NFIB Sebelius Roberts


 to ““raise and support Armies”” and to “”provide and main-
tain a Navy,”” in addition to the power to “”make Rules
for the Government and Regulation of the land and naval
Forces.”” Id., cls. 12-–14.  If the power to regulate the
armed forces or the value of money included the power to
bring the subject of the regulation into existence, the
specific grant of such powers would have been unneces –
sary. The language of the Constitution reflects the natu-
ral understanding that the power to regulate assumes
there is already something to be regulated.  See Gibbons, 9
Wheat., at 188 (“”[T]he enlightened patriots who framed
our constitution, and the people who adopted it, must be
understood to have employed words in their natural sense,
and to have intended what they have said””).4

Our precedent also reflects this understanding.  As
expansive as our cases construing the scope of the com-
merce power have been, they all have one thing in com-
mon: They uniformly describe the power as reaching
““activity.”” It is nearly impossible to avoid the word when
quoting them. See, e.g., Lopez , supra, at 560 (“”Where
economic activity substantially affects interstate com-
merce, legislation regulating that activity will be sus-
—————— ——————–
JUSTICE GINSBURG suggests that “”at the time the Constitution was
framed, to ‘‘regulate’’ meant, among other things, to require action.””
Post, at 23 (citing  Seven-Sky v. Holder, 661 F. 3d 1, 16 (CADC 2011);
brackets and some internal quotation marks omitted).  But to reach
this conclusion, the case cited by JUSTICE GINSBURG relied on a diction-
ary in which “”[t]o order; to command”” was the fifth-alternative defini-
tion of “”to direct,”” which was itself the second-alternative definition of
““to regulate.”” See Seven-Sky, supra, at 16 (citing S. Johnson, Diction-
ary of the English Language (4th ed. 1773) (reprinted 1978)).  It is
unlikely that the Framers had such an obscure meaning in mind when
they used the word “”regulate.””  Far more commonly, “”[t]o regulate””
meant “”[t]o adjust by rule or method,”” which presupposes something to
adjust.  2 Johnson, supra, at 1619; see also Gibbons, 9 Wheat., at 196
(defining the commerce power as the power “”to prescribe the rule by
which commerce is to be governed””).


tained””); Perez, 402 U. S., at 154 (“”Where the  class of  
activities is regulated and that class is within the reach of
federal power, the courts have no power to excise, as triv-
ial, individual instances of the class”” (emphasis in original;
internal quotation marks omitted)); Wickard, supra, at
125 (“”[E]ven if appellee’s activity be local and though it
may not be regarded as commerce, it may still, whatever
its nature, be reached by Congress if it exerts a substan-
tial economic effect on interstate commerce””); NLRB  v.  
Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937) (““Al-
though activities may be intrastate in character when
separately considered, if they have such a close and sub-
stantial relation to interstate commerce that their control
is essential or appropriate to protect that commerce from
burdens and obstructions, Congress cannot be denied the
power to exercise that control””); see also post, at 15, 25-–26,
28, 32 (GINSBURG, J., concurring in part, concurring in
judgment in part, and dissenting in part).5

The individual mandate, however, does not regulate
existing commercial activity. It instead compels individ-
uals to become  active in commerce by purchasing a product,
on the ground that their failure to do so affects interstate
commerce.  Construing the Commerce Clause to permit Con-
gress to regulate individuals precisely because they are
doing nothing would open a new and potentially vast do-
main to congressional authority. Every day individuals do
not do an infinite number of things.  In some cases they
—————— ——————–
JUSTICE GINSBURG cites two eminent domain cases from the 1890s to
support the proposition that our case law does not ““toe the activity
versus inactivity line.””  Post, at 24-–25 (citing Monongahela Nav. Co. v.
United States, 148 U. S. 312, 335-–337 (1893), and Cherokee Nation v.  
Southern Kansas R. Co., 135 U. S. 641, 657-–659 (1890)).  The fact that
the Fifth Amendment requires the payment of just compensation
when the Government exercises its power of eminent domain does not
turn the taking into a commercial transaction between the landowner
and the Government, let alone a government-compelled transaction
between the landowner and a third party.