NFIB Sebelius Roberts


The reforms also threaten to impose massive new costs on
insurers, who are required to accept unhealthy individuals
but prohibited from charging them rates necessary to pay
for their coverage. This will lead insurers to significantly
increase premiums on everyone.  See Brief for America’s
Health Insurance Plans et al. as Amici Curiae in No. 11-–
393 etc. 8-–9.

 The individual mandate was Congress’’s solution to
these problems. By requiring that individuals purchase
health insurance, the mandate prevents cost-shifting by
those who would otherwise go without it.  In addition, the
mandate forces into the insurance risk pool more healthy
individuals, whose premiums on average will be higher
than their health care expenses.  This allows insurers to
subsidize the costs of covering the unhealthy individuals
the reforms require them to accept.  The Government
claims that Congress has power under the Commerce and
Necessary and Proper Clauses to enact this solution.


 The Government contends that the individual mandate
is within Congress’s power because the failure to pur-
chase insurance “”has a substantial and deleterious effect
on interstate commerce”” by creating the cost-shifting prob-
lem. Brief for United States 34. The path of our Com-
merce Clause decisions has not always run smooth, see
United States v. Lopez, 514 U. S. 549, 552–-559 (1995), but
it is now well established that Congress has broad author-
ity under the Clause. We have recognized, for example,
that “”[t]he power of Congress over interstate commerce is
not confined to the regulation of commerce among the
states,”” but extends to activities that “”have a substantial
effect on interstate commerce.””  United States v. Darby,
312 U. S. 100, 118–-119 (1941).  Congress’s power, more-
over, is not limited to regulation of an activity that by itself
substantially affects interstate commerce, but also extends 


to activities that do so only when aggregated with similar
activities of others. See Wickard, 317 U. S., at 127-–128.

 Given its expansive scope, it is no surprise that Con-
gress has employed the commerce power in a wide variety
of ways to address the pressing needs of the time.  But
Congress has never attempted to rely on that power to
compel individuals not engaged in commerce to purchase
an unwanted product.3 Legislative novelty is not nec-
essarily fatal; there is a first time for everything.  But
sometimes ““the most telling indication of [a] severe con –
stitutional problem . . . is the lack of historical precedent””
for Congress’’s action.  Free Enterprise Fund  v.  Public Com-
pany Accounting Oversight Bd., 561 U. S. ___, ___ (2010)
(slip op., at 25) (internal quotation marks omitted).  At the
very least, we should “”pause to consider the implications of
the Government’’s arguments”” when confronted with such
new conceptions of federal power. Lopez, supra, at 564.

 The Constitution grants Congress the power to “”regulate  
Commerce.”” Art. I, §8, cl. 3 (emphasis added).  The power
to regulate  commerce presupposes the existence of com-
mercial activity to be regulated.  If the power to “”regulate””
something included the power to create it, many of the
provisions in the Constitution would be superfluous. For
example, the Constitution gives Congress the power to
““coin Money,”” in addition to the power to ““regulate the
Value thereof.”” Id., cl. 5.  And it gives Congress the power
—————— ———————-
3 The examples of other congressional mandates cited by JUSTICE
GINSBURG, post, at 35, n. 10 (opinion concurring in part, concurring in
judgment in part, and dissenting in part), are not to the contrary.  Each
of those mandates-—to report for jury duty, to register for the draft, to
purchase firearms in anticipation of militia service, to exchange gold
currency for paper currency, and to file a tax return-—are based on
constitutional provisions other than the Commerce Clause.  See Art. I,
§8, cl. 9 (to “”constitute Tribunals inferior to the supreme Court””); id.,
cl. 12 (to ““raise and support Armies””); id., cl. 16 (to “”provide for organiz-
ing, arming, and disciplining, the Militia””); id., cl. 5 (to ““coin Money””);
id.,  cl. 1 (to “”lay and collect Taxes””).