NFIB Sebelius Roberts

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B

 That is not the end of the matter. Because the Com-
merce Clause does not support the individual mandate, it
is necessary to turn to the Government’’s second argument:
that the mandate may be upheld as within Congress’’s
enumerated power to “”lay and collect Taxes.””  Art. I, §8,
cl. 1.

 The Government’s tax power argument asks us to view
the statute differently than we did in considering its com-
merce power theory. In making its Commerce Clause
argument, the Government defended the mandate as a
regulation requiring individuals to purchase health in-
surance. The Government does not claim that the taxing
power allows Congress to issue such a command.  Instead,
the Government asks us to read the mandate not as order-
ing individuals to buy insurance, but rather as imposing a
tax on those who do not buy that product.

 The text of a statute can sometimes have more than one
possible meaning. To take a familiar example, a law that
reads “”no vehicles in the park”” might, or might not, ban
bicycles in the park. And it is well established that if
a statute has two possible meanings, one of which violates
the Constitution, courts should adopt the meaning that
does not do so. Justice Story said that 180 years ago: “”No
court ought, unless the terms of an act rendered it una-
voidable, to give a construction to it which should involve
a violation, however unintentional, of the constitution.””
Parsons v. Bedford, 3 Pet. 433, 448-449 (1830).  Justice
Holmes made the same point a century later: “”[T]he rule is
settled that as between two possible interpretations of a
statute, by one of which it would be unconstitutional and
by the other valid, our plain duty is to adopt that which
will save the Act.”” Blodgett v. Holden, 275 U. S. 142, 148
(1927) (concurring opinion).

  The most straightforward reading of the mandate is
that it commands individuals to purchase insurance. 

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 After all, it states that individuals “”shall”” maintain health
insurance. 26 U. S. C. §5000A(a).  Congress thought it
could enact such a command under the Commerce Clause,
and the Government primarily defended the law on that
basis. But, for the reasons explained above, the Com-
merce Clause does not give Congress that power.  Under
our precedent, it is therefore necessary to ask whether the
Government’s alternative reading of the statute—that it
only imposes a tax on those without insurance—is a rea-
sonable one.

  Under the mandate, if an individual does not maintain
health insurance, the only consequence is that he must
make an additional payment to the IRS when he pays his
taxes. See §5000A(b). That, according to the Government,
means the mandate can be regarded as establishing a
condition-—not owning health insurance-—that triggers a
tax-—the required payment to the IRS.  Under that theory,
the mandate is not a legal command to buy insurance.
Rather, it makes going without insurance just another
thing the Government taxes, like buying gasoline or earn-
ing income.  And if the mandate is in effect just a tax hike
on certain taxpayers who do not have health insurance, it
may be within Congress’’s constitutional power to tax.

   The question is not whether that is the most natural
interpretation of the mandate, but only whether it is a
“”fairly possible”” one.  Crowell v. Benson, 285 U. S. 22, 62
(1932). As we have explained, ““every reasonable construc-
tion must be resorted to, in order to save a statute from
unconstitutionality.”” Hooper v. California, 155 U. S. 648,
657 (1895). The Government asks us to interpret the
mandate as imposing a tax, if it would otherwise violate
the Constitution. Granting the Act the full measure of
deference owed to federal statutes, it can be so read, for
the reasons set forth below.

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