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. Ã‚Â That where all are impacted, we all must participate. Ã‚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. Ã‚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. Ã‚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. Ã‚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 theÃ‚Â commerce power to the regulation of those actively enÃ‚Âgaged in commerce finds no home in the text of the ConstiÃ‚Âtution 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. Ã‚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. Ã‚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 YorkerÃ‚Â 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, alternaÃ‚Â 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 naÃ‚Âtional 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 & LaughlinÃ‚Â 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 InterÃ‚Âstate 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. Ã‚Â§18091(2)(B) (2006 ed., Supp. IV). Within the next decade, it is anticipated, spending on health care will nearly douÃ‚Â
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 visitÃ‚Â 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 MediÃ‚Â care and Medicaid Services, Historic National Health Expenditure Data, National Health Expenditures: Selected Calendar Years 1960″”2010 (Table 1). Over a lifeÃ‚Â 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, 635Ã‚Â (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 upÃ‚Âwards of $10,000. See Dept. of Health and Human SerÃ‚Âvices, Office of Health Policy, ASPE Research Brief: TheÃ‚Â 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 indicatÃ‚Âing that, in 1998, the cost of treating a heart attack for theÃ‚Â 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 withÃ‚Â out warning. Inescapably, we are all at peril of needingÃ‚Â medical care without a moment’s notice. See, e.g., CampÃ‚Âbell, 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 andÃ‚Â State and Federal Governments finance almost 85% of the medical care administered to U. S. residents. See ConÃ‚Âgressional 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 individÃ‚Âuals 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 insurÃ‚Âance, Congress found, heavily burdens the nationalÃ‚Â health-care market. See 42 U. S. C. Ã‚Â§18091(2). As justÃ‚Â noted, the cost of emergency care or treatment for a seriÃ‚Âous illness generally exceeds what an individual can affordÃ‚Â to pay on her own. Unlike markets for most products,Ã‚Â however, the inability to pay for care does not mean thatÃ‚Â an uninsured individual will receive no care. Federal andÃ‚Â state law, as well as professional obligations and embedÃ‚Âded social norms, require hospitals and physicians toÃ‚Â provide care when it is most needed, regardless of theÃ‚Â patient’s ability to pay. See, e.g., 42 U. S. C. Ã‚Â§1395dd; Fla.Ã‚Â Stat. Ã‚Â§395.1041(3)(f) (2010); Tex. Health & Safety CodeÃ‚Â Ann. Ã‚Â§Ã‚Â§311.022(a) and (b) (West 2010); American MedicalÃ‚Â Association, Council on Ethical and Judicial Affairs,Ã‚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 professionalsÃ‚Â received no compensation for $43 billion worth of the $116Ã‚Â billion in care they administered to those without insurÃ‚Âance. 42 U. S. C. Ã‚Â§18091(2)(F) (2006 ed., Supp. IV).
Health-care providers do not absorb these bad debts.Ã‚Â Instead, they raise their prices, passing along the cost of uncompensated care to those who do pay reliably: theÃ‚Â 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 insurÃ‚Âance 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 foundÃ‚Â that the cost-shifting just described “increases familyÃ‚Â [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 insurÃ‚Âance and leading to further cost-shifting.Ã‚Â
And it is hardly just the currently sick or injured amongÃ‚Â 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 inaÃ‚Âbility to pay. In anticipation of this uncompensated care, health-care companies raise their prices, and insurersÃ‚Â their premiums. In other words, because any uninsuredÃ‚Â person may need medical care at any moment and becauseÃ‚Â health-care companies must account for that risk, everyÃ‚Â uninsured person impacts the market price of medical careÃ‚Â and medical insurance.
The failure of individuals to acquire insurance has otherÃ‚Â deleterious effects on the health-care market. Because those without insurance generally lack access to preventaÃ‚Âtive 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 healthÃ‚Â problems, requiring more costly and extensive intervenÃ‚Âtion. Id., at 43″”44. The extra time and resources providÃ‚Âers 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 foundÃ‚Â that, when hospitals divert time and resources to provide uncompensated care, the quality of care the hospitalsÃ‚Â 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 onÃ‚Â their own. Like Social Security benefits, a universalÃ‚Â health-care system, if adopted by an individual State,Ã‚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, MassaÃ‚Âchusetts’ emergency rooms served thousands of uninsured, out-of-state residents). An influx of unhealthy individualsÃ‚Â 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 inÃ‚Âcrease premiums. Higher taxes and increased insuranceÃ‚Â 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]utÃ‚ÂÃ‚Â 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.”).Ã‚Â Facing that risk, individual States are unlikely to take the initiative in addressing the problem of the uninsured, evenÃ‚Â though solving that problem is in all States’ best interests.Ã‚Â Congress’ intervention was needed to overcome this collectiveÃ‚ÂÃ‚Â action impasse.
Aware that a national solution was required, CongressÃ‚Â could have taken over the health-insurance market byÃ‚Â establishing a tax-and-spend federal program like Social Security. Such a program, commonly referred to as a Ã‚Â single-payer system (where the sole payer is the Federal Government), would have left little, if any, room for priÃ‚Âvate enterprise or the States. Instead of going this route, Congress enacted the ACA, a solution that retains a roÃ‚Âbust role for private insurers and state governments. To make its chosen approach work, however, Congress had toÃ‚Â use some new tools, including a requirement that mostÃ‚Â individuals obtain private health insurance coverage. SeeÃ‚Â 26 U. S. C. Ã‚Â§5000A (2006 ed., Supp. IV) (the minimumÃ‚Â coverage provision). As explained below, by employingÃ‚Â these tools, Congress was able to achieve a practical, altoÃ‚Âgether reasonable, solution.
A central aim of the ACA is to reduce the number of uninsured U. S. residents. See 42 U. S. C. Ã‚Â§18091(2)(C) and (I) (2006 ed., Supp. IV). The minimum coverageÃ‚Â provision advances this objective by giving potential recipÃ‚Âients of health care a financial incentive to acquire insurÃ‚Âance. Per the minimum coverage provision, an individualÃ‚Â must either obtain insurance or pay a toll constructed as aÃ‚Â tax penalty. See 26 U. S. C. Ã‚Â§5000A.
The minimum coverage provision serves a further purÃ‚Âpose vital to Congress’ plan to reduce the number of uninÃ‚Âsured. Congress knew that encouraging individuals toÃ‚Â purchase insurance would not suffice to solve the problem,Ã‚Â because most of the uninsured are not uninsured by choice.Ã‚Â Of particular concern to Congress were people who, though desperately in need of insurance, often cannotÃ‚Â acquire it: persons who suffer from preexisting medicalÃ‚Â conditions. Before the ACA’s enactment, private insurance compaÃ‚Ânies took an applicant’s medical history into account whenÃ‚Â 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 HealthÃ‚Â 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 coverÃ‚Âage. 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 moreÃ‚Â than those without such conditions, insurers routinely refused to insure these individuals, charged them substanÃ‚Âtially higher premiums, or offered only limited coverageÃ‚Â 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 nonÃ‚Âelderly 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 threeÃ‚ÂÃ‚Â part solution. First, Congress imposed a “guaranteed isÃ‚Â sue” requirement, which bars insurers from denyingÃ‚Â coverage to any person on account of that person’s medicalÃ‚Â condition or history. See 42 U. S. C. Ã‚Â§Ã‚Â§300gg””1, 300gg””3, 300gg””4(a) (2006 ed., Supp. IV). Second, Congress required insurers to use “community rating” to price their insuranceÃ‚Â policies. See Ã‚Â§300gg. Community rating, in effect, barsÃ‚Â insurance companies from charging higher premiums to those with preexisting conditions.
But these two provisions, Congress comprehended, couldÃ‚Â not work effectively unless individuals were given a powÃ‚Âerful incentive to obtain insurance. See Hearings before the House Ways and Means Committee, 111th Cong., 1stÃ‚Â 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 insurersÃ‚Â will inexorably drive that market into extinction, unlessÃ‚Â 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, NewÃ‚Â Jersey, Washington, Kentucky, Maine, New Hampshire,Ã‚Â and Vermont”“enacted guaranteed-issue and communityÃ‚Â rating laws without requiring universal acquisition ofÃ‚Â insurance coverage. The results were disastrous. “AllÃ‚Â seven states suffered from skyrocketing insurance preÃ‚Âmium costs, reductions in individuals with coverage, andÃ‚Â reductions in insurance products and providers.” Brief forÃ‚Â American Association of People with Disabilities et al. asÃ‚Â Amici Curiae in No. 11″”398, p. 9 (hereinafter AAPD Brief).Ã‚Â See also Brief for Governor of Washington ChristineÃ‚Â Gregoire as Amicus Curiae in No. 11″”398, pp. 11″”14 (deÃ‚Âscribing the “death spiral” in the insurance market WashÃ‚Âington experienced when the State passed a law requiringÃ‚Â coverage for preexisting conditions).
Congress comprehended that guaranteed-issue and community-rating laws alone will not work. When insurÃ‚Âance 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 mediÃ‚Âcal 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 communityÃ‚ÂÃ‚Â rating requirements without a minimum coverage proviÃ‚Âsion, that is precisely what insurance companies did. See, e.g., AAPD Brief 10 (“[In Maine,] [m]any insurance providÃ‚Âers 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 ofÃ‚Â New York’s Reform Law, 25 J. Health Pol. Pol’y & L. 71,Ã‚Â 91″”92 (2000) (Guaranteed-issue and community-rating laws resulted in a “dramatic exodus of indemnity insurersÃ‚Â 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 adverseÃ‚Â selection problem. By requiring most residents to obtainÃ‚Â insurance, see Mass. Gen. Laws, ch. 111M, Ã‚Â§2 (West 2011),Ã‚Â the Commonwealth ensured that insurers would not beÃ‚Â left with only the sick as customers. As a result, federalÃ‚Â lawmakers observed, Massachusetts succeeded whereÃ‚Â other States had failed. See Brief for Commonwealth ofÃ‚Â Massachusetts as Amicus Curiae in No. 11″”398, p. 3 (notÃ‚Âing that the Commonwealth’s reforms reduced the numberÃ‚Â of uninsured residents to less than 2%, the lowest rate inÃ‚Â the Nation, and cut the amount of uncompensated careÃ‚Â by a third); 42 U. S. C. Ã‚Â§18091(2)(D) (2006 ed., Supp. IV)Ã‚Â (noting the success of Massachusetts’ reforms).2Ã‚Â In couÃ‚Âpling the minimum coverage provision with guaranteedÃ‚ÂÃ‚Â issue and community-rating prescriptions, CongressÃ‚Â followed Massachusetts’ lead.Ã‚Â
* * *
In sum, Congress passed the minimum coverage proviÃ‚Âsion as a key component of the ACA to address an economÃ‚Âic and social problem that has plagued the Nation for decades: the large number of U. S. residents who areÃ‚Â 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 approÃ‚Âpriate deference, the minimum coverage provision, alliedÃ‚Â to the guaranteed-issue and community-rating prescripÃ‚Âtions, 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 adÃ‚Âminister 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 wasÃ‚Â left to the States. This scheme proved unworkable, beÃ‚Âcause 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, Ã‚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 MadiÃ‚Âson (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]Ã‚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 RecÃ‚Âords of the Federal Convention of 1787, pp. 131″”132, Ã‚Â¶8 [TM Note: continued below, as in PDF]
Alexander Hamilton described the problem this way: “[Often] itÃ‚Â 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 ConstiÃ‚Âtution 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,”Ã‚Â Letter from James Madison to N. P. Trist (Dec. 1831), in 9Ã‚Â 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;Ã‚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 repeatedlyÃ‚Â 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 conÃ‚Âception 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, CongressÃ‚Â must be able to act in terms of economic and financial realities.” (citation omitted)). We afford Congress theÃ‚Â leeway “to undertake to solve national problems directlyÃ‚Â and realistically.” American Power & Light Co. v. SEC, 329 U. S. 90, 103 (1946).
Until today, this Court’s pragmatic approach to judgingÃ‚Â whether Congress validly exercised its commerce power was guided by two familiar principles. First, Congress hasÃ‚Â the power to regulate economic activities “that substanÃ‚Âtially affect interstate commerce.” Gonzales v. Raich, 545 U. S. 1, 17 (2005). This capacious power extends even toÃ‚Â local activities that, viewed in the aggregate, have a subÃ‚Âstantial 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 comÃ‚Âmerce, 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.Ã‚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 theÃ‚Â relation of the subject to interstate commerce and its efÃ‚Âfect upon it are clearly non-existent.” (internal quotationÃ‚Â 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 “reasonaÃ‚Âble connection between the regulatory means selected andÃ‚Â the asserted ends.” Id., at 323″”324. See also Raich, 545Ã‚Â U. S., at 22; Lopez, 514 U. S., at 557; Hodel v. VirginiaÃ‚Â Surface Mining & Reclamation Assn., Inc., 452 U. S. 264,Ã‚Â 277 (1981); Katzenbach v. McClung, 379 U. S. 294, 303Ã‚Â (1964); Heart of Atlanta Motel, Inc. v. United States, 379Ã‚Â U. S. 241, 258 (1964); United States v. Carolene ProductsÃ‚Â Co., 304 U. S. 144, 152″”153 (1938). In answering theseÃ‚Â questions, we presume the statute under review is constiÃ‚Âtutional and may strike it down only on a “plain showing”Ã‚Â that Congress acted irrationally. United States v. Morrison, 529 U. S. 598, 607 (2000).
Straightforward application of these principles wouldÃ‚Â require the Court to hold that the minimum overageÃ‚Â provision is proper Commerce Clause legislation. BeyondÃ‚Â dispute, Congress had a rational basis for concluding thatÃ‚Â the uninsured, as a class, substantially affect interstateÃ‚Â commerce. Those without insurance consume billions ofÃ‚Â dollars of health-care products and services each year. SeeÃ‚Â supra, at 5. Those goods are produced, sold, and deliveredÃ‚Â largely by national and regional companies who routinelyÃ‚Â transact business across state lines. The uninsured alsoÃ‚Â cross state lines to receive care. Some have medical emerÃ‚Âgencies while away from home. Others, when sick, go to aÃ‚Â neighboring State that provides better care for those whoÃ‚Â have not prepaid for care. See supra, at 7″”8.
Not only do those without insurance consume a largeÃ‚Â amount of health care each year; critically, as earlierÃ‚Â explained, their inability to pay for a significant portion of that consumption drives up market prices, foists costs onÃ‚Â other consumers, and reduces market efficiency and staÃ‚Âbility. See supra, at 5″”7. Given these far-reaching effectsÃ‚Â on interstate commerce, the decision to forgo insurance isÃ‚Â hardly inconsequential or equivalent to “doing nothing,” ante, at 20; it is, instead, an economic decision CongressÃ‚Â has the authority to address under the Commerce Clause.Ã‚Â See supra, at 14″”16. See also Wickard, 317 U. S., at 128Ã‚Â (“It is well established by decisions of this Court thatÃ‚Â the power to regulate commerce includes the power to reguÃ‚Âlate the prices at which commodities in that commerce areÃ‚Â dealt in and practices affecting such prices.” (emphasisÃ‚Â added)).
The minimum coverage provision, furthermore, bears aÃ‚Â “reasonable connection” to Congress’ goal of protecting the health-care market from the disruption caused by individÃ‚Âuals who fail to obtain insurance. By requiring those whoÃ‚Â do not carry insurance to pay a toll, the minimum coverÃ‚Âage provision gives individuals a strong incentive to inÃ‚Âsure. This incentive, Congress had good reason to believe, would reduce the number of uninsured and, correspondÃ‚Âingly, mitigate the adverse impact the uninsured have onÃ‚Â the national health-care market.
Congress also acted reasonably in requiring uninsuredÃ‚Â individuals, whether sick or healthy, either to obtainÃ‚Â insurance or to pay the specified penalty. As earlier obÃ‚Âserved, because every person is at risk of needing care at any moment, all those who lack insurance, regardless ofÃ‚Â 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 individuÃ‚Âals prohibitively expensive premiums, or, if communityÃ‚ÂÃ‚Â rating regulations were in place, close up shop. See supra,Ã‚Â at 9″”11. See also Brief for State of Maryland and 10Ã‚Â Other States et al. as Amici Curiae in No. 11″”398, p. 28Ã‚Â (hereinafter Maryland Brief) (“No insurance regime canÃ‚Â survive if people can opt out when the risk insured againstÃ‚Â is only a risk, but opt in when the risk materializes.”).Ã‚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, experienceÃ‚Â informed manner, easily meets this criterion.
Rather than evaluating the constitutionality of theÃ‚Â minimum coverage provision in the manner established byÃ‚Â our precedents, THE CHIEF JUSTICE relies on a newlyÃ‚Â minted constitutional doctrine. The commerce power doesÃ‚Â not, THE CHIEF JUSTICE announces, permit CongressÃ‚Â to “compe[l] individuals to become active in commerceÃ‚Â by purchasing a product.” Ante, at 20 (emphasis deleted).
THE CHIEF JUSTICE’s novel constraint on Congress’Ã‚Â commerce power gains no force from our precedent and forÃ‚Â that reason alone warrants disapprobation. See infra, atÃ‚Â 23″”27. But even assuming, for the moment, that CongressÃ‚Â lacks authority under the Commerce Clause to “compelÃ‚Â individuals not engaged in commerce to purchase anÃ‚Â unwanted product,” ante, at 18, such a limitation would beÃ‚Â inapplicable here. Everyone will, at some point, consumeÃ‚Â health-care products and services. See supra, at 3. Thus,Ã‚Â if THE CHIEF JUSTICE is correct that an insuranceÃ‚ÂÃ‚Â purchase requirement can be applied only to those whoÃ‚Â “actively” consume health care, the minimum coverageÃ‚Â provision fits the bill.
THE CHIEF JUSTICE does not dispute that all U. S. resiÃ‚Âdents participate in the market for health services overÃ‚Â the course of their lives.See ante, at 16 (“Everyone willÃ‚Â eventually need health care at a time and to an extentÃ‚Â they cannot predict.”). But, THE CHIEF JUSTICE insists,Ã‚Â the uninsured cannot be considered active in the marketÃ‚Â for health care, because “[t]he proximity and degree ofÃ‚Â connection between the [uninsured today] and [their]Ã‚Â subsequent commercial activity is too lacking.” Ante,Ã‚Â at 27.
This argument has multiple flaws. First, more than 60% of those without insurance visit a hospital or doctor’sÃ‚Â office each year. See supra, at 5. Nearly 90% will within five years.4 An uninsured’s consumption of health care isÃ‚Â 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 careÃ‚Â 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 uninÃ‚Âsured 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 toÃ‚Â a doctor anytime soon. Congress, our decisions instruct,Ã‚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.” (inÃ‚Âternal 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: NationalÃ‚Â Health Interview Survey 2009, Ser. 10, No. 249, p. 124, Table 37 (Dec. 2010).
Echoing THE CHIEF JUSTICE, the joint dissenters urge that the minÃ‚Âimum coverage provision impermissibly regulates young people who “have no intention of purchasing [medical care]“ and are too far “reÃ‚Âmoved 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,Ã‚Â though scarcely expecting to do so.
Ã‚Â Second, it is Congress’ role, not the Court’s, to delineateÃ‚Â the boundaries of the market the Legislature seeks toÃ‚Â regulate.Ã‚Â THE CHIEF JUSTICE defines the health-care market as including only those transactions that will occurÃ‚Â either in the next instant or within some (unspecified)Ã‚Â proximity to the next instant. But Congress could reasonÃ‚Âably have viewed the market from a long-term erspective,Ã‚Â encompassing all transactions virtually certain to occurÃ‚Â over the next decade, see supra, at 19, not just those ocÃ‚Âcurring here and now.
Third, contrary to THE CHIEF JUSTICE’s contention, our precedent does indeed support “[t]he proposition thatÃ‚Â 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 GovernÃ‚Âment 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 byÃ‚Â rising prices, tends to flow into the market and check priceÃ‚Â increases [intended by the AAA].” Id., at 128. Similar reasoning supported the Court’s judgment in Raich, which upheld Congress’ authority to regulate mariÃ‚Âjuana grown for personal use. 545 U. S., at 19. HomeÃ‚Â grown marijuana substantially affects the interstate market for marijuana, we observed, for “the high demand inÃ‚Â the interstate market will [likely] draw such marijuana into that market.” Ibid.
Our decisions thus acknowledge Congress’ authority,Ã‚Â under the Commerce Clause, to direct the conduct of an individual today (the farmer in Wickard, stopped fromÃ‚Â growing excess wheat; the plaintiff in Raich, ordered toÃ‚Â cease cultivating marijuana) because of a prophesiedÃ‚Â future transaction (the eventual sale of that wheat orÃ‚Â marijuana in the interstate market). Congress’ actionsÃ‚Â are even more rational in this case, where the futureÃ‚Â activity (the consumption of medical care) is certain toÃ‚Â occur, the sole uncertainty being the time the activity willÃ‚Â take place.
Maintaining that the uninsured are not active in theÃ‚Â health-care market, THE CHIEF JUSTICE draws an analogyÃ‚Â 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 analogyÃ‚Â is inapt. The inevitable yet unpredictable need for mediÃ‚Âcal care and the guarantee that emergency care will beÃ‚Â provided when required are conditions nonexistent inÃ‚Â 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 noÃ‚Â certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged toÃ‚Â pay at the counter before receiving the vehicle or nourÃ‚Âishment. 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) (“RegulatingÃ‚Â 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 inÃ‚Â the health-care market would therefore carry no implicaÃ‚Âtion 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 coverageÃ‚Â provision “compel[s] individuals . . . to purchase an unÃ‚Âwanted product,” ante, at 18, or “suite of products,” post, atÃ‚Â 11, n. 2 (joint opinion of SCALIA, KENNEDY, THOMAS, andÃ‚Â ALITO, JJ.). If unwanted today, medical service secured byÃ‚Â insurance may be desperately needed tomorrow. VirtuallyÃ‚Â everyone, I reiterate, consumes health care at some pointÃ‚Â in his or her life. See supra, at 3. Health insurance is aÃ‚Â means of paying for this care, nothing more. In requiringÃ‚Â individuals to obtain insurance, Congress is therefore notÃ‚Â 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 medicalÃ‚Â care in advance (instead of at the point of service) and through insurance (instead of out of pocket). EstablishingÃ‚Â payment terms for goods in or affecting interstate comÃ‚Âmerce 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 prescribeÃ‚Â [a commodity's] quality . . . and even [its price]“).
THE CHIEF JUSTICE also calls the minimum coverageÃ‚Â provision an illegitimate effort to make young, healthyÃ‚Â individuals subsidize insurance premiums paid by the lessÃ‚Â hale and hardy. See ante, at 17, 25″”26. This complaint,Ã‚Â too, is spurious. Under the current health-care system,Ã‚Â healthy persons who lack insurance receive a benefit forÃ‚Â which they do not pay: They are assured that, if they needÃ‚Â it, emergency medical care will be available, although theyÃ‚Â cannot afford it. See supra, at 5″”6. Those who have inÃ‚Âsurance bear the cost of this guarantee. See ibid. ByÃ‚Â requiring the healthy uninsured to obtain insurance orÃ‚Â pay a penalty structured as a tax, the minimum coverage
provision ends the free ride these individuals currentlyÃ‚Â enjoy.
In the fullness of time, moreover, today’s young andÃ‚Â healthy will become society’s old and infirm. Viewed overÃ‚Â a lifespan, the costs and benefits even out: The young whoÃ‚Â pay more than their fair share currently will pay less thanÃ‚Â their fair share when they become senior citizens. AndÃ‚Â even if, as undoubtedly will be the case, some individuals,Ã‚Â over their lifespans, will pay more for health insuranceÃ‚Â than they receive in health services, they have little toÃ‚Â complain about, for that is how insurance works. EveryÃ‚Â insured person receives protection against a catastrophicÃ‚Â loss, even though only a subset of the covered class willÃ‚Â ultimately need that protection.
In any event, THE CHIEF JUSTICE’s limitation of theÃ‚Â commerce power to the regulation of those actively enÃ‚Âgaged in commerce finds no home in the text of the ConstiÃ‚Âtution or our decisions. Article I, Ã‚Â§8, of the ConstitutionÃ‚Â 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,” amongÃ‚Â other things, “to require action.” See Seven-Sky v. Holder,Ã‚Â 661 F. 3d 1, 16 (2011).Ã‚Â Arguing to the contrary, THE CHIEF JUSTICE notes thatÃ‚Â “the Constitution gives Congress the power to “˜coinÃ‚Â Money,’ in addition to the power to “˜regulate the ValueÃ‚Â thereof,'” and similarly “gives Congress the power to “˜raiseÃ‚Â and support Armies’ and to “˜provide and maintain a Navy,’ inÃ‚Â addition to the power to “˜make Rules for the GovernmentÃ‚Â and Regulation of the land and naval Forces.'” Ante, atÃ‚Â 18″”19 (citing Art. I, Ã‚Â§8, cls. 5, 12″”14). In separating theÃ‚Â power to regulate from the power to bring the subject ofÃ‚Â the regulation into existence, THE CHIEF JUSTICE asserts,Ã‚Â “[t]he language of the Constitution reflects the naturalÃ‚Â understanding that the power to regulate assumes there isÃ‚Â already something to be regulated.” Ante, at 19.
This argument is difficult to fathom. Requiring individÃ‚Âuals 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 comÃ‚Âmerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.”). Thus, the “someÃ‚ÂÃ‚Â thing to be regulated” was surely there when CongressÃ‚Â created the minimum coverage provision.6
Nor does our case law toe the activity versus inactivÃ‚Âity line. In Wickard, for example, we upheld the penalty imposed on a farmer who grew too much wheat, evenÃ‚Â though the regulation had the effect of compelling farmersÃ‚Â 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 validÃ‚Â means of regulating commerce. Id., at 128″”129. In another context, this Court similarly upheld Congress’ authorÃ‚Âity under the commerce power to compel an “inactive” landÃ‚Âholder 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[,]“ ConÃ‚Âgress 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, Ã‚Â [TM Note: continued below, as in the PDF]
THE CHIEF JUSTICE’s reliance on the quoted passages of the ConstiÃ‚Âtution, 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] someÃ‚Âthing to be regulated,” i.e., an Army and a Navy, does Congress lackÃ‚Â 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 perÃ‚Âmit Congress to regulate commercial “inactivity,” and therefore does not allow Congress to adopt the practical soluÃ‚Âtion 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 CourtÃ‚Â attempted to cabin Congress’ Commerce Clause authorityÃ‚Â by distinguishing “commerce” from activity once conceivedÃ‚Â 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 manuÃ‚Âfacture, 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 havÃ‚Âing a “direct” effect on interstate commerce, and for thatÃ‚Â reason, subject to federal regulation, from those havingÃ‚Â only an “indirect” effect, and therefore not amenable toÃ‚Â 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 theÃ‚Â 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 ofÃ‚Â the actual effects of the activity in question upon interÃ‚Âstate commerce.” 317 U. S., at 120. See also Morrison,Ã‚Â 529 U. S., at 641″”644 (Souter, J., dissenting) (recountingÃ‚Â the Court’s “nearly disastrous experiment” with formalisÃ‚Âtic limits on Congress’ commerce power). Failing to learnÃ‚Â from this history, THE CHIEF JUSTICE plows ahead withÃ‚Â his formalistic distinction between those who are “activeÃ‚Â in commerce,” ante, at 20, and those who are not.Ã‚Â
It is not hard to show the difficulty courts (and ConÃ‚Âgress) would encounter in distinguishing statutes that regÃ‚Âulate “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 inÃ‚Âactive when deciding how to pay for health care, as selfÃ‚Â-insurance and private insurance are two forms of actionÃ‚Â for addressing the same risk.”). The minimum coverageÃ‚Â provision could therefore be described as regulating activÃ‚Âists in the self-insurance market.7 Wickard is another example. Did the statute there at issue target activityÃ‚Â (the growing of too much wheat) or inactivity (the farmer’s failure to purchase wheat in the marketplace)? If anyÃ‚ÂÃ‚Â thing, the Court’s analysis suggested the latter. See 317 U. S., at 127″”129.
At bottom, THE CHIEF JUSTICE’s and the joint dissentÃ‚Â- Ã‚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 simiÃ‚Âlarly questionable. A person who self-insures opts against prepayment forÃ‚Â 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 ComÃ‚Âmerce Clause regulation absent voluntary, affirmative actsÃ‚Â that enter him or her into, or affect, the interstate marÃ‚Âket 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]Ã‚Â Clause also includes a substantive component that proÃ‚Âvides heightened protection against government interferÃ‚Â ence with certain fundamental rights and liberty interÃ‚Âests.” (internal quotation marks omitted)). Plaintiffs have abandoned any argument pinned to substantive due proÃ‚Âcess, 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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