THE GREATEST FEMALE Justice of the Supreme Court in U.S. history, likely for all time, not only reveals her mental might, but forever puts to rest why Justice Sandra Day O’Connor will be forever disgraced for her part in Bush v. Gore.
As someone who found the mandate smacking up against my libertarian streak, the great Ginsburg schools me on Libertarianism’s stinginess, while reminding me why I’ve never been a libertarian. Â That where all are impacted, we all must participate. Â Lacking eloquence, that’s the nucleus of it for me and also why I was once a hyper-partisan Democrat, long before neoliberals and Blue Dogs ruled Democratic policy prescriptions and politics.
The politics of Chief Justice Roberts is woven throughout his majority opinion, as I’ve already written, though it doesn’t make it any less brilliant a move. Â Roberts toyed with Pres. Obama like a rat does cheese before devouring, the lip-smacking finish to be seen in years and decades to come. Because in handing Obama what cable yakkers are calling a “win,” Roberts dislodged and elevated his own reputation from and above that of the disgraced Chief Justice Rehnquist and his Court, simultaneously succeeding in preserving options of action through conservatism that will inevitably harm the American majority.
Chief Justice Roberts also kept the elite private insurance industry and Big Pharma in charge, aiding Pres. Obama’s goal and that of Democrats, neither of whom had the tenacity to do what’s required so that health care wouldn’t become a political football, with taxes the tool that both sides today utilize to make villains out of leaders.
The liberal giant Justice Ruth Bader Ginsburg’s opinion renders Chief Justice Roberts to the political player he is, through the machinations of her great thinking mind. Â
The sole focus of Ginsburg’s opinion is to keep pure the conjoined ideas of precedent, the Constitution and the Court, and its job for We the People, as she vivisects Roberts’ important majority decision, revealing it for what it is, a shrewd political document nonetheless, throughout her devastating appraisal. Â Saying in one section particular to hoisting the tax penalty as political linchpin and activist lightning rod for the right (hitting elite Democrats in their most defensive organ), “THE CHIEF JUSTICE’s limitation of theÂ commerce power to the regulation of those actively enÂgaged in commerce finds no home in the text of the ConstiÂtution or our decisions.”
Justice Ginsburg opinion is offered in its entirety below, or at least it will be once I finish uploading it, programming changed from the original PDF, but language copied verbatim. Â Any discrepancies (or inadvertent errors in text formatting) in transferring the document are my own, as it wasn’t easy to copy, which I’ll fix as I can.
The historic importance of Justice Ruth Bader Ginsburg’s opinion had to be highlighted and easily made available to read (emphases below added), because of its grandeur and beauty, but also its stunning impact on what Chief Justice Roberts wrote.
That it was written by a great lady of the Court, I would put forth, arguably the greatest Supreme Court Justice since Earl Warren, is my personal opinion, but one which I believe is fitting of this formidable powerhouse. Â To live in an era where Justice Ginsburg’s mind can wield such accurate words against the always leading gender, male, when where she started was a place in history that didn’t embrace women in the workplace, as was already written this week in The New YorkerÂ by Amy Davidson and others, let alone those with great legal minds to the highest Court in the land, should humble and inspire us all.
An American patriot in every sense, which resounds this week more than most, Justice Ginsburg should give every liberal the courage to take back the rightful heart and soul, if not the label itself, that represents the philosophy and purpose of when Democrats were great. Even if it means building from the beginning a new foundation for progressives, so the next time they are faced with conservative Democrats to lead the charge against the right they remember the courage of Justice Ruth Bader Ginsburg. The Justice who stands up to write what needs to be said, waging the righteous battle for people who would have no voice at all if liberals weren’t around to protect this country from forgetting the least fortunate among us. The same people who make capitalism possible, the vast middle class, who’s slowly lost the only champion we once had, liberal Democrats.
Cite as: 567 U. S. ____ (2012) 1
SUPREME COURT OF THE UNITED STATES
Nos. 11—393, 11—398 and 11—400
NATIONAL FEDERATION OF INDEPENDENT
BUSINESS, ET AL., PETITIONERS
KATHLEEN SEBELIUS, SECRETARY OF HEALTH
AND HUMAN SERVICES, ET AL.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ET AL., PETITIONERS
FLORIDA ET AL.
FLORIDA, ET AL., PETITIONERS
DEPARTMENT OF HEALTH AND
HUMAN SERVICES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 28, 2012]
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, and with whom JUSTICE BREYER and JUSTICE KAGAN join as to Parts I, II, III, and IV, concurring in part, concurring in the judgment in part, and dissenting in part.
I agree with THE CHIEF JUSTICE that the Anti-Injunction Act does not bar the Court’s consideration of this case, and that the minimum coverage provision is a proper exercise of Congress’ taxing power. I therefore join Parts I, II, and III—C of THE CHIEF JUSTICE’s opinion.
Unlike THE CHIEF JUSTICE, however, I would hold, alternaÂ tively, that the Commerce Clause authorizes Congress to enact the minimum coverage provision. I would also hold that the Spending Clause permits the Medicaid expansion exactly as Congress enacted it.
The provision of health care is today a concern of naÂtional dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s. In the Social Security 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.
Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm. See United States v. Darby, 312 U. S. 100, 115 (1941) (overruling Hammer v. Dagenhart, 247 U. S. 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 & LaughlinÂ 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 InterÂstate 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.
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. Â§18091(2)(B) (2006 ed., Supp. IV). Within the next decade, it is anticipated, spending on health care will nearly douÂ
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 visitÂ a doctor or other health-care professional. 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, Table 37 (Dec. 2010) (Over 99.5% of adults above 65 have visited a health-care professional.). Most people will do so repeatedly. See id., at 115, Table 34 (In 2009 alone, 64% of adults made two or more visits to a doctor’s office.).
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. Dept. of Health and Human Services, Centers for MediÂ care and Medicaid Services, Historic National Health Expenditure Data, National Health Expenditures: Selected Calendar Years 1960—2010 (Table 1). Over a lifeÂ time, costs mount to hundreds of thousands of dollars. See Alemayahu & Warner, The Lifetime Distribution of Health Care Costs, in 39 Health Service Research 627, 635Â (June 2004). 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 upÂwards of $10,000. See Dept. of Health and Human SerÂvices, Office of Health Policy, ASPE Research Brief: TheÂ Value of Health Insurance 5 (May 2011). Treatments for many serious, though not uncommon, conditions similarly cost a substantial sum. Brief for Economic Scholars as Amici Curiae in No. 11—398, p. 10 (citing a study indicatÂing that, in 1998, the cost of treating a heart attack for theÂ first 90 days exceeded $20,000, while the annual cost of treating certain cancers was more than $50,000).
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 withÂ out warning. Inescapably, we are all at peril of needingÂ medical care without a moment’s notice. See, e.g., CampÂbell, 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. Many (approximately 170 million in 2009) are insured by private insurance companies. Others, including those over 65 and certain poor and disabled persons, rely on government-funded insurance programs, notably Medicare and Medicaid. Combined, private health insurers andÂ State and Federal Governments finance almost 85% of the medical care administered to U. S. residents. See ConÂgressional Budget Office, CBO’s 2011 Long-Term Budget Outlook 37 (June 2011).
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. See Dept. of Commerce, Census Bureau, C. DeNavas-Walt, B. Proctor, & J. Smith, Income, Poverty, and Health Insurance Coverage in the United States: 2009, p. 23, Table 8 (Sept. 2010). As a group, uninsured individÂuals 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), available at http://www.familiesusa.org (all Internet material as visited June 25, 2012, and included in Clerk of Court’s case file). 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, Table 79 (Feb. 2011).
The large number of individuals without health insurÂance, Congress found, heavily burdens the nationalÂ health-care market. See 42 U. S. C. Â§18091(2). As justÂ noted, the cost of emergency care or treatment for a seriÂous illness generally exceeds what an individual can affordÂ to pay on her own. Unlike markets for most products,Â however, the inability to pay for care does not mean thatÂ an uninsured individual will receive no care. Federal andÂ state law, as well as professional obligations and embedÂded social norms, require hospitals and physicians toÂ provide care when it is most needed, regardless of theÂ patient’s ability to pay. See, e.g., 42 U. S. C. Â§1395dd; Fla.Â Stat. Â§395.1041(3)(f) (2010); Tex. Health & Safety CodeÂ Ann. Â§Â§311.022(a) and (b) (West 2010); American MedicalÂ Association, Council on Ethical and Judicial Affairs,Â Code of Medical Ethics, Current Opinions: Opinion 8.11–Neglect of Patient, p. 70 (1998—1999 ed.).
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 professionalsÂ received no compensation for $43 billion worth of the $116Â billion in care they administered to those without insurÂance. 42 U. S. C. Â§18091(2)(F) (2006 ed., Supp. IV).
Health-care providers do not absorb these bad debts.Â Instead, they raise their prices, passing along the cost of uncompensated care to those who do pay reliably: theÂ 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 insurÂance 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 foundÂ that the cost-shifting just described “increases familyÂ [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 insurÂance and leading to further cost-shifting.Â
And it is hardly just the currently sick or injured amongÂ 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 inaÂbility to pay. In anticipation of this uncompensated care, health-care companies raise their prices, and insurersÂ their premiums. In other words, because any uninsuredÂ person may need medical care at any moment and becauseÂ health-care companies must account for that risk, everyÂ uninsured person impacts the market price of medical careÂ and medical insurance.
The failure of individuals to acquire insurance has otherÂ deleterious effects on the health-care market. Because those without insurance generally lack access to preventaÂtive care, they do not receive treatment for conditions–like hypertension and diabetes–that can be successfully and affordably treated if diagnosed early on. See Institute of Medicine, National Academies, Insuring America’s Health: Principles and Recommendations 43 (2004). When sickness finally drives the uninsured to seek care, once treatable conditions have escalated into grave healthÂ problems, requiring more costly and extensive intervenÂtion. Id., at 43—44. The extra time and resources providÂers spend serving the uninsured lessens the providers’ ability to care for those who do have insurance. See Kliff, High Uninsured Rates Can Kill You–Even if You Have Coverage, Washington Post (May 7, 2012) (describing a study of California’s health-care market which foundÂ that, when hospitals divert time and resources to provide uncompensated care, the quality of care the hospitalsÂ deliver to those with insurance drops significantly), available at http://www.washingtonpost.com/blogs/ezra-klein/post/high- uninsured-rates-can-kill-you-even-if-you-have-coverage/2012/05/07/gIQALNHN8T_print.html.
States cannot resolve the problem of the uninsured onÂ their own. Like Social Security benefits, a universalÂ health-care system, if adopted by an individual State,Â 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). See also Brief for Commonwealth of Massachusetts as Amicus
Curiae in No. 11—398, p. 15 (noting that, in 2009, MassaÂchusetts’ emergency rooms served thousands of uninsured, out-of-state residents). An influx of unhealthy individualsÂ 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 inÂcrease premiums. Higher taxes and increased insuranceÂ costs could, 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. See also Brief for Health Care for All, Inc., et al. as Amici Curiae in No. 11—398, p. 4 (“[O]utÂÂ of-state residents continue to seek and receive millions of dollars in uncompensated care in Massachusetts hospitals, limiting the State’s efforts to improve its health care system through the elimination of uncompensated care.”).Â Facing that risk, individual States are unlikely to take the initiative in addressing the problem of the uninsured, evenÂ though solving that problem is in all States’ best interests.Â Congress’ intervention was needed to overcome this collectiveÂÂ action impasse.
Aware that a national solution was required, CongressÂ could have taken over the health-insurance market byÂ establishing a tax-and-spend federal program like Social Security. Such a program, commonly referred to as a Â single-payer system (where the sole payer is the Federal Government), would have left little, if any, room for priÂvate enterprise or the States. Instead of going this route, Congress enacted the ACA, a solution that retains a roÂbust role for private insurers and state governments. To make its chosen approach work, however, Congress had toÂ use some new tools, including a requirement that mostÂ individuals obtain private health insurance coverage. SeeÂ 26 U. S. C. Â§5000A (2006 ed., Supp. IV) (the minimumÂ coverage provision). As explained below, by employingÂ these tools, Congress was able to achieve a practical, altoÂgether reasonable, solution.
A central aim of the ACA is to reduce the number of uninsured U. S. residents. See 42 U. S. C. Â§18091(2)(C) and (I) (2006 ed., Supp. IV). The minimum coverageÂ provision advances this objective by giving potential recipÂients of health care a financial incentive to acquire insurÂance. Per the minimum coverage provision, an individualÂ must either obtain insurance or pay a toll constructed as aÂ tax penalty. See 26 U. S. C. Â§5000A.
The minimum coverage provision serves a further purÂpose vital to Congress’ plan to reduce the number of uninÂsured. Congress knew that encouraging individuals toÂ purchase insurance would not suffice to solve the problem,Â because most of the uninsured are not uninsured by choice.Â Of particular concern to Congress were people who, though desperately in need of insurance, often cannotÂ acquire it: persons who suffer from preexisting medicalÂ conditions. Before the ACA’s enactment, private insurance compaÂnies took an applicant’s medical history into account whenÂ setting insurance rates or deciding whether to insure an individual. Because individuals with preexisting med- [TM note: continued below, as in actual PDF]
According to one study conducted by the National Center for HealthÂ Statistics, the high cost of insurance is the most common reason why individuals lack coverage, followed by loss of one’s job, an employer’s unwillingness to offer insurance or an insurers’ unwillingness to cover those with preexisting medical conditions, and loss of Medicaid coverÂage. See Dept. of Health and Human Services, National Center for Health Statistics, Summary Health Statistics for the U. S. Population: National Health Interview Survey–2009, Ser. 10, No. 248, p. 71, Table 25 (Dec. 2010). “[D]id not want or need coverage” received too few responses to warrant its own category. See ibid., n. 2.
ical conditions cost insurance companies significantly moreÂ than those without such conditions, insurers routinely refused to insure these individuals, charged them substanÂtially higher premiums, or offered only limited coverageÂ that did not include the preexisting illness. See Dept. of Health and Human Services, Coverage Denied: How the Current Health Insurance System Leaves Millions Behind 1 (2009) (Over the past three years, 12.6 million nonÂelderly adults were denied insurance coverage or charged
higher premiums due to a preexisting condition.).
To ensure that individuals with medical histories have access to affordable insurance, Congress devised a threeÂÂ part solution. First, Congress imposed a “guaranteed isÂ sue” requirement, which bars insurers from denyingÂ coverage to any person on account of that person’s medicalÂ condition or history. See 42 U. S. C. Â§Â§300gg—1, 300gg—3, 300gg—4(a) (2006 ed., Supp. IV). Second, Congress required insurers to use “community rating” to price their insuranceÂ policies. See Â§300gg. Community rating, in effect, barsÂ insurance companies from charging higher premiums to those with preexisting conditions.
But these two provisions, Congress comprehended, couldÂ not work effectively unless individuals were given a powÂerful incentive to obtain insurance. See Hearings before the House Ways and Means Committee, 111th Cong., 1stÂ Sess., 10, 13 (2009) (statement of Uwe Reinhardt) (“[I]m-position of community-rated premiums and guaranteed issue on a market of competing private health insurersÂ will inexorably drive that market into extinction, unlessÂ these two features are coupled with . . . a mandate on individual[s] to be insured.” (emphasis in original)).
In the 1990’s, several States–including New York, NewÂ Jersey, Washington, Kentucky, Maine, New Hampshire,Â and Vermont–enacted guaranteed-issue and communityÂ rating laws without requiring universal acquisition ofÂ insurance coverage. The results were disastrous. “AllÂ seven states suffered from skyrocketing insurance preÂmium costs, reductions in individuals with coverage, andÂ reductions in insurance products and providers.” Brief forÂ American Association of People with Disabilities et al. asÂ Amici Curiae in No. 11—398, p. 9 (hereinafter AAPD Brief).Â See also Brief for Governor of Washington ChristineÂ Gregoire as Amicus Curiae in No. 11—398, pp. 11—14 (deÂscribing the “death spiral” in the insurance market WashÂington experienced when the State passed a law requiringÂ coverage for preexisting conditions).
Congress comprehended that guaranteed-issue and community-rating laws alone will not work. When insurÂance companies are required to insure the sick at affordable prices, individuals can wait until they become ill to buy insurance. Pretty soon, those in need of immediate mediÂcal care–i.e., those who cost insurers the most–become the insurance companies’ main customers. This “adverse selection” problem leaves insurers with two choices: They can either raise premiums dramatically to cover their ever-increasing costs or they can exit the market. In the seven States that tried guaranteed-issue and communityÂÂ rating requirements without a minimum coverage proviÂsion, that is precisely what insurance companies did. See, e.g., AAPD Brief 10 (“[In Maine,] [m]any insurance providÂers doubled their premiums in just three years or less.”); id., at 12 (“Like New York, Vermont saw substantial increases in premiums after its . . . insurance reform measures took effect in 1993.”); Hall, An Evaluation ofÂ New York’s Reform Law, 25 J. Health Pol. Pol’y & L. 71,Â 91—92 (2000) (Guaranteed-issue and community-rating laws resulted in a “dramatic exodus of indemnity insurersÂ from New York’s individual [insurance] market.”); Brief for Barry Friedman et al. as Amici Curiae in No. 11—398, p. 17 (“In Kentucky, all but two insurers (one State-run) abandoned the State.”).
Massachusetts, Congress was told, cracked the adverseÂ selection problem. By requiring most residents to obtainÂ insurance, see Mass. Gen. Laws, ch. 111M, Â§2 (West 2011),Â the Commonwealth ensured that insurers would not beÂ left with only the sick as customers. As a result, federalÂ lawmakers observed, Massachusetts succeeded whereÂ other States had failed. See Brief for Commonwealth ofÂ Massachusetts as Amicus Curiae in No. 11—398, p. 3 (notÂing that the Commonwealth’s reforms reduced the numberÂ of uninsured residents to less than 2%, the lowest rate inÂ the Nation, and cut the amount of uncompensated careÂ by a third); 42 U. S. C. Â§18091(2)(D) (2006 ed., Supp. IV)Â (noting the success of Massachusetts’ reforms).2Â In couÂpling the minimum coverage provision with guaranteedÂÂ issue and community-rating prescriptions, CongressÂ followed Massachusetts’ lead.Â
* * *
In sum, Congress passed the minimum coverage proviÂsion as a key component of the ACA to address an economÂic and social problem that has plagued the Nation for decades: the large number of U. S. residents who areÂ 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 approÂpriate deference, the minimum coverage provision, alliedÂ to the guaranteed-issue and community-rating prescripÂtions, should survive measurement under the Commerce and Necessary and Proper Clauses.
The Commerce Clause, it is widely acknowledged, “was the Framers’ response to the central problem that gave [TM Note: continued below, as in PDF]
Despite its success, Massachusetts’ medical-care providers still adÂminister substantial amounts of uncompensated care, much of that to uninsured patients from out-of-state. See supra, at 7—8.
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 Constitution’s precursor, the regulation of commerce wasÂ left to the States. This scheme proved unworkable, beÂcause the individual States, understandably focused on their own economic interests, often failed to take actions critical to the success of the Nation as a whole. See Vices of the Political System of the United States, in James Madison: Writings 69, 71, Â¶5 (J. Rakove ed. 1999) (As a result of the “want of concert in matters where common interest requires it,” the “national dignity, interest, and revenue [have] suffered.”).3
What was needed was a “national Government . . . armed with a positive & compleat authority in all cases where uniform measures are necessary.” See Letter from James Madison to Edmund Randolph (Apr. 8, 1787), in 9 Papers of James Madison 368, 370 (R. Rutland ed. 1975). See also Letter from George Washington to James MadiÂson (Nov. 30, 1785), in 8 id., at 428, 429 (“We are either a United people, or we are not. If the former, let us, in all matters of general concern act as a nation, which ha[s]Â national objects to promote, and a national character to support.”). The Framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.” 2 RecÂords of the Federal Convention of 1787, pp. 131—132, Â¶8 [TM Note: continued below, as in PDF]
Alexander Hamilton described the problem this way: “[Often] itÂ would be beneficial to all the states to encourage, or suppress[,] a particular branch of trade, while it would be detrimental . . . to attempt it without the concurrence of the rest.” The Continentalist No. V, in 3 Papers of Alexander Hamilton 75, 78 (H. Syrett ed. 1962). Because the concurrence of all States was exceedingly difficult to obtain, Hamilton observed, “the experiment would probably be left untried.” Ibid.
(M. Farrand rev. 1966). See also North American Co. v. SEC, 327 U. S. 686, 705 (1946) (“[The commerce power] is an affirmative power commensurate with the national
The Framers understood that the “general Interests of the Union” would change over time, in ways they could not anticipate. Accordingly, they recognized that the ConstiÂtution was of necessity a “great outlin[e],” not a detailed blueprint, see McCulloch v. Maryland, 4 Wheat. 316, 407 (1819), and that its provisions included broad concepts, to be “explained by the context or by the facts of the case,”Â Letter from James Madison to N. P. Trist (Dec. 1831), in 9Â Writings of James Madison 471, 475 (G. Hunt ed. 1910). “Nothing . . . can be more fallacious,” Alexander Hamilton emphasized, “than to infer the extent of any power, proper to be lodged in the national government, from . . . its immediate necessities. There ought to be a CAPACITY to provide for future contingencies[,] as they may happen;Â and as these are illimitable in their nature, it is impossible safely to limit that capacity.” The Federalist No. 34, pp. 205, 206 (John Harvard Library ed. 2009). See also McCulloch, 4 Wheat., at 415 (The Necessary and Proper Clause is lodged “in a constitution[,] intended to endurefor ages to come, and consequently, to be adapted to the various crises of human affairs.”).
Consistent with the Framers’ intent, we have repeatedlyÂ emphasized that Congress’ authority under the Commerce Clause is dependent upon “practical” considerations, including “actual experience.” Jones & Laughlin Steel Corp., 301 U. S., at 41—42; see Wickard v. Filburn, 317 U. S. 111, 122 (1942); United States v. Lopez, 514 U. S. 549, 573 (1995) (KENNEDY, J., concurring) (emphasizing “the Court’s definitive commitment to the practical conÂception of the commerce power”). See also North American Co., 327 U. S., at 705 (“Commerce itself is an intensely practical matter. To deal with it effectively, CongressÂ must be able to act in terms of economic and financial realities.” (citation omitted)). We afford Congress theÂ leeway “to undertake to solve national problems directlyÂ and realistically.” American Power & Light Co. v. SEC, 329 U. S. 90, 103 (1946).
Until today, this Court’s pragmatic approach to judgingÂ whether Congress validly exercised its commerce power was guided by two familiar principles. First, Congress hasÂ the power to regulate economic activities “that substanÂtially affect interstate commerce.” Gonzales v. Raich, 545 U. S. 1, 17 (2005). This capacious power extends even toÂ local activities that, viewed in the aggregate, have a subÂstantial impact on interstate commerce. See ibid. See also Wickard, 317 U. S., at 125 (“[E]ven if appellee’s activity be local and though it may not be regarded as comÂmerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” (emphasis added)); 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.Â See Raich, 545 U. S., at 17. See also Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717, 729 (1984) (“[S]trong deference [is] accorded legislation in the field of national economic policy.”); Hodel v. Indiana, 452 U. S. 314, 326 (1981) (“This [C]ourt will certainly not substitute its judgment for that of Congress unless theÂ relation of the subject to interstate commerce and its efÂfect upon it are clearly non-existent.” (internal quotationÂ marks omitted)). 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 “reasonaÂble connection between the regulatory means selected andÂ the asserted ends.” Id., at 323—324. See also Raich, 545Â U. S., at 22; Lopez, 514 U. S., at 557; Hodel v. VirginiaÂ Surface Mining & Reclamation Assn., Inc., 452 U. S. 264,Â 277 (1981); Katzenbach v. McClung, 379 U. S. 294, 303Â (1964); Heart of Atlanta Motel, Inc. v. United States, 379Â U. S. 241, 258 (1964); United States v. Carolene ProductsÂ Co., 304 U. S. 144, 152—153 (1938). In answering theseÂ questions, we presume the statute under review is constiÂtutional and may strike it down only on a “plain showing”Â that Congress acted irrationally. United States v. Morrison, 529 U. S. 598, 607 (2000).
Straightforward application of these principles wouldÂ require the Court to hold that the minimum overageÂ provision is proper Commerce Clause legislation. BeyondÂ dispute, Congress had a rational basis for concluding thatÂ the uninsured, as a class, substantially affect interstateÂ commerce. Those without insurance consume billions ofÂ dollars of health-care products and services each year. SeeÂ supra, at 5. Those goods are produced, sold, and deliveredÂ largely by national and regional companies who routinelyÂ transact business across state lines. The uninsured alsoÂ cross state lines to receive care. Some have medical emerÂgencies while away from home. Others, when sick, go to aÂ neighboring State that provides better care for those whoÂ have not prepaid for care. See supra, at 7—8.
Not only do those without insurance consume a largeÂ amount of health care each year; critically, as earlierÂ explained, their inability to pay for a significant portion of that consumption drives up market prices, foists costs onÂ other consumers, and reduces market efficiency and staÂbility. See supra, at 5—7. Given these far-reaching effectsÂ on interstate commerce, the decision to forgo insurance isÂ hardly inconsequential or equivalent to “doing nothing,” ante, at 20; it is, instead, an economic decision CongressÂ has the authority to address under the Commerce Clause.Â See supra, at 14—16. See also Wickard, 317 U. S., at 128Â (“It is well established by decisions of this Court thatÂ the power to regulate commerce includes the power to reguÂlate the prices at which commodities in that commerce areÂ dealt in and practices affecting such prices.” (emphasisÂ added)).
The minimum coverage provision, furthermore, bears aÂ “reasonable connection” to Congress’ goal of protecting the health-care market from the disruption caused by individÂuals who fail to obtain insurance. By requiring those whoÂ do not carry insurance to pay a toll, the minimum coverÂage provision gives individuals a strong incentive to inÂsure. This incentive, Congress had good reason to believe, would reduce the number of uninsured and, correspondÂingly, mitigate the adverse impact the uninsured have onÂ the national health-care market.
Congress also acted reasonably in requiring uninsuredÂ individuals, whether sick or healthy, either to obtainÂ insurance or to pay the specified penalty. As earlier obÂserved, because every person is at risk of needing care at any moment, all those who lack insurance, regardless ofÂ their current health status, adversely affect the price of health care and health insurance. See supra, at 6—7. Moreover, an insurance-purchase requirement limited to those in need of immediate care simply could not work. Insurance companies would either charge these individuÂals prohibitively expensive premiums, or, if communityÂÂ rating regulations were in place, close up shop. See supra,Â at 9—11. See also Brief for State of Maryland and 10Â Other States et al. as Amici Curiae in No. 11—398, p. 28Â (hereinafter Maryland Brief) (“No insurance regime canÂ survive if people can opt out when the risk insured againstÂ is only a risk, but opt in when the risk materializes.”).Â “[W]here we find that the legislators . . . have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.” Katzenbach, 379 U. S., at 303—304. Congress’ enactment of the minimum coverage provision, which addresses a specific interstate problem in a practical, experienceÂ informed manner, easily meets this criterion.
Rather than evaluating the constitutionality of theÂ minimum coverage provision in the manner established byÂ our precedents, THE CHIEF JUSTICE relies on a newlyÂ minted constitutional doctrine. The commerce power doesÂ not, THE CHIEF JUSTICE announces, permit CongressÂ to “compe[l] individuals to become active in commerceÂ by purchasing a product.” Ante, at 20 (emphasis deleted).
THE CHIEF JUSTICE’s novel constraint on Congress’Â commerce power gains no force from our precedent and forÂ that reason alone warrants disapprobation. See infra, atÂ 23—27. But even assuming, for the moment, that CongressÂ lacks authority under the Commerce Clause to “compelÂ individuals not engaged in commerce to purchase anÂ unwanted product,” ante, at 18, such a limitation would beÂ inapplicable here. Everyone will, at some point, consumeÂ health-care products and services. See supra, at 3. Thus,Â if THE CHIEF JUSTICE is correct that an insuranceÂÂ purchase requirement can be applied only to those whoÂ “actively” consume health care, the minimum coverageÂ provision fits the bill.
THE CHIEF JUSTICE does not dispute that all U. S. resiÂdents participate in the market for health services overÂ the course of their lives.See ante, at 16 (“Everyone willÂ eventually need health care at a time and to an extentÂ they cannot predict.”). But, THE CHIEF JUSTICE insists,Â the uninsured cannot be considered active in the marketÂ for health care, because “[t]he proximity and degree ofÂ connection between the [uninsured today] and [their]Â subsequent commercial activity is too lacking.” Ante,Â at 27.
This argument has multiple flaws. First, more than 60% of those without insurance visit a hospital or doctor’sÂ office each year. See supra, at 5. Nearly 90% will within five years.4 An uninsured’s consumption of health care isÂ 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 (surely their consumption of medical careÂ is sufficiently imminent) from those who will not need medical services for years to come. No one knows when an emergency will occur, yet emergencies involving the uninÂsured 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 toÂ a doctor anytime soon. Congress, our decisions instruct,Â has authority to cast its net that wide. See Perez v. United States, 402 U. S. 146, 154 (1971) (“[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so.” (inÂternal quotation marks omitted)).5 [TM Note: continued below, as in PDF]
See Dept. of Health and Human Services, National Center for Health Statistics, Summary Health Statistics for U. S. Adults: NationalÂ Health Interview Survey 2009, Ser. 10, No. 249, p. 124, Table 37 (Dec. 2010).
Echoing THE CHIEF JUSTICE, the joint dissenters urge that the minÂimum coverage provision impermissibly regulates young people who “have no intention of purchasing [medical care]” and are too far “reÂmoved from the [health-care] 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,Â though scarcely expecting to do so.
Â Second, it is Congress’ role, not the Court’s, to delineateÂ the boundaries of the market the Legislature seeks toÂ regulate.Â THE CHIEF JUSTICE defines the health-care market as including only those transactions that will occurÂ either in the next instant or within some (unspecified)Â proximity to the next instant. But Congress could reasonÂably have viewed the market from a long-term erspective,Â encompassing all transactions virtually certain to occurÂ over the next decade, see supra, at 19, not just those ocÂcurring here and now.
Third, contrary to THE CHIEF JUSTICE’s contention, our precedent does indeed support “[t]he proposition thatÂ Congress may dictate the conduct of an individual today because of prophesied future activity.” Ante, at 26. In Wickard, the Court upheld a penalty the Federal GovernÂment imposed on a farmer who grew more wheat than he was permitted to grow under the Agricultural Adjustment Act of 1938 (AAA). 317 U. S., at 114—115. He could not be penalized, the farmer argued, as he was growing the wheat for home consumption, not for sale on the open market. Id., at 119. The Court rejected this argument. Id., at 127—129. Wheat intended for home consumption, the Court noted, “overhangs the market, and if induced byÂ rising prices, tends to flow into the market and check priceÂ increases [intended by the AAA].” Id., at 128. Similar reasoning supported the Court’s judgment in Raich, which upheld Congress’ authority to regulate mariÂjuana grown for personal use. 545 U. S., at 19. HomeÂ grown marijuana substantially affects the interstate market for marijuana, we observed, for “the high demand inÂ the interstate market will [likely] draw such marijuana into that market.” Ibid.
Our decisions thus acknowledge Congress’ authority,Â under the Commerce Clause, to direct the conduct of an individual today (the farmer in Wickard, stopped fromÂ growing excess wheat; the plaintiff in Raich, ordered toÂ cease cultivating marijuana) because of a prophesiedÂ future transaction (the eventual sale of that wheat orÂ marijuana in the interstate market). Congress’ actionsÂ are even more rational in this case, where the futureÂ activity (the consumption of medical care) is certain toÂ occur, the sole uncertainty being the time the activity willÂ take place.
Maintaining that the uninsured are not active in theÂ health-care market, THE CHIEF JUSTICE draws an analogyÂ 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 25. The analogyÂ is inapt. The inevitable yet unpredictable need for mediÂcal care and the guarantee that emergency care will beÂ provided when required are conditions nonexistent inÂ 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 noÂ certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged toÂ pay at the counter before receiving the vehicle or nourÂishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price. See Thomas More Law Center v. Obama, 651 F. 3d 529, 565 (CA6 2011) (Sutton, J., concurring in part) (“RegulatingÂ how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life.”). Upholding the minimum coverage provision on the ground that all are participants or will be participants inÂ the health-care market would therefore carry no implicaÂtion 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 coverageÂ provision “compel[s] individuals . . . to purchase an unÂwanted product,” ante, at 18, or “suite of products,” post, atÂ 11, n. 2 (joint opinion of SCALIA, KENNEDY, THOMAS, andÂ ALITO, JJ.). If unwanted today, medical service secured byÂ insurance may be desperately needed tomorrow. VirtuallyÂ everyone, I reiterate, consumes health care at some pointÂ in his or her life. See supra, at 3. Health insurance is aÂ means of paying for this care, nothing more. In requiringÂ individuals to obtain insurance, Congress is therefore notÂ mandating the purchase of a discrete, unwanted product.
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 medicalÂ care in advance (instead of at the point of service) and through insurance (instead of out of pocket). EstablishingÂ payment terms for goods in or affecting interstate comÂmerce is quintessential economic regulation well within Congress’ domain. See, e.g., United States v. Wrightwood Dairy Co., 315 U. S. 110, 118 (1942). Cf. post, at 13 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.) (recognizing that “the Federal Government can prescribeÂ [a commodity’s] quality . . . and even [its price]”).
THE CHIEF JUSTICE also calls the minimum coverageÂ provision an illegitimate effort to make young, healthyÂ individuals subsidize insurance premiums paid by the lessÂ hale and hardy. See ante, at 17, 25—26. This complaint,Â too, is spurious. Under the current health-care system,Â healthy persons who lack insurance receive a benefit forÂ which they do not pay: They are assured that, if they needÂ it, emergency medical care will be available, although theyÂ cannot afford it. See supra, at 5—6. Those who have inÂsurance bear the cost of this guarantee. See ibid. ByÂ requiring the healthy uninsured to obtain insurance orÂ pay a penalty structured as a tax, the minimum coverage
provision ends the free ride these individuals currentlyÂ enjoy.
In the fullness of time, moreover, today’s young andÂ healthy will become society’s old and infirm. Viewed overÂ a lifespan, the costs and benefits even out: The young whoÂ pay more than their fair share currently will pay less thanÂ their fair share when they become senior citizens. AndÂ even if, as undoubtedly will be the case, some individuals,Â over their lifespans, will pay more for health insuranceÂ than they receive in health services, they have little toÂ complain about, for that is how insurance works. EveryÂ insured person receives protection against a catastrophicÂ loss, even though only a subset of the covered class willÂ ultimately need that protection.
In any event, THE CHIEF JUSTICE’s limitation of theÂ commerce power to the regulation of those actively enÂgaged in commerce finds no home in the text of the ConstiÂtution or our decisions. Article I, Â§8, of the ConstitutionÂ 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,” amongÂ other things, “to require action.” See Seven-Sky v. Holder,Â 661 F. 3d 1, 16 (2011).Â Arguing to the contrary, THE CHIEF JUSTICE notes thatÂ “the Constitution gives Congress the power to ‘coinÂ Money,’ in addition to the power to ‘regulate the ValueÂ thereof,’” and similarly “gives Congress the power to ‘raiseÂ and support Armies’ and to ‘provide and maintain a Navy,’ inÂ addition to the power to ‘make Rules for the GovernmentÂ and Regulation of the land and naval Forces.’” Ante, atÂ 18—19 (citing Art. I, Â§8, cls. 5, 12—14). In separating theÂ power to regulate from the power to bring the subject ofÂ the regulation into existence, THE CHIEF JUSTICE asserts,Â “[t]he language of the Constitution reflects the naturalÂ understanding that the power to regulate assumes there isÂ already something to be regulated.” Ante, at 19.
This argument is difficult to fathom. Requiring individÂuals 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 comÂmerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.”). Thus, the “someÂÂ thing to be regulated” was surely there when CongressÂ created the minimum coverage provision.6
Nor does our case law toe the activity versus inactivÂity line. In Wickard, for example, we upheld the penalty imposed on a farmer who grew too much wheat, evenÂ though the regulation had the effect of compelling farmersÂ 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 validÂ means of regulating commerce. Id., at 128—129. In another context, this Court similarly upheld Congress’ authorÂity under the commerce power to compel an “inactive” landÂholder to submit to an unwanted sale. See Monongahela Nav. Co. v. United States, 148 U. S. 312, 335—337 (1893) (“[U]pon the [great] power to regulate commerce[,]” ConÂgress has the authority to mandate the sale of real property to the Government, where the sale is essential to the improvement of a navigable waterway (emphasis added)); Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, Â [TM Note: continued below, as in the PDF]
THE CHIEF JUSTICE’s reliance on the quoted passages of the ConstiÂtution, see ante, at 18—19, 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] someÂthing to be regulated,” i.e., an Army and a Navy, does Congress lackÂ authority to create an Air Force?
657—659 (1890) (similar reliance on the commerce power regarding mandated sale of private property for railroad construction).
In concluding that the Commerce Clause does not perÂmit Congress to regulate commercial “inactivity,” and therefore does not allow Congress to adopt the practical soluÂtion 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). See also supra, at 14—16. This Court’s former endeavors to impose categorical limits on the commerce power have not fared well. In several pre-New Deal cases, the CourtÂ attempted to cabin Congress’ Commerce Clause authorityÂ by distinguishing “commerce” from activity once conceivedÂ to be noncommercial, notably, “production,” “mining,” and “manufacturing.” See, e.g., United States v. E. C. Knight Co., 156 U. S. 1, 12 (1895) (“Commerce succeeds to manuÂfacture, and is not a part of it.”); Carter v. Carter Coal Co., 298 U. S. 238, 304 (1936) (“Mining brings the subject matter of commerce into existence. Commerce disposes of it.”). The Court also sought to distinguish activities havÂing a “direct” effect on interstate commerce, and for thatÂ reason, subject to federal regulation, from those havingÂ only an “indirect” effect, and therefore not amenable toÂ federal control. See, e.g., A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 548 (1935) (“[T]he distinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one.”).
These line-drawing exercises were untenable, and theÂ 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 ofÂ the actual effects of the activity in question upon interÂstate commerce.” 317 U. S., at 120. See also Morrison,Â 529 U. S., at 641—644 (Souter, J., dissenting) (recountingÂ the Court’s “nearly disastrous experiment” with formalisÂtic limits on Congress’ commerce power). Failing to learnÂ from this history, THE CHIEF JUSTICE plows ahead withÂ his formalistic distinction between those who are “activeÂ in commerce,” ante, at 20, and those who are not.Â
It is not hard to show the difficulty courts (and ConÂgress) would encounter in distinguishing statutes that regÂulate “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) (enbanc). 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: self-insurance. See Thomas More Law Center, 651 F. 3d, at 561 (Sutton, J., concurring in part) (“No one is inÂactive when deciding how to pay for health care, as selfÂ-insurance and private insurance are two forms of actionÂ for addressing the same risk.”). The minimum coverageÂ provision could therefore be described as regulating activÂists in the self-insurance market.7 Wickard is another example. Did the statute there at issue target activityÂ (the growing of too much wheat) or inactivity (the farmer’s failure to purchase wheat in the marketplace)? If anyÂÂ thing, the Court’s analysis suggested the latter. See 317 U. S., at 127—129.
At bottom, THE CHIEF JUSTICE’s and the joint dissentÂ- Â [TM NOTE: continued below, as in PDF]
THE CHIEF JUSTICE’s characterization of individuals who choose not to purchase private insurance as “doing nothing,” ante, at 20, is simiÂlarly questionable. A person who self-insures opts against prepayment forÂ a product the person will in time consume. When aggregated, exercise of that option has a substantial impact on the health-care market. See supra, at 5—7, 16—17.
ers’ “view that an individual cannot be subject to ComÂmerce Clause regulation absent voluntary, affirmative actsÂ that enter him or her into, or affect, the interstate marÂket expresses a concern for individual liberty that [is] more redolent of Due Process Clause arguments.” SevenSky, 661 F. 3d, at 19. See also Troxel v. Granville, 530 U. S. 57, 65 (2000) (plurality opinion) (“The [Due Process]Â Clause also includes a substantive component that proÂvides heightened protection against government interferÂ ence with certain fundamental rights and liberty interÂests.” (internal quotation marks omitted)). Plaintiffs have abandoned any argument pinned to substantive due proÂcess, however, see 648 F. 3d 1235, 1291, n. 93 (CA11 2011), and now concede that the provisions here at issue do not offend the Due Process Clause.8
CONTINUED (at 27 in original PDF)
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