NFIB Sebelius Dissent

17 Oct

 

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treats the Constitution as though it is an enumeration of
those problems that the Federal Government can ad-
dress—among which, it finds, is ““the Nation’’s course in
the economic and social welfare realm,”” ibid., and more
specifically “”the problem of the uninsured,”” ante, at 7.
The Constitution is not that. It enumerates not federally
soluble problems, but federally available powers. The
Federal Government can address whatever problems it
wants but can bring to their solution only those powers
that the Constitution confers, among which is the power to
regulate commerce. None of our cases say anything else.
Article I contains no whatever-it-takes-to-solve-a-national-
problem power.

  The dissent dismisses the conclusion that the power to
compel entry into the health-insurance market would
include the power to compel entry into the new-car or
broccoli markets. The latter purchasers, it says, “”will be
obliged to pay at the counter before receiving the vehicle
—————— ————-
up with nothing more than two condemnation cases, which it says
demonstrate “”Congress’’ authority under the commerce power to compel
an ‘‘inactive’’ landholder to submit to an unwanted sale.””  Ante,  at 24.
Wrong on both scores.  As its name suggests, the condemnation power
does not “”compel”” anyone to do anything.  It acts  in rem, against the
property that is condemned, and is effective with or without a transfer
of title from the former owner.  More important, the power to condemn
for public use is a separate sovereign power, explicitly acknowledged in
the Fifth Amendment, which provides that “”private property [shall not]
be taken for public use, without just compensation.””
Thus, the power to condemn tends to refute rather than support
the power to compel purchase of unwanted goods at a prescribed price:
The latter is rather like the power to condemn cash for public use.  If it
existed, why would it not (like the condemnation power) be accompa-
nied by a requirement of fair compensation for the portion of the
exacted price that exceeds the goods’’ fair market value (here, the
difference between what the free market would charge for a health-
insurance policy on a young, healthy person with no pre-existing
conditions, and the government-exacted community-rated premium)?

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or nourishment,”” whereas those refusing to purchase
health-insurance will ultimately get treated anyway, at
others’’ expense. Ante, at 21.  ““[T]he unique attributes of
the health-care market . . . give rise to a significant free-
riding problem that does not occur in other markets.””
Ante, at 28. And “”a vegetable-purchase mandate”” (or a
car-purchase mandate) is not ““likely to have a substantial
effect on the health-care costs”” borne by other Americans.
Ante, at 29. Those differences make a very good argument
by the dissent’’s own lights, since they show that the fail-
ure to purchase health insurance, unlike the failure to
purchase cars or broccoli, creates a national, social-welfare
problem that is (in the dissent’’s view) included among the
unenumerated “”problems”” that the Constitution author-
izes the Federal Government to solve.  But those differences
do not show that the failure to enter the health-insurance
market, unlike the failure to buy cars and broccoli, is
an activity  that Congress can “”regulate.”” (Of course one
day the failure of some of the public to purchase Amer-
ican cars may endanger the existence of domestic automo-
bile manufacturers; or the failure of some to eat broccoli
may be found to deprive them of a newly discovered cancer  –
fighting chemical which only that food contains, producing
health-care costs that are a burden on the rest of us-—in
which case, under the theory of JUSTICE  GINSBURG’’s dis-
sent, moving against those inactivities will also come
within the Federal Government’s unenumerated problem-
solving powers.)

II
The Taxing Power

   As far as §5000A is concerned, we would stop there.
Congress has attempted to regulate beyond the scope of its

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