NFIB Sebelius Dissent

 

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involved commercial activity.  To go beyond that, and to
say that the failure to grow wheat or the refusal to make
loans affects commerce, so that growing and lending can
be federally compelled, is to extend federal power to virtu-
ally everything. All of us consume food, and when we do  
so the Federal Government can prescribe what its quality
must be and even how much we must pay.  But the mere  
fact that we all consume food and are thus, sooner or later,
participants in the “”market”” for food, does not empower  
the Government to say when and what we will buy.  That  
is essentially what this Act seeks to do with respect to the  
purchase of health care. It exceeds federal power.  

C

 A few respectful responses to JUSTICE GINSBURG’’s dis-
sent on the issue of the Mandate are in order.  That dis-
sent duly recites the test of Commerce Clause power that
our opinions have applied, but disregards the premise the
test contains.  It is true enough that Congress needs only a
“”‘‘rational basis’’ for concluding that the  regulated activity
substantially affects interstate commerce,””   ante, at 15 (em-
phasis added). But it must be activity affecting com-
merce that is regulated, and not merely the failure to
engage in commerce. And one is not now purchasing
the health care covered by the insurance mandate simply
because one is likely to be purchasing it in the future.  Our
test’’s premise of regulated activity is not invented out of  
whole cloth, but rests upon the Constitution’’s requirement
that it be commerce which is regulated.  If all inactivity   
affecting commerce is commerce, commerce is everything.  
Ultimately the dissent is driven to saying that there is
really no difference between action and inaction, ante, at  
26, a proposition that has never recommended itself,  
neither to the law nor to common sense.  To say, for exam –
ple, that the inaction here consists of activity “in “the self-
insurance market,”” ibid., seems to us wordplay. By parity

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of reasoning the failure to buy a car can be called partici-
pation in the non-private-car-transportation market.  Com-
merce becomes everything.

  The dissent claims that we “”fai[l] to explain why the
individual mandate threatens our constitutional order.””
Ante, at 35.  But we have done so.  It threatens that order
because it gives such an expansive meaning to the Com-
merce Clause that all private conduct (including failure to
act) becomes subject to federal control, effectively destroy-
ing the Constitution’’s division of governmental powers.
Thus the dissent, on the theories proposed for the validity
of the Mandate, would alter the accepted constitutional
relation between the individual and the National Govern-
ment. The dissent protests that the Necessary and Proper
Clause has been held to include ““the power to enact crimi-
nal laws, . . . the power to imprison, . . . and the power to
create a national bank,”” ante, at 34-–35.  Is not the power
to compel purchase of health insurance much lesser?  No,
not if (unlike those other dispositions) its application rests
upon a theory that everything is within federal control
simply because it exists.

 The dissent’s exposition of the wonderful things the Fed-
eral Government has achieved through exercise of its
assigned powers, such as “”the provision of old-age and
survivors’’ benefits”” in the Social Security Act, ante, at 2,
is quite beside the point. The issue here is whether the
federal government can impose the Individual Mandate
through the Commerce Clause. And the relevant history
is not that Congress has achieved wide and wonderful
results through the proper exercise of its assigned powers
in the past, but that it has never before used the Com-
merce Clause to compel entry into commerce.3 The dissent
—————— —————
3 In its effort to show the contrary, JUSTICE GINSBURG’’s dissent comes 

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