NFIB Sebelius Roberts


with their behaviors; most of the expense is borne by the
rest of society in the form of higher insurance premiums,
government expenditures for health care, and disability
benefits””). Congress addressed the insurance problem by
ordering everyone to buy insurance. Under the Gov-
ernment’s theory, Congress could address the diet problem
by ordering everyone to buy vegetables.  See Dietary
Guidelines,  supra, at 19 (“”Improved nutrition, appropriate
eating behaviors, and increased physical activity have tre-
mendous potential to . . . reduce health care costs””).

  People, for reasons of their own, often fail to do things
that would be good for them or good for society.  Those
failures-—joined with the similar failures of others-—can
readily have a substantial effect on interstate commerce.
Under the Government’’s logic, that authorizes Congress to
use its commerce power to compel citizens to act as the
Government would have them act.

  That is not the country the Framers of our Constitution
envisioned.  James Madison explained that the Commerce
Clause was “”an addition which few oppose and from which
no apprehensions are entertained.”” The Federalist No. 45,
at 293. While Congress’s authority under the Commerce
Clause has of course expanded with the growth of the
national economy, our cases have “”always recognized that
the power to regulate commerce, though broad indeed, has
limits.”” Maryland v. Wirtz, 392 U. S. 183, 196 (1968).  The
Government’s theory would erode those limits, permitting
Congress to reach beyond the natural extent of its author-
ity, “”everywhere extending the sphere of its activity and
drawing all power into its impetuous vortex.””  The Feder-
alist No. 48, at 309 (J. Madison).  Congress already enjoys
vast power to regulate much of what we do.  Accepting
the Government’s theory would give Congress the same
license to regulate what we do not do, fundamentally
changing the relation between the citizen and the Federal 



To an economist, perhaps, there is no difference between
activity and inactivity; both have measurable economic
effects on commerce. But the distinction between doing
something and doing nothing would not have been lost on
the Framers, who were “”practical statesmen,”” not meta-
physical philosophers.  Industrial Union Dept., AFL-CIO
v. American Petroleum Institute, 448 U. S. 607, 673 (1980)
(Rehnquist, J., concurring in judgment). As we have ex-
plained, “”the framers of the Constitution were not mere
visionaries, toying with speculations or theories, but
practical men, dealing with the facts of political life as
they understood them, putting into form the government
they were creating, and prescribing in language clear
and intelligible the powers that government was to take.””
South Carolina v. United States, 199 U. S. 437, 449 (1905).
The Framers gave Congress the power to regulate  com-
merce, not to compel it, and for over 200 years both our
decisions and Congress’’s actions have reflected this un-
derstanding. There is no reason to depart from that un-
derstanding now.

  The Government sees things differently.  It argues that
because sickness and injury are unpredictable but una-
voidable, “”the uninsured as a class are active in the mar-
ket for health care, which they regularly seek and obtain.””
Brief for United States 50.  The individual mandate
““merely regulates how individuals finance and pay for that
—————— —————-
6 In an attempt to recast the individual mandate as a regulation of
commercial activity, JUSTICE  GINSBURG suggests that “”[a]n individual
who opts not to purchase insurance from a private insurer can be seen
as actively selecting another form of insurance: self-insurance.””   Post, at
26. But “”self-insurance”” is, in this context, nothing more than a de-
scription of the failure to purchase insurance.  Individuals are no more
“”activ[e] in the self-insurance market”” when they fail to purchase
insurance, ibid., than they are active in the “”rest”” market when doing