NFIB Sebelius Roberts


engage in commerce, and the Government’’s efforts to cast
the individual mandate in a different light were unpersua-
sive. Judge Marcus dissented, reasoning that the individ-
ual mandate regulates economic activity that has a clear
effect on interstate commerce.

 Having held the individual mandate to be unconstitu-
tional, the majority examined whether that provision
could be severed from the remainder of the Act.  The ma-
jority determined that, contrary to the District Court’’s
view, it could. The court thus struck down only the indi-
vidual mandate, leaving the Act’’s other provisions intact.
648 F. 3d, at 1328.

 Other Courts of Appeals have also heard challenges to
the individual mandate. The Sixth Circuit and the D. C.
Circuit upheld the mandate as a valid exercise of Con-
gress’s’ commerce power.  See Thomas More Law Center v.
Obama, 651 F. 3d 529 (CA6 2011); Seven-Sky v. Holder,
661 F. 3d 1 (CADC 2011).  The Fourth Circuit determined
that the Anti-Injunction Act prevents courts from consid-
ering the merits of that question. See Liberty Univ., Inc.  
v. Geithner, 671 F. 3d 391 (2011).  That statute bars suits
““for the purpose of restraining the assessment or collection
of any tax.”” 26 U. S. C. §7421(a).  A majority of the Fourth
Circuit panel reasoned that the individual mandate’’s
penalty is a tax within the meaning of the Anti-Injunction
Act, because it is a financial assessment collected by the
IRS through the normal means of taxation.  The majority
therefore determined that the plaintiffs could not chal-
lenge the individual mandate until after they paid the

—————— ——————–
1 The Eleventh Circuit did not consider whether the Anti-Injunction
Act bars challenges to the individual mandate.  The District Court had
determined that it did not, and neither side challenged that holding on
appeal. The same was true in the Fourth Circuit, but that court
examined the question sua sponte because it viewed the Anti-Injunction
Act as a limit on its subject matter jurisdiction.  See Liberty Univ., 671


The second provision of the Affordable Care Act directly
challenged here is the Medicaid expansion. Enacted in
1965, Medicaid offers federal funding to States to assist
pregnant women, children, needy families, the blind, the
elderly, and the disabled in obtaining medical care.  See 42
U. S. C. §1396a(a)(10).  In order to receive that funding,
States must comply with federal criteria governing mat-
ters such as who receives care and what services are pro-
vided at what cost. By 1982 every State had chosen to
participate in Medicaid.  Federal funds received through
the Medicaid program have become a substantial part of
state budgets, now constituting over 10 percent of most
States’’ total revenue.

 The Affordable Care Act expands the scope of the Medi-
caid program and increases the number of individuals the
States must cover. For example, the Act requires state
programs to provide Medicaid coverage to adults with
incomes up to 133 percent of the federal poverty level,
whereas many States now cover adults with children only
if their income is considerably lower, and do not cover
childless adults at all.  See §1396a(a)(10)(A)(i)(VIII).  The
Act increases federal funding to cover the States’’ costs in
expanding Medicaid coverage, although States will bear a
portion of the costs on their own. §1396d(y)(1). If a State
does not comply with the Act’’s new coverage require-
ments, it may lose not only the federal funding for those
requirements, but all of its federal Medicaid funds.  See

  Along with their challenge to the individual mandate,
the state plaintiffs in the Eleventh Circuit argued that the
Medicaid expansion exceeds Congress’s constitutional
—————— ————————
F. 3d, at 400–-401.  The Sixth Circuit and the D. C. Circuit considered
the question but determined that the Anti-Injunction Act did not apply.
See Thomas More, 651 F. 3d, at 539–-540 (CA6); Seven-Sky, 661 F. 3d,
at 5–-14 (CADC).

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