NFIB Sebelius Ginsburg

 

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healthy will become society’’s old and infirm. Viewed over
a lifespan, the costs and benefits even out: The young who
pay more than their fair share currently will pay less than
their fair share when they become senior citizens.  And
even if, as undoubtedly will be the case, some individuals,
over their lifespans, will pay more for health insurance
than they receive in health services, they have little to
complain about, for that is how insurance works.  Every
insured person receives protection against a catastrophic
loss, even though only a subset of the covered class will
ultimately need that protection.

b

 In any event, THE CHIEF JUSTICE’’s limitation of the
commerce power to the regulation of those actively en-
gaged in commerce finds no home in the text of the Consti-
tution or our decisions. Article I, §8, of the Constitution
grants Congress the power “”[t]o regulate Commerce . . .
among the several States.”” Nothing in this language im-
plies that Congress’’ commerce power is limited to regu-
lating those actively engaged in commercial transactions.
Indeed, as the D. C. Circuit observed, “”[a]t the time the
Constitution was [framed], to ‘‘regulate’’ meant,”” among
other things, ““to require action.””  See Seven-Sky v. Holder,
661 F. 3d 1, 16 (2011).

  Arguing to the contrary, THE CHIEF JUSTICE notes that
“”the Constitution gives Congress the power to ‘’coin
Money,’’ in addition to the power to ‘’regulate the Value
thereof,’'” ” and similarly “”gives Congress the power to ‘’raise
and support Armies’’ and to ‘’provide and maintain a Navy,’’ in
addition to the power to ‘’make Rules for the Government
and Regulation of the land and naval Forces.’'” ”  Ante, at
18–-19 (citing Art. I, §8, cls. 5, 12–-14).  In separating the
power to regulate from the power to bring the subject of
the regulation into existence, THE CHIEF JUSTICE asserts,
““[t]he language of the Constitution reflects the natural

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understanding that the power to regulate assumes there is
already something to be regulated.”” Ante, at 19.

 This argument is difficult to fathom.  Requiring individ-
uals to obtain insurance unquestionably regulates the inter-
state health-insurance and health-care markets, both of
them in existence well before the enactment of the ACA.
See Wickard, 317 U. S., at 128 (“”The stimulation of com-
merce is a use of the regulatory function quite as definitely
as prohibitions or restrictions thereon.””). Thus, the “”some-
thing to be regulated”” was surely there when Congress
created the minimum coverage provision.6

Nor does our case law toe the activity versus inactiv-
ity line. In  Wickard, for example, we upheld the penalty
imposed on a farmer who grew too much wheat, even
though the regulation had the effect of compelling farmers
to purchase wheat in the open market.  Id., at 127-–129.
“[F]orcing some farmers into the market to buy what they
could provide for themselves” was, the Court held, a valid
means of regulating commerce.  Id., at 128–-129.  In an-
other context, this Court similarly upheld Congress’’ author-
ity under the commerce power to compel an “”inactive”” land-
holder to submit to an unwanted sale.  See Monongahela
Nav. Co. v.  United States, 148 U. S. 312, 335-–337 (1893)
(“”[U]pon the [great] power to regulate commerce[,]”” Con-
gress has the authority to mandate the sale of real prop-
erty to the Government, where the sale is essential to the
improvement of a navigable waterway (emphasis added));
Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641,
—————— —————–
6  THE CHIEF JUSTICE’’s reliance on the quoted passages of the Consti-
tution, see ante, at 18-–19, is also dubious on other grounds.  The power
to “”regulate the Value”” of the national currency presumably includes
the power to increase the currency’’s worth— i.e., to create value where
none previously existed.  And if the power to “”[r]egulat[e] . . . the land
and naval Forces”” presupposes ““there is already [in existence] some-
thing to be regulated,”” i.e., an Army and a Navy, does Congress lack
authority to create an Air Force? 

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