NFIB Sebelius Dissent

17 Oct

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pre-existing condition.  But without the contribution of
above-risk premiums from the young and healthy, the
community-rating provision will not enable insurers to
take on high-risk individuals without a massive increase
in premiums.

  The Government presents the Individual Mandate as a
unique feature of a complicated regulatory scheme govern-
ing many parties with countervailing incentives that must
be carefully balanced. Congress has imposed an extensive
set of regulations on the health insurance industry, and
compliance with those regulations will likely cost the in-
dustry a great deal.  If the industry does not respond by
increasing premiums, it is not likely to survive.  And if
the industry does increase premiums, then there is a seri-
ous risk that its products-—insurance plans—-will become
economically undesirable for many and prohibitively ex-
pensive for the rest.

 This is not a dilemma unique to regulation of the health-
insurance industry.  Government regulation typically
imposes costs on the regulated industry-—especially regu-
lation that prohibits economic behavior in which most
market participants are already engaging, such as ““piec-
ing out”” the market by selling the product to different
classes of people at different prices (in the present context,
providing much lower insurance rates to young and
healthy buyers). And many industries so regulated face
the reality that, without an artificial increase in demand,
they cannot continue on.  When Congress is regulating
these industries directly, it enjoys the broad power to
enact “ “‘all appropriate legislation”’ ” to “ “‘protec[t]”’ ” and
“”‘‘advanc[e]’'” ” commerce,   NLRB v. Jones & Laughlin Steel
Corp., 301 U. S. 1, 36–37 (1937) (quoting The Daniel Ball,
10 Wall. 557, 564 (1871)).  Thus, Congress might protect
the imperiled industry by prohibiting low-cost competition,
or by according it preferential tax treatment, or even by
granting it a direct subsidy.

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Here, however, Congress has impressed into service
third parties, healthy individuals who could be but are not
customers of the relevant industry, to offset the undesir-
able consequences of the regulation.  Congress’’ desire to
force these individuals to purchase insurance is motivated
by the fact that they are further removed from the market
than unhealthy individuals with pre-existing conditions,
because they are less likely to need extensive care in
the near future. If Congress can reach out and command
even those furthest removed from an interstate market to
participate in the market, then the Commerce Clause
becomes a font of unlimited power, or in Hamilton’’s words,
““the hideous monster whose devouring jaws . . . spare
neither sex nor age, nor high nor low, nor sacred nor pro-
fane.”” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).

  At the outer edge of the commerce power, this Court has
insisted on careful scrutiny of regulations that do not
act directly on an interstate market or its participants.  In
New York v. United States, 505 U. S. 144 (1992), we held
that Congress could not, in an effort to regulate the dis-
posal of radioactive waste produced in several different
industries, order the States to take title to that waste.
Id., at 174–-177.  In Printz v. United States, 521 U. S.
898 (1997), we held that Congress could not, in an effort to
regulate the distribution of firearms in the interstate mar-
ket, compel state law-enforcement officials to perform
background checks.   Id., at 933-–935.  In United States v.
Lopez, 514 U. S. 549 (1995), we held that Congress could
not, as a means of fostering an educated interstate labor
market through the protection of schools, ban the posses-
sion of a firearm within a school zone.  Id., at 559–-563.
And in United States v.   Morrison, 529 U. S. 598 (2000), we
held that Congress could not, in an effort to ensure the full
participation of women in the interstate economy, subject
private individuals and companies to suit for gender-
motivated violent torts. Id., at 609-–619.  The lesson of

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