NFIB Sebelius Roberts


decide not to do something; in others they simply fail to
do it. Allowing Congress to justify federal regulation by
pointing to the effect of inaction on commerce would bring
countless decisions an individual could potentially make
within the scope of federal regulation, and—under the
Government’s theory-—empower Congress to make those
decisions for him.

 Applying the Government’s logic to the familiar case of
Wickard v. Filburn shows how far that logic would carry
us from the notion of a government of limited powers. In
Wickard, the Court famously upheld a federal penalty im-
posed on a farmer for growing wheat for consumption
on his own farm.  317 U. S., at 114-–115, 128-–129.  That
amount of wheat caused the farmer to exceed his quota
under a program designed to support the price of wheat by
limiting supply. The Court rejected the farmer’s argument
that growing wheat for home consumption was beyond the
reach of the commerce power. It did so on the ground that
the farmer’s decision to grow wheat for his own use al-
lowed him to avoid purchasing wheat in the market.  That
decision, when considered in the aggregate along with sim-
ilar decisions of others, would have had a substantial ef-
fect on the interstate market for wheat.  Id., at 127–-129.

 Wickard has long been regarded as “”perhaps the most
far reaching example of Commerce Clause authority over
intrastate activity,””  Lopez, 514 U. S., at 560, but the Gov-
ernment’s theory in this case would go much further.
Under Wickard it is within Congress’’s power to regulate
the market for wheat by supporting its price.  But price
can be supported by increasing demand as well as by
decreasing supply. The aggregated decisions of some
consumers not to purchase wheat have a substantial effect
on the price of wheat, just as decisions not to purchase
health insurance have on the price of insurance.  Congress
can therefore command that those not buying wheat do so,
just as it argues here that it may command that those not


buying health insurance do so. The farmer in   Wickard
was at least actively engaged in the production of wheat,
and the Government could regulate that activity because
of its effect on commerce. The Government’s theory here
would effectively override that limitation, by establishing
that individuals may be regulated under the Commerce
Clause whenever enough of them are not doing something
the Government would have them do.

 Indeed, the Government’’s logic would justify a manda-
tory purchase to solve almost any problem.  See   Seven-Sky,
661 F. 3d, at 14–-15 (noting the Government’’s inability
to ““identify any mandate to purchase a product or ser-
vice in interstate commerce that would be unconstitu-
tional”” under its theory of the commerce power).  To
consider a different example in the health care market, many
Americans do not eat a balanced diet. That group makes
up a larger percentage of the total population than those
without health insurance.  See, e.g., Dept. of Agriculture
and Dept. of Health and Human Services, Dietary Guide-
lines for Americans 1 (2010).  The failure of that group
to have a healthy diet increases health care costs, to a
greater extent than the failure of the uninsured to pur-
chase insurance. See, e.g., Finkelstein, Trogdon, Cohen, &
Dietz, Annual Medical Spending Attributable to Obesity:
Payer- and Service-Specific Estimates, 28 Health Affairs
w822 (2009) (detailing the “undeniable link between ris-
ing rates of obesity and rising medical spending,” and esti-
mating that ““the annual medical burden of obesity has
risen to almost 10 percent of all medical spending and
could amount to $147 billion per year in 2008””).  Those in-
creased costs are borne in part by other Americans who
must pay more, just as the uninsured shift costs to the
insured. See Center for Applied Ethics, Voluntary Health
Risks: Who Should Pay?, 6 Issues in Ethics 6 (1993) (not-
ing “”overwhelming evidence that individuals with un-
healthy habits pay only a fraction of the costs associated