Scotus Opinion
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Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
power have been, they uniformly describe the power as reaching activity. E.g., United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by
purchasing a product, on the ground that their failure to do so affects
interstate commerce.
Construing the Commerce Clause to permit Congress to regulate
individuals precisely because they are doing nothing would open a
new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do.
Upholding the Affordable Care Act under the Commerce Clause
would give Congress the same license to regulate what people do not
do. The Framers knew the difference between doing something and
doing nothing. They gave Congress the power to regulate commerce,
not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and
enumerated powers. The individual mandate thus cannot be sustained under Congresss power to regulate Commerce. Pp. 1627.
(b) Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care
Acts other reforms. Each of this Courts prior cases upholding laws
under that Clause involved exercises of authority derivative of, and
in service to, a granted power. E.g., United States v. Comstock, 560
U. S. ___. The individual mandate, by contrast, vests Congress with
the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope
those who would otherwise be outside of it. Even if the individual
mandate is necessary to the Affordable Care Acts other reforms,
such an expansion of federal power is not a proper means for making those reforms effective. Pp. 2730.
3. CHIEF JUSTICE ROBERTS concluded in Part IIIB that the individual mandate must be construed as imposing a tax on those who do
not have health insurance, if such a construction is reasonable.
The most straightforward reading of the individual mandate is that
it commands individuals to purchase insurance. But, for the reasons
explained, the Commerce Clause does not give Congress that power.
It is therefore necessary to turn to the Governments alternative argument: that the mandate may be upheld as within Congresss power
to lay and collect Taxes. Art. I, 8, cl. 1. In pressing its taxing
power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because every reasonable construction must be resorted to, in order to
save a statute from unconstitutionality, Hooper v. California, 155
U. S. 648, 657, the question is whether it is fairly possible to inter-
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(a) The Spending Clause grants Congress the power to pay the
Debts and provide for the . . . general Welfare of the United States.
Art. I, 8, cl. 1. Congress may use this power to establish cooperative
state-federal Spending Clause programs. The legitimacy of Spending
Clause legislation, however, depends on whether a State voluntarily
and knowingly accepts the terms of such programs. Pennhurst State
School and Hospital v. Halderman, 451 U. S. 1, 17. [T]he Constitution simply does not give Congress the authority to require the States
to regulate. New York v. United States, 505 U. S. 144, 178. When
Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation
runs counter to this Nations system of federalism. Cf. South Dakota
v. Dole, 483 U. S. 203, 211. Pp. 4551.
(b) Section 1396c gives the Secretary of Health and Human Services the authority to penalize States that choose not to participate in
the Medicaid expansion by taking away their existing Medicaid funding. 42 U. S. C. 1396c. The threatened loss of over 10 percent of a
States overall budget is economic dragooning that leaves the States
with no real option but to acquiesce in the Medicaid expansion. The
Government claims that the expansion is properly viewed as only a
modification of the existing program, and that this modification is
permissible because Congress reserved the right to alter, amend, or
repeal any provision of Medicaid. 1304. But the expansion accomplishes a shift in kind, not merely degree. The original program was
designed to cover medical services for particular categories of vulnerable individuals. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire
nonelderly population with income below 133 percent of the poverty
level. A State could hardly anticipate that Congresss reservation of
the right to alter or amend the Medicaid program included the
power to transform it so dramatically. The Medicaid expansion thus
violates the Constitution by threatening States with the loss of their
existing Medicaid funding if they decline to comply with the expansion. Pp. 5155.
(c) The constitutional violation is fully remedied by precluding
the Secretary from applying 1396c to withdraw existing Medicaid
funds for failure to comply with the requirements set out in the expansion. See 1303. The other provisions of the Affordable Care Act
are not affected. Congress would have wanted the rest of the Act to
stand, had it known that States would have a genuine choice whether
to participate in the Medicaid expansion. Pp. 5558.
6. JUSTICE GINSBURG, joined by JUSTICE SOTOMAYOR, is of the view
that the Spending Clause does not preclude the Secretary from withholding Medicaid funds based on a States refusal to comply with the
Opinion of ROBERTS, C. J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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I
In 2010, Congress enacted the Patient Protection and
Affordable Care Act, 124 Stat. 119. The Act aims to increase the number of Americans covered by health insurance and decrease the cost of health care. The Acts 10
titles stretch over 900 pages and contain hundreds of
provisions. This case concerns constitutional challenges to
two key provisions, commonly referred to as the individual
mandate and the Medicaid expansion.
The individual mandate requires most Americans to
maintain minimum essential health insurance coverage.
26 U. S. C. 5000A. The mandate does not apply to some
individuals, such as prisoners and undocumented aliens.
5000A(d). Many individuals will receive the required coverage through their employer, or from a government program such as Medicaid or Medicare. See 5000A(f). But
for individuals who are not exempt and do not receive
health insurance through a third party, the means of
satisfying the requirement is to purchase insurance from a
private company.
Beginning in 2014, those who do not comply with the
mandate must make a [s]hared responsibility payment
to the Federal Government. 5000A(b)(1). That payment,
which the Act describes as a penalty, is calculated as a
percentage of household income, subject to a floor based on
a specified dollar amount and a ceiling based on the average annual premium the individual would have to pay for
qualifying private health insurance. 5000A(c). In 2016,
for example, the penalty will be 2.5 percent of an individuals household income, but no less than $695 and no more
than the average yearly premium for insurance that covers 60 percent of the cost of 10 specified services (e.g.,
prescription drugs and hospitalization). Ibid.; 42 U. S. C.
18022. The Act provides that the penalty will be paid to
the Internal Revenue Service with an individuals taxes,
and shall be assessed and collected in the same manner
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A
The Governments first argument is that the individual
mandate is a valid exercise of Congresss power under the
Commerce Clause and the Necessary and Proper Clause.
According to the Government, the health care market is
characterized by a significant cost-shifting problem. Everyone will eventually need health care at a time and to an
extent they cannot predict, but if they do not have insurance, they often will not be able to pay for it. Because
state and federal laws nonetheless require hospitals to
provide a certain degree of care to individuals without
regard to their ability to pay, see, e.g., 42 U. S. C. 1395dd;
Fla. Stat. Ann. 395.1041, hospitals end up receiving
compensation for only a portion of the services they provide. To recoup the losses, hospitals pass on the cost to
insurers through higher rates, and insurers, in turn, pass
on the cost to policy holders in the form of higher premiums. Congress estimated that the cost of uncompensated care raises family health insurance premiums, on
average, by over $1,000 per year. 42 U. S. C. 18091(2)(F).
In the Affordable Care Act, Congress addressed the
problem of those who cannot obtain insurance coverage
because of preexisting conditions or other health issues. It
did so through the Acts guaranteed-issue and communityrating provisions. These provisions together prohibit insurance companies from denying coverage to those with
such conditions or charging unhealthy individuals higher
premiums than healthy individuals. See 300gg, 300gg1,
300gg3, 300gg4.
The guaranteed-issue and community-rating reforms do
not, however, address the issue of healthy individuals who
choose not to purchase insurance to cover potential health
care needs. In fact, the reforms sharply exacerbate that
problem, by providing an incentive for individuals to delay
purchasing health insurance until they become sick, relying on the promise of guaranteed and affordable coverage.
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3 The
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to raise and support Armies and to provide and maintain a Navy, in addition to the power to make Rules
for the Government and Regulation of the land and naval
Forces. Id., cls. 1214. If the power to regulate the
armed forces or the value of money included the power to
bring the subject of the regulation into existence, the
specific grant of such powers would have been unnecessary. The language of the Constitution reflects the natural understanding that the power to regulate assumes
there is already something to be regulated. See Gibbons, 9
Wheat., at 188 ([T]he enlightened patriots who framed
our constitution, and the people who adopted it, must be
understood to have employed words in their natural sense,
and to have intended what they have said).4
Our precedent also reflects this understanding. As
expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching
activity. It is nearly impossible to avoid the word when
quoting them. See, e.g., Lopez, supra, at 560 (Where
economic activity substantially affects interstate commerce, legislation regulating that activity will be sus
4 JUSTICE
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5 JUSTICE GINSBURG cites two eminent domain cases from the 1890s to
support the proposition that our case law does not toe the activity
versus inactivity line. Post, at 2425 (citing Monongahela Nav. Co. v.
United States, 148 U. S. 312, 335337 (1893), and Cherokee Nation v.
Southern Kansas R. Co., 135 U. S. 641, 657659 (1890)). The fact that
the Fifth Amendment requires the payment of just compensation
when the Government exercises its power of eminent domain does not
turn the taking into a commercial transaction between the landowner
and the Government, let alone a government-compelled transaction
between the landowner and a third party.
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Government.6
To an economist, perhaps, there is no difference between
activity and inactivity; both have measurable economic
effects on commerce. But the distinction between doing
something and doing nothing would not have been lost on
the Framers, who were practical statesmen, not metaphysical philosophers. Industrial Union Dept., AFLCIO
v. American Petroleum Institute, 448 U. S. 607, 673 (1980)
(Rehnquist, J., concurring in judgment). As we have explained, the framers of the Constitution were not mere
visionaries, toying with speculations or theories, but
practical men, dealing with the facts of political life as
they understood them, putting into form the government
they were creating, and prescribing in language clear
and intelligible the powers that government was to take.
South Carolina v. United States, 199 U. S. 437, 449 (1905).
The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our
decisions and Congresss actions have reflected this understanding. There is no reason to depart from that understanding now.
The Government sees things differently. It argues that
because sickness and injury are unpredictable but unavoidable, the uninsured as a class are active in the market for health care, which they regularly seek and obtain.
Brief for United States 50. The individual mandate
merely regulates how individuals finance and pay for that
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B
That is not the end of the matter. Because the Commerce Clause does not support the individual mandate, it
is necessary to turn to the Governments second argument:
that the mandate may be upheld as within Congresss
enumerated power to lay and collect Taxes. Art. I, 8,
cl. 1.
The Governments tax power argument asks us to view
the statute differently than we did in considering its commerce power theory. In making its Commerce Clause
argument, the Government defended the mandate as a
regulation requiring individuals to purchase health insurance. The Government does not claim that the taxing
power allows Congress to issue such a command. Instead,
the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a
tax on those who do not buy that product.
The text of a statute can sometimes have more than one
possible meaning. To take a familiar example, a law that
reads no vehicles in the park might, or might not, ban
bicycles in the park. And it is well established that if
a statute has two possible meanings, one of which violates
the Constitution, courts should adopt the meaning that
does not do so. Justice Story said that 180 years ago: No
court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve
a violation, however unintentional, of the constitution.
Parsons v. Bedford, 3 Pet. 433, 448449 (1830). Justice
Holmes made the same point a century later: [T]he rule is
settled that as between two possible interpretations of a
statute, by one of which it would be unconstitutional and
by the other valid, our plain duty is to adopt that which
will save the Act. Blodgett v. Holden, 275 U. S. 142, 148
(1927) (concurring opinion).
The most straightforward reading of the mandate is
that it commands individuals to purchase insurance.
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The exaction the Affordable Care Act imposes on those
without health insurance looks like a tax in many respects. The [s]hared responsibility payment, as the
statute entitles it, is paid into the Treasury by taxpayer[s] when they file their tax returns. 26 U. S. C.
5000A(b). It does not apply to individuals who do not
pay federal income taxes because their household income
is less than the filing threshold in the Internal Revenue
Code. 5000A(e)(2). For taxpayers who do owe the payment, its amount is determined by such familiar factors as
taxable income, number of dependents, and joint filing
status. 5000A(b)(3), (c)(2), (c)(4). The requirement to
pay is found in the Internal Revenue Code and enforced by
the IRS, whichas we previously explainedmust assess
and collect it in the same manner as taxes. Supra, at
1314. This process yields the essential feature of any tax:
it produces at least some revenue for the Government.
United States v. Kahriger, 345 U. S. 22, 28, n. 4 (1953).
Indeed, the payment is expected to raise about $4 billion
per year by 2017. Congressional Budget Office, Payments
of Penalties for Being Uninsured Under the Patient Protection and Affordable Care Act (Apr. 30, 2010), in Selected
CBO Publications Related to Health Care Legislation,
20092010, p. 71 (rev. 2010).
It is of course true that the Act describes the payment as
a penalty, not a tax. But while that label is fatal to the
application of the Anti-Injunction Act, supra, at 1213, it
does not determine whether the payment may be viewed
as an exercise of Congresss taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any
particular statute, so it makes sense to be guided by Congresss choice of label on that question. That choice does
not, however, control whether an exaction is within Congresss constitutional power to tax.
Our precedent reflects this: In 1922, we decided two
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7 Sotelo, in particular, would seem to refute the joint dissents contention that we have never treated an exaction as a tax if it was denominated a penalty. Post, at 20. We are not persuaded by the dissents
attempt to distinguish Sotelo as a statutory construction case from the
bankruptcy context. Post, at 17, n. 5. The dissent itself treats the
question here as one of statutory interpretation, and indeed also relies
on a statutory interpretation case from the bankruptcy context. Post,
at 23 (citing United States v. Reorganized CF&I Fabricators of Utah,
Inc., 518 U. S. 213, 224 (1996)).
8 In 2016, for example, individuals making $35,000 a year are expected to owe the IRS about $60 for any month in which they do not
have health insurance. Someone with an annual income of $100,000 a
year would likely owe about $200. The price of a qualifying insurance
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regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation,
the Constitution has made no such promise with respect to
taxes. See Letter from Benjamin Franklin to M. Le Roy
(Nov. 13, 1789) (Our new Constitution is now established
. . . but in this world nothing can be said to be certain,
except death and taxes).
Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal
authority. Its answer depends on whether Congress can
exercise what all acknowledge to be the novel course of
directing individuals to purchase insurance. Congresss
use of the Taxing Clause to encourage buying something
is, by contrast, not new. Tax incentives already promote,
for example, purchasing homes and professional educations. See 26 U. S. C. 163(h), 25A. Sustaining the
mandate as a tax depends only on whether Congress has
properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the
individual mandate under the Taxing Clause thus does
not recognize any new federal power. It determines that
Congress has used an existing one.
Second, Congresss ability to use its taxing power to
influence conduct is not without limits. A few of our cases
policed these limits aggressively, invalidating punitive
exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority.
See, e.g., United States v. Butler, 297 U. S. 1 (1936); Drexel
Furniture, 259 U. S. 20. More often and more recently
we have declined to closely examine the regulatory motive
or effect of revenue-raising measures. See Kahriger, 345
U. S., at 2731 (collecting cases). We have nonetheless
maintained that there comes a time in the extension of
the penalizing features of the so-called tax when it loses
its character as such and becomes a mere penalty with the
characteristics of regulation and punishment. Kurth
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use in providing national unemployment services. Congress was willing to direct businesses to instead pay the
money into state programs only on the condition that the
money be used for the same purposes. Predicating tax
abatement on a States adoption of a particular type of unemployment legislation was therefore a means to safeguard [the Federal Governments] own treasury. Id., at
591. We held that [i]n such circumstances, if in no others, inducement or persuasion does not go beyond the
bounds of power. Ibid.
In rejecting the argument that the federal law was a
weapon[ ] of coercion, destroying or impairing the autonomy of the states, the Court noted that there was no
reason to suppose that the State in that case acted other
than through her unfettered will. Id., at 586, 590.
Indeed, the State itself did not offer a suggestion that in
passing the unemployment law she was affected by duress. Id., at 589.
As our decision in Steward Machine confirms, Congress
may attach appropriate conditions to federal taxing and
spending programs to preserve its control over the use of
federal funds. In the typical case we look to the States to
defend their prerogatives by adopting the simple expedient of not yielding to federal blandishments when they
do not want to embrace the federal policies as their own.
Massachusetts v. Mellon, 262 U. S. 447, 482 (1923). The
States are separate and independent sovereigns. Sometimes they have to act like it.
The States, however, argue that the Medicaid expansion
is far from the typical case. They object that Congress has
crossed the line distinguishing encouragement from
coercion, New York, supra, at 175, in the way it has structured the funding: Instead of simply refusing to grant the
new funds to States that will not accept the new conditions, Congress has also threatened to withhold those
States existing Medicaid funds. The States claim that
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GINSBURG observes that state Medicaid spending will increase by only 0.8 percent after the expansion. Post, at 43. That not
only ignores increased state administrative expenses, but also assumes
that the Federal Government will continue to fund the expansion at the
current statutorily specified levels. It is not unheard of, however, for
the Federal Government to increase requirements in such a manner as
to impose unfunded mandates on the States. More importantly, the
size of the new financial burden imposed on a State is irrelevant in
analyzing whether the State has been coerced into accepting that
burden. Your money or your life is a coercive proposition, whether
you have a single dollar in your pocket or $500.
13 Nor, of course, can the number of pages the amendment occupies, or the extent to which the change preserves and works within
the existing program, be dispositive. Cf. post, at 4950 (opinion of
GINSBURG, J.). Take, for example, the following hypothetical amendment: All of a States citizens are now eligible for Medicaid. That
change would take up a single line and would not alter any operational
aspect[ ] of the program beyond the eligibility requirements. Post, at
49. Yet it could hardly be argued that such an amendment was a
permissible modification of Medicaid, rather than an attempt to foist an
entirely new health care system upon the States.
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Here, the Government claims that the Medicaid expansion is properly viewed merely as a modification of the existing program because the States agreed that Congress
could change the terms of Medicaid when they signed on
in the first place. The Government observes that the
Social Security Act, which includes the original Medicaid
provisions, contains a clause expressly reserving [t]he
right to alter, amend, or repeal any provision of that
statute. 42 U. S. C. 1304. So it does. But if Congress
intends to impose a condition on the grant of federal moneys, it must do so unambiguously. Pennhurst, 451 U. S.,
at 17. A State confronted with statutory language reserving the right to alter or amend the pertinent provisions
of the Social Security Act might reasonably assume that
Congress was entitled to make adjustments to the Medicaid program as it developed. Congress has in fact done
so, sometimes conditioning only the new funding, other
times both old and new. See, e.g., Social Security Amendments of 1972, 86 Stat. 13811382, 1465 (extending Medicaid eligibility, but partly conditioning only the new
funding); Omnibus Budget Reconciliation Act of 1990,
4601, 104 Stat. 1388166 (extending eligibility, and
conditioning old and new funds).
The Medicaid expansion, however, accomplishes a shift
in kind, not merely degree. The original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly,
and needy families with dependent children. See 42
U. S. C. 1396a(a)(10). Previous amendments to Medicaid
eligibility merely altered and expanded the boundaries of
these categories. Under the Affordable Care Act, Medicaid
is transformed into a program to meet the health care
needs of the entire nonelderly population with income
below 133 percent of the poverty level. It is no longer a
program to care for the neediest among us, but rather an
element of a comprehensive national plan to provide uni-
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do just that. It allows her to withhold all further [Medicaid] payments . . . to the State if she determines that the
State is out of compliance with any Medicaid requirement,
including those contained in the expansion. 42 U. S. C.
1396c. In light of the Courts holding, the Secretary
cannot apply 1396c to withdraw existing Medicaid funds
for failure to comply with the requirements set out in the
expansion.
That fully remedies the constitutional violation we have
identified. The chapter of the United States Code that
contains 1396c includes a severability clause confirming
that we need go no further. That clause specifies that [i]f
any provision of this chapter, or the application thereof to
any person or circumstance, is held invalid, the remainder
of the chapter, and the application of such provision to
other persons or circumstances shall not be affected thereby.
1303. Todays holding does not affect the continued application of 1396c to the existing Medicaid program. Nor
does it affect the Secretarys ability to withdraw funds provided under the Affordable Care Act if a State that has
chosen to participate in the expansion fails to comply with
the requirements of that Act.
This is not to say, as the joint dissent suggests, that we
are rewriting the Medicaid Expansion. Post, at 48.
Instead, we determine, first, that 1396c is unconstitutional when applied to withdraw existing Medicaid funds
from States that decline to comply with the expansion.
We then follow Congresss explicit textual instruction to
leave unaffected the remainder of the chapter, and the
application of [the challenged] provision to other persons
or circumstances. 1303. When we invalidate an application of a statute because that application is unconstitutional, we are not rewriting the statute; we are merely
enforcing the Constitution.
The question remains whether todays holding affects
other provisions of the Affordable Care Act. In considering
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pension plan for employees of carriers subject to the Interstate Commerce Act; Court found law related essentially
to the social welfare of the worker, and therefore remote
from any regulation of commerce as such). It is a reading
that should not have staying power.
A
In enacting the Patient Protection and Affordable Care
Act (ACA), Congress comprehensively reformed the
national market for health-care products and services.
By any measure, that market is immense. Collectively,
Americans spent $2.5 trillion on health care in 2009,
accounting for 17.6% of our Nations economy. 42 U. S. C.
18091(2)(B) (2006 ed., Supp. IV). Within the next decade,
it is anticipated, spending on health care will nearly double. Ibid.
The health-care markets size is not its only distinctive
feature. Unlike the market for almost any other product
or service, the market for medical care is one in which all
individuals inevitably participate. Virtually every person
residing in the United States, sooner or later, will visit
a doctor or other health-care professional. 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 doctors
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 Medicare and Medicaid Services, Historic National Health
Expenditure Data, National Health Expenditures: Selected Calendar Years 19602010 (Table 1). Over a lifetime, costs mount to hundreds of thousands of dollars. See
Alemayahu & Warner, The Lifetime Distribution of
Health Care Costs, in 39 Health Service Research 627, 635
(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 upwards of $10,000. See Dept. of Health and Human Services, Office of Health Policy, ASPE Research Brief: The
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. 11398, p. 10 (citing a study indicating that, in 1998, the cost of treating a heart attack for the
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 without warning. Inescapably, we are all at peril of needing
medical care without a moments notice. See, e.g., Campbell, Down the Insurance Rabbit Hole, N. Y. Times, Apr. 5,
2012, p. A23 (telling of an uninsured 32-year-old woman
who, healthy one day, became a quadriplegic the next due
to an auto accident).
To manage the risks associated with medical care
its high cost, its unpredictability, and its inevitability
most people in the United States obtain health insurance.
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 and
State and Federal Governments finance almost 85% of the
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medical care administered to U. S. residents. See Congressional Budget Office, CBOs 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 individuals annually consume more than $100 billion in healthcare services, nearly 5% of the Nations 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
Courts case file). Over 60% of those without insurance
visit a doctors office or emergency room in a given year.
See Dept. of Health and Human Services, National Center for Health Statistics, HealthUnited States2010,
p. 282, Table 79 (Feb. 2011).
B
The large number of individuals without health insurance, Congress found, heavily burdens the national
health-care market. See 42 U. S. C. 18091(2). As just
noted, the cost of emergency care or treatment for a serious illness generally exceeds what an individual can afford
to pay on her own. Unlike markets for most products,
however, the inability to pay for care does not mean that
an uninsured individual will receive no care. Federal and
state law, as well as professional obligations and embedded social norms, require hospitals and physicians to
provide care when it is most needed, regardless of the
patients ability to pay. See, e.g., 42 U. S. C. 1395dd; Fla.
Stat. 395.1041(3)(f) (2010); Tex. Health & Safety Code
Opinion of GINSBURG, J.
Curiae in No. 11398, p. 15 (noting that, in 2009, Massachusetts emergency rooms served thousands of uninsured,
out-of-state residents). An influx of unhealthy individuals
into a State with universal health care would result in
increased spending on medical services. To cover the
increased costs, a State would have to raise taxes, and
private health-insurance companies would have to increase premiums. Higher taxes and increased insurance
costs would, in turn, encourage businesses and healthy
individuals to leave the State.
States that undertake health-care reforms on their own
thus risk placing themselves in a position of economic
disadvantage as compared with neighbors or competitors.
Davis, 301 U. S., at 644. See also Brief for Health Care for
All, Inc., et al. as Amici Curiae in No. 11398, p. 4 ([O]utof-state residents continue to seek and receive millions of
dollars in uncompensated care in Massachusetts hospitals,
limiting the States efforts to improve its health care
system through the elimination of uncompensated care.).
Facing that risk, individual States are unlikely to take the
initiative in addressing the problem of the uninsured, even
though solving that problem is in all States best interests.
Congress intervention was needed to overcome this collectiveaction impasse.
D
Aware that a national solution was required, Congress
could have taken over the health-insurance market by
establishing a tax-and-spend federal program like Social
Security. Such a program, commonly referred to as a
single-payer system (where the sole payer is the Federal
Government), would have left little, if any, room for private enterprise or the States. Instead of going this route,
Congress enacted the ACA, a solution that retains a robust role for private insurers and state governments. To
make its chosen approach work, however, Congress had to
Opinion of GINSBURG, J.
10
11
Opinion of GINSBURG, J.
seven states suffered from skyrocketing insurance premium costs, reductions in individuals with coverage, and
reductions in insurance products and providers. Brief for
American Association of People with Disabilities et al. as
Amici Curiae in No. 11398, p. 9 (hereinafter AAPD Brief).
See also Brief for Governor of Washington Christine
Gregoire as Amicus Curiae in No. 11398, pp. 1114 (describing the death spiral in the insurance market Washington experienced when the State passed a law requiring
coverage for preexisting conditions).
Congress comprehended that guaranteed-issue and
community-rating laws alone will not work. When insurance 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 medical carei.e., those who cost insurers the mostbecome
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 communityrating requirements without a minimum coverage provision, that is precisely what insurance companies did. See,
e.g., AAPD Brief 10 ([In Maine,] [m]any insurance providers 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 of
New Yorks Reform Law, 25 J. Health Pol. Poly & L. 71,
9192 (2000) (Guaranteed-issue and community-rating
laws resulted in a dramatic exodus of indemnity insurers
from New Yorks individual [insurance] market.); Brief
for Barry Friedman et al. as Amici Curiae in No. 11398,
p. 17 (In Kentucky, all but two insurers (one State-run)
abandoned the State.).
Massachusetts, Congress was told, cracked the adverse
12
2 Despite its success, Massachusetts medical-care providers still administer substantial amounts of uncompensated care, much of that to
uninsured patients from out-of-state. See supra, at 78.
13
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14
15
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16
17
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18
19
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20
21
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22
23
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24
6 THE
CHIEF JUSTICEs reliance on the quoted passages of the Constitution, see ante, at 1819, is also dubious on other grounds. The power
to regulate the Value of the national currency presumably includes
the power to increase the currencys worthi.e., to create value where
none previously existed. And if the power to [r]egulat[e] . . . the land
and naval Forces presupposes there is already [in existence] something to be regulated, i.e., an Army and a Navy, does Congress lack
authority to create an Air Force?
25
Opinion of GINSBURG, J.
26
the actual effects of the activity in question upon interstate commerce. 317 U. S., at 120. See also Morrison,
529 U. S., at 641644 (Souter, J., dissenting) (recounting
the Courts nearly disastrous experiment with formalistic limits on Congress commerce power). Failing to learn
from this history, THE CHIEF JUSTICE plows ahead with
his formalistic distinction between those who are active
in commerce, ante, at 20, and those who are not.
It is not hard to show the difficulty courts (and Congress) would encounter in distinguishing statutes that regulate activity from those that regulate inactivity. As
Judge Easterbrook noted, it is possible to restate most
actions as corresponding inactions with the same effect.
Archie v. Racine, 847 F. 2d 1211, 1213 (CA7 1988) (en
banc). Take 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 inactive when deciding how to pay for health care, as selfinsurance and private insurance are two forms of action
for addressing the same risk.). The minimum coverage
provision could therefore be described as regulating activists in the self-insurance market.7 Wickard is another
example. Did the statute there at issue target activity
(the growing of too much wheat) or inactivity (the farmers
failure to purchase wheat in the marketplace)? If anything, the Courts analysis suggested the latter. See 317
U. S., at 127129.
At bottom, THE CHIEF JUSTICEs and the joint dissent
7 THE CHIEF JUSTICEs characterization of individuals who choose not
to purchase private insurance as doing nothing, ante, at 20, is similarly questionable. A person who self-insures opts against prepayment for
a product the person will in time consume. When aggregated, exercise
of that option has a substantial impact on the health-care market. See
supra, at 57, 1617.
27
Opinion of GINSBURG, J.
ers view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts
that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that [is]
more redolent of Due Process Clause arguments. SevenSky, 661 F. 3d, at 19. See also Troxel v. Granville, 530
U. S. 57, 65 (2000) (plurality opinion) (The [Due Process]
Clause also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests. (internal quotation marks omitted)). Plaintiffs have
abandoned any argument pinned to substantive due process, however, 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
2
Underlying THE CHIEF JUSTICEs view that the Commerce Clause must be confined to the regulation of active
participants in a commercial market is a fear that the
commerce power would otherwise know no limits. See,
e.g., ante, at 23 (Allowing Congress to compel an individual not engaged in commerce to purchase a product would
permi[t] Congress to reach beyond the natural extent
of its authority, everywhere extending the sphere of its
activity, and drawing all power into its impetuous vortex.
(internal quotation marks omitted)). The joint dissenters
28
29
Opinion of GINSBURG, J.
9 The failure to purchase vegetables in THE CHIEF JUSTICEs hypothetical, then, is not what leads to higher health-care costs for others;
rather, it is the failure of individuals to maintain a healthy diet, and
the resulting obesity, that creates the cost-shifting problem. See ante,
at 2223. Requiring individuals to purchase vegetables is thus
several steps removed from solving the problem. The failure to obtain
health insurance, by contrast, is the immediate cause of the cost-shifting
Congress sought to address through the ACA. See supra, at 57.
Requiring individuals to obtain insurance attacks the source of the
problem directly, in a single step.
30
31
Opinion of GINSBURG, J.
3
To bolster his argument that the minimum coverage
provision is not valid Commerce Clause legislation, THE
CHIEF JUSTICE emphasizes the provisions novelty. See
ante, at 18 (asserting that sometimes the most telling
indication of [a] severe constitutional problem . . . is the
lack of historical precedent for Congresss action (internal
quotation marks omitted)). While an insurance-purchase
mandate may be novel, THE CHIEF JUSTICEs argument
certainly is not. [I]n almost every instance of the exercise of the [commerce] power differences are asserted from
previous exercises of it and made a ground of attack.
Hoke v. United States, 227 U. S. 308, 320 (1913). See, e.g.,
Brief for Petitioner in Perez v. United States, O. T. 1970,
No. 600, p. 5 (unprecedented exercise of power); Supplemental Brief for Appellees in Katzenbach v. McClung,
O. T. 1964, No. 543, p. 40 (novel assertion of federal
power); Brief for Appellee in Wickard v. Filburn, O. T.
1941, No. 59, p. 6 (complete departure). For decades,
the Court has declined to override legislation because of
its novelty, and for good reason. As our national economy
grows and changes, we have recognized, Congress must
adapt to the changing economic and financial realities.
See supra, at 1415. Hindering Congress ability to do so
is shortsighted; if history is any guide, todays constriction
of the Commerce Clause will not endure. See supra, at
2526.
III
A
For the reasons explained above, the minimum coverage
provision is valid Commerce Clause legislation. See supra, Part II. When viewed as a component of the entire
ACA, the provisions constitutionality becomes even plainer.
The Necessary and Proper Clause empowers Congress
32
33
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34
35
Opinion of GINSBURG, J.
36
11 In a separate argument, the joint dissenters contend that the minimum coverage provision is not necessary and proper because it was not
the only . . . way Congress could have made the guaranteed-issue and
community-rating reforms work. Post, at 910. Congress could also
have avoided an insurance-market death spiral, the dissenters maintain, by imposing a surcharge on those who did not previously purchase
insurance when those individuals eventually enter the healthinsurance system. Post, at 10. Or Congress could den[y] a full income
tax credit to those who do not purchase insurance. Ibid.
Neither a surcharge on those who purchase insurance nor the denial of a tax credit to those who do not would solve the problem created
by guaranteed-issue and community-rating requirements. Neither
would prompt the purchase of insurance before sickness or injury
occurred.
37
Opinion of GINSBURG, J.
IV
In the early 20th century, this Court regularly struck
down economic regulation enacted by the peoples representatives in both the States and the Federal Government.
See, e.g., Carter Coal Co., 298 U. S., at 303304, 309310;
Dagenhart, 247 U. S., at 276277; Lochner v. New York,
198 U. S. 45, 64 (1905). THE CHIEF JUSTICEs Commerce
Clause opinion, and even more so the joint dissenters
reasoning, see post, at 416, bear a disquieting resemblance to those long-overruled decisions.
Ultimately, the Court upholds the individual mandate
as a proper exercise of Congress power to tax and spend
for the . . . general Welfare of the United States. Art. I,
8, cl. 1; ante, at 4344. I concur in that determination,
which makes THE CHIEF JUSTICEs Commerce Clause
essay all the more puzzling. Why should THE CHIEF
JUSTICE strive so mightily to hem in Congress capacity to
meet the new problems arising constantly in our everdeveloping modern economy? I find no satisfying response
to that question in his opinion.12
38
V
Through Medicaid, Congress has offered the States an
opportunity to furnish health care to the poor with the aid
of federal financing. To receive federal Medicaid funds,
States must provide health benefits to specified categories
of needy persons, including pregnant women, children,
parents, and adults with disabilities. Guaranteed eligibility varies by category: for some it is tied to the federal
poverty level (incomes up to 100% or 133%); for others it
depends on criteria such as eligibility for designated state
or federal assistance programs. The ACA enlarges the
population of needy people States must cover to include
adults under age 65 with incomes up to 133% of the federal poverty level. The spending power conferred by the
Constitution, the Court has never doubted, permits Congress to define the contours of programs financed with
federal funds. See, e.g., Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981). And to expand
coverage, Congress could have recalled the existing legislation, and replaced it with a new law making Medicaid as
embracive of the poor as Congress chose.
The question posed by the 2010 Medicaid expansion,
then, is essentially this: To cover a notably larger population, must Congress take the repeal/reenact route, or may
it achieve the same result by amending existing law? The
answer should be that Congress may expand by amendment the classes of needy persons entitled to Medicaid
benefits. A ritualistic requirement that Congress repeal
and reenact spending legislation in order to enlarge the
population served by a federally funded program would
advance no constitutional principle and would scarcely
serve the interests of federalism. To the contrary, such a
requirement would rigidify Congress efforts to empower
States by partnering with them in the implementation of
federal programs.
Medicaid is a prototypical example of federal-state coop-
39
Opinion of GINSBURG, J.
40
41
Opinion of GINSBURG, J.
42
required participating States to include among their beneficiaries pregnant women with family incomes up to 133%
of the federal poverty level, children up to age 6 at the
same income levels, and children ages 6 to 18 with family
incomes up to 100% of the poverty level. See 42 U. S. C.
1396a(a)(10)(A)(i), 1396a(l); Medicare Catastrophic Coverage Act of 1988, 302, 102 Stat. 750; Omnibus Budget
Reconciliation Act of 1989, 6401, 103 Stat. 2258; Omnibus Budget Reconciliation Act of 1990, 4601, 104 Stat.
1388166. These amendments added millions to the
Medicaid-eligible population. Dubay & Kenney, Lessons
from the Medicaid Expansions for Children and Pregnant
Women 5 (Apr. 1997).
Between 1966 and 1990, annual federal Medicaid spending grew from $631.6 million to $42.6 billion; state
spending rose to $31 billion over the same period. See Dept.
of Health and Human Services, National Health Expenditures by Type of Service and Source of Funds: Calendar
Years 1960 to 2010 (table).14 And between 1990 and 2010,
federal spending increased to $269.5 billion. Ibid. Enlargement of the population and services covered by Medicaid, in short, has been the trend.
Compared to past alterations, the ACA is notable for the
extent to which the Federal Government will pick up the
tab. Medicaids 2010 expansion is financed largely by
federal outlays. In 2014, federal funds will cover 100%
of the costs for newly eligible beneficiaries; that rate will
gradually decrease before settling at 90% in 2020. 42
U. S. C. 1396d(y) (2006 ed., Supp. IV). By comparison,
federal contributions toward the care of beneficiaries
eligible pre-ACA range from 50% to 83%, and averaged
57% between 2005 and 2008. 1396d(b) (2006 ed., Supp.
43
Opinion of GINSBURG, J.
15 Even the study on which the plaintiffs rely, see Brief for Petitioners
10, concludes that [w]hile most states will experience some increase in
spending, this is quite small relative to the federal matching payments
and low relative to the costs of uncompensated care that [the states]
would bear if the[re] were no health reform. See Kaiser Commission
on Medicaid & the Uninsured, Medicaid Coverage & Spending in
Health Reform 16 (May 2010). Thus there can be no objection to the
ACAs expansion of Medicaid as an unfunded mandate. Quite the
contrary, the program is impressively well funded.
44
45
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46
47
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48
49
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50
51
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52
53
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54
55
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56
57
Opinion of GINSBURG, J.
58
possibly refuse the offer that the ACA extends.). We should not lightly
ascribe to Congress an intent to violate the Constitution (at least as my
colleagues read it). This is particularly true when the ACA could just
as well be comprehended as demonstrating Congress mere expectation,
in light of the uniformity of past participation and the generosity of the
federal contribution, that States would not withdraw. Cf. South Dakota
v. Dole, 483 U. S. 203, 211 (1987) (We cannot conclude . . . that a conditional grant of federal money . . . is unconstitutional simply by
reason of its success in achieving the congressional objective.).
26 Federal taxation of a States citizens, according to the joint dissenters, may diminish a States ability to raise new revenue. This, in turn,
could limit a States capacity to replace a federal program with an
equivalent state-funded analog. Post, at 40. But it cannot be true
that the amount of the federal taxes extracted from the taxpayers of a
State to pay for the program in question is relevant in determining
whether there is impermissible coercion. Post, at 37. When the
United States Government taxes United States citizens, it taxes them
in their individual capacities as the people of Americanot as
residents of a particular State. See U. S. Term Limits, Inc. v. Thornton,
514 U. S. 779, 839 (1995) (KENNEDY, J., concurring). That is because
the Framers split the atom of sovereignty[,] . . . establishing two orders
of governmentone state and one federaleach with its own direct
59
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60
27 As
61
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the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow
wheat (which is not an economic activity, or any activity
at all) nonetheless affects commerce and therefore can be
federally regulated, is to make mere breathing in and out
the basis for federal prescription and to extend federal
power to virtually all human activity.
As for the constitutional power to tax and spend for
the general welfare: The Court has long since expanded
that beyond (what Madison thought it meant) taxing and
spending for those aspects of the general welfare that were
within the Federal Governments enumerated powers,
see United States v. Butler, 297 U. S. 1, 6566 (1936).
Thus, we now have sizable federal Departments devoted
to subjects not mentioned among Congress enumerated
powers, and only marginally related to commerce: the Department of Education, the Department of Health and
Human Services, the Department of Housing and Urban
Development. The principal practical obstacle that prevents Congress from using the tax-and-spend power to
assume all the general-welfare responsibilities traditionally exercised by the States is the sheer impossibility of
managing a Federal Government large enough to administer such a system. That obstacle can be overcome by
granting funds to the States, allowing them to administer
the program. That is fair and constitutional enough when
the States freely agree to have their powers employed and
their employees enlisted in the federal scheme. But it is a
blatant violation of the constitutional structure when the
States have no choice.
The Act before us here exceeds federal power both in
mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding. These
parts of the Act are central to its design and operation,
and all the Acts other provisions would not have been
enacted without them. In our view it must follow that the
these cases is that the Commerce Clause, even when supplemented by the Necessary and Proper Clause, is not
carte blanche for doing whatever will help achieve the
ends Congress seeks by the regulation of commerce. And
the last two of these cases show that the scope of the
Necessary and Proper Clause is exceeded not only when
the congressional action directly violates the sovereignty
of the States but also when it violates the background
principle of enumerated (and hence limited) federal power.
The case upon which the Government principally relies
to sustain the Individual Mandate under the Necessary
and Proper Clause is Gonzales v. Raich, 545 U. S. 1 (2005).
That case held that Congress could, in an effort to restrain
the interstate market in marijuana, ban the local cultivation and possession of that drug. Id., at 1522. Raich
is no precedent for what Congress has done here. That
cases prohibition of growing (cf. Wickard, 317 U. S. 111),
and of possession (cf. innumerable federal statutes) did not
represent the expansion of the federal power to direct into
a broad new field. The mandating of economic activity
does, and since it is a field so limitless that it converts the
Commerce Clause into a general authority to direct the
economy, that mandating is not consist[ent] with the
letter and spirit of the constitution. McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).
Moreover, Raich is far different from the Individual
Mandate in another respect. The Courts opinion in Raich
pointed out that the growing and possession prohibitions
were the only practicable way of enabling the prohibition
of interstate traffic in marijuana to be effectively enforced.
545 U. S., at 22. See also Shreveport Rate Cases, 234 U. S.
342 (1914) (Necessary and Proper Clause allows regulations of intrastate transactions if necessary to the regulation of an interstate market). Intrastate marijuana could
no more be distinguished from interstate marijuana than,
for example, endangered-species trophies obtained before
10
11
12
13
14
of reasoning the failure to buy a car can be called participation in the non-private-car-transportation market. Commerce becomes everything.
The dissent claims that we fai[l] to explain why the
individual mandate threatens our constitutional order.
Ante, at 35. But we have done so. It threatens that order
because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to
act) becomes subject to federal control, effectively destroying the Constitutions division of governmental powers.
Thus the dissent, on the theories proposed for the validity
of the Mandate, would alter the accepted constitutional
relation between the individual and the National Government. The dissent protests that the Necessary and Proper
Clause has been held to include the power to enact criminal laws, . . . the power to imprison, . . . and the power to
create a national bank, ante, at 3435. Is not the power
to compel purchase of health insurance much lesser? No,
not if (unlike those other dispositions) its application rests
upon a theory that everything is within federal control
simply because it exists.
The dissents exposition of the wonderful things the Federal Government has achieved through exercise of its
assigned powers, such as the provision of old-age and
survivors benefits in the Social Security Act, ante, at 2,
is quite beside the point. The issue here is whether the
federal government can impose the Individual Mandate
through the Commerce Clause. And the relevant history
is not that Congress has achieved wide and wonderful
results through the proper exercise of its assigned powers
in the past, but that it has never before used the Commerce Clause to compel entry into commerce.3 The dissent
3 In
15
16
17
4 No
18
19
20
21
22
23
24
25
people, where legislators must weigh the need for the tax
against the terrible price they might pay at their next
election, which is never more than two years off. The
Federalist No. 58 defend[ed] the decision to give the
origination power to the House on the ground that the
Chamber that is more accountable to the people should
have the primary role in raising revenue. United States
v. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no
doubt that Congress knew precisely what it was doing
when it rejected an earlier version of this legislation that
imposed a tax instead of a requirement-with-penalty. See
Affordable Health Care for America Act, H. R. 3962, 111th
Cong., 1st Sess., 501 (2009); Americas Healthy Future
Act of 2009, S. 1796, 111th Cong., 1st Sess., 1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of
government least accountable to the citizenry.
Finally, we must observe that rewriting 5000A as a tax
in order to sustain its constitutionality would force us to
confront a difficult constitutional question: whether this is
a direct tax that must be apportioned among the States
according to their population. Art. I, 9, cl. 4. Perhaps it
is not (we have no need to address the point); but the
meaning of the Direct Tax Clause is famously unclear, and
its application here is a question of first impression that
deserves more thoughtful consideration than the lick-anda-promise accorded by the Government and its supporters.
The Governments opening brief did not even address the
questionperhaps because, until today, no federal court
has accepted the implausible argument that 5000A is
an exercise of the tax power. And once respondents raised
the issue, the Government devoted a mere 21 lines of its
reply brief to the issue. Petitioners Minimum Coverage
Reply Brief 25. At oral argument, the most prolonged
statement about the issue was just over 50 words. Tr. of
Oral Arg. 79 (Mar. 27, 2012). One would expect this Court
26
6 The amicus appointed to defend the proposition that the AntiInjunction Act deprives us of jurisdiction stresses that the penalty for
failing to comply with the mandate shall be assessed and collected
in the same manner as an assessable penalty under subchapter B of
chapter 68, 26 U. S. C. 5000A(g)(1) (2006 ed., Supp. IV), and that
such penalties shall be assessed and collected in the same manner
as taxes, 6671(a) (2006 ed.). But that point seems to us to confirm
the inapplicability of the Anti-Injunction Act. That the penalty is to
be assessed and collected in the same manner as taxes refutes the
proposition that it is a tax for all statutory purposes, including with
respect to the Anti-Injunction Act. Moreover, elsewhere in the Internal
Revenue Code, Congress has provided both that a particular payment
shall be assessed and collected in the same manner as a tax and that
no suit shall be maintained to restrain the assessment or collection of
the payment. See, e.g., 7421(b)(1), 6901(a); 6305(a), (b). The
27
latter directive would be superfluous if the former invoked the AntiInjunction Act.
Amicus also suggests that the penalty should be treated as a tax
because it is an assessable penalty, and the Codes assessment provision authorizes the Secretary of the Treasury to assess all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by this title. 6201(a) (2006 ed., Supp.
IV). But the fact that such items are included as taxes for purposes of
assessment does not establish that they are included as taxes for
purposes of other sections of the Code, such as the Anti-Injunction Act,
that do not contain similar including language.
28
29
ture of the ACA. The goal of the Act is to provide nearuniversal medical coverage, 42 U. S. C. 18091(2)(D), and
without 100% State participation in the Medicaid program, attainment of this goal would be thwarted. Even if
States could elect to remain in the old Medicaid program,
while declining to participate in the Expansion, there
would be a gaping hole in coverage. And if a substantial
number of States were entirely expelled from the program,
the number of persons without coverage would be even
higher.
In light of the ACAs goal of near-universal coverage,
petitioners argue, if Congress had thought that anything
less than 100% state participation was a realistic possibility, Congress would have provided a backup scheme. But
no such scheme is to be found anywhere in the more than
900 pages of the Act. This shows, they maintain, that
Congress was certain that the ACAs Medicaid offer was
one that no State could refuse.
In response to this argument, the Government contends
that any congressional assumption about uniform state
participation was based on the simple fact that the offer
of federal funds associated with the expanded coverage is
such a generous gift that no State would want to turn it
down.
To evaluate these arguments, we consider the extent of
the Federal Governments power to spend money and to
attach conditions to money granted to the States.
A
No one has ever doubted that the Constitution authorizes the Federal Government to spend money, but for
many years the scope of this power was unsettled. The
Constitution grants Congress the power to collect taxes to
. . . provide for the . . . general Welfare of the United
States, Art. I, 8, cl. 1, and from the foundation of the
Nation sharp differences of opinion have persisted as to
30
the true interpretation of the phrase the general welfare. Butler, 297 U. S., at 65. Madison, it has been said,
thought that the phrase amounted to no more than a
reference to the other powers enumerated in the subsequent clauses of the same section, while Hamilton maintained the clause confers a power separate and distinct
from those later enumerated [and] is not restricted in
meaning by the grant of them. Ibid.
The Court resolved this dispute in Butler. Writing for
the Court, Justice Roberts opined that the Madisonian
view would make Article Is grant of the spending power a
mere tautology. Ibid. To avoid that, he adopted Hamiltons approach and found that the power of Congress to
authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative
power found in the Constitution. Id., at 66. Instead, he
wrote, the spending powers confines are set in the clause
which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress.
Ibid.; see also Steward Machine Co. v. Davis, 301 U. S.
548, 586587 (1937); Helvering v. Davis, 301 U. S. 619,
640 (1937).
The power to make any expenditure that furthers the
general welfare is obviously very broad, and shortly after
Butler was decided the Court gave Congress wide leeway
to decide whether an expenditure qualifies. See Helvering,
301 U. S., at 640641. The discretion belongs to Congress, the Court wrote, unless the choice is clearly
wrong, a display of arbitrary power, not an exercise of
judgment. Id., at 640. Since that time, the Court has
never held that a federal expenditure was not for the
general welfare.
B
One way in which Congress may spend to promote the
general welfare is by making grants to the States. Mone-
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8 This
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162. Congress may not simply commandeer the legislative processes of the States by directly compelling them to
enact and enforce a federal regulatory program. Id.,
at 161 (internal quotation marks and brackets omitted).
Congress effectively engages in this impermissible compulsion when state participation in a federal spending
program is coerced, so that the States choice whether to
enact or administer a federal regulatory program is rendered illusory.
Where all Congress has done is to encourag[e] state
regulation rather than compe[l] it, state governments
remain responsive to the local electorates preferences;
state officials remain accountable to the people. [But]
where the Federal Government compels States to regulate,
the accountability of both state and federal officials is
diminished. New York, supra, at 168.
Amici who support the Government argue that forcing
state employees to implement a federal program is more
respectful of federalism than using federal workers to
implement that program. See, e.g., Brief for Service Employees International Union et al. as Amici Curiae in No.
11398, pp. 2526. They note that Congress, instead of
expanding Medicaid, could have established an entirely
federal program to provide coverage for the same group of
people. By choosing to structure Medicaid as a cooperative
federal-state program, they contend, Congress allows for
more state control. Ibid.
This argument reflects a view of federalism that our
cases have rejectedand with good reason. When Congress compels the States to do its bidding, it blurs the
lines of political accountability. If the Federal Government makes a controversial decision while acting on its
own, it is the Federal Government that makes the decision in full view of the public, and it will be federal officials that suffer the consequences if the decision turns out
to be detrimental or unpopular. New York, 505 U. S., at
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eligible for Medicaid, would not be left out in the cold. But
nowhere in the over 900-page Act is such a scheme to be
found. By contrast, because Congress thought that some
States might decline federal funding for the operation of
a health benefit exchange, Congress provided a backup
scheme; if a State declines to participate in the operation
of an exchange, the Federal Government will step in
and operate an exchange in that State. See 42 U. S. C.
18041(c)(1). Likewise, knowing that States would not
necessarily provide affordable health insurance for aliens
lawfully present in the United Statesbecause Medicaid
does not require States to provide such coverageCongress extended the availability of the new federal insurance subsidies to all aliens. See 26 U. S. C. 36B(c)
(1)(B)(ii) (excepting from the income limit individuals
who are not eligible for the medicaid program . . . by
reason of [their] alien status). Congress did not make
these subsidies available for citizens with incomes below
the poverty level because Congress obviously assumed
that they would be covered by Medicaid. If Congress had
contemplated that some of these citizens would be left
without Medicaid coverage as a result of a States withdrawal or expulsion from the program, Congress surely
would have made them eligible for the tax subsidies provided for low-income aliens.
These features of the ACA convey an unmistakable
message: Congress never dreamed that any State would
refuse to go along with the expansion of Medicaid. Congress well understood that refusal was not a practical
option.
The Federal Government does not dispute the inference
that Congress anticipated 100% state participation, but it
argues that this assumption was based on the fact that
ACAs offer was an exceedingly generous gift. Brief for
Respondents in No. 11400, at 50. As the Federal Government sees things, Congress is like the generous bene-
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cies, risks, and duties that Congress did not enact. That
can be a more extreme exercise of the judicial power than
striking the whole statute and allowing Congress to address the conditions that pertained when the statute was
considered at the outset.
The Court has applied a two-part guide as the framework for severability analysis. The test has been deemed
well established. Alaska Airlines, Inc. v. Brock, 480
U. S. 678, 684 (1987). First, if the Court holds a statutory
provision unconstitutional, it then determines whether
the now truncated statute will operate in the manner Congress intended. If not, the remaining provisions must be
invalidated. See id., at 685. In Alaska Airlines, the Court
clarified that this first inquiry requires more than asking whether the balance of the legislation is incapable of
functioning independently. Id., at 684. Even if the remaining provisions will operate in some coherent way,
that alone does not save the statute. The question is
whether the provisions will work as Congress intended.
The relevant inquiry in evaluating severability is whether
the statute will function in a manner consistent with
the intent of Congress. Id., at 685 (emphasis in original).
See also Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. ___, ___ (2010) (slip op., at
28) (the Act remains fully operative as a law with these
tenure restrictions excised) (internal quotation marks
omitted); United States v. Booker, 543 U. S. 220, 227
(2005) ([T]wo provisions . . . must be invalidated in order
to allow the statute to operate in a manner consistent
with congressional intent); Mille Lacs, supra, at 194 ([E]mbodying as it did one coherent policy, [the entire order]
is inseverable).
Second, even if the remaining provisions can operate as
Congress designed them to operate, the Court must determine if Congress would have enacted them standing
alone and without the unconstitutional portion. If Con-
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other requirements; comprehensive regulation and penalties; some undoubted taxes; and increases in some governmental expenditures, decreases in others. Under the
severability test set out above, it must be determined if
those provisions function in a coherent way and as Congress would have intended, even when the major provisions establishing the Individual Mandate and Medicaid
Expansion are themselves invalid.
Congress did not intend to establish the goal of nearuniversal coverage without regard to fiscal consequences.
See, e.g., ACA 1563, 124 Stat. 270 ([T]his Act will reduce
the Federal deficit between 2010 and 2019). And it did
not intend to impose the inevitable costs on any one industry or group of individuals. The whole design of the Act
is to balance the costs and benefits affecting each set
of regulated parties. Thus, individuals are required to
obtain health insurance. See 26 U. S. C. 5000A(a). Insurance companies are required to sell them insurance regardless of patients pre-existing conditions and to comply
with a host of other regulations. And the companies must
pay new taxes. See 4980I (high-cost insurance plans);
42 U. S. C. 300gg(a)(1), 300gg4(b) (community rating);
300gg1, 300gg3, 300gg4(a) (guaranteed issue);
300gg11 (elimination of coverage limits); 300gg14(a)
(dependent children up to age 26); ACA 9010, 10905,
124 Stat. 865, 1017 (excise tax); Health Care and Education Reconciliation Act of 2010 (HCERA) 1401, 124 Stat.
1059 (excise tax). States are expected to expand Medicaid
eligibility and to create regulated marketplaces called exchanges where individuals can purchase insurance. See
42 U. S. C. 1396a(a)(10)(A)(i)(VIII) (2006 ed., Supp. IV)
(Medicaid Expansion), 18031 (exchanges). Some persons
who cannot afford insurance are provided it through the
Medicaid Expansion, and others are aided in their purchase of insurance through federal subsidies available on
health-insurance exchanges. See 26 U. S. C. 36B (2006
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not intend.
a
Insurance Regulations and Taxes
Without the Individual Mandate and Medicaid Expansion, the Affordable Care Acts insurance regulations and
insurance taxes impose risks on insurance companies and
their customers that this Court cannot measure. Those
risks would undermine Congress scheme of shared responsibility. See 26 U. S. C. 4980I (2006 ed., Supp.
IV) (high-cost insurance plans); 42 U. S. C. 300gg(a)(1)
(2006 ed., Supp. IV), 300gg4(b) (community rating);
300gg1, 300gg3, 300gg4(a) (guaranteed issue);
300gg11 (elimination of coverage limits); 300gg14(a)
(dependent children up to age 26); ACA 9010, 10905,
124 Stat. 865, 1017 (excise tax); HCERA 1401, 124 Stat.
1059 (excise tax).
The Court has been informed by distinguished economists that the Acts Individual Mandate and Medicaid
Expansion would each increase revenues to the insurance
industry by about $350 billion over 10 years; that this
combined figure of $700 billion is necessary to offset the
approximately $700 billion in new costs to the insurance
industry imposed by the Acts insurance regulations and
taxes; and that the new $700-billion burden would otherwise dwarf the industrys current profit margin. See Brief
for Economists as Amici Curiae in No. 11393 etc. (Severability), pp. 916, 10a.
If that analysis is correct, the regulations and taxes will
mean higher costs for insurance companies. Higher costs
may mean higher premiums for consumers, despite the
Acts goal of lower[ing] health insurance premiums. 42
U. S. C. 18091(2)(F) (2006 ed., Supp. IV). Higher costs
also could threaten the survival of health-insurance companies, despite the Acts goal of effective health insurance
markets. 18091(2)(J).
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tions in reimbursements), the preservation of the employerresponsibility assessment would upset the ACAs design
of shared responsibility. It would leave employers as the
only parties bearing any significant responsibility. That
was not the congressional intent.
2
The Acts Minor Provisions
The next question is whether the invalidation of the
ACAs major provisions requires the Court to invalidate
the ACAs other provisions. It does.
The ACA is over 900 pages long. Its regulations include
requirements ranging from a break time and secluded
place at work for nursing mothers, see 29 U. S. C. 207(r)(1)
(2006 ed., Supp. IV), to displays of nutritional content
at chain restaurants, see 21 U. S. C. 343(q)(5)(H).
The Act raises billions of dollars in taxes and fees, including exactions imposed on high-income taxpayers, see ACA
9015, 10906; HCERA 1402, medical devices, see 26
U. S. C. 4191 (2006 ed., Supp. IV), and tanning booths,
see 5000B. It spends government money on, among other
things, the study of how to spend less government money.
42 U. S. C. 1315a. And it includes a number of provisions
that provide benefits to the State of a particular legislator.
For example, 10323, 124 Stat. 954, extends Medicare
coverage to individuals exposed to asbestos from a mine in
Libby, Montana. Another provision, 2006, id., at 284,
increases Medicaid payments only in Louisiana.
Such provisions validate the Senate Majority Leaders
statement, I dont know if there is a senator that doesnt
have something in this bill that was important to them.
. . . [And] if they dont have something in it important to
them, then it doesnt speak well of them. Thats what this
legislation is all about: Its the art of compromise. Pear,
In Health Bill for Everyone, Provisions for a Few, N. Y.
Times, Jan. 4, 2010, p. A10 (quoting Sen. Reid). Often, a
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