NFIB Sebelius Dissent

SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting  

SUPREME COURT OF THE UNITED STATES
_________________
Nos. 11–393, 11–398 and 11–400  
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NATIONAL FEDERATION OF INDEPENDENT  
BUSINESS, ET AL ., PETITIONERS
11–393 v.  
KATHLEEN SEBELIUS, SECRETARY OF HEALTH  
AND HUMAN SERVICES, ET AL .
 
DEPARTMENT OF HEALTH AND HUMAN    
SERVICES, ET AL ., PETITIONERS  
11–398 v.  
FLORIDA ET AL .
 
FLORIDA, ET AL ., PETITIONERS
11–400 v.  
DEPARTMENT OF HEALTH AND  
HUMAN SERVICES ET AL .

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF  
APPEALS FOR THE ELEVENTH CIRCUIT  

[June 28, 2012]

JUSTICE SCALIA, JUSTICE KENNEDY, JUSTICE THOMAS,
and JUSTICE ALITO, dissenting.

 Congress has set out to remedy the problem that the
best health care is beyond the reach of many Americans
who cannot afford it. It can assuredly do that, by exercis-
ing the powers accorded to it under the Constitution. The  
question in this case, however, is whether the complex
structures and provisions of the Patient Protection and
Affordable Care Act (Affordable Care Act or ACA) go be-
yond those powers. We conclude that they do.

  This case is in one respect difficult: it presents two

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questions of first impression.  The first of those is whether
failure to engage in economic activity (the purchase of
health insurance) is subject to regulation under the Com-
merce Clause.  Failure to act does result in an effect
on commerce, and hence might be said to come under
this Court’s ““affecting commerce”” criterion of Commerce
Clause jurisprudence. But in none of its decisions has this
Court extended the Clause that far.  The second question
is whether the congressional power to tax and spend,
U. S. Const., Art. I, §8, cl. 1, permits the conditioning of
a State’’s continued receipt of all funds under a massive
state-administered federal welfare program upon its ac-
ceptance of an expansion to that program. Several of our
opinions have suggested that the power to tax and spend
cannot be used to coerce state administration of a federal
program, but we have never found a law enacted under
the spending power to be coercive. Those questions are
difficult.

 The case is easy and straightforward, however, in an-
other respect. What is absolutely clear, affirmed by the
text of the 1789 Constitution, by the Tenth Amendment
ratified in 1791, and by innumerable cases of ours in the
220 years since, is that there are structural limits upon
federal power-—upon what it can prescribe with respect to
private conduct, and upon what it can impose upon the
sovereign States. Whatever may be the conceptual limits
upon the Commerce Clause and upon the power to tax
and spend, they cannot be such as will enable the Federal
Government to regulate all private conduct and to com  –
pel the States to function as administrators of federal
programs.

  That clear principle carries the day here.  The striking
case of Wickard v. Filburn, 317 U. S. 111 (1942), which
held that the economic activity of growing wheat, even
for one’s own consumption, affected commerce sufficiently
that it could be regulated, always has been regarded as