NFIB Sebelius Dissent

17 Oct



takes a few different forms, but the basic idea is that
§5000A regulates ““the way in which individuals finance
their participation in the health-care market.”” Petitioners’’
Minimum Coverage Brief 33 (emphasis added).  That is,
the provision directs the manner in which individuals
purchase health care services and related goods (directing
that they be purchased through insurance) and is there-
fore a straightforward exercise of the commerce power.

 The primary problem with this argument is that §5000A
does not apply only to persons who purchase all, or most,
or even any, of the health care services or goods that the
mandated insurance covers. Indeed, the main objection
many have to the Mandate is that they have no intention
of purchasing most or even any of such goods or services
and thus no need to buy insurance for those purchases.
The Government responds that the health-care market
involves ““essentially universal participation,”” id., at 35.
The principal difficulty with this response is that it is, in
the only relevant sense, not true.  It is true enough that
everyone consumes “”health care,”” if the term is taken to
include the purchase of a bottle of aspirin.  But the health
care “”market”” that is the object of the Individual Mandate
not only includes but principally consists of goods and
services that the young people primarily affected by the
Mandate do not purchase.  They are quite simply not
participants in that market, and cannot be made so (and
thereby subjected to regulation) by the simple device of
defining participants to include all those who will, later in
their lifetime, probably purchase the goods or services
covered by the mandated insurance.2  Such a definition of
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2  JUSTICE GINSBURG is therefore right to note that Congress is “”not
mandating the purchase of a discrete, unwanted product.””  Ante, at 22
(opinion concurring in part, concurring in judgment in part, and dis-


market participants is unprecedented, and were it to be a
premise for the exercise of national power, it would have
no principled limits.

 In a variation on this attempted exercise of federal
power, the Government points out that Congress in this
Act has purported to regulate “”economic and financial
decision[s] to forego [sic] health insurance coverage and
[to] attempt to self-insure,”” 42 U. S. C. §18091(2)(A), since
those decisions have “”a substantial and deleterious effect
on interstate commerce,”” Petitioners’’ Minimum Coverage
Brief 34. But as the discussion above makes clear, the
decision to forgo participation in an interstate market is
not itself commercial activity (or indeed any activity at all)
within Congress’’ power to regulate.  It is true that, at the
end of the day, it is inevitable that each American will
affect commerce and become a part of it, even if not by
choice. But if every person comes within the Commerce
Clause power of Congress to regulate by the simple reason
that he will one day engage in commerce, the idea of a
limited Government power is at an end.

 Wickard v. Filburn has been regarded as the most ex-
pansive assertion of the commerce power in our history. A
close second is Perez v. United States, 402 U. S. 146 (1971),
which upheld a statute criminalizing the eminently local
activity of loan-sharking. Both of those cases, however,
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senting in part). Instead, it is mandating the purchase of an unwanted
suite of products-—e.g., physician office visits, emergency room visits,
hospital room and board, physical therapy, durable medical equipment,
mental health care, and substance abuse detoxification.  See Selected
Medical Benefits: A Report from the Dept. of Labor to the Dept. of
Health & Human Services (April 15, 2011) (reporting that over two-
thirds of private industry health plans cover these goods and services),
online at (all Inter-
net materials as visited June 26, 2012, and available in Clerk of Court’s
case file).

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