NFIB Sebelius Dissent



minor provision will be the price paid for support of a
major provision.  So, if the major provision were unconsti-
tutional, Congress would not have passed the minor one.

  Without the ACA’’s major provisions, many of these
minor provisions will not operate in the manner Congress
intended. For example, the tax increases are “”Revenue
Offset Provisions”” designed to help offset the cost to the
Federal Government of programs like the Medicaid Ex-
pansion and the exchanges’’ federal subsidies.  See Title
IX, Subtitle A—Revenue Offset Provisions, 124 Stat. 847.
With the Medicaid Expansion and the exchanges invali-
dated, the tax increases no longer operate to offset costs,
and they no longer serve the purpose in the Act’’s scheme
of “”shared responsibility”” that Congress intended.

  Some provisions, such as requiring chain restaurants to
display nutritional content, appear likely to operate as
Congress intended, but they fail the second test for sever-
ability. There is no reason to believe that Congress would
have enacted them independently. The Court has not
previously had occasion to consider severability in the con-
text of an omnibus enactment like the ACA, which in-
cludes not only many provisions that are ancillary to its
central provisions but also many that are entirely unre-
lated-—hitched on because it was a quick way to get them
passed despite opposition, or because their proponents
could exact their enactment as the quid pro quo for their
needed support. When we are confronted with such a so-
called “”Christmas tree,”” a law to which many nongermane
ornaments have been attached, we think the proper rule
must be that when the tree no longer exists the ornaments
are superfluous. We have no reliable basis for knowing
which pieces of the Act would have passed on their own.  It
is certain that many of them would not have, and it is not
a proper function of this Court to guess which. To sever
the statute in that manner “ “‘would be to make a new law,
not to enforce an old one.  This is not part of our duty.’”


Trade-Mark Cases, 100 U. S., at 99.

 This Court must not impose risks unintended by Con-
gress or produce legislation Congress may have lacked the
support to enact. For those reasons, the unconstitution-
ality of both the Individual Mandate and the Medicaid
Expansion requires the invalidation of the Affordable Care
Act’s other provisions.

* * *
The Court today decides to save a statute Congress did
not write. It rules that what the statute declares to be a
requirement with a penalty is instead an option subject
to a tax. And it changes the intentionally coercive sanc-
tion of a total cut-off of Medicaid funds to a supposedly
noncoercive cut-off of only the incremental funds that the
Act makes available.

  The Court regards its strained statutory interpretation
as judicial modesty. It is not. It amounts instead to a vast
judicial overreaching. It creates a debilitated, inoperable
version of health-care regulation that Congress did not
enact and the public does not expect. It makes enactment
of sensible health-care regulation more difficult, since
Congress cannot start afresh but must take as its point of
departure a jumble of now senseless provisions, provisions
that certain interests favored under the Court’’s new de-
sign will struggle to retain.  And it leaves the public and
the States to expend vast sums of money on requirements
that may or may not survive the necessary congressional

  The Court’’s disposition, invented and atextual as it is,
does not even have the merit of avoiding constitutional
difficulties. It creates them. The holding that the Indi-
vidual Mandate is a tax raises a difficult constitutional
question (what is a direct tax?) that the Court resolves
with inadequate deliberation.  And the judgment on the
Medicaid Expansion issue ushers in new federalism con-”  

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