Description
Read the summary about the issue being addressed in the assigned court case below:National Federation of Independent Businesses v SebeliusIn this case, the PRO argument is made in the concurring opinion and the CON argument is made in the majority opinion. Next, read the concurring and majority opinions National Federation of Independent Business v Sebelius which is included after the case summary.Please don’t make it overly complicated; don’t use AI or any work you have submitted before it will be detected. the main questions are in the file, please read it in its entirety.
Unformatted Attachment Preview
2/26/24, 9:12 AM
National Federation of Independent Businesses v Sebelius: 20947 POSC 275 F Intro to Public Law
National Federation of Independent
Businesses v Sebelius
Does the Constitution’s Commerce Clause Allow Congress to
Require Uninsured Individuals to Buy Health Insurance?
PRO: Ruth Bader Ginsburg, from Concurring Opinion, National Federation of Independent
Businesses v Sebelius, “United States Supreme Court (2012)
CON: John G. Roberts, Jr., from Majority Opinion, National Federation of Independent Businesses v
Sebelius, “United States Supreme Court (2012)
Issue Summary
The most eagerly awaited Supreme Court decision of the 2011-2012 term involved the
constitutionality of the ACA. The main goal of the ACA was to provide a means for the approximately
50 million uninsured to obtain health insurance. The bill that was passed was lengthy and complex.
One of its key elements was the so-called “individual mandate,” a requirement that individuals
purchase insurance or pay a penalty. The theory was that with a larger number of insured persons,
particularly your healthy people, insurance would be more affordable. In addition, the legislation
prohibited insurance companies from refusing to insure persons from existing conditions.
The “individual mandate” was the most controversial aspect of health-care reform, with proponents
arguing that it was the only way that coverage could be extended to all under a market-based
insurance system, and opponents claiming that it was unconstitutional for the US government to force
people to buy a product or service they did not want. Supporters of the bill primarily focused on the
Commerce Clause as the constitutional justification, noting that the Supreme Court has historically
given Congress wide latitude in how it regulates interstate economic issues such as health care. Its
detractors, however, maintained that the clause allows Congress only to regulate existing commerce,
whereas forcing Americans to buy insurance would be creating commerce.
Progressives often favor an expansive reading of the Commerce Clause, one that allows the U.S.
federal government to play a more active role in setting social policy, even policy that might not seem
related to interstate commerce. For instance, when Congress passed the 1964 Civil Rights Act—
which, among other things, outlawed race-based discrimination in public accommodations, such as
restaurants and hotels—it justified its ability to force private businesses to take on certain customers
https://fullcoll.instructure.com/courses/51338/pages/national-federation-of-independent-businesses-v-sebelius?wrap=1
1/20
2/26/24, 9:12 AM
National Federation of Independent Businesses v Sebelius: 20947 POSC 275 F Intro to Public Law
by claiming that those business owners were engaged in interstate commerce. In Heart of Atlanta
Motel v United States (1964), the Supreme Court sustained that reading of the Commerce Clause. A
motel in Atlanta, GA, that refused to rent rooms to African Americans claimed that Congress could not
regulate it because it was locally owned and operated and thus couldn’t be considered “interstate
commerce.” The Court disagreed: “the power of Congress to promote interstate commerce also
includes the power to regulate the local incidents thereof, including local activities in both the States
of origin and destination, which might have a substantial and harmful effect upon that commerce”
(379 U.S. 241, 258, 1964)
From the time of the New Deal in the 1930’s until the 1990’s, the Supreme Court sided with Congress
on almost every challenge to its Commerce Clause power. That changed under the Rehnquist Court,
when more conservative justices gained a majority. In 1995, in a 5-4 ruling (United States vs Lopez),
the Supreme Court held for the first time in decades that a U.S. federal law exceeded Congress’s
authority under the Commerce Clause. The law in question which made it a federal crime to have a
firearm near a school, “neither regulates a commercial activity nor contains a requirement that the
possession be connected in any way to interstate commerce” (514 U.S. 549, 551, 1995) according to
Chief Justice Rehnquist’s majority opinion. Five years later, the Court used a similar rationale to strike
down part of the Violence Against Women Act (United States vs Morrison).
The individual mandate was upheld by the Court 5-4 but the five in the majority did not all have the
same rationale for finding the law constitutional. Four of the justices agreed with Justice Ginsburg
that the individual mandate was justified under the Commerce Clause. Chief Justice Roberts
provided the fifth vote for upholding the law but his reasoning was different from Ginsburg’s and the
other justices in the majority.
Although Chief Justice Roberts declared the individual mandate unconstitutional under the
Commerce Clause, he did not strike down the whole ACA. Instead, he crafted an unusual argument
for its constitutionality. Noting that under the Supreme Court’s precedent, the Court is supposed to
uphold a federal statute if any convincing argument can be made for its constitutionality. Roberts said
that the individual mandate could be viewed as a tax, since noncompliance only results in a small
fine. The mandate could therefore be seen as constitutional under the Taxing Clause, which gives
Congress the “power to lay and collect taxes, duties, imposts and excises, to pay the debts and
provide for the common defense and general welfare of the United States (Article 1, 8, cl. 1). This
was a surprising view, given that the statute itself repeatedly refers to a “penalty” but never portrayed
that as a tax. Moreover, most lower court judges who considered the argument rejected it, as did the
other four conservative Supreme Court justices, who wanted the entire law struck down as
unconstitutional. The more-liberal justices on the Court joined with Ginsburg in viewing the individual
mandate as constitutional under the Commerce Clause; however, in order to ensure a majority in
favor of the mandate, they joined with Roberts’s holding – through not his reasoning – that the law
could be upheld under the Taxing Clause. Therefore, although no other justice agreed with Roberts’s
argument, his opinion effectively controlled the outcome of the case.
https://fullcoll.instructure.com/courses/51338/pages/national-federation-of-independent-businesses-v-sebelius?wrap=1
2/20
2/26/24, 9:12 AM
National Federation of Independent Businesses v Sebelius: 20947 POSC 275 F Intro to Public Law
Why did Roberts not simply uphold the mandate under the Commerce Clause or join with the four
dissenters who wanted the law struck down as unconstitutional because the Supreme Court
deliberates in secret, the public can only speculate what happens behind the scenes. Nonetheless,
many legal commentators have noted that Roberts’s opinion accomplished two conflicting goals: it
provided interpretation of the Commerce Clause, one favored by most conservative jurists, but
allowed the Court nevertheless to uphold the ACA. The ACA was President Obama’s largest
domestic advancement during his first term, and as Ginsburg notes, there is much precedent to
support the idea that Congress has the authority to enact the mandate. Even many conservative
lower court judges concluded that, under existing precedent, Congress has wide latitude to legislate
on interstate commerce, as long as the subject of the legislation is directly related to commerce. As
one prominent conservative judge on an appeals court put it, the individual mandate “certainly is an
encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are
obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance
their doctor described as the only effective palliative for excruciating pain, or that a farmer cannot
grow enough wheat to support his own family” (Judge Laurence Silberman, Seven-Sky v Holder, 661
F.3d 1, 20, 2011).
If the Court has used novel interpretations of the Commerce Clause to issue a 5-4 ruling striking
down the law, with all five justices in the majority being Republican appointees, the decision might be
seen as partisan and politically motivated. Instead Roberts managed to establish precedent for future
limits the Commerce Clause while at the same time portraying the Court as an impartial, and
apolitical enforcer of the law. That is not to say that at all, or even most, Americans are satisfied with
the Court’s ruling; it simply means that future debates about the individual mandate will happen in the
political, rather than the judicial, realm.
Justice Ruth Bader Ginsburg in the concurring opinion
Justice Ginsburg, with whom Justice Sotomayor joins, and with whom Justice Breyer and Justice
Kagan join as to Parts I, II, III, and IV, concurring in part, concurring in the judgment in part, and
dissenting in part.
The provision of health care is today a concern of national dimension, just as the provision of old-age
and survivors’ benefits was in the 1930’s. In the Social Security Act, Congress installed a federal
system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond
question, Congress could have adopted a similar scheme for health care. Congress chose, instead,
to preserve a central role for private insurers and state governments. According to The Chief Justice,
the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes
scant sense and is stunningly retrogressive.
Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s course in the
economic and social welfare realm. The Chief Justice’s crabbed reading of the Commerce Clause
harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national
https://fullcoll.instructure.com/courses/51338/pages/national-federation-of-independent-businesses-v-sebelius?wrap=1
3/20
2/26/24, 9:12 AM
National Federation of Independent Businesses v Sebelius: 20947 POSC 275 F Intro to Public Law
economy in the interest of those who labor to sustain it. It is a reading that should not have staying
power.
In enacting the Patient Protection and Affordable Care Act (ACA), Congress comprehensively
reformed the national market for health-care products and services. By any measure, that market is
immense. Collectively, Americans spent $2.5 trillion on health care in 2009, accounting for 17.6% of
our Nation’s economy. Within the next decade, it is anticipated, spending on health care will nearly
double.
The health-care market’s size is not its only distinctive feature. Unlike the market for almost any other
product or service, the market for medical care is one in which all individuals inevitably participate.
Virtually every person residing in the United States, sooner or later, will visit a doctor or other healthcare professional. Most people will do so repeatedly.
When individuals make those visits, they face another reality of the current market for medical care:
its high cost. In 2010, on average, an individual in the United States incurred over $7,000 in healthcare expenses. Over a lifetime, costs mount to hundreds of thousands of dollars. When a person
requires nonroutine care, the cost will generally exceed what he or she can afford to pay. A single
hospital stay, for instance, typically costs upwards of $10,000. Treatments for many serious, though
not uncommon, conditions similarly cost a substantial sum.
Although every U. S. domiciliary will incur significant medical expenses during his or her lifetime, the
time when care will be needed is often unpredictable. An accident, a heart attack, or a cancer
diagnosis commonly occurs without warning. Inescapably, we are all at peril of needing medical care
without a moment’s notice.
To manage the risks associated with medical care – its high cost, its unpredictability, and its
inevitability- most people in the United States obtain health insurance. Many (approximately 170
million in 2009) are insured by private insurance companies. Others, including those over 65 and
certain poor and disabled persons, rely on government funded insurance programs, notably Medicare
and Medicaid. Combined, private health insurers and State and Federal Governments finance
almost 85% of the medical care administered to US residents.
Not all U. S. residents, however, have health insurance. In 2009, approximately 50 million people
were uninsured, either by choice or, more likely, because they could not afford private insurance and
did not qualify for government aid. As a group, uninsured individuals annually consume more than
$100 billion in health- care services, nearly 5% of the Nation’s total. Over 60% of those without
insurance visit a doctor’s office or emergency room in a given year.
The large number of individuals without health insurance, Congress found, heavily burdens the
national health-care market. As just noted, the cost of emergency care or treatment for a serious
illness generally exceeds what an individual can afford to pay on her own. Unlike markets for most
products, however, the inability to pay for care does not mean that an uninsured individual will receive
no care. Federal and state law, as well as professional obligations and embedded social norms,
https://fullcoll.instructure.com/courses/51338/pages/national-federation-of-independent-businesses-v-sebelius?wrap=1
4/20
2/26/24, 9:12 AM
National Federation of Independent Businesses v Sebelius: 20947 POSC 275 F Intro to Public Law
require hospitals and physicians to provide care when it is most needed, regardless of the patient’s
ability to pay.
As a consequence, medical-care providers deliver significant amounts of care to the uninsured for
which the providers receive no payment. In 2008, for example, hospitals, physicians, and other
health-care professionals received no compensation for $43 billion worth of the $116 billion in care
they administered to those without insurance.
Health-care providers do not absorb these bad debts. Instead, they raise their prices, passing along
the cost of uncompensated care to those who do pay reliably: the government and private insurance
companies. In response, private insurers increase their premiums, shifting the cost of the elevated
bills from providers onto those who carry insurance. The net result: Those with health insurance
subsidize the medical care of those without it. As economists would describe what happens, the
uninsured “free ride” on those who pay for health insurance.
The size of this subsidy is considerable. Congress found that the cost-shifting just described
“increases family [insurance] premiums by on average over $1,000 a year.” Higher premiums, in turn,
render health insurance less affordable, forcing more people to go without insurance and leading to
further cost-shifting.
States cannot resolve the problem of the uninsured on their own. Like Social Security benefits, a
universal health-care system, if adopted by an individual State, would be “bait to the needy and
dependent elsewhere, encouraging them to migrate and seek a haven of repose.” An influx of
unhealthy individuals into a State with universal health care would result in increased spending on
medical services. To cover the increased costs, a State would have to raise taxes, and private healthinsurance companies would have to increase premiums. Higher taxes and increased insurance costs
would, in turn, encourage businesses and healthy individuals to leave the State.
States that undertake health-care reforms on their own thus risk “placing themselves in a position of
economic disadvantage as compared with neighbors or competitors.” Facing that risk, individual
States are unlikely to take the initiative in addressing the problem of the uninsured, even though
solving that problem is in all States’ best interests. Congress’ intervention was needed to overcome
this collective- action impasse.
Aware that a national solution was required, Congress could have taken over the health-insurance
market by establishing a tax-and-spend federal program like Social Security. Such a program,
commonly referred to as a single-payer system (where the sole payer is the Federal Government),
would have left little, if any, room for private enterprise or the States. Instead of going this route,
Congress enacted the ACA, a solution that retains a robust role for private insurers and state
governments. To make its chosen approach work, however, Congress had to use some new tools,
including a requirement that most individuals obtain private health insurance coverage. . As explained
below, by employing these tools, Congress was able to achieve a practical, altogether reasonable,
solution.
https://fullcoll.instructure.com/courses/51338/pages/national-federation-of-independent-businesses-v-sebelius?wrap=1
5/20
2/26/24, 9:12 AM
National Federation of Independent Businesses v Sebelius: 20947 POSC 275 F Intro to Public Law
A central aim of the ACA is to reduce the number of uninsured U. S. residents. The minimum
coverage provision advances this objective by giving potential recipients of health care a financial
incentive to acquire insurance. Per the minimum coverage provision, an individual must either obtain
insurance or pay a toll constructed as a tax penalty.
The minimum coverage provision serves a further purpose vital to Congress’ plan to reduce the
number of uninsured. Congress knew that encouraging individuals to purchase insurance would not
suffice to solve the problem, because most of the uninsured are not uninsured by choice. Of
particular concern to Congress were people who, though desperately in need of insurance, often
cannot acquire it: persons who suffer from preexisting medical conditions.
Before the ACA’s enactment, private insurance companies took an applicant’s medical history into
account when setting insurance rates or deciding whether to insure an individual. Because individuals
with preexisting medical conditions cost insurance companies significantly more than those without
such conditions, insurers routinely refused to insure these individuals, charged them substantially
higher premiums, or offered only limited coverage that did not include the preexisting illness.
To ensure that individuals with medical histories have access to affordable insurance, Congress
devised a three-part solution. First, Congress imposed a “guaranteed is- sue” requirement, which
bars insurers from denying coverage to any person on account of that person’s medical condition or
history. Second, Congress required insurers to use “community rating” to price their insurance
policies. Community rating, in effect, bars insurance companies from charging higher premiums to
those with preexisting conditions.
But these two provisions, Congress comprehended, could not work effectively unless individuals
were given a powerful incentive to obtain insurance.
In the 1990’s, several States—including New York, New Jersey, Washington, Kentucky, Maine, New
Hampshire, and Vermont—enacted guaranteed-issue and community-rating laws without requiring
universal acquisition of insurance coverage. The results were disastrous. “All seven states suffered
from skyrocketing insurance premium costs, reductions in individuals with coverage, and reductions
in insurance products and providers.”
Congress comprehended that guaranteed-issue and community-rating laws alone will not work.
When insurance companies are required to insure the sick at affordable prices, individuals can wait
until they become ill to buy insurance. Pretty soon, those in need of immediate medical care—
i.e., those who cost insurers the most—become the insurance companies’ main customers. This
“adverse selection” problem leaves insurers with two choices: They can either raise premiums
dramatically to cover their ever-increasing costs or they can exit the market. In the seven States that
tried guaranteed-issue and community-rating requirements without a minimum coverage provision,
that is precisely what insurance companies did.
Massachusetts, Congress was told, cracked the adverse selection problem. By requiring most
residents to obtain insurance, the Commonwealth ensured that insurers would not be left with only
https://fullcoll.instructure.com/courses/51338/pages/national-federation-of-independent-businesses-v-sebelius?wrap=1
6/20
2/26/24, 9:12 AM
National Federation of Independent Businesses v Sebelius: 20947 POSC 275 F Intro to Public Law
the sick as customers. As a result, federal lawmakers observed, Massachusetts succeeded where
other States had failed. In coupling the minimum coverage provision with guaranteed-issue and
community-rating prescriptions, Congress followed Massachusetts’ lead.
*
*
*
In sum, Congress passed the minimum coverage provision as a key component of the ACA to
address an economic and social problem that has plagued the Nation for decades: the large number
of U. S. residents who are unable or unwilling to obtain health insurance. Whatever one thinks of the
policy decision Congress made, it was Congress’ prerogative to make it. Reviewed with appropriate
deference, the minimum coverage provision, allied to the guaranteed-issue and community-rating
prescriptions, should survive measurement under the Commerce and Necessary and Proper
Clauses.
The Commerce Clause, it is widely acknowledged, “was the Framers’ response to the central
problem that gave rise to the Constitution itself.” Under the Articles of Confederation, the
Constitution’s precursor, the regulation of commerce was left to the States. This scheme proved
unworkable, because the individual States, understandably focused on their own economic interests,
often failed to take actions critical to the success of the Nation as a whole.
What was needed was a “national Government . . . armed with a positive & compleat authority in all
cases where uniform measures are necessary.” The Framers’ solution was the Commerce Clause,
which, as they perceived it, granted Congress the authority to enact economic legislation “in all
Cases for the general Interests of the Union, and also in those Cases to which the States are
separately incompetent.”
The Framers understood that the “general Interests of the Union” would change over time, in ways
they could not anticipate. Accordingly, they recognized that the Constitution was of necessity a “great
outlin[e],” not a detailed blueprint, and that its provisions included broad concepts, to be “explained by
the context or by the facts of the case.”…
Consistent with the Framers’ intent, we have repeatedly emphasized that Congress’ authority under
the Commerce Clause is dependent upon “practical” considerations, including “actual experience.”
We afford Congress the leeway “to undertake to solve national problems directly and realistically.”
Until today, this Court’s pragmatic approach to judging whether Congress validly exercised its
commerce power was guided by two familiar principles. First, Congress has the power to regulate
economic activities “that substantially affect interstate commerce.” This capacious power extends
even to local activities that, viewed in the aggregate, have a substantial impact on interstate
commerce.
Second, we owe a large measure of respect to Congress when it frames and enacts economic and
social legislation. When appraising such legislation, we ask only (1) whether Congress had a “rational
basis” for concluding that the regulated activity substantially affects interstate commerce, and (2)
https://fullcoll.instructure.com/courses/51338/pages/national-federation-of-independent-businesses-v-sebelius?wrap=1
7/20
2/26/24, 9:12 AM
National Federation of Independent Businesses v Sebelius: 20947 POSC 275 F Intro to Public Law
whether there is a “reasonable connection between the regulatory means selected and the asserted
ends.” In answering these questions, we presume the statute under review is constitutional and may
strike it down only on a “plain showing” that Congress acted irrationally.
Straightforward application of these principles would require the Court to hold that the minimum
coverage provision is proper Commerce Clause legislation. Beyond dispute, Congress had a rational
basis for concluding that the uninsured, as a class, substantially affect interstate commerce. Those
without insurance consume billions of dollars of health-care products and services each year. Those
goods are produced, sold, and delivered largely by national and regional companies who routinely
transact business across state lines. The uninsured also cross state lines to receive care. Some have
medical emergencies while away from home. Others, when sick, go to a neighboring State that
provides better care for those who have not prepaid for care.
Not only do those without insurance consume a large amount of health care each year; critically, as
earlier explained, their inability to pay for a significant portion of that consumption drives up market
prices, foists costs on other consumers, and reduces market efficiency and stability. Given these farreaching effects on interstate commerce, the decision to forgo insurance is hardly inconsequential or
equivalent to “doing nothing,” it is, instead, an economic decision Congress has the authority to
address under the Commerce Clause.
The minimum coverage provision, furthermore, bears a “reasonable connection” to Congress’ goal of
protecting the health-care market from the disruption caused by individuals who fail to obtain
insurance. By requiring those who do not carry insurance to pay a toll, the minimum coverage
provision gives individuals a strong incentive to insure. This incentive, Congress had good reason to
believe, would reduce the number of uninsured and, correspondingly, mitigate the adverse impact the
uninsured have on the national health-care market.
Congress also acted reasonably in requiring uninsured individuals, whether sick or healthy, either to
obtain insurance or to pay the specified penalty. As earlier observed, because every person is at risk
of needing care at any moment, all those who lack insurance, regardless of their current health
status, adversely affect the price of health care and health insurance. Moreover, an insurancepurchase requirement limited to those in need of immediate care simply could not work. Insurance
companies would either charge these individuals prohibitively expensive premiums, or, if communityrating regulations were in place, close up shop.
“[W]here we find that the legislators . . . have a rational basis for finding a chosen regulatory scheme
necessary to the protection of commerce, our investigation is at an end.” Congress’ enactment of the
minimum coverage provision, which addresses a specific interstate problem in a practical,
experience-informed manner, easily meets this criterion.
Rather than evaluating the constitutionality of the minimum coverage provision in the manner
established by our precedents, The Chief Justice relies on a newly minted constitutional doctrine. The
https://fullcoll.instructure.com/courses/51338/pages/national-federation-of-independent-businesses-v-sebelius?wrap=1
8/20
2/26/24, 9:12 AM
National Federation of Independent Businesses v Sebelius: 20947 POSC 275 F Intro to Public Law
commerce power does not, The Chief Justice announces, permit Congress to “compe[l] individuals to
become active in commerce by purchasing a product.”
The Chief Justice’s novel constraint on Congress’ commerce power gains no force from our
precedent and for that reason alone warrants disapprobation. But even assuming, for the moment,
that Congress lacks authority under the Commerce Clause to “compel individuals not engaged in
commerce to purchase an unwanted product,” such a limitation would be inapplicable here. Everyone
will, at some point, consume health-care products and services. Thus, if The Chief Justice is correct
that an insurance-purchase requirement can be applied only to those who “actively” consume health
care, the minimum coverage provision fits the bill.
The Chief Justice does not dispute that all U. S. residents participate in the market for health services
over the course of their lives. But, The Chief Justice insists, the uninsured cannot be considered
active in the market for health care, because “[t]he proximity and degree of connection between the
[uninsured today] and [their] subsequent commercial activity is too lacking.”
This argument has multiple flaws. First, more than 60% of those without insurance visit a hospital or
doctor’s office each year. Nearly 90% will within five years. An uninsured’s consumption of health
care is thus quite proximate: It is virtually certain to occur in the next five years and more likely than
not to occur this year.
Equally evident, Congress has no way of separating those uninsured individuals who will need
emergency medical care today (surely their consumption of medical care is sufficiently imminent)
from those who will not need medical services for years to come. No one knows when an emergency
will occur, yet emergencies involving the uninsured arise daily. To capture individuals who
unexpectedly will obtain medical care in the very near future, then, Congress needed to include
individuals who will not go to a doctor anytime soon. Congress, our decisions instruct, has authority
to cast its net that wide.
Second, it is Congress’ role, not the Court’s, to delineate the boundaries of the market the Legislature
seeks to regulate. The Chief Justice defines the health-care market as including only those
transactions that will occur either in the next instant or within some (unspecified) proximity to the next
instant. But Congress could reasonably have viewed the market from a long-term perspective,
encompassing all transactions virtually certain to occur over the next decade, not just those occurring
here and now.
Third, contrary to The Chief Justice’s contention, our precedent does indeed support “[t]he
proposition that Congress may dictate the conduct of an individual today because of prophesied
future activity.” In Wickard, the Court upheld a penalty the Federal Government imposed on a farmer
who grew more wheat than he was permitted to grow under the Agricultural Adjustment Act of 1938
(AAA). He could not be penalized, the farmer argued, as he was growing the wheat for home
consumption, not for sale on the open market. The Court rejected this argument. Wheat intended for
https://fullcoll.instructure.com/courses/51338/pages/national-federation-of-independent-businesses-v-sebelius?wrap=1
9/20
2/26/24, 9:12 AM
National Federation of Independent Businesses v Sebelius: 20947 POSC 275 F Intro to Public Law
home consumption, the Court noted, “overhangs the market, and if induced by rising prices, tends to
flow into the market and check price increases [intended by the AAA].”
Maintaining that the uninsured are not active in the health-care market, The Chief Justice draws an
analogy to the car market. An individual “is not ‘active in the car market,’ ” The Chief Justice
observes, simply because he or she may someday buy a car. The analogy is inapt. The inevitable yet
unpredictable need for medical care and the guarantee that emergency care will be provided when
required are conditions nonexistent in other markets. That is so of the market for cars, and of the
market for broccoli as well. Although an individual might buy a car or a crown of broccoli one day,
there is no certainty she will ever do so. And if she eventually wants a car or has a craving for
broccoli, she will be obliged to pay at the counter before receiving the vehicle or nourishment. She
will get no free ride or food, at the expense of another consumer forced to pay an inflated price..
Upholding the minimum coverage provision on the ground that all are participants or will be
participants in the health-care market would therefore carry no implication that Congress may justify
under the Commerce Clause a mandate to buy other products and services…
The Chief Justice also calls the minimum coverage provision an illegitimate effort to make young,
healthy individuals subsidize insurance premiums paid by the less hale and hardy. This complaint,
too, is spurious. Under the current health-care system, healthy persons who lack insurance receive a
benefit for which they do not pay: They are assured that, if they need it, emergency medical care will
be available, although they cannot afford it. Those who have insurance bear the cost of this
guarantee. By requiring the healthy uninsured to obtain insurance or pay a penalty structured as a
tax, the minimum coverage p
