The Affordable Care Act (2010) required most Americans to have health insurance or make a "shared responsibility payment" to the IRS. Twenty-six states and a business group challenged this "individual mandate." The government's main defense was the commerce power, with the Necessary and Proper Clause in support. The case brought every thread of this unit together.
Why it works
The majority's concern was a power with no stopping point. If Congress could order people to buy insurance because their failure to buy affects commerce, it could order them to buy almost anything: vegetables to improve health, cars to help an industry. Every precedent in this unit had involved people already engaged in some activity. Ginsburg answered that health care is unique, since nearly everyone will need it and hospitals must treat emergencies, so the uninsured are already in the market.
Key idea
In NFIB v. Sebelius (2012), five justices concluded that the Commerce Clause did not support the individual mandate, because it compelled people to enter commerce rather than regulating existing activity. The mandate was nonetheless upheld as a tax, 5 to 4.
Worked example: Counting the votes
How can the mandate be upheld if the commerce argument lost?
- Commerce Clause: Roberts plus the four joint dissenters (Scalia, Kennedy, Thomas, Alito) said no. Five votes.
- Taxing power: Roberts plus Ginsburg, Breyer, Sotomayor and Kagan said yes. Five votes.
- One justice, the Chief Justice, was in both majorities.
Answer: The mandate stood under the taxing power. The commerce analysis is part of Roberts's opinion, and lawyers still debate how much of it binds as a holding.
Worked example: Comparing NFIB with Raich
In Raich the Court let Congress reach home-grown marijuana as part of a comprehensive scheme. Why not the uninsured in NFIB?
- Raich's plaintiffs were producing a commodity: an activity.
- NFIB involved people who were not buying insurance: in the majority's view, not an activity.
- The Necessary and Proper Clause could not supply the missing power, Roberts said, because the mandate was not a "proper" means.
Answer: Activity versus compelled entry: that is the line NFIB drew.
Common mistake
Thinking NFIB struck down the mandate. It held the commerce argument failed but upheld the mandate under the taxing power, 5 to 4. (Congress later set the payment at zero in 2017; that is a separate story.) Check: which power did each majority rely on?
This is an educational course, not legal advice.