to constitutional avoidance? Seems a bit academicy. And here comes the slight-of-hand.

The most straightforward reading of the mandate is that it commands individuals to purchase insurance. . . . Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earn- ing income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

But buying gasoline or earning income is activity. Doing nothing is not activity. You just spent 30 pages explaining that. But does the activity-inactivity distinction only apply to commerce clause powers? Why not taxing clause power. Congress has never taxed inactivity. Why is that not unprecedented too? What about a horrible slippery slope?

And deference:

The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below.

I find this turn so unconvincing. I’ll finish Part III-C, where the other 4 join the Chief.

Part III-C

This section, joined by Ginsburg, Breyer, Sotomayor, and Kagan, accepts that the mandate is a tax for purposes of the taxing power. “The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many re- spects.” You know, even when a Justice tries to avoid being political by voting the other way, he is still being political. I’m not sure which is worse. Roberts being a political conservative and voting to strike down the mandate or being a political actor cognizant of the implications of his vote and voting the other way, even though he obviously thought the law was unconstitutional.

And this paragraph does all the heavy lifting;

It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power. It is up to Con- gress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Con- gress’s choice of label on that question. That choice does not, however, control whether an exaction is within Con- gress’s constitutional power to tax.

Why does it not control? And is it Congress’s choice? I seem to recall a big debate over whether the AIA is jurisdictional and whether it can be waived. The Court seemed to totally gloss over that. If the AIA is jurisdictional, and it cannot be waived, the Congress has no choice (contrary to the SG’s bizarre position). If it is not jurisdictional, then I suppose Congress could “choose,” but the Court punts on that issue without so saying.

Roberts cites Drexel Furniture, the Liquor Tax Cases, and New York v. US for the proposition that labels do not always control how the Court has construed acts of congress. Though, in those cases, it was labelled *as a tax* and the Court said it was not. This case presents the reverse scenario. Congress said it *was not a tax* and the Court said it was. It seems incongruous that the Court would construe an act of Congress broadly, running smack dab into a constitutional question, rather than just construing it as a penalty. But I guess that would run into the other constitutional question of whether the penalty could be imposed under commerce n&p so there are several end runs around the avoidance cannon.

In a footnote, Roberts responds to this point raised by the dissenters.

Sotelo, in particular, would seem to refute the joint dissent’s conten- tion that we have “never” treated an exaction as a tax if it was denomi- nated a penalty. Post, at 20. We are not persuaded by the dissent’s attempt to distinguish Sotelo as a statutory construction case from the bankruptcy context. Post, at 17, n. 5. The dissent itself treats the question here as one of statutory interpretation, and indeed also relies on a statutory interpretation case from the bankruptcy context. Post, at 23 (citing United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996)).

I’m not familiar with Sotelo, but really a case that no one has heard of is the decisive precedent to show that this is a valid tax is weak sauce.

So I remember something at oral argument about whether a person would comply with the law if he does not obtain health insurance.

While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insur- ance, beyond requiring a payment to the IRS. The Gov- ernment agrees with that reading, confirming that if someone chooses to pay rather than obtain health insur- ance, they have fully complied with the law. Brief for United States 60–61; Tr. of Oral Arg. 49–50 (Mar. 26, 2012).

The gov said you comply with the law so long as you pay the tax. Um. Paying the tax or penalty or whatever you call it is the punishment for *not* complying with the law. This may be semantics, but the distinction seems really weak.

Indeed, it is estimated that four million people each year will choose to pay the IRS rather than buy insurance. See Congressional Budget Office, supra, at 71. We would expect Congress to be troubled by that prospect if such conduct were unlawful. That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citi- zens may lawfully choose to pay in lieu of buying health insurance.

The Chief may want to read Harvey Silverglate’s “Three Felonies a Day.” Congress has criminalized so many aspects of every day life that most of us commit more felonies than we even realize.

Roberts example about labels is so unpersuasive.

The joint dissenters argue that we cannot uphold §5000A as a tax because Congress did not “frame” it as such. Post, at 17. In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels. An example may help illustrate why labels should not control here. Sup- pose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient win- dows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,” a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the pay- ment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.

We aren’t talking about some trivial energy tax credit. We are talking about the crowning legislative achievement of a President. A Bill that was debated for months (not on constitutional grounds). It is curious that there is no citation to the legislative history. Even for Breyer. If there were, we would see that Congress chose *not* to label it as a tax for political purposes. Obama promised not to raise taxes. He could not call it a tax. See the President’s appearance on Stephonopolous. The decision not to label it is as tax was an overt decision.

This is not giving “practical effect to the Legislature’s enactment.” It is giving political cover to what would have been an unpopular decision.

Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it.

I swear, this is underwear gnomes logic.

Step 1: Congress has the power to impose this exaction as tax.
Step 2: ?
Step 3: Congress imposed this exaction as a tax.

Except we know what Step 2 was. Congress *didn’t* impose it as a tax. It was a really, really big political deal.

Next, the opinion turns to capitation and apportionment stuff. Whatever. He cites some opinions from Justices Chase, Patterson, and Iredell in Hylton v. US in 1796. I think that may be the same party as Wayre (sp) v. Hilton. Not sure.

A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other cir- cumstance.” Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared respon- sibility payment is that it is triggered by specific cir- cumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.

It’s unprecedented, so it is not an unconstitutional tax. You see, its backwards.

Next Roberts addresses concerns that Congress could do under the tax power what i could not do under the commerce power

Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something. Three considerations allay this concern.

Worry not the Chief says.

First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity.

It also says nothing about whether Congress can regulate inactivity. That interpretation only came from a strained gloss on recent cases. So yeah. No allaying there.

A capitation, after all, is a tax that every- one must pay simply for existing, and capitations are expressly contemplated by the Constitution.

But again, a capitation is contemplated by the Constitution. You just spent a few paragraphs saying why this is *not* a capitation. So that would seem to cut against the argumetn.

The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we ab- stain from the regulated activity.

Say what? What Court held that? Where? Is this a reading that 5 Justices adopted this position? I’m not sure this is right–and I have no idea how RBG and others let this sentence into the joint opinion.

Anyway, it’s not unprecedented.

Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchas- ing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.

The Second point must’ve made RBG cringe. The Chief cites pre-Switch-in-Time-Part-One precedents to show that the Court has policed the taxing power aggressively.

Second, Congress’s ability to use its taxing power to influence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior other- wise regarded at the time as beyond federal authority. See, e.g., United States v. Butler, 297 U. S. 1 (1936); Drexel Furniture, 259 U. S. 20.

So what is the hierarchy of the power to tax and power to regulate commerce?

Third, although the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Con- gress may regulate a particular decision under the Com- merce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individ- uals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the at- tendant consequences of being branded a criminal: depri- vation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment op- portunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.

I’m glad the Chief used this lame dicta as a place to argue that someone convicted of a crime–felony or misdemeanor–can constitutionally be deprived of the right to keep and bear arms (an issue percolating in the courts–wait till this gets cited) and the right to vote (the Court has danced around this issue a few cases, but I’m glad they resolved it here). Not like bearing arms or voting is a constitutional right, protected by another constitutional liberty, or anything.

And social stigma? What does that even mean? Are we bringing pillories back? This paragraph is so unnecessary and will be cited in a very negative fashion.

By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the se- vere burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice

Do me a favor. Look up what happens when a person refuses to pay taxes. It is a crime. The United States can bring criminal charges. Perhaps there is one level removed, but this applies to taxes. You always have the choice to pay at ax. But if you make that choice, you open yourself up for criminal prosecution. The choice *not* to pay the tax is “lawful” only in the loosest sense of the term.

This footnotes seems to be a distinction without a difference:

Of course, individuals do not have a lawful choice not to pay a tax due, and may sometimes face prosecution for failing to do so (although not for declining to make the shared responsibility payment, see 26 U. S. C. §5000A(g)(2)). But that does not show that the tax restricts the lawful choice whether to undertake or forgo the activity on which the tax is predicated. Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax.

Part III-D

Here, the Chief writes only for himself. He responds to RBG’s (and my) question about why he needed to even discuss the commerce clause argument if it could be upheld as tax.

Part IV

JUSTICE GINSBURG questions the necessity of rejecting the Government’s commerce power argument, given that §5000A can be upheld under the taxing power. Post, at 37. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a com- mand if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a stat- ute to save it, if fairly possible, that §5000A can be inter- preted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.

This makes me think of the Saucier v. Katz line of cases. Do you first determine whether a constitutional right is clearly established, or do you peek ahead to see if it was violated. I don’t find this argument persuasive. I had to read it twice to figure out the gist, which tells me the Chief was being circuitous. Though, the Chief didn’t just assess the commerce clause question. He spent a lot of time on it, and said it wold be a way to resolve the case.

And what do we make of this paragraph?

The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.

Part IV-A

We turn to Medicaid here. This portion was only joined by Breyer and Kagan. The dissenters agreed with the outcome, but did not join this portion, at all.

Random asides. I am currently onboard American 81 from Heathrow to Dallas/Flt. Worth. I am watching some show about the construction of the Olympic Park in London, which I visited on Saturday. The host interviewed the organizer. He said something to the effect of–preparing a country for the Olympic Games is akin to preparing a country for war. You have to mobilize the entire country for war. The organization and plans are very militaristic. Why the hell would anyone say this. War is a terrible thing. Thomas Friedman asides, going to war is absolutely horrible for the economy, and just breaks a lot of windows. Also, isn’t that in poor taste in light of England’s not-so-distant history of mobilizing for war? See also my earlier discussion of “compelled purchase” (the U.K.’s version of eminent domain where you have no recourse or legal challenge to condemnation).

Also, they served lunch on the plane. My choices were beef or pasta. I asked what kind of beef. The surly flight attendant said, “are you serious? Do you want me to check what kind of beef it is.” After she gave it to me, the package was labelled beef straugoneuf (sp). I don’t think it would have been much work for her to read the label before serving the beef to about 400 people on this 777. Anyway, it tasted like crap. And there was broccoli in the package. I was hungry, so I felt compelled to eat broccoli. Not quite a mandate. And on that tone, back to health care.

Why is the case NFIB v. Sebellius? WHy not Florida v. HHS? The NFIB and their plaintiffs are seldom mentioned. Most of this is about the states. Maybe it is a better title of the case? Oh, and what about the standing of the individual plaintiffs? And standing for the states? 10th Amendment stuff? Anyway, back to reading.

Roberts opens up by talking about the Medicaid expansion, and reciting precedents from New York v. US, Alden v. Maine, Bond, and Printz. Nothing about commandeering the people.

No citations for Dole until 5 pages in, and it isn’t clear that the Court’s holding is premised on Dole.

Given the nature of the threat and the programs at issue here, we must agree. We have upheld Congress’s authority to condition the receipt of funds on the States’ complying with restrictions on the use of those funds, because that is the means by which Congress ensures that the funds are spent according to its view of the “general Welfare.” Conditions that do not here govern the use of the funds, however, cannot be justified on that ba- sis. When, for example, such conditions take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressur- ing the States to accept policy changes.

So what is the rule (per 3 Justices)? Only threatening to terminate other independent grants? Why is that not Dole?

The Court found that the condition was “directly related to one of the main purposes for which highway funds are expended—safe interstate travel.” 483 U. S., at 208. At the same time, the condition was not a restriction on how the highway funds—set aside for spec- ific highway improvement and maintenance efforts—were to be used.

Next he turns to the fact that South Dakota only stood to lose 5%. But that ducks the issue of whether it was an independent grant. This, and not the amount, seems to be what is key here. Maybe not.

Yet, next Roberts turns to the nature of the inducement.

In this case, the financial “inducement” Congress has chosen is much more than “relatively mild encourage- ment”—it is a gun to the head. . . The threatened loss of over 10 percent of a State’s overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.12 . . .
12JUSTICE GINSBURG observes that state Medicaid spending will in- crease by only 0.8 percent after the expansion. Post, at 43. That not only ignores increased state administrative expenses, but also assumes that the Federal Government will continue to fund the expansion at the current statutorily specified levels. It is not unheard of, however, for the Federal Government to increase requirements in such a manner as to impose unfunded mandates on the States. More importantly, the size of the new financial burden imposed on a State is irrelevant in analyzing whether the State has been coerced into accepting that burden. “Your money or your life” is a coercive proposition, whether you have a single dollar in your pocket or $500.

I can’t believe Breyer let Roberts use this language. What about civil rhetoric. Gun!? They have no place in the district! Your money or your life? Strong language.

Roberts respons to RBG’s argument that Dole is distinguishable.

JUSTICE GINSBURG claims that Dole is distinguishable because here “Congress has not threatened to withhold funds earmarked for any other program.” Post, at 47. But that begs the question: The States contend that the ex- pansion is in reality a new program and that Congress is forcing them to accept it by threatening the funds for the existing Medicaid program. We cannot agree that existing Medicaid and the expansion dictated by the Affordable Care Act are all one program simply because “Congress styled” them as such. Post, at 49. If the expansion is not properly viewed as a modification of the existing Medicaid program, Congress’s decision to so title it is irrelevant.13

What begs what question? What weak reasoning. Again, the Court ignores what Congress actually did. So the Chief says that they are not one program, even though that is what Congress wrote. I don’t really get the last sentence. I’m not sure who is properly viewing. So the Court thinks its all one program even though Congress said it wasn’t? I am really not sure.

13Nor, of course, can the number of pages the amendment occu- pies, or the extent to which the change preserves and works within the existing program, be dispositive. Cf. post, at 49–50 (opinion of GINSBURG, J.). Take, for example, the following hypothetical amend- ment: “All of a State’s citizens are now eligible for Medicaid.” That change would take up a single line and would not alter any “operational aspect[] of the program” beyond the eligibility requirements. Post, at 49. Yet it could hardly be argued that such an amendment was a permissible modification of Medicaid, rather than an attempt to foist an entirely new health care system upon the States.

So single-payer (Medicaid for all) would be a whole new program? Would Medicaid for all be unconstitutional? Just asking.

Roberts actually labels the ACA Medicaid expansion as a form of universal health coverage.

It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide uni-versal health insurance coverage.

How in the hell did Breyer joint his.

So this suggests Roberts does not think it was the same program.

Indeed, the manner in which the expansion is struc-
tured indicates that while Congress may have styled the expansion a mere alteration of existing Medicaid, it recog- nized it was enlisting the States in a new health care program. Congress created a separate funding provision to cover the costs of providing services to any person made newly eligible by the expansion.

Part IV-B

Justices Ginsburg and Sotomayor kinda join this part.

It seems the rule here is that Congress can fund whatever it wants, but it cannot threaten to take away existing funding.

Nothing in our opinion precludes Congress from offering funds under the Affordable Care Act to expand the availa- bility of health care, and requiring that States accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding. . . . In light of the Court’s holding, the Secretary cannot apply §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion.

So the Medicaid expansion is fine, and Congress could provide the funding itself, but the Secretary cannot withdraw existing funding.

And that’s as far as the Court goes.

That fully remedies the constitutional violation we have identified. The chapter of the United States Code that contains §1396c includes a severability clause confirming that we need go no further. That clause specifies that “[i]f any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shall not be affected thereby.” §1303. Today’s holding does not affect the continued ap- plication of §1396c to the existing Medicaid program. Nor does it affect the Secretary’s ability to withdraw funds pro- vided under the Affordable Care Act if a State that has chosen to participate in the expansion fails to comply with the requirements of that Act.

Gee, that was not the severability discussion I was expecting in this case. So a severability clause is all it takes. I’m sure I could make some argument that withholding funds from states was the whole reason how that expansion was supposed to work. What is the penalty now for Florida deciding not to comply? The feds would just have to pay 100%themselves. And if a state decides to comply, but does not do so correctly, the secretary can then withhold funds?Isn’t that a bit of a perverse incentive?

This is not to say, as the joint dissent suggests, that we are “rewriting the Medicaid Expansion.” Post, at 48. Instead, we determine, first, that §1396c is unconstitu- tional when applied to withdraw existing Medicaid funds from States that decline to comply with the expansion. We then follow Congress’s explicit textual instruction to leave unaffected “the remainder of the chapter, and the application of [the challenged] provision to other persons or circumstances.” §1303. When we invalidate an applica- tion of a statute because that application is unconstitu- tional, we are not “rewriting” the statute; we are merely enforcing the Constitution.

It wasn’t me! The Constitution made me do it!

he question here is whether Congress would have wanted the rest of the Act to stand, had it known that States would have a genuine choice whether to participate in the new Medicaid expansion. Unless it is “evident” that the answer is no, we must leave the rest of the Act intact. We are confident that Congress would have wanted to preserve the rest of the Act. It is fair to say that Congress assumed that every State would participate in the Medi- caid expansion, given that States had no real choice but to do so.

Um, 20-something states filed federal lawsuits minutes after the law was signed. They said they were doing that months in advance. I don’t but this.

We have no way of knowing how many States will ac- cept the terms of the expansion, but we do not believe Congress would have wanted the whole Act to fall, simply because some may choose not to participate. The other reforms Congress enacted, after all, will remain “fully operative as a law,” Champlin, supra, at 234, and will still function in a way “consistent with Congress’ basic objec- tives in enacting the statute,” Booker, supra, at 259. Confident that Congress would not have intended any- thing different, we conclude that the rest of the Act need not fall in light of our constitutional holding.

With this reasoning, it is safe to say the Chief would have severed the mandate, had he gone there.

Concluding section of Roberts’s opinion

What does * * * actually mean. Not sure who joined this. Is it part of Part IV or not? Well, I think this is just the Chief because it talks about Commerce Clause. I’ll call this Part V.

The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to con- strue what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Con- gress’s power to tax.

Just taxing wealthy people who don’t buy health insurance. You know, when you phrase it like that it actually seems much worse.

The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is re- served to the people.

This is just for Roberts. He says “The Court” again, but he is only speaking for himself. He is not speaking for any of the dissenters.

What a bizarre opinion. The Chief, who is usually such a brilliant writer tossed together a haphazard dog pile. It was rambling, inconsistent, and inartfully drafted. It took me several days to finish this. I am just disappointed.

Justice Ginsburg’s Concurring Opinion

RBG opens up by saying Congress could have imposed universal health care as social security for all, but wanted to help private insurers and the states (I agree with the former, not the latter).

Part I

The provision of health care is today a concern of na­ tional dimension, just as the provision of old­age and survivors’ benefits was in the 1930’s. In the Social Secu­ rity Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to THE CHIEF JUSTICE, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

Oh, I sense we are going to hear about Lochner soon. She cites Darby, NLRB v. Jones & Laughlin.

THE CHIEF JUSTICE’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it. See, e.g., Railroad Retirement Bd. v. Alton R. Co., 295 U. S. 330, 362, 368 (1935) (invalidating compulsory retirement and pension plan for employees of carriers subject to the Inter­ state Commerce Act; Court found law related essentially “to the social welfare of the worker, and therefore remote from any regulation of commerce as such”). It is a reading that should not have staying power

RBG discusses how health care is different, 99.5% of all people have been to a doctor of some sorts, and it is expensive.

Although every U. S. domiciliary will incur significant medical expenses during his or her lifetime, the time when care will be needed is often unpredictable. An accident, a heart attack, or a cancer diagnosis commonly occurs with­ out warning. Inescapably, we are all at peril of needing medical care without a moment’s notice.

Domicilary? Is that instead of saying citizen? Are undocumented persons covered by ACA? I don’t know. Next RBG talks about cost-shifting, and the fact that even those without health insurance must be cared for. Next, she talks about the facts that states can’t handle this problem alone, as once one state provides universal health care, others will flood there for care. Next, RBG explains why the mandate–along with guaranteed issue and community rating—was used as an alternative to single-payer. When community-rating and guaranteed issue were imposed in states, including Jersey!?!?, it was “disastrous.”

Shout- out to Mitt Romney?

Massachusetts, Congress was told, cracked the adverse selection problem. By requiring most residents to obtain insurance, see Mass. Gen. Laws, ch. 111M, §2 (West 2011), the Commonwealth ensured that insurers would not be left with only the sick as customers. As a result, federal lawmakers observed, Massachusetts succeeded where other States had failed.

Part II

Part II-A

RBG talks about how the Commerce Clause was meant to remedy the Federal Government’s lack of power under the Articles of Confederation. She, obligatorily (wow that is a word, no red squiggle, win!) cites Madison, Hamilton, and the “Framers’ intent.” Though curiously she does not cite the Federalist, but private letters of Hamilton and Madison. Roberts cites the Federalist, though he does cite a pseudonymic paper by Marshall. (update, she does cite Hamilton in Federlist 34 on the next page).

Part II-B

The Court reviews Congress’s commerce-clause authority based on “practical” considerations, including “actual experience.”

Until today, this Court’s pragmatic approach to judging whether Congress validly exercised its commerce power was guided by two familiar principles.

So who is “this Court”? I have the same objection here as I did about CJ’s usage of the term “Court” with respect to commerce clause issues. There was not a 5-vote bloc on any commerce clause issue. Why does RBG refer to it as the Court? This makes me think that perhaps she views this case as changing the law? Or maybe it was just an artifact of a time when the Court (rather than the Chief) changed its view.

First, Congress has the power to regulate economic activities “that substan­ tially affect interstate commerce.” . . . Second, we owe a large measure of respect to Congress when it frames and enacts economic and social legislation.

The second one is a nice gloss on cases like Raich, Katzenbach, Hearts of Atlanta, and Carolene Products, but I don’t think that definition had been used before. If I remember correctly, the cases I just mentioned were all subsumed in the first category. Substantial effects was the test.

When appraising such legislation [the second category], we ask only (1) whether Congress had a “rational basis” for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a “reasona­ ble connection between the regulatory means selected and the asserted ends.”

I dont think this language was cited in any of the federalism cases from the 90s.

Part II-C

I think in Scalia’s first book with Garner, they wrote that whenever a lawyer uses a word like “clearly” or “obvously” or “straightforward,” the argument is seldom that.

Straightforward application of these principles would require the Court to hold that the minimum coverage provision is proper Commerce Clause legislation. Beyond dispute, Congress had a rational basis for concluding that the uninsured, as a class, substantially affect interstate commerce.

This case is neither straightforward nor beyond dispute. In fact, the stuff that comes after these sentences are simply policy arguments. Not legal arguments (though when the rational basis test is involved, there isn’t much difference).

Given these far­reaching effects on interstate commerce, the decision to forgo insurance is hardly inconsequential or equivalent to “doing nothing,” ante, at 20; it is, instead, an economic decision Congress has the authority to address under the Commerce Clause.

So doing nothing is doing something? RBG cites Wickard but that involved the decision to grow wheat. I don’t know that I buy the activity/inactivity distinction, but i am astounded by how weak arguments agains it are. The fact that no one has made any good argument against it makes me think maybe it has merit. I don’t know.

RBG continues to discuss why Congress acted reasonably or rationally. Whatever.

Congress’ enactment of the minimum coverage provision, which addresses a specific interstate problem in a practical, experience­ informed manner, easily meets this criterion.

That is not a legal argument. She fails to address head-on the contrary position. She discusses why the mandate does not compel people compel people to become active in commerce, but she doesn’t really refute the activity/inactivity distinction. She may do it later.

I have about 2 hours of battery life left. I hope I can get through the rest of Ginsburg’s opinion, and maybe break into the dissent.

Part II-D-1

In Part II-D, RBG rejects the argument that the Mandate compels individuals to become active.

Rather than evaluating the constitutionality of the minimum coverage provision in the manner established by our precedents, THE CHIEF JUSTICE relies on a newly minted constitutional doctrine. The commerce power does not, THE CHIEF JUSTICE announces, permit Congress to “compe[l] individuals to become active in commerce by purchasing a product.” THE CHIEF JUSTICE’s novel constraint on Congress’ commerce power gains no force from our precedent and for that reason alone warrants disapprobation.

I don’t know that this is right. The Chief evaluated it in light of precedents–perhaps how he sees it. This doctrine is new because Congress never tried to do this before. Unprecedented don’t you know. If a doctrine flows and is controlled by existing precedents, then its new-found mintiness is not quite important. “Novel.” “No force from our precedents.” Unprecedented. See, I think the mandate is unprecedented. The Court’s opinions on point are lacking. In this sense, unprecedentedness warrants skepticism.

RBG replies to the Chief’s contention that even people who will eventually need health care are not in it now. As long as you don’t buy the “prophesize” argument, the Chief loses. You never know when you’ll need health care, and there is no way for a hospital to separate those who do, and do not, when emergency care needs to be provided.

Echoing THE CHIEF JUSTICE, the joint dissenters urge that the min­ imum coverage provision impermissibly regulates young people who “have no intention of purchasing [medical care]” and are too far “re­ moved from the [health­care] market.” See post, at 8, 11. This criticism ignores the reality that a healthy young person may be a day away from needing health care. See supra, at 4. A victim of an accident or unforeseen illness will consume extensive medical care immediately, though scarcely expecting to do so.

Anyway, it is not the Court’s job to delineate the boundaries of the market.

Second, it is Congress’ role, not the Court’s, to delineate the boundaries of the market the Legislature seeks to regulate. THE CHIEF JUSTICE defines the health­care mar­ ket as including only those transactions that will occur either in the next instant or within some (unspecified) proximity to the next instant. But Congress could reason­ ably have viewed the market from a long­term perspective, encompassing all transactions virtually certain to occur over the next decade, see supra, at 19, not just those oc­ curring here and now.

Well when you discover an activity/inactivity distinction in the Constitution, why shouldn’t the Court’s define where activity begins and ends.

RBG cites Wickard and Raich to argue that the Court has upheld regulations of prophesized economic activity.

Our decisions thus acknowledge Congress’ authority, under the Commerce Clause, to direct the conduct of an individual today (the farmer in Wickard, stopped from growing excess wheat; the plaintiff in Raich, ordered to cease cultivating marijuana) because of a prophesied future transaction (the eventual sale of that wheat or marijuana in the interstate market). Congress’ actions are even more rational in this case, where the future activity (the consumption of medical care) is certain to occur, the sole uncertainty being the time the activity will take place.

BUt this still ignores the activity/inactivity distinction (which maybe it should be ignored, but not when you are writing a concurring opinion responding to it). Wickard was a farmer and grew wheat-activity. Raich was a pot-grower and grew pot-activity.

RBG keeps circling around the key issue (dancing the Hora?) without going to the center (and linking arms with the Chief and spinning around–go to a Bar Mitzvah to know what I’m talking about).

THE CHIEF JUSTICE observes, simply because he or she may someday buy a car. Ante, at 25. The analogy is inapt. The inevitable yet unpredictable need for medi­ cal care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nour­ ishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price.

The example doesn’t matter. Once your standard is about “prophesizing” it doesn’t matter how likely it is to happen. Winner broccoli line though. If you accept that an action tomorrow is an action today everything crumbles. RBG provides great rationales if you make that assumption. But if you say an action tomorrow doesn’t matter for today, then RBG loses. The precedents control neither option.

If unwanted today, medical service secured by insurance may be desperately needed tomorrow. Virtually everyone, I reiterate, consumes health care at some point in his or her life.

Establishing payment terms for goods in or affecting interstate com­ merce is quintessential economic regulation well within Congress’ domain.

OH come-on RBG. That isn’t even close to what this statute is doing (and she provides no explanation why this would even eb the case.

In the fullness of time, moreover, today’s young and healthy will become society’s old and infirm.

It’s the circle of life! Is it wrong that I just pictured a young, vibrant RBG arguing before the Supreme Court in the 70s, juxtaposed with the frail, elderly jurist who sits on the bench now.

RBG then makes the sensible point that the activit/inactivity distinction is found nowhere in the text of the Constitution.

In any event, THE CHIEF JUSTICE’s limitation of the commerce power to the regulation of those actively en­ gaged in commerce finds no home in the text of the Consti­ tution or our decisions.

Neither is the substantial effects doctrine. Or the right to abortion. Or other stuff. But whatever.

This argument is difficult to fathom. Requiring individ­ uals to obtain insurance unquestionably regulates the inter­ state health­insurance and health­care markets, both of them in existence well before the enactment of the ACA.

Yes, but that person was not in the health insurance market (health insurance, not health care). That’s the entire point. By not buying insurance, by definition, a person stayed away from the market. There may be a subset who have gone to emergency rooms and obtained insurance without paying for it. But there is another subset who have not availed themselves of the health insurance market (though likely they have engaged in the health care market). I suppose this is a line-drawing issue of how you define the market. Her citations to Wickard are not persuasive, as Farmer Filburn proactively engaged in the wheat market by being, well, a farmer.

Nor does our case law toe the activity versus inactiv­ity line.

Not proven. Wickard is premised on activity-growing wheat. RBG never touches this topic. Cases involving takings are inapposite because the person already owned the property (whether by buying it, or inheritance). And really, takings are instances where the Constitution allows the government to compel people to engage in transactions. It’s funny. One of the first arguments against the mandate was that it was an unconstitutional transaction. Funny now the takings power is being used to justify Congress’s power. Funny how things come full circle.

Let’s go back in time to before the New Deal! RBG cites EC Knight, Carter Coal, and Schechter Poultry as examples of “untenable” “line-drawing” the Court “abandoned.”

Failing to learn from this history, THE CHIEF JUSTICE plows ahead with his formalistic distinction between those who are “active in commerce,” ante, at 20, and those who are not.

And RBG cites Easterbrook and Sutton (no coincidence here) to show how this is a har dline to draw.

It is not hard to show the difficulty courts (and Con­ gress) would encounter in distinguishing statutes that reg­ ulate “activity” from those that regulate “inactivity.” As Judge Easterbrook noted, “it is possible to restate most actions as corresponding inactions with the same effect.” Archie v. Racine, 847 F. 2d 1211, 1213 (CA7 1988) (en banc). Take this case as an example. An individual who opts not to purchase insurance from a private insurer can be seen as actively selecting another form of insurance: self­insurance. See Thomas More Law Center, 651 F. 3d, at 561 (Sutton, J., concurring in part) (“No one is in­ active when deciding how to pay for health care, as self­ insurance and private insurance are two forms of action for addressing the same risk.”). The minimum coverage provision could therefore be described as regulating activ­ ists in the self­insurance market.7 Wickard is another example. Did the statute there at issue target activity (the growing of too much wheat) or inactivity (the farmer’s failure to purchase wheat in the marketplace)? If any­ thing, the Court’s analysis suggested the latter. See 317 U. S., at 127–129.

The latter is an interesting reading of Wickard, but I think it is a bit of a stretch in light of the fact that the Agricultural Adjusment Act applied directly to those who farmed, not people who decided not to buy wheat in the marketplace (farmers or others). The ACA specifically targeted those who do not buy insurance. Also, no clue what that Easterbrook case is about.

THE CHIEF JUSTICE’s characterization of individuals who choose not to purchase private insurance as “doing nothing,” ante, at 20, is simi­ larly questionable. A person who self­insures opts against prepayment for a product the person will in time consume. When aggregated, exercise of that option has a substantial impact on the health­care market. See supra, at 5–7, 16–17.

At bottom, THE CHIEF JUSTICE’s and the joint dissent­ ers’ “view that an individual cannot be subject to Com­ merce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate mar­ ket expresses a concern for individual liberty that [is] more redolent of Due Process Clause arguments.”

So she cites Silberman in Seven-Sky to smack down the conservatives for protecting individual liberty under the DPC. This is rich. Oh the Romanian-Gymnast-esque contortions that RBG and her acolytes have put the Due Process Clause through. Though, I think she is right, in a way. This always seemed, at its heart, a liberty challenge. But once thing people often forget is that individual liberty is protected both by provisions in the bill of rights (including the DPC), as well as structural limitations. The Court unanimously agreed to this in Bond. Bond, and not Troxel is the case to cite.

Later RBG writes:

Other provisions of the Constitution also check congres­ sional overreaching. A mandate to purchase a particu­ lar product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, inter­ fered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause

Again, structural limitations protect liberty just as much as those provisions in the bill of rights.

Also, she lumps together the Chief and the joint dissents again. They did not say the same thing.

ome adherents to the joint dissent have questioned the existence of substantive due process rights. See McDonald v. Chicago, 561 U. S. ___, ___ (2010) (THOMAS, J., concurring) (slip op., at 7) (The notion that the Due Process Clause “could define the substance of th[e] righ[t to liberty] strains credulity.”); Albright v. Oliver, 510 U. S. 266, 275 (1994) (SCALIA, J., concurring) (“I reject the proposition that the Due Process Clause guarantees certain (unspecified) liberties[.]”). Given these Justices’ reluctance to interpret the Due Process Clause as guarantee­ ing liberty interests, their willingness to plant such protections in the Commerce Clause is striking.

Brava Ruth! Good for calling out the dissenters on this point. Though in fairness, Thomas would probably rely on the Privileges or Immunities clause to protect substantive violations of liberty, rather than DPC. This is his opinion in McDonald. Scalia has jumped the shark on Substantive Due Process since McDonald (see something I wrote with Shapiro what feels like forever ago).

Also, don’t forget about the free-exercise challenges to the ACA. What about those? Those were at issue in the Thomas Moore Case. Did the Court even address that? That may provide some substantive liberty challenge against it. Though it seems NFIB and the states abanadoned that. So is the First Amendment challenge still valid?? This may come again when the HHS reg that mandates that churches provide abortiofacients comes up. Oh yeah, this is far from done.

Part II-D-1

RBG rejects all slippery-slope arguments and the parade of horribles the dissenters marched to show why this will be the end of the world as we know it. “This concern is unfounded.”

As several times noted, the unique attributes of the health­care market render everyone active in that market and give rise to a significant free­riding problem that does not occur in other markets. See supra, at 3–7, 16–18, 21.

Is that a typo? “As several times noted.” I mean, it makes sense but it is really awkward. Probably a typo.

Nor would the commerce power be unbridled, absent THE CHIEF JUSTICE’s “activity” limitation. Congress would remain unable to regulate noneconomic conduct that has only an attenuated effect on interstate commerce and is traditionally left to state law. See Lopez, 514 U. S., at 567; Morrison, 529 U. S., at 617–619.

Ginsburg dissented in both Lopez and Morrison. Given the votes, she no doubt would overturn them. This assurance is really not much. I always find it funny when a Justice cites a case he or she dissented in (and repeatedly dissented in similar cases) as evidence of what the Court would do in the future.

An individual’s decision to self­insure, I have explained, is an economic act with the requisite connection to inter­ state commerce. See supra, at 16–17. Other choices individuals make are unlikely to fit the same or similar description

Citing an argument you made unpersuasive 13 pages earlier is not persuasive. The health care is different argument can only be rebutted by a slippery slope.

As an example of the type of regulation he fears, THE CHIEF JUSTICE cites a Government mandate to purchase green vegetables. Ante, at 22–23. One could call this concern “the broccoli horrible.” Congress, THE CHIEF JUSTICE posits, might adopt such a mandate, reasoning that an individual’s failure to eat a healthy diet, like the failure to purchase health insurance, imposes costs on others. See ibid.
Consider the chain of inferences the Court would have to accept to conclude that a vegetable­purchase mandate was likely to have a substantial effect on the health­care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep­fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.9 Such “pil[ing of] inference upon inference” is just what the Court re­ fused to do in Lopez and Morrison.

Broccoli is really horrible. Yucky green. Again, RBG dissented in Lopez and Morrison. If I recall, Breyer’s opinion linked guns in school to our national educational standards. Those inferential chains are about equal. I think Bloomberg in New York has created similar inferential chains between banning large sodas and health costs. Really, when the Court is deferential to the findings of legislatures, it wouldn’t be hard to connect the two.

The failure to purchase vegetables in THE CHIEF JUSTICE’s hypothet­ ical, then, is not what leads to higher health­care costs for others; rather, it is the failure of individuals to maintain a healthy diet, and the resulting obesity, that creates the cost­shifting problem. See ante, at 22–23. Requiring individuals to purchase vegetables is thus several steps removed from solving the problem. The failure to obtain health insurance, by contrast, is the immediate cause of the cost­shifting Congress sought to address through the ACA. See supra, at 5–7. Requiring individuals to obtain insurance attacks the source of the problem directly, in a single step.

Since when do we have such a formalistic understanding of the commerce clause where only the “immediate cause” of cost-shifting suffices. Why can’t we link some inferences–just don’t pile them!

As the controversy surrounding the passage of the Affordable Care Act at­ tests, purchase mandates are likely to engender political resistance. This prospect is borne out by the behavior of state legislators. Despite their possession of unquestioned authority to impose mandates, state governments have rarely done so.

I would think that the Court’s opinion has made the resistance to these mandates much less. And state governments, who are not bound by commerce clause limitations, still have not done so. NOt sure if this is a good example.

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetar­ ian state as a credible reason to deny Congress the author­ ity ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.

Specious. Fighting words! I really thing RBG has taken broccoli too seriously. It was a simple image used as rallying cry. The original mandate to scare people was purchasing a GM vehicle. Though, bc the Chief, and the dissenters talk about it over and over again, it is fair game.

Part II-D-3

To bolster his argument that the minimum coverage provision is not valid Commerce Clause legislation, THE CHIEF JUSTICE emphasizes the provision’s novelty. See ante, at 18 (asserting that “sometimes the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent for Congress’s action” (internal quotation marks omitted)). While an insurance­purchase mandate may be novel, THE CHIEF JUSTICE’s argument certainly is not. “[I]n almost every instance of the exer­ cise of the [commerce] power differences are asserted from previous exercises of it and made a ground of attack.” Hoke v. United States, 227 U. S. 308, 320 (1913). See, e.g., Brief for Petitioner in Perez v. United States, O. T. 1970, No. 600, p. 5 (“unprecedented exercise of power”); Sup­ plemental Brief for Appellees in Katzenbach v. McClung, O.T. 1964, No. 543, p.40 (“novel assertion of federal power”); Brief for Appellee in Wickard v. Filburn, O. T. 1941, No. 59, p. 6 (“complete departure”). For decades, the Court has declined to override legislation because of its novelty, and for good reason. As our national economy grows and changes, we have recognized, Congress must adapt to the changing “economic and financial realities.” See supra, at 14–15. Hindering Congress’ ability to do so is shortsighted; if history is any guide, today’s constriction of the Commerce Clause will not endure.

I think RBG misunderstands the unprecedented argument. The fact that it is unprecedented doesn’t make it unconstitutional. Rather, the fact that it is unprecedented means that it is not controlled by any of the Court’s previous precedents. Surely, the fact that every new case that comes along represents an unprecedented expansion of power should give the Court pause to consider them more closely, as it is something new that hasn’t been dealt with before.

Part III

Part III turns to the N&P argument.

Part III-A

She cites liberally (no pun intended) Scalia’s concurring opinion in Raich. Man, I wonder if Nino knew in 2003 when Raich was decided that ACA was gonna be at the Court in 10 years. I wonder what he would have done differently. Kennedy too. Nah, ti probably doesn’t matter. That was like so ten years ago. Though, the quotes RBG uses have the word “activity” in it. So there.

Put differently, the mini­ mum coverage provision, together with the guaranteed­ issue and community­rating requirements, is “‘reasonably adapted’ to the attainment of a legitimate end under the commerce power”: the elimination of pricing and sales practices that take an applicant’s medical history into account. See id., at 37 (SCALIA, J., concurring in judgment).

Again, she does not address the fact that Scalia used the word “activity.”

Part III-B

RBG rightly calls out the Chief for failing to develop, at all really, his “proper” argument.

Asserting that the Necessary and Proper Clause does not authorize the minimum coverage provision, THE CHIEF JUSTICE focuses on the word “proper.” A mandate to purchase health insurance is not “proper” legislation, THE CHIEF JUSTICE urges, because the command “under­ mine[s] the structure of government established by the Constitution.” Ante, at 28. If long on rhetoric, THE CHIEF JUSTICE’s argument is short on substance. . . . THE CHIEF JUSTICE’s reliance on cases in which this Court has affirmed Congress’ “broad authority to enact federal legislation” under the Necessary and Proper Clause, Comstock, 560 U. S., at ___ (slip op., at 5), is underwhelming.

The Chief’s citation to Printz and New York were inapposite as they dealt with the 10th Amendment via state officials (I think I noted this earlier–this doc is too early to go through at this point). Citing cases like Comstock where the N&P power was upheld doesn’t help. I asked this earlier. Has there ever been a case where the Court found something exceeded the N&P power?

In failing to explain why the individual mandate threat­ ens our constitutional order, THE CHIEF JUSTICE disserves future courts. How is a judge to decide, when ruling on the constitutionality of a federal statute, whether Con­ gress employed an “independent power,” ante, at 28, or merely a “derivative” one, ante, at 29. Whether the power used is “substantive,” ante, at 30, or just “incidental,” ante, at 29? The instruction THE CHIEF JUSTICE, in effect, provides lower courts: You will know it when you see it.

RBG just Potter-Stewarted JGR. You got served homes.

Now RBG replies to the argument in dissent that it was not proper–the argument that the Chief would have wanted to make, but it was too Lochnerian for him.

In a separate argument, the joint dissenters contend that the min­ imum coverage provision is not necessary and proper because it was not the “only . . . way” Congress could have made the guaranteed­issue and community­rating reforms work. Post, at 9–10. Congress could also have avoided an insurance­market death spiral, the dissenters main­ tain, by imposing a surcharge on those who did not previously purchase insurance when those individuals eventually enter the health­ insurance system. Post, at 10. Or Congress could “den[y] a full income tax credit” to those who do not purchase insurance. Ibid.
Neither a surcharge on those who purchase insurance nor the de­ nial of a tax credit to those who do not would solve the problem created by guaranteed­issue and community­rating requirements. Neither would prompt the purchase of insurance before sickness or injury occurred. But even assuming there were “practicable” alternatives to the minimum coverage provision, “we long ago rejected the view that the Necessary and Proper Clause demands that an Act of Congress be ‘absolutely necessary’ to the exercise of an enumerated power.” Jinks v. Richland County, 538 U. S. 456, 462 (2003) (quoting McCulloch v. Maryland, 4 Wheat. 316, 414–415 (1819)). Rather, the statutory provision at issue need only be “conducive” and “[reasonably] adapted” to the goal Congress seeks to achieve. Jinks, 538 U. S., at 462 (internal quotation marks omitted). The minimum coverage provision meets this requirement.

Part IV

Somehow we made it all the way till page 102/193 of the PDF without any citations to Lochner. David Bernstein must have felt slighted.

In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples’ repre­ sentatives in both the States and the Federal Government. See, e.g., Carter Coal Co., 298 U. S., at 303–304, 309–310; Dagenhart, 247 U. S., at 276–277; Lochner v. New York, 198 U. S. 45, 64 (1905). THE CHIEF JUSTICE’s Commerce Clause opinion, and even more so the joint dissenters’ reasoning, see post, at 4–16, bear a disquieting resem­ blance to those long­overruled decisions.

Lochner!!! No, if this was Lochner, Roberts would have voted with the conservatives and struck down this legislative Leviathan.

Ultimately, the Court upholds the individual mandate as a proper exercise of Congress’ power to tax and spend “for the . . . general Welfare of the United States.” Art. I, §8, cl. 1; ante, at 43–44. I concur in that determination, which makes THE CHIEF JUSTICE’s Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever­ developing modern economy? I find no satisfying response to that question in his opinion. . . .
12 THE CHIEF JUSTICE states that he must evaluate the constitution­ ality of the minimum coverage provision under the Commerce Clause because the provision “reads more naturally as a command to buy insurance than as a tax.” Ante, at 44. THE CHIEF JUSTICE ultimately concludes, however, that interpreting the provision as a tax is a “fairly possible” construction. Ante, at 32 (internal quotation marks omitted). That being so, I see no reason to undertake a Commerce Clause analy­ sis that is not outcome determinative.

I agree also. If you find it is constitutional as a tax. you don’t spend SO MUCH time finding *new* limits on the Commerce Power.

Part V

Here Breyer and Kagan depart from RBG and SS, and find that the entirety of the Medicaid expansion is constitutional. I still can’t believe this position only 2 votes. After AIA, this was the most agreed-upon portion of the case.

And to expand coverage, Congress could have recalled the existing legis­ lation, and replaced it with a new law making Medicaid as embracive of the poor as Congress chose.

How the hell would that work! Repeal Medicaid and pass a new one? Or pass a new one that repeals the old one. That is politically ludicrous.

The question posed by the 2010 Medicaid expansion, then, is essentially this: To cover a notably larger popula­ tion, must Congress take the repeal/reenact route, or may it achieve the same result by amending existing law? The answer should be that Congress may expand by amend­ ment the classes of needy persons entitled to Medicaid benefits. A ritualistic requirement that Congress repeal and reenact spending legislation in order to enlarge the population served by a federally funded program would advance no constitutional principle and would scarcely serve the interests of federalism. To the contrary, such a requirement would rigidify Congress’ efforts to empower States by partnering with them in the implementation of federal programs.

Of, consistent with federalism, Congress could change their programs without coercing states. If they wish to radically redefine the nature of the program, they damn better get buy-in from the states, rather than by imposing it at gun-point.

His conclusion rests on three premises, each of them essential to his theory. First, the Medicaid expansion is, in THE CHIEF JUSTICE’s view, a new grant program, not an addition to the Medicaid pro­ gram existing before the ACA’s enactment. Congress, THE CHIEF JUSTICE maintains, has threatened States with the loss of funds from an old program in an effort to get them to adopt a new one. Second, the expansion was unforesee­ able by the States when they first signed on to Medicaid. Third, the threatened loss of funding is so large that the States have no real choice but to participate in the Medi­ caid expansion.

So he did think it was a new program. His opinion was nebulous on that front. RBG says Medicaid is a single program.

THE CHIEF JUSTICE therefore—for the first time ever—finds an exercise of Congress’ spending power unconstitutionally coercive.

And Breyer and Kagan joined along. This was also the first time a Justice found something violated N&P.

Future Congresses are not bound by their predecessors’ dispositions; they have authority to spend federal revenue as they see fit.

They can spend revenue by passing a new appropriation. Ahem. New.

A majority of the Court, however, buys the argument that prospective withholding of funds formerly available exceeds Congress’ spending power.

Buys? What harsh terms. She’s talking about Stevie and Elena too.

However, to quote Linkin Park, he tried so hard, and got so far, but in the end, it doesn’t really matter.

Given that holding, I entirely agree with THE CHIEF JUSTICE as to the appropri­ ate remedy. It is to bar the withholding found impermis­ sible—not, as the joint dissenters would have it, to scrap the expansion altogether, see post, at 46–48.

So what exactly are Ruth and Sonia saying here? She agrees with severing it in light of the holding, from which she dissents. So in other words, she thinks this is the best thing to do if the statute violates the spending power, though she doesn’t think the spending power is violated.

Because THE CHIEF JUSTICE finds the withholding—not the granting—of federal funds incom­patible with the Spending Clause, Congress’ extension of Medicaid remains available to any State that affirms its willingness to participate.

So I have been out of the loop on this for a bit. If Florida or Texas chooses not to comply, funding cannot be withheld from them. Does that mean that HHS will pay 100% of the costs? For how long? What happens after the initial payment period ends?

RBG recites a number of times in which Medicaid was amended. She stresses the fact that whatever increase in costs the states may incur will “will pale in comparison to the increase in federal funding.” Further, the act provides for “considerable autonomy [for the] states.”

RBG also notes that the Chief’s opinion was the first time ever that any law was struck down as a violation of the spending clause!

Prior to today’s deci­ sion, however, the Court has never ruled that the terms of any grant crossed the indistinct line between temptation and coercion

But she is not persuaded that Dole is satisfied.

The ACA, in contrast, relates solely to the federally funded Medicaid program; if States choose not to comply, Congress has not threatened to withhold funds earmarked for any other program. Nor does the ACA use Medicaid funding to induce States to take action Congress itself could not undertake.

This seems like an awfully short distinction from Dole.

That is what makes this such a simple case, and the Court’s decision so unsettling. Congress, aiming to assist the needy, has appropriated federal money to subsidize state health­insurance programs that meet federal stand­ ards. The principal standard the ACA sets is that the state program cover adults earning no more than 133% of the federal poverty line. Enforcing that prescription en­ sures that federal funds will be spent on health care for the poor in furtherance of Congress’ present perception of the general welfare.

Such a “simple case” that only RBG and SS join it. What about SGB and EK?

Even if courts were inclined to second­guess Congress’ conception of the character of its legislation, how would reviewing judges divine whether an Act of Congress, pur­ porting to amend a law, is in reality not an amendment, but a new creation? At what point does an extension become so large that it “transforms” the basic law

Well doesn’t a court need to figure out, at some juncture, whether you are dealing with the same program, or something new that under Dole would be without notice.

Consider also that Congress could have repealed Medi­ caid. See supra, at 38–39 (citing 42 U. S. C. §1304); Brief for Petitioners in No. 11–400, p. 41. Thereafter, Congress could have enacted Medicaid II, a new program combin­ ing the pre­2010 coverage with the expanded coverage required by the ACA. By what right does a court stop Congress from building up without first tearing down?

I don’t really get this point. How the hell would this divided Congress ever do that? Because they lack the votes to pass Medicare II, they are forced to “amend” the old Medicaid to make it cover new things that the states that had originally voted for it did not consider. That’s the rub of the “expansion.”

THE CHIEF JUSTICE appears to find in Pennhurst a requirement that, when spending legislation is first passed, or when States first enlist in the federal program, Congress must provide clear notice of conditions it might later impose. If I understand his point correctly, it was incumbent on Congress, in 1965, to warn the States clearly of the size and shape potential changes to Medicaid might take. And absent such notice, sizable changes could not be made mandatory. Our decisions do not support such a requirement.

I don’t think that reading is right. It seems almost backwards. Rather, the Chief’s point is if Congress does change the arrangement to a degree that those in 1965 could not have anticipated, then there is a violation of the Constitution. Not that those in 1965 had to warn the states what would happen in 2010. Absent a Delorean, that would be impossible.

Next RBG turns to the “gun to the head” coercion argument, and stresses the fact that neither the Chief nor the dissenters states what that line is

When future Spending Clause challenges arrive, as they likely will in the wake of today’s decision, how will liti­ gants and judges assess whether “a State has a legitimate choice whether to accept the federal conditions in ex­ change for federal funds”?

She then asks a series of questions that are not answered (kinda like the Chiefs dissent in Massey Coal. RBG also distinguishes the positions of the Chief and the dissenters.

The joint dissenters, for their part, would make this the entire in­ quiry. “[I]f States really have no choice other than to accept the pack­ age,” they assert, “the offer is coercive.” Post, at 35. THE CHIEF JUSTICE recognizes Congress’ authority to construct a single federal program and “condition the receipt of funds on the States’ complying with restrictions on the use of those funds.” Ante, at 50. For the joint dissenters, however, all that matters, it appears, is whether States can resist the temptation of a given federal grant. Post, at 35. On this logic, any federal spending program, sufficiently large and well­funded, would be unconstitutional. The joint dissenters point to smaller pro­ grams States might have the will to refuse. See post, at 40–41 (elemen­ tary and secondary education). But how is a court to judge whether “only 6.6% of all state expenditures,” post, at 41, is an amount States could or would do without? . . . The joint dissenters are long on conjecture and short on real­world examples.

And this foot is interesting as RBG was not willing to read a statute such that Congress intended to violate the Constitution.

The joint dissenters also rely heavily on Congress’ perceived intent to coerce the States. Post, at 42–46; see, e.g., post, at 42 (“In crafting the ACA, Congress clearly expressed its informed view that no State could possibly refuse the offer that the ACA extends.”). We should not lightly ascribe to Congress an intent to violate the Constitution (at least as my colleagues read it). This is particularly true when the ACA could just as well be comprehended as demonstrating Congress’ mere expectation, in light of the uniformity of past participation and the generosity of the federal contribution, that States would not withdraw.”

Two responses. First, let’s not forget Nancy Pelosi’s “are you serious” line. The House didn’t give a damn about the Constitution–however construed. Second, assuming they did give a damn, until the joint dissenters opinion, no one (probably not even the joint dissenters) knew such a provision would violate the Constitution. So I don’t think this charge is helpful.

And then RBG whips out Baker v. Car..

The coercion inquiry, therefore, appears to involve polit­ ical judgments that defy judicial calculation. See Baker v. Carr, 369 U. S. 186, 217 (1962). Even commentators sympathetic to robust enforcement of Dole’s limitations, see supra, at 46, have concluded that conceptions of “impermissible coercion” premised on States’ perceived inability to decline federal funds “are just too amorphous to be judicially administrable.” Baker & Berman, Getting off the Dole, 78 Ind. L. J. 459, 521, 522, n. 307 (2003) (citing, e.g., Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989)).

And she had to go cite Nino. You know, the image of Nino riding on top of an elephant (the symbol of the GOP) seems especially apt now.

RBG had another interesting discussion about whether politics could restrain the Secretary from withholding funds. So courts can assess those politics?

As THE CHIEF JUSTICE observes, the Secretary is authorized to withhold all of a State’s Medicaid funding. See ante, at 51. But total withdrawal is what the Secretary may, not must, do. She has discre­ tion to withhold only a portion of the Medicaid funds otherwise due a noncompliant State. See §1396c; cf. 45 CFR §80.10(f) (2011) (Secretary may enforce Title VI’s nondiscrimination requirement through “refusal to grant or continue Federal financial assistance, in whole or in part.” (emphasis added)). The Secretary, it is worth noting, may herself experience political pressures, which would make her all the more reluctant to cut off funds Congress has appropriated for a State’s needy citizens.

RBG’s conclusion is somewhat confusing.

THE CHIEF JUSTICE, however, holds that the Constitution precludes the Secretary from withholding “existing” Medicaid funds based on States’ refusal to comply with the expanded Medi­ caid program. Ante, at 55. For the foregoing reasons, I disagree that any such withholding would violate the Spending Clause. Accordingly, I would affirm the decision of the Court of Appeals for the Eleventh Circuit in this regard.
But in view of THE CHIEF JUSTICE’s disposition, I agree with him that the Medicaid Act’s severability clause de­ termines the appropriate remedy.

She agrees with the remedy of severing the unconstitutional provision, even though she does not think it is constitutional? So she agrees with the outcome of a portion of the opinion to which she dissents in part? Is that it?

And I’m not sure if this gloss is entirely consistent with what the Chief wrote:

The Court does not strike down any provision of the ACA. It prohibits only the “application” of the Secretary’s authority to withhold Medicaid funds from States that decline to conform their Medicaid plans to the ACA’s requirements. Thus the ACA’s authorization of funds to finance the expansion remains intact, and the Secretary’s authority to withhold funds for reasons other than non­ compliance with the expansion remains unaffected.

This last part seems like a last-ditch effort to say the entire statute should be saved.

Even absent §1303’s command, we would have no war­ rant to invalidate the Medicaid expansion, contra post, at 46–48 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.), not to mention the entire ACA, post, at 49–64 (same). For when a court confronts an unconstitutional statute, its endeavor must be to conserve, not destroy, the legislature’s dominant objective. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 328–330 (2006). In this case, that objective was to in­ crease access to health care for the poor by increasing the States’ access to federal funds. THE CHIEF JUSTICE is undoubtedly right to conclude that Congress may offer States funds “to expand the availability of health care, and requir[e] that States accepting such funds comply with the conditions on their use.” Ante, at 55.

I therefore concur in the judgment with respect to Part IV–B of THE CHIEF JUSTICE’s opinion.

So she concurs in judgment with respect to the part where the Chief says the offending provision should be severed. That still doesn’t make much sense. Because that does not match this:

For the reasons stated, I agree with THE CHIEF JUSTICE that, as to the validity of the minimum coverage provi­ sion, the judgment of the Court of Appeals for the Eleventh Circuit should be reversed. In my view, the provision en­ counters no constitutional obstruction. Further, I would uphold the Eleventh Circuit’s decision that the Medicaid expansion is within Congress’ spending power.

RBG, out. And now, finally, I turn to the dissents. Only 66 pages left.

Dissent of Justices Kennedy, Scalia, Thomas, and Alito


This is a joint dissent. Very, very rare. SDO, AMK, and DHS issued a joint opinion in Planned Parenthood v. Casey. They each took turns announcing it from the bench.

Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercis- ing the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection and Affordable Care Act (Affordable Care Act or ACA) go be- yond those powers. We conclude that they do.

Just a tad bit of tone-deafness in the first sentence.

The Court opens up with an unprecedented argument.

This case is in one respect difficult: it presents two questions of first impression. The first of those is whether failure to engage in economic activity (the purchase of health insurance) is subject to regulation under the Com- merce Clause. Failure to act does result in an effect on commerce, and hence might be said to come under this Court’s “affecting commerce” criterion of Commerce Clause jurisprudence. But in none of its decisions has this Court extended the Clause that far.

Next comes the taxing power argument. Also difficult.

Several of our opinions have suggested that the power to tax and spend cannot be used to coerce state administration of a federal program, but we have never found a law enacted under the spending power to be coercive. Those questions are difficult.

But what’s easy and simple? Federalism! Our Federalism!

The case is easy and straightforward, however, in an- other respect. What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to com- pel the States to function as administrators of federal programs. That clear principle carries the day here./blockquote>
That just reads like Scalia.

And now Wickard is “striking.” This mirrors what AS recently wrote in his book with Bryan Garner.

The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurispru- dence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.

Way to grease up those slopes Nino. Though, breathing creates CO2, which the EPA (per Mass v. EPA) has determined is a greenhouse gas. So, well there’s that.

And, what Madison thought about the taxing and spending power is all that *really* matters:

As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers,

This just sounds like something out of a Rick Perry Tea Party speech (though Nino knows which agencies he would abolish)–I write this line just after I took off from DFW after a 4 hour layover, during which I rewrote my book proposal:

Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce: the De- partment of Education, the Department of Health and Human Services, the Department of Housing and Urban Development.

In short, the entire Act is “inoperative.” (what does inoperative mean?) It operates just fine. The problem is its constitutionality.

The Act before us here exceeds federal power both in mandating the purchase of health insurance and in deny- ing nonconsenting States all Medicaid funding. These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative.

Part I–The Individual Mandate

Here is a very succinct explication of the activity-inactivity distinction. Reads like Scalia.

If this provision “regulates” anything, it is the failure to maintain mini- mum essential coverage. One might argue that it regu- lates that failure by requiring it to be accompanied by payment of a penalty. But that failure—that abstention from commerce—is not “Commerce.” To be sure, purchas- ing insurance is ”Commerce”; but one does not regulate commerce that does not exist by compelling its existence.

Time to cite Samuel Johnson’s 1785 Dictionary (one of Scalia’s favorites)!

That understanding is con- sistent with the original meaning of “regulate” at the time of the Constitution’s ratification, when “to regulate” meant “[t]o adjust by rule, method or established mode,” 2 N. Webster, An American Dictionary of the English Lan- guage (1828); “[t]o adjust by rule or method,” 2 S. Johnson, A Dictionary of the English Language (7th ed. 1785); “[t]o adjust, to direct according to rule,” 2 J. Ash, New and Complete Dictionary of the English Language (1775); “to put in order, set to rights, govern or keep in order,” T. Dyche & W. Pardon, A New General English Dictionary (16th ed. 1777).

Regulating does not cover the power to compel commerce (which can then be regulated)

It can mean to direct the manner of something but not to direct that something come into being. There is no instance in which this Court or Con- gress (or anyone else, to our knowledge) has used “regulate” in that peculiar fashion.

And, Scalia pegs the meaning of regulate based on what Johnson thought.

But when Congress provides that (nearly) all citizens must buy an insurance contract, it goes beyond “adjust[ing] by rule or method,” Johnson, supra, or “direct[ing] according to rule,” Ash, supra; it directs the creation of commerce.

Part I-A

First the dissenters turn to the whether 5000A is integral or necessary to effectuate the ACA. Interestingly, the dissenters put the word “finding” in scare quotes.

First, the Government submits that §5000A is “integral to the Affordable Care Act’s insurance reforms” and “nec- essary to make effective the Act’s core reforms.” Brief for Petitioners in No. 11–398 (Minimum Coverage Provi- sion) 24 (hereinafter Petitioners’ Minimum Coverage Brief). Congress included a “finding” to similar effect in the Act itself. See 42 U. S. C. §18091(2)(H).

I’ll dig up that finding when I’m no longer up in the air (that may happen, eventually). The dissenters then walk through the guaranteed issue and community rating provisions. Why do I feel like I’ve read this three times. Oh yeah. This part, though, is new:

This is not a dilemma unique to regulation of the health- insurance industry. Government regulation typically imposes costs on the regulated industry—especially regu- lation that prohibits economic behavior in which most market participants are already engaging, such as “piec- ing out” the market by selling the product to different classes of people at different prices (in the present context, providing much lower insurance rates to young and healthy buyers). And many industries so regulated face the reality that, without an artificial increase in demand, they cannot continue on. When Congress is regulating these industries directly, it enjoys the broad power to enact “‘all appropriate legislation’” to “‘protec[t]’” and “‘advanc[e]’” commerce, NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 36–37 (1937) (quoting The Daniel Ball, 10 Wall. 557, 564 (1871)). Thus, Congress might protect the imperiled industry by prohibiting low-cost competition, or by according it preferential tax treatment, or even by granting it a direct subsidy.

Man, what a contemptuous citation of Jones & Laughlin. Herbert Spencer notwithstanding.

Here, however, Congress has impressed into service third parties, healthy individuals who could be but are not customers of the relevant industry, to offset the undesir- able consequences of the regulation.

Impressed. That is the word historically used when pirates would capture people and force them into slave labor on their ships (impressing). In fact, the Brits impressing Americans in the early 19th century was one of the causes of the War of 1812.

If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws … spare neither sex nor age, nor high nor low, nor sacred nor pro- fane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).

I think Randy Barnett (or maybe it was Roger Pilon) referred to the 9th Amendment as a font of liberty (or maybe a font of rights). Nice turn of phrase.

Scalia sums up New York v. US, Printz v. US, US v. Lopez, and US v. Morrison thusly:

At the outer edge of the commerce power, this Court has insisted on careful scrutiny of regulations that do not act directly on an interstate market or its participants. .. . The lesson of these cases is that the Commerce Clause, even when sup- plemented by the Necessary and Proper Clause, is not carte blanche for doing whatever will help achieve the ends Congress seeks by the regulation of commerce.

And this is an interesting gloss on Lopez and Morrison, which I thought were only tangentially about state sovereignty.

And the last two of these cases show that the scope of the Necessary and Proper Clause is exceeded not only when the congressional action directly violates the sovereignty of the States but also when it violates the background principle of enumerated (and hence limited) federal power.

So leading up to this case, there was so much todo about how Scalia would distinguish Raich. It took two sentences.

That case’s prohibition of growing (cf. Wickard, 317 U. S. 111), and of possession (cf. innumerable federal statutes) did not represent the expansion of the federal power to direct into a broad new field. The mandating of economic activity does, and since it is a field so limitless that it converts the Commerce Clause into a general authority to direct the economy, that mandating is not “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Mary- land, 4 Wheat. 316, 421 (1819).

Unpersuasive sentences I may add. Some citations to Nino’s concurring opinion would have been helpful. Get over it, I suppose.

Moreover, Raich is far different from the Individual Mandate in another respect. The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced.

Did Raich so hold (pointing out is not a holding)? In that case, you have to scrutinize the means selected, and determine what was the best/only way of doing something.

With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insur- ance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not pur- chase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied a full income tax credit given to those who do purchase the insurance.

Oh, and the dissenters call out the SG’s utter inability to identify any limits.

The Government was invited, at oral argument, to suggest what federal controls over private conduct (other than those explicitly prohibited by the Bill of Rights or other constitutional controls) could not be justified as necessary and proper for the carrying out of a general regulatory scheme. See Tr. of Oral Arg. 27–30, 43–45 (Mar. 27, 2012). It was unable to name any.

And because they could not identify any limits, the law must fall. QED.

As we said at the outset, whereas the precise scope of the Commerce Clause and the Necessary and Proper Clause is uncertain, the proposition that the Federal Government cannot do everything is a fundamental precept. See Lopez, 514 U. S., at 564 (“[I]f we were to accept the Government’s argu- ments, we are hard pressed to posit any activity by an in- dividual that Congress is without power to regulate”). Section 5000A is defeated by that proposition.

Part I-B

Next, the dissenters turn to the government’s definition of the market pertaining to “health-care” rather than “health insurance.” I think it’s accurate that everyone engages in the former, but not the latter.

That is, the provision directs the manner in which individuals purchase health care services and related goods (directing that they be purchased through insurance) and is there- fore a straightforward exercise of the commerce power.
The primary problem with this argument is that §5000A does not apply only to persons who purchase all, or most, or even any, of the health care services or goods that the mandated insurance covers. Indeed, the main objection many have to the Mandate is that they have no intention of purchasing most or even any of such goods or services and thus no need to buy insurance for those purchases.

But doesn’t everyone need health insurance?

The Government responds that the health-care market involves “essentially universal participation,” id., at 35. The principal difficulty with this response is that it is, in the only relevant sense, not true. It is true enough that everyone consumes “health care,” if the term is taken to include the purchase of a bottle of aspirin. But the health care “market” that is the object of the Individual Mandate not only includes but principally consists of goods and services that the young people primarily affected by the Mandate do not purchase. They are quite simply not participants in that market, and cannot be made so (and thereby subjected to regulation) by the simple device of defining participants to include all those who will, later in their lifetime, probably purchase the goods or services covered by the mandated insurance.

This argument is similar enough to the Chief’s “prophesizing” argument.

In a footnote, the dissenters respond to RBG, on a point that doesn’t seem particularly important.

2 JUSTICE GINSBURG is therefore right to note that Congress is “not mandating the purchase of a discrete, unwanted product.” Ante, at 22 (opinion concurring in part, concurring in judgment in part, and dis-senting in part). Instead, it is mandating the purchase of an unwanted suite of products—e.g., physician office visits, emergency room visits, hospital room and board, physical therapy, durable medical equipment, mental health care, and substance abuse detoxification.

Product v. suite of products? Whatever.

Unprecedented! No limits!

Such a definition of market participants is unprecedented, and were it to be a premise for the exercise of national power, it would have no principled limits.

Part II

Part III

Part IV

Part V

Dissent of Justice Thomas