NFIB Sebelius Dissent

 

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these cases is that the Commerce Clause, even when sup-
plemented 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 cultiva-
tion and possession of that drug.  Id., at 15–-22.  Raich
is no precedent for what Congress has done here.  That
case’s 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. Mary-
land, 4 Wheat. 316, 421 (1819).

Moreover, Raich is far different from the Individual
Mandate in another respect. The Court’s 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 regula-
tions of intrastate transactions if necessary to the regula-
tion of an interstate market). Intrastate marijuana could
no more be distinguished from interstate marijuana than,
for example, endangered-species trophies obtained before 

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the species was federally protected can be distinguished
from trophies obtained afterwards—-which made it neces-
sary and proper to prohibit the sale of all such trophies,
see Andrus v. Allard, 444 U. S. 51 (1979).

  With the present statute, by contrast, there are many
ways other than this unprecedented Individual Mandate
by which the regulatory scheme’s goals of reducing insur-
ance premiums and ensuring the profitability of insurers
could be achieved. For instance, those who did not pur-
chase insurance could be subjected to a surcharge when
they do enter the health insurance system.  Or they could
be denied a full income tax credit given to those who do
purchase the insurance.

  The Government was invited, at oral argument, to
suggest what federal controls over private conduct (other
than those explicitly prohibited by the Bill of Rights or
other constitutional controls) could not be justified as
necessary and proper for the carrying out of a general
regulatory scheme.  See Tr. of Oral Arg. 27–-30, 43–-45
(Mar. 27, 2012). It was unable to name any.  As we said at
the outset, whereas the precise scope of the Commerce
Clause and the Necessary and Proper Clause is uncertain,
the proposition that the Federal Government cannot do
everything is a fundamental precept.  See Lopez, 514 U. S.,
at 564 (““[I]f we were to accept the Government’s argu-
ments, we are hard pressed to posit any activity by an in-
dividual that Congress is without power to regulate””).
Section 5000A is defeated by that proposition.

B

 The Government’s second theory in support of the In-
dividual Mandate is that §5000A is valid because it is
actually a “”regulat[ion of] activities having a substantial
relation to interstate commerce, . . .  i.e., . . . activities that
substantially affect interstate commerce.”” Id., at 558-–559.
See also Shreveport Rate Cases, supra. This argument

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