NFIB Sebelius Ginsburg

17 Oct

Cite as: 567 U. S. ____ (2012)
 
Opinion of GINSBURG, J.  

SUPREME COURT OF THE UNITED STATES
_________________
Nos. 11–393, 11–398 and 11–400  
_________________
NATIONAL FEDERATION OF INDEPENDENT  
BUSINESS, ET AL ., PETITIONERS
11–393 v.  
KATHLEEN SEBELIUS, SECRETARY OF HEALTH  
AND HUMAN SERVICES, ET AL .
 
DEPARTMENT OF HEALTH AND HUMAN    
SERVICES, ET AL ., PETITIONERS  
11–398 v.  
FLORIDA ET AL .
 
FLORIDA, ET AL ., PETITIONERS
11–400 v.  
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 J USTICE 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, alterna-

2

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.

I

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

 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 prohibi-
tion are within the plenary power conferred on Congress
by the Commerce Clause”); NLRB v. Jones & Laughlin
Steel Corp., 301 U. S. 1, 37 (1937) (“[The commerce]
power is plenary and may be exerted to protect interstate
commerce no matter what the source of the dangers which
threaten it.” (internal quotation marks omitted)). THE
CHIEF JUSTICE’’s crabbed reading of the Commerce Clause
harks back to the era in which the Court routinely thwarted
Congress’’ efforts to regulate the national economy in
the interest of those who labor to sustain it.  See, e.g.,
Railroad Retirement Bd. v. Alton R. Co., 295 U. S. 330,
362, 368 (1935) (invalidating compulsory retirement and

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