NFIB Sebelius Roberts


the words of The Federalist, ‘‘merely acts of usurpation’’
which ‘deserve to be treated as such.’ ” Printz v. United
States, 521 U. S. 898, 924 (1997) (alterations omitted)
(quoting The Federalist No. 33, at 204 (A. Hamilton)); see
also New York, 505 U. S., at 177; Comstock, supra, at ___
(slip op., at 5) (KENNEDY, J., concurring in judgment) (““It
is of fundamental importance to consider whether essen-
tial attributes of state sovereignty are compromised by the
assertion of federal power under the Necessary and Proper
Clause . . .””).

Applying these principles, the individual mandate can-
not be sustained under the Necessary and Proper Clause
as an essential component of the insurance reforms. Each
of our prior cases upholding laws under that Clause in-
volved exercises of authority derivative of, and in service
to, a granted power. For example, we have upheld provi-
sions permitting continued confinement of those already
in federal custody when they could not be safely released,
Comstock, supra, at ___ (slip op., at 1-–2); criminaliz-
ing bribes involving organizations receiving federal funds,
Sabri v. United States, 541 U. S. 600, 602, 605 (2004); and
tolling state statutes of limitations while cases are pend-
ing in federal court, Jinks v. Richland County, 538
U. S. 456, 459, 462 (2003). The individual mandate, by con –
trast, vests Congress with the extraordinary ability to
create the necessary predicate to the exercise of an enu-
merated power.
This is in no way an authority that is ““narrow in scope,””
Comstock, supra, at ___ (slip op., at 20), or ““incidental”” to
the exercise of the commerce power, McCulloch, supra, at
418. Rather, such a conception of the Necessary and
Proper Clause would work a substantial expansion of
federal authority. No longer would Congress be limited to
regulating under the Commerce Clause those who by some
preexisting activity bring themselves within the sphere of
federal regulation. Instead, Congress could reach beyond


 the natural limit of its authority and draw within its
regulatory scope those who otherwise would be outside of
it. Even if the individual mandate is “”necessary”” to the
Act’’s insurance reforms, such an expansion of federal
power is not a “”proper”” means for making those reforms

 The Government relies primarily on our decision in
Gonzales  v.  Raich. In Raich, we considered “”comprehen-
sive legislation to regulate the interstate market”” in mari-
juana. 545 U. S., at 22.  Certain individuals sought an
exemption from that regulation on the ground that they
engaged in only intrastate possession and consumption.
We denied any exemption, on the ground that marijuana
is a fungible commodity, so that any marijuana could
be readily diverted into the interstate market. Congress’’s
attempt to regulate the interstate market for marijuana
would therefore have been substantially undercut if it
could not also regulate intrastate possession and con-
sumption. Id., at 19.  Accordingly, we recognized that
“”Congress was acting well within its authority”” under the
Necessary and Proper Clause even though its “”regulation
ensnare[d] some purely intrastate activity.””  Id., at 22; see
also Perez, 402 U. S., at 154.  Raich thus did not involve
the exercise of any “”great substantive and independent
power,”” McCulloch, supra, at 411, of the sort at issue here.
Instead, it concerned only the constitutionality of “”indi-
vidual applications of a concededly valid statutory
scheme.”” Raich, supra, at 23 (emphasis added).

 Just as the individual mandate cannot be sustained as
a law regulating the substantial effects of the failure to
purchase health insurance, neither can it be upheld as
a “”necessary and proper”” component of the insurance re-
forms. The commerce power thus does not authorize the
mandate. Accord,  post, at 4–16 (joint opinion of SCALIA,
KENNEDY, THOMAS, and ALITO, JJ., dissenting).