NFIB Sebelius Dissent


 the ne plus ultra of expansive Commerce Clause jurispru-
dence. To go beyond that, and to say the failure to grow
wheat (which is not an economic activity, or any activity
at all) nonetheless affects commerce and therefore can be
federally regulated, is to make mere breathing in and out
the basis for federal prescription and to extend federal
power to virtually all human activity.

 As for the constitutional power to tax and spend for
the general welfare: The Court has long since expanded
that beyond (what Madison thought it meant) taxing and
spending for those aspects of the general welfare that were
within the Federal Government’’s enumerated powers,
see United States v. Butler, 297 U. S. 1, 65-–66 (1936).
Thus, we now have sizable federal Departments devoted
to subjects not mentioned among Congress’’ enumerated
powers, and only marginally related to commerce: the De-
partment of Education, the Department of Health and
Human Services, the Department of Housing and Urban
Development. The principal practical obstacle that pre-
vents Congress from using the tax-and-spend power to
assume all the general-welfare responsibilities tradition-
ally exercised by the States is the sheer impossibility of
managing a Federal Government large enough to adminis-
ter such a system. That obstacle can be overcome by
granting funds to the States, allowing them to administer
the program.  That is fair and constitutional enough when
the States freely agree to have their powers employed and
their employees enlisted in the federal scheme.  But it is a
blatant violation of the constitutional structure when the
States have no choice.

 The Act before us here exceeds federal power both in
mandating the purchase of health insurance and in deny-
ing nonconsenting States all Medicaid funding.  These
parts of the Act are central to its design and operation,
and all the Act’s other provisions would not have been
enacted without them.  In our view it must follow that the 


entire statute is inoperative.

The Individual Mandate

  Article I, §8, of the Constitution gives Congress the
power to ““regulate Commerce . . . among the several
States.”” The Individual Mandate in the Act commands
that every “”applicable individual shall for each month
beginning after 2013 ensure that the individual, and any
dependent of the individual who is an applicable individ-
ual, is covered under minimum essential coverage.””  26
U. S. C. §5000A(a) (2006 ed., Supp. IV).  If this provision
““regulates”” anything, it is the failure to maintain mini-
mum essential coverage.  One might argue that it regu-
lates that failure by requiring it to be accompanied by
payment of a penalty. But that failure-—that abstention
from commerce-—is not “”Commerce.””  To be sure, purchas-
ing insurance is ””Commerce””; but one does not regulate
commerce that does not exist by compelling its existence.

In Gibbons v. Ogden, 9 Wheat. 1, 196 (1824), Chief
Justice Marshall wrote that the power to regulate com-
merce is the power ““to prescribe the rule by which
commerce is to be governed.””  That understanding is con-
sistent with the original meaning of “”regulate”” at the time
of the Constitution’s ratification, when ““to regulate”” meant
““[t]o adjust by rule, method or established mode,”” 2 N.
Webster, An American Dictionary of the English Lan-
guage (1828); “”[t]o adjust by rule or method,”” 2 S. Johnson,
A Dictionary of the English Language (7th ed. 1785); “”[t]o
adjust, to direct according to rule,”” 2 J. Ash, New and
Complete Dictionary of the English Language (1775); “”to
put in order, set to rights, govern or keep in order,”” T.
Dyche & W. Pardon, A New General English Dictionary