NFIB Sebelius Roberts


active participation—requiring that they do so through
insurance, rather than through attempted self-insurance
with the back-stop of shifting costs to others.””  Ibid.

 The Government repeats the phrase “”active in the mar-
ket for health care”” throughout its brief, see id., at 7, 18,
34, 50, but that concept has no constitutional significance.
An individual who bought a car two years ago and may
buy another in the future is not “”active in the car market””
in any pertinent sense. The phrase “”active in the market””
cannot obscure the fact that most of those regulated by
the individual mandate are not currently engaged in any
commercial activity involving health care, and that fact is
fatal to the Government’’s effort to “”regulate the uninsured
as a class.””  Id., at 42. Our precedents recognize Con-
gress’s power to regulate “”class[es] of activities,”” Gonzales  
v. Raich, 545 U. S. 1, 17 (2005) (emphasis added), not
classes of   individuals, apart from any activity in which
they are engaged, see, e.g., Perez , 402 U. S., at 153 (“”Peti-
tioner is clearly a member of the class which engages in
‘‘extortionate credit transactions’’ . . .”” (emphasis deleted)).

  The individual mandate’’s regulation of the uninsured as
a class is, in fact, particularly divorced from any link to
existing commercial activity. The mandate primarily
affects healthy, often young adults who are less likely to
need significant health care and have other priorities for
spending their money.  It is precisely because these indi-
viduals, as an actuarial class, incur relatively low health
care costs that the mandate helps counter the effect of
forcing insurance companies to cover others who impose
greater costs than their premiums are allowed to reflect.
See 42 U. S. C. §18091(2)(I) (recognizing that the mandate
would “”broaden the health insurance risk pool to include
healthy individuals, which will lower health insurance
premiums””). If the individual mandate is targeted at a
class, it is a class whose commercial inactivity rather than
activity is its defining feature.


The Government, however, claims that this does not
matter. The Government regards it as sufficient to trigger
Congress’’s authority that almost all those who are unin-
sured will, at some unknown point in the future, engage
in a health care transaction.  Asserting that “”[t]here is no
temporal limitation in the Commerce Clause,”” the Gov-
ernment argues that because “”[e]veryone subject to this
regulation is in or will be in the health care market,”” they
can be “regulated in advance.” Tr. of Oral Arg. 109 (Mar.
27, 2012).

  The proposition that Congress may dictate the conduct
of an individual today because of prophesied future ac-
tivity finds no support in our precedent.  We have said that
Congress can anticipate the effects on commerce of an eco-
nomic activity.  See, e.g., Consolidated Edison Co.   v.  NLRB,
305 U. S. 197 (1938) (regulating the labor practices of
utility companies); Heart of Atlanta Motel, Inc. v. United  
States, 379 U. S. 241 (1964) (prohibiting discrimination by
hotel operators); Katzenbach v. McClung, 379 U. S. 294
(1964) (prohibiting discrimination by restaurant owners).
But we have never permitted Congress to anticipate that
activity itself in order to regulate individuals not currently
engaged in commerce. Each one of our cases, including
those cited by JUSTICE  GINSBURG, post, at 20-–21, involved
preexisting economic activity. See, e.g., Wickard , 317
U. S., at 127-–129 (producing wheat); Raich, supra, at 25
(growing marijuana).

 Everyone will likely participate in the markets for food,
clothing, transportation, shelter, or energy; that does not
authorize Congress to direct them to purchase particular
products in those or other markets today. The Commerce
Clause is not a general license to regulate an individual
from cradle to grave, simply because he will predictably
engage in particular transactions.  Any police power to
regulate individuals as such, as opposed to their activities,
remains vested in the States.

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