National Federation of Independent Business v. Sebelius

[Read the line-up before you read a word of the opinion, because in this case the line-up is the holding.

This reading is the Commerce Clause and Necessary and Proper Clause half of the case only. The taxing power (Part III–B and Part III–C) and the Medicaid coercion holding (Part IV) are assigned separately in Module 4 and are a separate reading: National Federation of Independent Business v. Sebelius (redux). You will read this case twice. The two halves reach opposite results on the same statute, and the second half is where the mandate actually survives.

Chief Justice Roberts announced the judgment of the Court. He delivered the opinion of the Court with respect to Parts I, II and III–C, in which Ginsburg, Breyer, Sotomayor and Kagan, JJ., joined. He delivered an opinion with respect to Part IV, in which Breyer and Kagan, JJ., joined. And he delivered an opinion with respect to Parts III–A, III–B and III–D — which no other Justice joined.

Part III–A is the Commerce Clause analysis. It is the entire substance of this reading. It was joined by no one. It is the Chief Justice writing alone. The running head on every page of it in the United States Reports reads “Opinion of Roberts, C. J.,” not “Opinion of the Court.” Nothing in it may be described as a holding of the Court, and the phrase “the Court held” must never be attached to it. On the Commerce Clause question there is no opinion of the Court at all.

Justice Ginsburg filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Sotomayor, J., joined in full, and in which Breyer and Kagan, JJ., joined as to Parts I, II, III and IV. Her Commerce Clause discussion sits in her Part II and therefore carries four votes. On the Commerce Clause she is dissenting, notwithstanding the “concurring in part” in her caption: she agreed that the mandate should be upheld, and she voted with the majority on the taxing power, but she rejected the Chief Justice’s Commerce Clause reasoning outright.

Scalia, Kennedy, Thomas and Alito, JJ., filed a joint dissenting opinion. Thomas, J., filed a separate dissenting opinion.

Now hold both halves of the arithmetic at once, because either one alone is a lie. The most quoted Commerce Clause passage of the last thirty years commands a single vote. And yet five Justices concluded that the Commerce Clause did not authorize the individual mandate — the Chief Justice in Part III–A, and Scalia, Kennedy, Thomas and Alito in the joint dissent, each reasoning separately and neither joining the other. Four Justices concluded that it did. There is no majority opinion on the question and there is a majority view on the answer. Students who remember only the first fact will misstate the case; students who remember only the second will misstate it worse.

This reading carries the Commerce Clause portion only. The Anti-Injunction Act holding (Part II), the taxing-power holding that actually sustained the mandate (Part III–C), and the Medicaid-expansion holding (Part IV, and Justice Ginsburg’s Parts III and IV) are Module 4 material and are omitted here. The Necessary and Proper Clause discussion in Part III–A(2) is also omitted; see the note at the close of the Chief Justice’s opinion below. The joint dissent of Scalia, Kennedy, Thomas and Alito, JJ., and the separate dissent of Thomas, J., are not reproduced.]

[The case. The Patient Protection and Affordable Care Act of 2010 required most Americans to maintain “minimum essential coverage” — health insurance meeting a federal floor — or to make a payment to the Internal Revenue Service. 26 U. S. C. § 5000A. The provision is called the individual mandate, or, in Justice Ginsburg’s usage, the minimum coverage provision. It was enacted alongside two insurance-market reforms it was designed to make workable: guaranteed issue, which bars insurers from refusing coverage because of a pre-existing condition, and community rating, which bars them from charging more for one. Twenty-six States, several individuals and the National Federation of Independent Business challenged the mandate. The Eleventh Circuit held it beyond Congress’s power. The question in the portion of the case reproduced here is whether the Commerce Clause — “[t]o regulate Commerce with foreign Nations, and among the several States,” Art. I, § 8, cl. 3 — authorizes Congress to require an individual to purchase a product he has not bought.]

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ROBERTS, C.J., Part III–A

[An opinion joined by no other Justice. What follows is the Chief Justice writing for himself alone. Reporter pages are given in brackets where the acquisition breaks. The text begins mid-sentence at the top of 567 U. S. 547, in the middle of the Chief Justice’s summary of the Government’s two arguments; the beginning of that sentence is not in hand.]

… vidual mandate. First, the Government argues that Congress had the power to enact the mandate under the Commerce Clause. Under that theory, Congress may order individuals to buy health insurance because the failure to do so affects interstate commerce, and could undercut the Affordable Care Act’s other reforms. Second, the Government argues that if the commerce power does not support the mandate, we should nonetheless uphold it as an exercise of Congress’s power to tax. According to the Government, even if Congress lacks the power to direct individuals to buy insurance, the only effect of the individual mandate is to raise taxes on those who do not do so, and thus the law may be upheld as a tax.

A

The Government’s first argument is that the individual mandate is a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. According to the Government, the health care market is characterized by a significant cost-shifting problem. Everyone will eventually need health care at a time and to an extent they cannot predict, but if they do not have insurance, they often will not be able to pay for it. Because state and federal laws nonetheless require hospitals to provide a certain degree of care to individuals without regard to their ability to pay, see, e. g., 42 U. S. C. § 1395dd; Fla. Stat. § 395.1041 (2010), hospitals end up receiving compensation for only a portion of the services they provide. To recoup the losses, hospitals pass on the cost to insurers through higher rates, and insurers, in turn, pass on the cost to policyholders in the form of higher premiums. Congress estimated that the cost of uncompensated care raises family health insurance premiums, on average, by over $1,000 per year. 42 U. S. C. § 18091(2)(F).

In the Affordable Care Act, Congress addressed the problem of those who cannot obtain insurance coverage because of pre-existing conditions or other health issues. It did …

[GAP — 567 U. S. 548 was not retrieved. The acquisition sought this page twice and the source returned only the page before it. Page 548 carries the Chief Justice’s description of the guaranteed-issue and community-rating provisions and Congress’s finding that the mandate is essential to them. Justice Ginsburg cites it below (at 567 U. S. 609, “See ante, at 548, 556–557”), so its content is inferable, but it is not in hand and nothing here supplies it. The narrative resumes mid-sentence at the top of 567 U. S. 549.]

… state commerce” by creating the cost-shifting problem. Brief for United States 34. The path of our Commerce Clause decisions has not always run smooth, see United States v. Lopez, 514 U. S. 549, 552–559 (1995), but it is now well established that Congress has broad authority under the Clause. 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, moreover, 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.

Given its expansive scope, it is no surprise that Congress has employed the commerce power in a wide variety of ways to address the pressing needs of the time. 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 necessarily fatal; there is a first time for everything. But sometimes “the most telling indication of [a] severe constitutional problem … is the lack of historical precedent” for Congress’s action. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505 (2010) (internal quotation marks omitted).

Footnote 3

The examples of other congressional mandates cited by Justice Ginsburg, post, at 621, 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 organizing, arming, and disciplining, the Militia”); id., cl. 5 (to “coin Money”); id., cl. 1 (to “lay and collect Taxes”).

[Justice Ginsburg’s footnote 10, which this answers, appears at the end of her opinion below. Read the two together.]

At the very least, we should “pause to consider the implications of the Government’s arguments” when confronted with such new conceptions of federal power. Lopez, supra, at 564.

The Constitution grants Congress the power to “regulate Commerce.” Art. I, § 8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous. For example, the Constitution gives Congress the power to “coin Money,” in addition to the power to “regulate the Value thereof.” Id., cl. 5. And it gives Congress the power to “raise and support Armies” and to “provide and maintain a Navy,” in addition to the power to “make Rules for the Government and Regulation of the land and naval Forces.” Id., cls. 12–14. If the power to regulate the Armed Forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unnecessary. The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated. See Gibbons, 9 Wheat., at 188 (“[T]he enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said”).⁴

Footnote 4

Justice Ginsburg suggests that “at the time the Constitution was framed, to ‘regulate’ meant, among other things, to require action.” Post, at 610 (citing Seven-Sky v. Holder, 661 F. 3d 1, 16 (CADC 2011); brackets and some internal quotation marks omitted). But to reach this conclusion, the case cited by Justice Ginsburg relied on a dictionary in which “[t]o order; to command” was the fifth-alternative definition of “to direct,” which was itself the second-alternative definition of “to regulate.” See id., at 16 (citing S. Johnson, Dictionary of the English Language (4th ed. 1773) (reprinted 1978)). It is unlikely that the Framers had such an obscure meaning in mind when they used the word “regulate.” Far more commonly, “[t]o regulate” meant “[t]o adjust by rule or method,” which … presupposes something to adjust. 2 id., at 1619; see also Gibbons, 9 Wheat., at 196 (defining the commerce power as the power “to prescribe the rule by which commerce is to be governed”).

[The footnote runs from the foot of 567 U. S. 550 to the foot of 551; it is reassembled here as one note. Two things to notice. First, this is where the Gibbons “prescribe the rule” formulation sits in the Chief Justice’s opinion — in a footnote, not in his body text. The same phrase appears in the body of the joint dissent of Scalia, Kennedy, Thomas and Alito, JJ., at 567 U. S. 649. They are different opinions and the two uses must not be conflated. Second, this footnote is answering Justice Ginsburg’s rebuttal at 567 U. S. 610, which appears below; the quoted words in the first sentence are hers, and everything around them is his.]

Our precedent also reflects this understanding. As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching “activity.” It is nearly impossible to avoid the word when quoting them. See, e. g., Lopez, supra, at 560 (“Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained”); Perez, 402 U. S., at 154 (“Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class” (emphasis in original; internal quotation marks omitted)); Wickard, supra, at 125 (“[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce”); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937) (“Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control”); see also post, at 602, 611–613, 614–615, 618 (Ginsburg, J., concurring in part, concurring in judgment in part, and dissenting in part).⁵

Footnote 5

Justice Ginsburg cites two eminent domain cases from the 1890s to support the proposition that our case law does not “toe the activity versus inactivity line.” Post, at 611 (citing Monongahela Nav. Co. v. United States, 148 U. S. 312, 335–337 (1893), and Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, 657–659 (1890)). 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.

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not 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.

Applying the Government’s logic to the familiar case of Wickard v. Filburn shows how far that logic would carry us from the notion of a government of limited powers. In Wickard, the Court famously upheld a federal penalty imposed on a farmer for growing wheat for consumption on his own farm. 317 U. S., at 114–115, 128–129. That amount of wheat caused the farmer to exceed his quota under a program designed to support the price of wheat by limiting supply. The Court rejected the farmer’s argument that growing wheat for home consumption was beyond the reach of the commerce power. It did so on the ground that the farmer’s decision to grow wheat for his own use allowed him to avoid purchasing wheat in the market. That decision, when considered in the aggregate along with similar decisions of others, would have had a substantial effect on the interstate market for wheat. Id., at 127–129.

Wickard has long been regarded as “perhaps the most far reaching example of Commerce Clause authority over intrastate activity,” Lopez, 514 U. S., at 560, but the Government’s theory in this case would go much further. Under Wickard it is within Congress’s power to regulate the market for wheat by supporting its price. But price can be supported by increasing demand as well as by decreasing supply. 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.

Indeed, the Government’s logic would justify a mandatory purchase to solve almost any problem. See Seven-Sky, 661 F. 3d, at 14–15 (noting the Government’s inability to “identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional” under its theory of the commerce power). To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. See, e. g., Dept. of Agriculture and Dept. of Health and Human Services, Dietary Guidelines for Americans 1 (2010). The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. See, e. g., Finkelstein, Trogdon, Cohen, & Dietz, Annual Medical Spending Attributable to Obesity: Payer- and Service-Specific Estimates, 28 Health Affairs w822 (2009) (detailing the “undeniable link between rising rates of obesity and rising medical spending,” and estimating that “the annual medical burden of obesity has risen to almost 10 percent of all medical spending and could amount to $147 billion per year in 2008”). Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. See Center for Applied Ethics, Voluntary Health Risks: Who Should Pay? 6 Issues in Ethics 6 (1993) (noting “overwhelming evidence that individuals with unhealthy habits pay only a fraction of the costs associated with their behaviors; most of the expense is borne by the rest of society in the form of higher insurance premiums, government expenditures for health care, and disability benefits”). Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables. See Dietary Guidelines, supra, at 19 (“Improved nutrition, appropriate eating behaviors, and increased physical activity have tremendous potential to … reduce health care costs”).

People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.

That is not the country the Framers of our Constitution envisioned. James Madison explained that the Commerce Clause was “an addition which few oppose and from which no apprehensions are entertained.” The Federalist No. 45, at 293. While Congress’s authority under the Commerce Clause has of course expanded with the growth of the national economy, our cases have “always recognized that the power to regulate commerce, though broad indeed, has limits.” Maryland v. Wirtz, 392 U. S. 183, 196 (1968). The Government’s theory would erode those limits, permitting Congress to reach beyond the natural extent of its authority, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.” The Federalist No. 48, at 309 (J. Madison). Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.⁶

Footnote 6

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 612. But “self-insurance” is, in this context, nothing more than a description of the failure to purchase insurance. Individuals are no more “activ[e] in the self-insurance market” when they fail to purchase insurance, post, at 613, than they are active in the “rest” market when doing nothing.

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 metaphysical philosophers. Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 673 (1980) (Rehnquist, J., concurring in judgment). As we have explained, “the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life as they understood them, putting into form the government they were creating, and prescribing in language clear and intelligible the powers that government was to take.” South Carolina v. United States, 199 U. S. 437, 449 (1905). The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.

The Government sees things differently. It argues that because sickness and injury are unpredictable but unavoidable, “the uninsured as a class are active in the market for health care, which they regularly seek and obtain.” Brief for United States 50. The individual mandate “merely regulates how individuals finance and pay for that active participation—requiring that they do so through insurance, rather than through attempted self-insurance with the back-stop of shifting costs to others.” Ibid.

The Government repeats the phrase “active in the market for health care” throughout its brief, see id., at 7, 18, 34, 50, but that concept has no constitutional significance. An individual who bought a car two years ago and may buy another in the future is not “active in the car market” in any pertinent sense. The phrase “active in the market” cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government’s effort to “regulate the uninsured as a class.” Id., at 42. Our precedents recognize Congress’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 (“Petitioner is clearly a member of the class which engages in ‘extortionate credit transactions’ …” (emphasis deleted)).

The individual mandate’s regulation of the uninsured as a class is, in fact, particularly divorced from any link to existing commercial activity. The mandate primarily affects healthy, often young adults who are less likely to need significant health care and have other priorities for spending their money. It is precisely because these individuals, as an actuarial class, incur relatively low health care costs that the mandate helps counter the effect of forcing insurance companies to cover others who impose greater costs than their premiums are allowed to reflect. See 42 U. S. C. § 18091(2)(I) (recognizing that the mandate would “broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums”). If the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is its defining feature.

The Government, however, claims that this does not matter. The Government regards it as sufficient to trigger Congress’s authority that almost all those who are uninsured 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 Government 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. 111 (Mar. 27, 2012).

The proposition that Congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent. We have said that Congress can anticipate the effects on commerce of an economic activity. See, e. g., Consolidated Edison Co. v. NLRB, 305 U. S. 197 (1938) (regulating the labor practices of utility companies); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964) (prohibiting discrimination by hotel operators); Katzenbach v. McClung, 379 U. S. 294 (1964) (prohibiting discrimination by restaurant owners). 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 606–607, involved preexisting economic activity. See, e. g., Wickard, 317 U. S., at 127–129 (producing wheat); Raich, supra, at 25 (growing marijuana).

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.

The Government argues that the individual mandate can be sustained as a sort of exception to this rule, because health insurance is a unique product. According to the Government, upholding the individual mandate would not justify mandatory purchases of items such as cars or broccoli because, as the Government puts it, “[h]ealth insurance is not purchased for its own sake like a car or broccoli; it is a means of financing health-care consumption and covering universal risks.” Reply Brief for United States 19. 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.

The Government says that health insurance and health care financing are “inherently integrated.” Brief for United States 41. But that does not mean the compelled purchase of the first is properly regarded as a regulation of the second. No matter how “inherently integrated” health insurance and health care consumption may be, they are not the same thing: They involve different transactions, entered into at different times, with different providers. 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 lacking to justify an exception of the sort urged by the Government. The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”

2

The Government next contends that Congress has the power under the Necessary and Proper Clause to enact the individual mandate because the mandate is an “integral part of a comprehensive scheme of economic regulation”—the guaranteed-issue and community-rating insurance reforms. Brief for United States 24. Under this argument, it is not necessary to consider the effect that an individual’s inactivity may have on interstate commerce; it is enough that Congress …

[GAP — 567 U. S. 559–561 are not in hand. The Chief Justice’s opinion breaks off here, mid-sentence, at the foot of 567 U. S. 558. Part III–A(2) — his answer to the Necessary and Proper Clause argument, running from 558 to 561 — was outside the scope of this acquisition and was never requested. In summary, and from the syllabus rather than from the opinion: he concluded that the mandate could not be sustained under that Clause either, because the Court’s prior cases upholding laws under it involved authority “derivative of, and in service to, a granted power,” whereas the mandate would let Congress “create the necessary predicate to the exercise of an enumerated power,” an expansion that is not a “proper” means even if it is a necessary one. Do not quote that summary as his words. Justice Ginsburg’s reply to it is partly reproduced below.]

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GINSBURG, J., concurring in part, concurring in the judgment in part, and dissenting in part

[Justice Ginsburg, with whom Justice Sotomayor joins, and with whom Justice Breyer and Justice Kagan join as to Parts I, II, III and IV. The Commerce Clause material below is drawn from her Parts I and II and therefore carries four votes. On this question she is dissenting. Where she quotes the Chief Justice — she does so constantly, as “Ante, at ___” — the quoted words are his and everything around them is hers. Where she writes of “the joint dissenters,” she means Scalia, Kennedy, Thomas and Alito, JJ., a third opinion, not the Chief Justice’s.

GAP — 567 U. S. 589, the opening page of her opinion, was not retrieved. It carries her caption and her own statement of what she concurs in and what she dissents from. The caption given above is reconstructed from the syllabus at 567 U. S. 524, not from p. 589 itself. Her text below begins mid-citation at the top of 567 U. S. 590.]

… 251 (1918), and recognizing that “regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause”); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937) (“[The commerce] power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it.” (internal quotation marks omitted)). 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 Interstate 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.

A

In enacting the Patient Protection and Affordable Care Act (ACA), Congress comprehensively reformed the national market for health-care products and services. By any measure, that market is immense. Collectively, Americans spent $2.5 trillion on health care in 2009, accounting for 17.6% of our Nation’s economy. 42 U. S. C. § 18091(2)(B) (2006 ed., Supp. IV). Within the next decade, it is anticipated, spending on health care will nearly double. Ibid.

The health-care market’s size is not its only distinctive feature. Unlike the market for almost any other product or service, the market for medical care is one in which all individuals inevitably participate. Virtually every person residing in the United States, sooner or later, will visit a doctor or other health-care professional. [Citation omitted.] Most people will do so repeatedly.

When individuals make those visits, they face another reality of the current market for medical care: its high cost. In 2010, on average, an individual in the United States incurred over $7,000 in health-care expenses. Over a lifetime, costs mount to hundreds of thousands of dollars. When a person requires nonroutine care, the cost will generally exceed what he or she can afford to pay. A single hospital stay, for instance, typically costs upwards of $10,000. [Citations omitted.]

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 without warning. Inescapably, we are all at peril of needing medical care without a moment’s notice. See, e. g., Campbell, Down the Insurance Rabbit Hole, N. Y. Times, Apr. 5, 2012, p. A23 (telling of an uninsured 32-year-old woman who, healthy one day, became a quadriplegic the next due to an auto accident).

To manage the risks associated with medical care—its high cost, its unpredictability, and its inevitability—most people in the United States obtain health insurance. [Approximately 170 million were insured privately in 2009; others rely on Medicare and Medicaid.] Combined, private health insurers and State and Federal Governments finance almost 85% of the medical care administered to U. S. residents.

Not all U. S. residents, however, have health insurance. In 2009, approximately 50 million people were uninsured, either by choice or, more likely, because they could not afford private insurance and did not qualify for government aid. As a group, uninsured individuals annually consume more than $100 billion in health-care services, nearly 5% of the Nation’s total. Hidden Health Tax: Americans Pay a Premium 2 (2009). Over 60% of those without insurance visit a doctor’s office or emergency room in a given year. See Dept. of Health and Human Services, National Center for Health Statistics, Health—United States—2010, p. 282 (Feb. 2011) (Table 79).

B

The large number of individuals without health insurance, Congress found, heavily burdens the national health-care market. See 42 U. S. C. § 18091(2). As just noted, the cost of emergency care or treatment for a serious illness generally exceeds what an individual can afford to pay on her own. Unlike markets for most products, however, the inability to pay for care does not mean that an uninsured individual will receive no care. Federal and state law, as well as professional obligations and embedded social norms, require hospitals and physicians to provide care when it is most needed, regardless of the patient’s ability to pay. [Citations omitted.]

As a consequence, medical-care providers deliver significant amounts of care to the uninsured for which the providers receive no payment. In 2008, for example, hospitals, physicians, and other health-care professionals received no compensation for $43 billion worth of the $116 billion in care they administered to those without insurance. 42 U. S. C. § 18091(2)(F) (2006 ed., Supp. IV).

Health-care providers do not absorb these bad debts. Instead, they raise their prices, passing along the cost of uncompensated care to those who do pay reliably: the government and private insurance companies. In response, private insurers increase their premiums, shifting the cost of the elevated bills from providers onto those who carry insurance. The net result: Those with health insurance subsidize the medical care of those without it. As economists would describe what happens, the uninsured “free ride” on those who pay for health insurance.

The size of this subsidy is considerable. Congress found that the cost shifting just described “increases family [insurance] premiums by on average over $1,000 a year.” Ibid. Higher premiums, in turn, render health insurance less affordable, forcing more people to go without insurance and leading to further cost shifting.

And it is hardly just the currently sick or injured among the uninsured who prompt elevation of the price of health care and health insurance. Insurance companies and health care providers know that some percentage of healthy, uninsured people will suffer sickness or injury each year and will receive medical care despite their inability to pay. In anticipation of this uncompensated care, health-care companies raise their prices, and insurers their premiums. In other words, because any uninsured person may need medical care at any moment and because health-care companies must account for that risk, every uninsured person impacts the market price of medical care and medical insurance.

[She adds that the uninsured, lacking preventive care, arrive later and sicker, and that the resources providers divert to them degrade the care given to the insured.]

C

States cannot resolve the problem of the uninsured on their own. Like Social Security benefits, a universal health care system, if adopted by an individual State, would be “bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose.” Helvering v. Davis, 301 U. S. 619, 644 (1937). An influx of unhealthy individuals into a State with universal health care would result in increased spending on medical services. To cover the increased costs, a State would have to raise taxes, and private health-insurance companies would have to increase premiums. Higher taxes and increased insurance costs would, in turn, encourage businesses and healthy individuals to leave the State.

States that undertake health-care reforms on their own thus risk “placing themselves in a position of economic disadvantage as compared with neighbors or competitors.” Davis, 301 U. S., at 644. Facing that risk, individual States are unlikely to take the initiative in addressing the problem of the uninsured, even though solving that problem is in all States’ best interests. Congress’ intervention was needed to overcome this collective-action impasse.

[GAP — 567 U. S. 596–598 were not retrieved. They carry her account of the adverse-selection death spiral that guaranteed issue and community rating would produce without a mandate, and of the state-level experiments that preceded the ACA. She cross-references those pages herself below. The text resumes at 567 U. S. 599, in the middle of her account of Massachusetts.]

… 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. In coupling the minimum coverage provision with guaranteed-issue and community-rating prescriptions, Congress followed Massachusetts’ lead.

* * *

In sum, Congress passed the minimum coverage provision as a key component of the ACA to address an economic and social problem that has plagued the Nation for decades: the large number of U. S. residents who are unable or unwilling to obtain health insurance. Whatever one thinks of the policy decision Congress made, it was Congress’ prerogative to make it. Reviewed with appropriate deference, the minimum coverage provision, allied to the guaranteed-issue and community-rating prescriptions, should survive measurement under the Commerce and Necessary and Proper Clauses.

II

A

The Commerce Clause, it is widely acknowledged, “was the Framers’ response to the central problem that gave rise to the Constitution itself.” EEOC v. Wyoming, 460 U. S. 226, 244, 245, n. 1 (1983) (Stevens, J., concurring) (citing sources). Under the Articles of Confederation, the Consti …

[GAP — 567 U. S. 600–601 were not retrieved. They carry her survey of the Commerce Clause from the Articles of Confederation through the New Deal — the historical ground she stands on when she says at 602 that “[u]ntil today” the Court’s approach was pragmatic. She cross-references those pages repeatedly (“See supra, at 601–602”). The text resumes mid-sentence at 567 U. S. 602.]

… problems directly and realistically.” American Power & Light Co. v. SEC, 329 U. S. 90, 103 (1946).

Until today, this Court’s pragmatic approach to judging whether Congress validly exercised its commerce power was guided by two familiar principles. First, Congress has the power to regulate economic activities “that substantially affect interstate commerce.” Gonzales v. Raich, 545 U. S. 1, 17 (2005). This capacious power extends even to local activities that, viewed in the aggregate, have a substantial impact on interstate commerce. See ibid. See also Wickard, 317 U. S., at 125; Jones & Laughlin Steel Corp., 301 U. S., at 37.

Second, we owe a large measure of respect to Congress when it frames and enacts economic and social legislation. See Raich, 545 U. S., at 17. When appraising such legislation, 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 “reasonable connection between the regulatory means selected and the asserted ends.” Id., at 323–324. [Citations omitted.] In answering these questions, we presume the statute under review is constitutional and may strike it down only on a “plain showing” that Congress acted irrationally. United States v. Morrison, 529 U. S. 598, 607 (2000).

C

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. Those without insurance consume billions of dollars of health-care products and services each year. Those goods are produced, sold, and delivered largely by national and regional companies who routinely transact business across state lines. The uninsured also cross state lines to receive care.

Not only do those without insurance consume a large amount of health care each year; critically, as earlier explained, their inability to pay for a significant portion of that consumption drives up market prices, foists costs on other consumers, and reduces market efficiency and stability. Given these far-reaching effects on interstate commerce, the decision to forgo insurance is hardly inconsequential or equivalent to “doing nothing,” ante, at 552; it is, instead, an economic decision Congress has the authority to address under the Commerce Clause.

[GAP — 567 U. S. 604 was not retrieved. It was asked for by name and did not come back. It is the page on which she establishes at length that the choice to self-insure is an economic act, and she cross-references it repeatedly (“See supra, at 603–604”). Of the gaps in this reading it is the most substantively regrettable. The text resumes mid-sentence at 567 U. S. 605.]

… 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.” Ante, at 552 (emphasis deleted).

[Assuming for the sake of argument that the commerce power reaches only those active in a market, she answers, the minimum coverage provision satisfies even that limitation, because everyone consumes health care.]

The Chief Justice does not dispute that all U. S. residents participate in the market for health services over the course of their lives. See ante, at 547 (“Everyone will eventually need health care at a time and to an extent they cannot predict.”). But, The Chief Justice insists, the uninsured cannot be considered active in the market for health care, because “[t]he proximity and degree of connection between the [uninsured today] and [their] subsequent commercial activity is too lacking.” Ante, at 558.

This argument has multiple flaws. First, more than 60% of those without insurance visit a hospital or doctor’s office each year. Nearly 90% will within five years.⁴ An uninsured’s consumption of health care is thus quite proximate: It is virtually certain to occur in the next five years and more likely than not to occur this year. Equally evident, Congress has no way of separating those uninsured individuals who will need emergency medical care today from those who will not need medical services for years to come. No one knows when an emergency will occur, yet emergencies involving the uninsured arise daily. To capture individuals who unexpectedly will obtain medical care in the very near future, then, Congress needed to include individuals who will not go to a doctor anytime soon. Congress, our decisions instruct, has authority to cast its net that wide. See Perez v. United States, 402 U. S. 146, 154 (1971).

Footnote 4

See Dept. of Health and Human Services, National Center for Health Statistics, Summary Health Statistics for U. S. Adults: National Health Interview Survey 2009, Ser. 10, No. 249, p. 124 (Dec. 2010) (Table 37).

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 health-care market 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 reasonably have viewed the market from a long-term perspective, encompassing all transactions virtually certain to occur over the next decade, not just those occurring here and now.

Third, contrary to The Chief Justice’s contention, our precedent does indeed support “[t]he proposition that Congress may dictate the conduct of an individual today because of prophesied future activity.” Ante, at 557. [She recounts Wickard and Raich.] 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 here, where the future activity (the consumption of medical care) is certain to occur, the sole uncertainty being the time the activity will take place.

Maintaining that the uninsured are not active in the health-care market, The Chief Justice draws an analogy to the car market. An individual “is not ‘active in the car market,’” The Chief Justice observes, simply because he or she may someday buy a car. Ante, at 556. The analogy is inapt. The inevitable yet unpredictable need for medical 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 nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price. Upholding the minimum coverage provision on the ground that all are participants or will be participants in the health-care market would therefore carry no implication that Congress may justify under the Commerce Clause a mandate to buy other products and services.

Nor is it accurate to say that the minimum coverage provision “compel[s] individuals … to purchase an unwanted product,” ante, at 549. If unwanted today, medical service secured by insurance may be desperately needed tomorrow. Health insurance is a means of paying for this care, nothing more. Rather, Congress is merely defining the terms on which individuals pay for an interstate good they consume: Persons subject to the mandate must now pay for medical care in advance (instead of at the point of service) and through insurance (instead of out of pocket). Establishing payment terms for goods in or affecting interstate commerce is quintessential economic regulation well within Congress’ domain.

[She adds that the mandate is not an illegitimate subsidy extracted from the young and healthy: they already receive an unpaid-for guarantee that emergency care will be available, and by requiring the healthy uninsured to obtain insurance or pay a penalty structured as a tax, the minimum coverage provision ends the free ride these individuals currently enjoy. In the fullness of time, moreover, today’s young and healthy will become society’s old and infirm — “that is how insurance works.”]

b

In any event, The Chief Justice’s limitation of the commerce power to the regulation of those actively engaged in commerce finds no home in the text of the Constitution or our decisions. Article I, § 8, of the Constitution grants Congress the power “[t]o regulate Commerce … among the several States.” Nothing in this language implies that Congress’ commerce power is limited to regulating those actively engaged in commercial transactions. Indeed, as the D. C. Circuit observed, “[a]t the time the Constitution was [framed], to ‘regulate’ meant,” among other things, “to require action.” See Seven-Sky v. Holder, 661 F. 3d 1, 16 (2011).

[She then quotes the structural argument set out above at 567 U. S. 550 — “coin Money” alongside “regulate the Value thereof,” “raise and support Armies” alongside “Government and Regulation of the land and naval Forces.”]

This argument is difficult to fathom. Requiring individuals to obtain insurance unquestionably regulates the interstate health-insurance and health-care markets, both of them in existence well before the enactment of the ACA. See Wickard, 317 U. S., at 128 (“The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.”). Thus, the “something to be regulated” was surely there when Congress created the minimum coverage provision.⁶

Footnote 6

The Chief Justice’s reliance on the quoted passages of the Constitution, see ante, at 550, is also dubious on other grounds. The power to “regulate the Value” of the national currency presumably includes the power to increase the currency’s worth—i. e., to create value where none previously existed. And if the power to “[r]egulat[e] … the land and naval Forces” presupposes “there is already [in existence] something to be regulated,” i. e., an Army and a Navy, does Congress lack authority to create an Air Force?

Nor does our case law toe the activity versus inactivity line. In Wickard, for example, we upheld the penalty imposed on a farmer who grew too much wheat, even though the regulation had the effect of compelling farmers to purchase wheat in the open market. Id., at 127–129. “[F]orcing some farmers into the market to buy what they could provide for themselves” was, the Court held, a valid means of regulating commerce. Id., at 128–129. In another context, this Court similarly upheld Congress’ authority under the commerce power to compel an “inactive” landholder to submit to an unwanted sale. See Monongahela Nav. Co. v. United States, 148 U. S. 312, 335–337 (1893); Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, 657–659 (1890).

In concluding that the Commerce Clause does not permit Congress to regulate commercial “inactivity,” and therefore does not allow Congress to adopt the practical solution it devised for the health-care problem, The Chief Justice views the Clause as a “technical legal conception,” precisely what our case law tells us not to do. Wickard, 317 U. S., at 122 (internal quotation marks omitted). This Court’s former endeavors to impose categorical limits on the commerce power have not fared well. [She recounts the pre-New Deal formalisms — commerce against “production,” “mining,” “manufacturing”; E. C. Knight; Carter Coal; the “direct” and “indirect” effects of Schechter Poultry.] These line-drawing exercises were untenable, and the Court long ago abandoned them. “[Q]uestions of the power of Congress [under the Commerce Clause],” we held in Wickard, “are not to be decided by reference to any formula which would give controlling force to nomenclature such as ‘production’ and ‘indirect’ and foreclose consideration of the actual effects of the activity in question upon interstate commerce.” 317 U. S., at 120. Failing to learn from this history, The Chief Justice plows ahead with his formalistic distinction between those who are “active in commerce,” ante, at 552, and those who are not.

It is not hard to show the difficulty courts (and Congress) would encounter in distinguishing statutes that regulate “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 the instant litigation 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: self-insurance. The minimum coverage provision could therefore be described as regulating activists in the self-insurance 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 anything, the Court’s analysis suggested the latter. See 317 U. S., at 127–129.

Footnote 7

The Chief Justice’s characterization of individuals who choose not to purchase private insurance as “doing nothing,” ante, at 552, is similarly questionable. A person who self-insures opts against prepayment for a product the person will in time consume. When aggregated, exercise of that option has a substantial impact on the health-care market.

At bottom, The Chief Justice’s and the joint dissenters’ “view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that [is] more redolent of Due Process Clause arguments.” Seven-Sky, 661 F. 3d, at 19. See also Troxel v. Granville, 530 U. S. 57, 65 (2000) (plurality opinion) (“The [Due Process] Clause also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests.” (internal quotation marks omitted)). Plaintiffs have abandoned any argument pinned to substantive due process, however, and now concede that the provisions here at issue do not offend the Due Process Clause.⁸

Footnote 8

Some adherents to the joint dissent have questioned the existence of substantive due process rights. See McDonald v. Chicago, 561 U. S. 742, 811 (2010) (Thomas, J., concurring) (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 guaranteeing liberty interests, their willingness to plant such protections in the Commerce Clause is striking.

[The footnote straddles 567 U. S. 613 and 614 and is reassembled here as one note. Note that by its terms it addresses “adherents to the joint dissent” — Thomas and Scalia — and not the Chief Justice, while the body text it hangs from names “The Chief Justice’s and the joint dissenters’” view together.]

2

Underlying The Chief Justice’s view that the Commerce Clause must be confined to the regulation of active participants in a commercial market is a fear that the commerce power would otherwise know no limits. See, e. g., ante, at 554. The joint dissenters express a similar apprehension. See post, at 653. This concern is unfounded.

First, The Chief Justice could certainly uphold the individual mandate without giving Congress carte blanche to enact any and all purchase mandates. As several times noted, the unique attributes of the health-care market render everyone active in that market and give rise to a significant free-riding problem that does not occur in other markets.

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. In Lopez, for example, the Court held that the Federal Government lacked power, under the Commerce Clause, to criminalize the possession of a gun in a local school zone. Possessing a gun near a school, the Court reasoned, “is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.” 514 U. S., at 567; ibid. (noting that the Court would have “to pile inference upon inference” to conclude that gun possession has a substantial effect on commerce). Relying on similar logic, the Court concluded in Morrison that Congress could not regulate gender-motivated violence, which the Court deemed to have too “attenuated [an] effect upon interstate commerce.” 529 U. S., at 615.

An individual’s decision to self-insure, I have explained, is an economic act with the requisite connection to interstate commerce. Other choices individuals make are unlikely to fit the same or similar description. As an example of the type of regulation he fears, The Chief Justice cites a Government mandate to purchase green vegetables. Ante, at 553–554. 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 vegetable-purchase mandate was likely to have a substantial effect on the health-care 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 deep fried), 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 refused to do in Lopez and Morrison.

Footnote 9

The failure to purchase vegetables in The Chief Justice’s hypothetical, then, is not what leads to higher health-care costs for others; rather, it is the failure of individuals to maintain a healthy diet, and the resulting obesity, that creates the cost-shifting problem. See ante, at 553–554. 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 cost shifting Congress sought to address through the ACA. Requiring individuals to obtain insurance attacks the source of the problem directly, in a single step.

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

Supplementing these legal restraints is a formidable check on congressional power: the democratic process. As the controversy surrounding the passage of the ACA attests, 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.

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. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetarian state as a credible reason to deny Congress the authority 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. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”).

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 549. While an insurance-purchase mandate may be novel, The Chief Justice’s argument certainly is not. “[I]n almost every instance of the exercise 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). [She cites the briefs in Perez, Katzenbach and Wickard, each of which called the exercise unprecedented.] 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.” Hindering Congress’ ability to do so is shortsighted; if history is any guide, today’s constric …

[GAP — 567 U. S. 618 was not retrieved, and neither was 567 U. S. 620. Page 618 completes the sentence above and the balance of the novelty argument. Page 620 sits inside the Necessary and Proper Clause discussion that follows. Her Necessary and Proper argument at 619–621 — that the minimum coverage provision is an “essential par[t] of a larger regulation of economic activity” without which “the regulatory scheme [w]ould be undercut,” Raich, 545 U. S., at 24–25, and that the Chief Justice’s test for what is “proper” amounts to telling lower courts “[y]ou will know it when you see it” — is not reproduced here, the answering portion of his Part III–A(2) being unavailable. Her footnote 10, which the Chief Justice’s footnote 3 above answers, is reproduced because the two are taught together.]

Footnote 10

Indeed, Congress regularly and uncontroversially requires individuals who are “doing nothing,” see ante, at 552, to take action. Examples include federal requirements to report for jury duty, 28 U. S. C. § 1866(g) (2006 ed., Supp. IV); to register for selective service, 50 U. S. C. App. § 453; to purchase firearms and gear in anticipation of service in the Militia, 1 Stat. 271 (Uniform Militia Act of 1792); to turn gold currency over to the Federal Government in exchange for paper currency, see Nortz v. United States, 294 U. S. 317, 328 (1935); and to file a tax return, 26 U. S. C. § 6012 (2006 ed., Supp. IV).

---

[What happened to the mandate. Nothing above decided the case. Having concluded in Part III–A — alone — that the Commerce Clause did not authorize the individual mandate, the Chief Justice went on in Part III–C to sustain the mandate as an exercise of Congress’s power to lay and collect taxes, and there he wrote for a Court: Ginsburg, Breyer, Sotomayor and Kagan, JJ., joined him. The mandate therefore survived. That holding, the Anti-Injunction Act question that preceded it, and the Medicaid-expansion holding of Part IV are Module 4 material.

The joint dissent of Scalia, Kennedy, Thomas and Alito, JJ., is omitted here. It would have struck down the entire Act. On the Commerce Clause it reached the same result as Part III–A by a different route — that “one does not regulate commerce that does not exist by compelling its existence” — and it neither joined the Chief Justice nor was joined by him. Thomas, J., also filed a separate dissent. Neither is reproduced in this reading.]

Notes & Questions

1. Big picture. Start with the arithmetic, because it is strange and it is the most commonly misstated fact about this case. Part III–A — the Commerce Clause analysis you have just read, the most quoted commerce passage of the last thirty years — was joined by no other Justice. It is not an opinion of the Court. There is no opinion of the Court on the Commerce Clause in NFIB. And yet five Justices concluded that the Commerce Clause did not authorize the individual mandate: the Chief Justice here, and the four joint dissenters by their own separate route. So the proposition has five votes and no majority opinion, which is a distinction that matters enormously to a court below and not at all to a headline. Hold that against the module’s opening. Gibbons said the restraints on the commerce power are political rather than judicial. Lopez said some are judicial after all. Raich said a comprehensive enough statute escapes them. And here the Chief Justice finds a limit that none of the four factors in Lopez would have caught — because the objection is not that the activity is too local or too non-economic, but that there is no activity at all. That is a sixth consideration, and it is new.

2. Raw specific knowledge — finish the table, and then check it. Your Step 2 table is now complete. From Lopez: economic activity; congressional findings; the jurisdictional nexus; traditional state powers. From Raich: the comprehensive scheme. From this case: regulate, not compel. Write out the sixth in the Chief Justice’s own terms — the power to regulate commerce presupposes the existence of commercial activity to be regulated — and then write out the structural argument he builds it on, which is the part students drop: that the Constitution gives Congress power to coin money in addition to power to regulate its value, and to raise and support armies in addition to power to make rules for their government and regulation, so that a power to regulate which included a power to create would make those provisions superfluous. That is an argument from the document’s own drafting, not from federalism sentiment, and it is much harder to answer. Then record: (a) the full line-up, including which parts of the Chief Justice’s opinion commanded a Court and which did not; (b) the activity/inactivity formulation and the practical-statesmen line; (c) what he says Wickard is — and note that he treats it as the outer boundary rather than as an error.

3. Practical application — you are advising Congress the day after. (a) The mandate failed under the commerce power and was sustained under the taxing power, which is Module 4. Before you get there: draft the same policy as a regulation of commerce in a way that survives Part III–A. You may not use the word “tax.” What is the trigger you attach the obligation to? (b) A familiar move is to condition the duty on some prior act — entering a hospital, holding a licence, taking a job. Does that solve the problem or relabel it? Argue both. (c) Now the deeper question for a legislative drafter: if inactivity can always be converted into activity by choosing an earlier moment in the causal chain, is “regulate, not compel” a limit on congressional power or a limit on congressional drafting? Notice that this is O’Connor’s complaint in Raich arriving from the opposite direction — she said a broad statute can do what a narrow one cannot; the question here is whether a well-timed trigger can do what a blunt mandate cannot. If both are true, what exactly does the Commerce Clause forbid?

4. Attack the reasoning — the broccoli, and who actually said it. First, a matter of record, because you will get this wrong if you rely on the popular account. The broccoli hypothetical entered this case at oral argument, on March 27, 2012, through Justice Scalia. The broccoli passage in the printed opinion is the Chief Justice’s, at 553–554. Both facts are true and they are about different documents; a student reading the U.S. Reports will not find Scalia anywhere near a vegetable. Now the substance. (a) State the hypothetical’s logical form: it is a reductio, and a reductio only works if the absurd conclusion really follows. Does it? (b) Justice Ginsburg answers it by name — “the broccoli horrible” — and she answers it with Lopez’s own weapon, walking through the chain of inferences a court would have to accept to believe a vegetable mandate substantially affects health-care costs: that people forced to buy vegetables would eat them rather than throw them away, prepare them healthily rather than deep-fry them, cut back on unhealthy food, and so on. That is expressly the piling of inferences the Chief Justice’s predecessors condemned in Lopez. So the module’s signature phrase is now in both hands. Whose use of it is more faithful to Lopez? (c) She also charges that the majority’s real concern — being forced to buy something you do not want — is “more redolent of Due Process Clause arguments” than Commerce Clause ones, and her footnote 8 says the quiet part: Justices sceptical of substantive due process are planting liberty protections in the Commerce Clause instead. Is that a fair charge? If it is, what does it tell you about where doctrinal pressure goes when a doctrine is closed off? (d) Test her strongest factual point — that the uninsured are not inactive at all, since most of them consume health care and merely decline to prepay for it. If she is right about the facts, does the Chief Justice’s category survive?

5. Creative thinking — the module closes where it opened. Go back to Gibbons. The Chief Justice anchors Part III–A to Marshall twice: once on reading the commerce power in its natural sense, and once on the definition of the power to regulate as prescribing the rule by which commerce is to be governed. Reading 1 and reading 15 are quoting each other, and the second one is using the first against the government. (a) Marshall defined the verb in order to say the power was plenary. The Chief Justice uses the same definition to say the power is bounded. Can one definition do both jobs honestly, or has one of them added something? Quote-check it: put the two sentences side by side and identify the word doing the extra work. (b) Marshall said the restraints are political — the wisdom of Congress and the influence of constituents at elections. On that view, is the individual mandate a constitutional question at all? Write the two-paragraph Gibbons-faithful opinion upholding it, and then say why no Justice wrote that opinion in 2012. (c) You have now read the whole module. Take the six-factor table and ask which of the six Marshall would have recognized as law. Then ask which of them a court could apply without already knowing the answer. That second list is shorter than the first, and the gap between them is the real subject of this module. (d) One cross-module link, which you will want in April: Trump v. Barbara in Module 1 raised the same puzzle about a fractured Court whose most-quoted passage commands the fewest votes. Same puzzle, eleven weeks apart. The second time, you have the vocabulary.