NFIB Sebelius Dissent

17 Oct


(16th ed. 1777).1  It can mean to direct the manner of
something but not to direct that something come into
being. There is no instance in which this Court or Con-
gress (or anyone else, to our knowledge) has used “”regulate””
in that peculiar fashion. If the word bore that meaning,
Congress’’ authority “”[t]o make Rules for the Govern-
ment and Regulation of the land and naval Forces,”” U. S.
Const., Art. I, §8, cl. 14, would have made superfluous
the later provision for authority “”[t]o raise and support
Armies,”” id., §8, cl. 12, and “”[t]o provide and maintain a
Navy,”” id., §8, cl. 13.

 We do not doubt that the buying and selling of health
insurance contracts is commerce generally subject to
federal regulation.  But when Congress provides that
(nearly) all citizens must buy an insurance contract, it
goes beyond “”adjust[ing] by rule or method,”” Johnson,
supra, or ““direct[ing] according to rule,”” Ash, supra; it
directs the creation of commerce.

 In response, the Government offers two theories as to
why the Individual Mandate is nevertheless constitu-
tional. Neither theory suffices to sustain its validity.


  First, the Government submits that §5000A is “”integral
to the Affordable Care Act’’s insurance reforms”” and ““nec-
essary to make effective the Act’’s core reforms.””  Brief
for Petitioners in No. 11–-398 (Minimum Coverage Provi-
sion) 24 (hereinafter Petitioners’’ Minimum Coverage Brief).
Congress included a “”finding”” to similar effect in the Act
1 The most authoritative legal dictionaries of the founding era lack
any definition for “”regulate”” or ““regulation,”” suggesting that the term
bears its ordinary meaning (rather than some specialized legal mean –
ing) in the constitutional text.  See R. Burn, A New Law Dictionary 281
(1792); G. Jacob, A New Law Dictionary (10th ed. 1782); 2 T. Cunning-
ham, A New and Complete Law Dictionary (2d ed. 1771).  


itself. See 42 U. S. C. §18091(2)(H).

 As discussed in more detail in Part V, infra, the Act
contains numerous health insurance reforms, but most
notable for present purposes are the “”guaranteed issue””
and “”community rating”” provisions, §§300gg to 300gg–4.
The former provides that, with a few exceptions, “”each
health insurance issuer that offers health insurance cov-
erage in the individual or group market in a State must
accept every employer and individual in the State that
applies for such coverage.””  §300gg–1(a). That is, an in-
surer may not deny coverage on the basis of, among other
things, any pre-existing medical condition that the appli-
cant may have, and the resulting insurance must cover
that condition.  See §300gg–3.

  Under ordinary circumstances, of course, insurers would
respond by charging high premiums to individuals with
pre-existing conditions. The Act seeks to prevent this
through the community-rating provision.  Simply put, the
community-rating provision requires insurers to calculate
an individual’’s insurance premium based on only four
factors: (i) whether the individual’’s plan covers just
the individual or his family also, (ii) the ““rating area”” in
which the individual lives, (iii) the individual’’s age, and
(iv) whether the individual uses tobacco.  §300gg(a)(1)(A).
Aside from the rough proxies of age and tobacco use (and
possibly rating area), the Act does not allow an insurer to
factor the individual’’s health characteristics into the price
of his insurance premium.  This creates a new incentive
for young and healthy individuals without pre-existing
conditions. The insurance premiums for those in this
group will not reflect their own low actuarial risks but will
subsidize insurance for others in the pool.  Many of them
may decide that purchasing health insurance is not an eco   –
nomically sound decision-—especially since the guaranteed-
issue provision will enable them to purchase it at the
same cost in later years and even if they have developed a

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