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Posted by on Jul 2, 2012 in At TMV | 8 comments

Justice Ruth Bader Ginsburg Schools Chief Justice Roberts

Justice Ginsburg, official portrait

WASHINGTON – The greatest female Justice of the Supreme Court in U.S. history, likely for all time, not only reveals her mental might in her opinion rendered last week, but forever puts to rest why Justice Sandra Day O’Connor will be forever disgraced for her part in Bush v. Gore. That Chief Justice Roberts has now joined the liberal majority on Obamacare was a mixture of personal ambition and keeping his future options open, but the result of the ruling will be the legitimizing of Obamacare, putting Republicans on the wrong side of history and the majority of the American public.

Among all registered voters, support for the law rose to 48 percent in the online survey conducted after Thursday’s ruling, up from 43 percent before the court decision. Opposition slipped to 52 percent from 57 percent. – Reuters

You’ll very rarely see me cite polling, as it’s the establishment game used to drag reporters and political writers around by their noses, while actual issues are ignored. Another reason I try to ignore polls until the fall is that in a polarized election season, there’s always something for everyone in each of them.

In the new poll, more than half of all registered voters – 53 percent – said they were more likely to vote for their member of Congress if he were running on a platform calling for repeal, up from 46 percent before the ruling. – Reuters

As someone who found the mandate smacking up against my libertarian streak, the great Ginsburg schools me on Libertarianism’s stinginess, while reminding me why I’ve never been a libertarian.  That where all are impacted, we all must participate.  Lacking eloquence, that’s the nucleus of it for me and also why I was once a hyper-partisan Democrat, long before neoliberals and Blue Dogs ruled Democratic policy prescriptions and politics.

The politics of Chief Justice Roberts is woven throughout his majority opinion, as I’ve already written, though it doesn’t make it any less brilliant a move.  Roberts toyed with Pres. Obama like a rat does cheese before devouring, the lip-smacking finish to be seen in years and decades to come. Because in handing Obama what cable yakkers are calling a “win,” Roberts dislodged and elevated his own reputation from and above that of the disgraced Chief Justice Rehnquist and his Court, simultaneously succeeding in preserving options of action through conservatism that will inevitably harm the American majority.

Chief Justice Roberts also kept the elite private insurance industry and Big Pharma in charge, aiding Pres. Obama’s goal and that of Democrats, neither of whom had the tenacity to do what’s required so that health care wouldn’t become a political football, with taxes the tool that both sides today utilize to make villains out of leaders.

The liberal giant Justice Ruth Bader Ginsburg’s opinion renders Chief Justice Roberts to the political player he is, through the machinations of her great thinking mind.  

The sole focus of Ginsburg’s opinion is to keep pure the conjoined ideas of precedent, the Constitution and the Court, and its job for We the People, as she vivisects Roberts’ important majority decision, revealing it for what it is, a shrewd political document nonetheless, throughout her devastating appraisal.  Saying in one section particular to hoisting the tax penalty as political linchpin and activist lightning rod for the right (hitting elite Democrats in their most defensive organ), “THE CHIEF JUSTICE’s limitation of the commerce power to the regulation of those actively en­gaged in commerce finds no home in the text of the Consti­tution or our decisions.”

The historic importance of Justice Ruth Bader Ginsburg’s opinion had to be highlighted and easily made available to read (emphases below added), because of its grandeur and beauty, but also its stunning impact on what Chief Justice Roberts wrote.

That it was written by a great lady of the Court, I would put forth, arguably the greatest Supreme Court Justice since Earl Warren, is my personal opinion, but one which I believe is fitting of this formidable powerhouse.  To live in an era where Justice Ginsburg’s mind can wield such accurate words against the always leading gender, male, when where she started was a place in history that didn’t embrace women in the workplace, as was already written this week in The New Yorker by Amy Davidson and others, let alone those with great legal minds to the highest Court in the land, should humble and inspire us all.

An American patriot in every sense, which resounds this week more than most, Justice Ginsburg should give every liberal the courage to take back the rightful heart and soul, if not the label itself, that represents the philosophy and purpose of when Democrats were great. Even if it means building from the beginning a new foundation for progressives, so the next time they are faced with conservative Democrats to lead the charge against the right they remember the courage of Justice Ruth Bader Ginsburg. The Justice who stands up to write what needs to be said, waging the righteous battle for people who would have no voice at all if liberals weren’t around to protect this country from forgetting the least fortunate among us. The same people who make capitalism possible, the vast middle class, who’s slowly lost the only champion we once had, liberal Democrats.


Cite as: 567 U. S. ____ (2012) 1

Opinion of GINSBURG, J.


Nos. 11–393, 11–398 and 11–400



11–393 v.


11–398 v.
[June 28, 2012]

JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, and with whom JUSTICE BREYER and JUSTICE KAGAN join as to Parts I, II, III, and IV, concurring in part, concurring in the judgment in part, and dissenting in part.

I agree with THE CHIEF JUSTICE that the Anti-Injunction Act does not bar the Court’s consideration of this case, and that the minimum coverage provision is a proper exercise of Congress’ taxing power. I therefore join Parts I, II, and III–C of THE CHIEF JUSTICE’s opinion.

Unlike THE CHIEF JUSTICE, however, I would hold, alterna­ tively, that the Commerce Clause authorizes Congress to enact the minimum coverage provision. I would also hold that the Spending Clause permits the Medicaid expansion exactly as Congress enacted it.
The provision of health care is today a concern of na­tional dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s. In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to THE CHIEF JUSTICE, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm. See United States v. Darby, 312 U. S. 100, 115 (1941) (overruling Hammer v. Dagenhart, 247 U. S. 251 (1918), and recognizing that “regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause”); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937) (“[The commerce] power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it.” (internal quotation marks omitted)). THE CHIEF JUSTICE’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it. See, e.g., Railroad Retirement Bd. v. Alton R. Co., 295 U. S. 330, 362, 368 (1935) (invalidating compulsory retirement and pension plan for employees of carriers subject to the Inter­state Commerce Act; Court found law related essentially “to the social welfare of the worker, and therefore remote from any regulation of commerce as such”). It is a reading that should not have staying power.

In enacting the Patient Protection and Affordable Care Act (ACA), Congress comprehensively reformed the national market for health-care products and services. By any measure, that market is immense. Collectively, Americans spent $2.5 trillion on health care in 2009, accounting for 17.6% of our Nation’s economy. 42 U. S. C. §18091(2)(B) (2006 ed., Supp. IV). Within the next decade, it is anticipated, spending on health care will nearly dou­
ble. Ibid.

The health-care market’s size is not its only distinctive feature. Unlike the market for almost any other product or service, the market for medical care is one in which all individuals inevitably participate. Virtually every person residing in the United States, sooner or later, will visit a doctor or other health-care professional. See Dept. of Health and Human Services, National Center for Health Statistics, Summary Health Statistics for U. S. Adults: National Health Interview Survey 2009, Ser. 10, No. 249, p. 124, Table 37 (Dec. 2010) (Over 99.5% of adults above 65 have visited a health-care professional.). Most people will do so repeatedly. See id., at 115, Table 34 (In 2009 alone, 64% of adults made two or more visits to a doctor’s office.).

When individuals make those visits, they face another reality of the current market for medical care: its high cost. In 2010, on average, an individual in the United States incurred over $7,000 in health-care expenses. Dept. of Health and Human Services, Centers for Medi­ care and Medicaid Services, Historic National Health Expenditure Data, National Health Expenditures: Selected Calendar Years 1960–2010 (Table 1). Over a life­ time, costs mount to hundreds of thousands of dollars. See Alemayahu & Warner, The Lifetime Distribution of Health Care Costs, in 39 Health Service Research 627, 635 (June 2004). When a person requires nonroutine care, the cost will generally exceed what he or she can afford to pay. A single hospital stay, for instance, typically costs up­wards of $10,000. See Dept. of Health and Human Ser­vices, Office of Health Policy, ASPE Research Brief: The Value of Health Insurance 5 (May 2011). Treatments for many serious, though not uncommon, conditions similarly cost a substantial sum. Brief for Economic Scholars as Amici Curiae in No. 11–398, p. 10 (citing a study indicat­ing that, in 1998, the cost of treating a heart attack for the first 90 days exceeded $20,000, while the annual cost of treating certain cancers was more than $50,000).

Although every U. S. domiciliary will incur significant medical expenses during his or her lifetime, the time when care will be needed is often unpredictable. An accident, a heart attack, or a cancer diagnosis commonly occurs with­ out warning. Inescapably, we are all at peril of needing medical care without a moment’s notice. See, e.g., Camp­bell, Down the Insurance Rabbit Hole, N. Y. Times, Apr. 5, 2012, p. A23 (telling of an uninsured 32-year-old woman who, healthy one day, became a quadriplegic the next due to an auto accident).

To manage the risks associated with medical care—its high cost, its unpredictability, and its inevitability—most people in the United States obtain health insurance. Many (approximately 170 million in 2009) are insured by private insurance companies. Others, including those over 65 and certain poor and disabled persons, rely on government-funded insurance programs, notably Medicare and Medicaid. Combined, private health insurers and State and Federal Governments finance almost 85% of the medical care administered to U. S. residents. See Con­gressional Budget Office, CBO’s 2011 Long-Term Budget Outlook 37 (June 2011).

Not all U. S. residents, however, have health insurance. In 2009, approximately 50 million people were uninsured, either by choice or, more likely, because they could not afford private insurance and did not qualify for government aid. See Dept. of Commerce, Census Bureau, C. DeNavas-Walt, B. Proctor, & J. Smith, Income, Poverty, and Health Insurance Coverage in the United States: 2009, p. 23, Table 8 (Sept. 2010). As a group, uninsured individ­uals annually consume more than $100 billion in health-care services, nearly 5% of the Nation’s total. Hidden Health Tax: Americans Pay a Premium 2 (2009), available at (all Internet material as visited June 25, 2012, and included in Clerk of Court’s case file). Over 60% of those without insurance visit a doctor’s office or emergency room in a given year. See Dept. of Health and Human Services, National Center for Health Statistics, Health—United States—2010, p. 282, Table 79 (Feb. 2011).


The large number of individuals without health insur­ance, Congress found, heavily burdens the national health-care market. See 42 U. S. C. §18091(2). As just noted, the cost of emergency care or treatment for a seri­ous illness generally exceeds what an individual can afford to pay on her own. Unlike markets for most products, however, the inability to pay for care does not mean that an uninsured individual will receive no care. Federal and state law, as well as professional obligations and embed­ded social norms, require hospitals and physicians to provide care when it is most needed, regardless of the patient’s ability to pay. See, e.g., 42 U. S. C. §1395dd; Fla. Stat. §395.1041(3)(f) (2010); Tex. Health & Safety Code Ann. §§311.022(a) and (b) (West 2010); American Medical Association, Council on Ethical and Judicial Affairs, Code of Medical Ethics, Current Opinions: Opinion 8.11—Neglect of Patient, p. 70 (1998–1999 ed.).

As a consequence, medical-care providers deliver significant amounts of care to the uninsured for which the providers receive no payment. In 2008, for example, hospitals, physicians, and other health-care professionals received no compensation for $43 billion worth of the $116 billion in care they administered to those without insur­ance. 42 U. S. C. §18091(2)(F) (2006 ed., Supp. IV).

Health-care providers do not absorb these bad debts. Instead, they raise their prices, passing along the cost of uncompensated care to those who do pay reliably: the government and private insurance companies. In response, private insurers increase their premiums, shifting the cost of the elevated bills from providers onto those who carry insurance. The net result: Those with health insur­ance subsidize the medical care of those without it. As economists would describe what happens, the uninsured “free ride” on those who pay for health insurance.

The size of this subsidy is considerable. Congress found that the cost-shifting just described “increases family [insurance] premiums by on average over $1,000 a year.” Ibid. Higher premiums, in turn, render health insurance less affordable, forcing more people to go without insur­ance and leading to further cost-shifting. 

And it is hardly just the currently sick or injured among the uninsured who prompt elevation of the price of health care and health insurance. Insurance companies and health-care providers know that some percentage of healthy, uninsured people will suffer sickness or injury each year and will receive medical care despite their ina­bility to pay. In anticipation of this uncompensated care, health-care companies raise their prices, and insurers their premiums. In other words, because any uninsured person may need medical care at any moment and because health-care companies must account for that risk, every uninsured person impacts the market price of medical care and medical insurance.

The failure of individuals to acquire insurance has other deleterious effects on the health-care market. Because those without insurance generally lack access to preventa­tive care, they do not receive treatment for conditions—like hypertension and diabetes—that can be successfully and affordably treated if diagnosed early on. See Institute of Medicine, National Academies, Insuring America’s Health: Principles and Recommendations 43 (2004). When sickness finally drives the uninsured to seek care, once treatable conditions have escalated into grave health problems, requiring more costly and extensive interven­tion. Id., at 43–44. The extra time and resources provid­ers spend serving the uninsured lessens the providers’ ability to care for those who do have insurance. See Kliff, High Uninsured Rates Can Kill You—Even if You Have Coverage, Washington Post (May 7, 2012) (describing a study of California’s health-care market which found that, when hospitals divert time and resources to provide uncompensated care, the quality of care the hospitals deliver to those with insurance drops significantly), available at uninsured-rates-can-kill-you-even-if-you-have-coverage/2012/05/07/gIQALNHN8T_print.html.


States cannot resolve the problem of the uninsured on their own. Like Social Security benefits, a universal health-care system, if adopted by an individual State, would be “bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose.” Helvering v. Davis, 301 U. S. 619, 644 (1937). See also Brief for Commonwealth of Massachusetts as Amicus

Curiae in No. 11–398, p. 15 (noting that, in 2009, Massa­chusetts’ emergency rooms served thousands of uninsured, out-of-state residents). An influx of unhealthy individuals into a State with universal health care would result in increased spending on medical services. To cover the increased costs, a State would have to raise taxes, and private health-insurance companies would have to in­crease premiums. Higher taxes and increased insurance costs could, in turn, encourage businesses and healthy individuals to leave the State. States that undertake health-care reforms on their own thus risk “placing themselves in a position of economic disadvantage as compared with neighbors or competitors.” Davis, 301 U. S., at 644. See also Brief for Health Care for All, Inc., et al. as Amici Curiae in No. 11–398, p. 4 (“[O]ut­ of-state residents continue to seek and receive millions of dollars in uncompensated care in Massachusetts hospitals, limiting the State’s efforts to improve its health care system through the elimination of uncompensated care.”). Facing that risk, individual States are unlikely to take the initiative in addressing the problem of the uninsured, even though solving that problem is in all States’ best interests. Congress’ intervention was needed to overcome this collective­ action impasse.


Aware that a national solution was required, Congress could have taken over the health-insurance market by establishing a tax-and-spend federal program like Social Security. Such a program, commonly referred to as a  single-payer system (where the sole payer is the Federal Government), would have left little, if any, room for pri­vate enterprise or the States. Instead of going this route, Congress enacted the ACA, a solution that retains a ro­bust role for private insurers and state governments. To make its chosen approach work, however, Congress had to use some new tools, including a requirement that most individuals obtain private health insurance coverage. See 26 U. S. C. §5000A (2006 ed., Supp. IV) (the minimum coverage provision). As explained below, by employing these tools, Congress was able to achieve a practical, alto­gether reasonable, solution.

A central aim of the ACA is to reduce the number of uninsured U. S. residents. See 42 U. S. C. §18091(2)(C) and (I) (2006 ed., Supp. IV). The minimum coverage provision advances this objective by giving potential recip­ients of health care a financial incentive to acquire insur­ance. Per the minimum coverage provision, an individual must either obtain insurance or pay a toll constructed as a tax penalty. See 26 U. S. C. §5000A.

The minimum coverage provision serves a further pur­pose vital to Congress’ plan to reduce the number of unin­sured. Congress knew that encouraging individuals to purchase insurance would not suffice to solve the problem, because most of the uninsured are not uninsured by choice. Of particular concern to Congress were people who, though desperately in need of insurance, often cannot acquire it: persons who suffer from preexisting medical conditions. Before the ACA’s enactment, private insurance compa­nies took an applicant’s medical history into account when setting insurance rates or deciding whether to insure an individual. Because individuals with preexisting med- [TM note: continued below, as in actual PDF]

According to one study conducted by the National Center for Health Statistics, the high cost of insurance is the most common reason why individuals lack coverage, followed by loss of one’s job, an employer’s unwillingness to offer insurance or an insurers’ unwillingness to cover those with preexisting medical conditions, and loss of Medicaid cover­age. See Dept. of Health and Human Services, National Center for Health Statistics, Summary Health Statistics for the U. S. Population: National Health Interview Survey—2009, Ser. 10, No. 248, p. 71, Table 25 (Dec. 2010). “[D]id not want or need coverage” received too few responses to warrant its own category. See ibid., n. 2.


ical conditions cost insurance companies significantly more than those without such conditions, insurers routinely refused to insure these individuals, charged them substan­tially higher premiums, or offered only limited coverage that did not include the preexisting illness. See Dept. of Health and Human Services, Coverage Denied: How the Current Health Insurance System Leaves Millions Behind 1 (2009) (Over the past three years, 12.6 million non­elderly adults were denied insurance coverage or charged
higher premiums due to a preexisting condition.).

To ensure that individuals with medical histories have access to affordable insurance, Congress devised a three­ part solution. First, Congress imposed a “guaranteed is­ sue” requirement, which bars insurers from denying coverage to any person on account of that person’s medical condition or history. See 42 U. S. C. §§300gg–1, 300gg–3, 300gg–4(a) (2006 ed., Supp. IV). Second, Congress required insurers to use “community rating” to price their insurance policies. See §300gg. Community rating, in effect, bars insurance companies from charging higher premiums to those with preexisting conditions.

But these two provisions, Congress comprehended, could not work effectively unless individuals were given a pow­erful incentive to obtain insurance. See Hearings before the House Ways and Means Committee, 111th Cong., 1st Sess., 10, 13 (2009) (statement of Uwe Reinhardt) (“[I]m-position of community-rated premiums and guaranteed issue on a market of competing private health insurers will inexorably drive that market into extinction, unless these two features are coupled with . . . a mandate on individual[s] to be insured.” (emphasis in original)).

In the 1990’s, several States—including New York, New Jersey, Washington, Kentucky, Maine, New Hampshire, and Vermont—enacted guaranteed-issue and community­ rating laws without requiring universal acquisition of insurance coverage. The results were disastrous. “All seven states suffered from skyrocketing insurance pre­mium costs, reductions in individuals with coverage, and reductions in insurance products and providers.” Brief for American Association of People with Disabilities et al. as Amici Curiae in No. 11–398, p. 9 (hereinafter AAPD Brief). See also Brief for Governor of Washington Christine Gregoire as Amicus Curiae in No. 11–398, pp. 11–14 (de­scribing the “death spiral” in the insurance market Wash­ington experienced when the State passed a law requiring coverage for preexisting conditions).

Congress comprehended that guaranteed-issue and community-rating laws alone will not work. When insur­ance companies are required to insure the sick at affordable prices, individuals can wait until they become ill to buy insurance. Pretty soon, those in need of immediate medi­cal care—i.e., those who cost insurers the most—become the insurance companies’ main customers. This “adverse selection” problem leaves insurers with two choices: They can either raise premiums dramatically to cover their ever-increasing costs or they can exit the market. In the seven States that tried guaranteed-issue and community­ rating requirements without a minimum coverage provi­sion, that is precisely what insurance companies did. See, e.g., AAPD Brief 10 (“[In Maine,] [m]any insurance provid­ers doubled their premiums in just three years or less.”); id., at 12 (“Like New York, Vermont saw substantial increases in premiums after its . . . insurance reform measures took effect in 1993.”); Hall, An Evaluation of New York’s Reform Law, 25 J. Health Pol. Pol’y & L. 71, 91–92 (2000) (Guaranteed-issue and community-rating laws resulted in a “dramatic exodus of indemnity insurers from New York’s individual [insurance] market.”); Brief for Barry Friedman et al. as Amici Curiae in No. 11–398, p. 17 (“In Kentucky, all but two insurers (one State-run) abandoned the State.”).

Massachusetts, Congress was told, cracked the adverse selection problem. By requiring most residents to obtain insurance, see Mass. Gen. Laws, ch. 111M, §2 (West 2011), the Commonwealth ensured that insurers would not be left with only the sick as customers. As a result, federal lawmakers observed, Massachusetts succeeded where other States had failed. See Brief for Commonwealth of Massachusetts as Amicus Curiae in No. 11–398, p. 3 (not­ing that the Commonwealth’s reforms reduced the number of uninsured residents to less than 2%, the lowest rate in the Nation, and cut the amount of uncompensated care by a third); 42 U. S. C. §18091(2)(D) (2006 ed., Supp. IV) (noting the success of Massachusetts’ reforms).2 In cou­pling the minimum coverage provision with guaranteed­ issue and community-rating prescriptions, Congress followed Massachusetts’ lead. 

* * *

In sum, Congress passed the minimum coverage provi­sion as a key component of the ACA to address an econom­ic and social problem that has plagued the Nation for decades: the large number of U. S. residents who are unable or unwilling to obtain health insurance. Whatever one thinks of the policy decision Congress made, it was Congress’ prerogative to make it. Reviewed with appro­priate deference, the minimum coverage provision, allied to the guaranteed-issue and community-rating prescrip­tions, should survive measurement under the Commerce and Necessary and Proper Clauses.


The Commerce Clause, it is widely acknowledged, “was the Framers’ response to the central problem that gave [TM Note: continued below, as in PDF]
Despite its success, Massachusetts’ medical-care providers still ad­minister substantial amounts of uncompensated care, much of that to uninsured patients from out-of-state. See supra, at 7–8.


rise to the Constitution itself.” EEOC v. Wyoming, 460 U. S. 226, 244, 245, n. 1 (1983) (Stevens, J., concurring) (citing sources). Under the Articles of Confederation, the Constitution’s precursor, the regulation of commerce was left to the States. This scheme proved unworkable, be­cause the individual States, understandably focused on their own economic interests, often failed to take actions critical to the success of the Nation as a whole. See Vices of the Political System of the United States, in James Madison: Writings 69, 71, ¶5 (J. Rakove ed. 1999) (As a result of the “want of concert in matters where common interest requires it,” the “national dignity, interest, and revenue [have] suffered.”).3

What was needed was a “national Government . . . armed with a positive & compleat authority in all cases where uniform measures are necessary.” See Letter from James Madison to Edmund Randolph (Apr. 8, 1787), in 9 Papers of James Madison 368, 370 (R. Rutland ed. 1975). See also Letter from George Washington to James Madi­son (Nov. 30, 1785), in 8 id., at 428, 429 (“We are either a United people, or we are not. If the former, let us, in all matters of general concern act as a nation, which ha[s] national objects to promote, and a national character to support.”). The Framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.” 2 Rec­ords of the Federal Convention of 1787, pp. 131–132, ¶8 [TM Note: continued below, as in PDF]

Alexander Hamilton described the problem this way: “[Often] it would be beneficial to all the states to encourage, or suppress[,] a particular branch of trade, while it would be detrimental . . . to attempt it without the concurrence of the rest.” The Continentalist No. V, in 3 Papers of Alexander Hamilton 75, 78 (H. Syrett ed. 1962). Because the concurrence of all States was exceedingly difficult to obtain, Hamilton observed, “the experiment would probably be left untried.” Ibid.


(M. Farrand rev. 1966). See also North American Co. v. SEC, 327 U. S. 686, 705 (1946) (“[The commerce power] is an affirmative power commensurate with the national

The Framers understood that the “general Interests of the Union” would change over time, in ways they could not anticipate. Accordingly, they recognized that the Consti­tution was of necessity a “great outlin[e],” not a detailed blueprint, see McCulloch v. Maryland, 4 Wheat. 316, 407 (1819), and that its provisions included broad concepts, to be “explained by the context or by the facts of the case,” Letter from James Madison to N. P. Trist (Dec. 1831), in 9 Writings of James Madison 471, 475 (G. Hunt ed. 1910). “Nothing . . . can be more fallacious,” Alexander Hamilton emphasized, “than to infer the extent of any power, proper to be lodged in the national government, from . . . its immediate necessities. There ought to be a CAPACITY to provide for future contingencies[,] as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.” The Federalist No. 34, pp. 205, 206 (John Harvard Library ed. 2009). See also McCulloch, 4 Wheat., at 415 (The Necessary and Proper Clause is lodged “in a constitution[,] intended to endurefor ages to come, and consequently, to be adapted to the various crises of human affairs.”).


Consistent with the Framers’ intent, we have repeatedly emphasized that Congress’ authority under the Commerce Clause is dependent upon “practical” considerations, including “actual experience.” Jones & Laughlin Steel Corp., 301 U. S., at 41–42; see Wickard v. Filburn, 317 U. S. 111, 122 (1942); United States v. Lopez, 514 U. S. 549, 573 (1995) (KENNEDY, J., concurring) (emphasizing “the Court’s definitive commitment to the practical con­ception of the commerce power”). See also North American Co., 327 U. S., at 705 (“Commerce itself is an intensely practical matter. To deal with it effectively, Congress must be able to act in terms of economic and financial realities.” (citation omitted)). We afford Congress the leeway “to undertake to solve national problems directly and realistically.” American Power & Light Co. v. SEC, 329 U. S. 90, 103 (1946).

Until today, this Court’s pragmatic approach to judging whether Congress validly exercised its commerce power was guided by two familiar principles. First, Congress has the power to regulate economic activities “that substan­tially affect interstate commerce.” Gonzales v. Raich, 545 U. S. 1, 17 (2005). This capacious power extends even to local activities that, viewed in the aggregate, have a sub­stantial impact on interstate commerce. See ibid. See also Wickard, 317 U. S., at 125 (“[E]ven if appellee’s activity be local and though it may not be regarded as com­merce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” (emphasis added)); Jones & Laughlin Steel Corp., 301 U. S., at 37.

Second, we owe a large measure of respect to Congress when it frames and enacts economic and social legislation. See Raich, 545 U. S., at 17. See also Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717, 729 (1984) (“[S]trong deference [is] accorded legislation in the field of national economic policy.”); Hodel v. Indiana, 452 U. S. 314, 326 (1981) (“This [C]ourt will certainly not substitute its judgment for that of Congress unless the relation of the subject to interstate commerce and its ef­fect upon it are clearly non-existent.” (internal quotation marks omitted)). When appraising such legislation, we ask only (1) whether Congress had a “rational basis” for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a “reasona­ble connection between the regulatory means selected and the asserted ends.” Id., at 323–324. See also Raich, 545 U. S., at 22; Lopez, 514 U. S., at 557; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 277 (1981); Katzenbach v. McClung, 379 U. S. 294, 303 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 258 (1964); United States v. Carolene Products Co., 304 U. S. 144, 152–153 (1938). In answering these questions, we presume the statute under review is consti­tutional and may strike it down only on a “plain showing” that Congress acted irrationally. United States v. Morrison, 529 U. S. 598, 607 (2000).


Straightforward application of these principles would require the Court to hold that the minimum overage provision is proper Commerce Clause legislation. Beyond dispute, Congress had a rational basis for concluding that the uninsured, as a class, substantially affect interstate commerce. Those without insurance consume billions of dollars of health-care products and services each year. See supra, at 5. Those goods are produced, sold, and delivered largely by national and regional companies who routinely transact business across state lines. The uninsured also cross state lines to receive care. Some have medical emer­gencies while away from home. Others, when sick, go to a neighboring State that provides better care for those who have not prepaid for care. See supra, at 7–8.

Not only do those without insurance consume a large amount of health care each year; critically, as earlier explained, their inability to pay for a significant portion of that consumption drives up market prices, foists costs on other consumers, and reduces market efficiency and sta­bility. See supra, at 5–7. Given these far-reaching effects on interstate commerce, the decision to forgo insurance is hardly inconsequential or equivalent to “doing nothing,” ante, at 20; it is, instead, an economic decision Congress has the authority to address under the Commerce Clause. See supra, at 14–16. See also Wickard, 317 U. S., at 128 (“It is well established by decisions of this Court that the power to regulate commerce includes the power to regu­late the prices at which commodities in that commerce are dealt in and practices affecting such prices.” (emphasis added)).

The minimum coverage provision, furthermore, bears a “reasonable connection” to Congress’ goal of protecting the health-care market from the disruption caused by individ­uals who fail to obtain insurance. By requiring those who do not carry insurance to pay a toll, the minimum cover­age provision gives individuals a strong incentive to in­sure. This incentive, Congress had good reason to believe, would reduce the number of uninsured and, correspond­ingly, mitigate the adverse impact the uninsured have on the national health-care market.

Congress also acted reasonably in requiring uninsured individuals, whether sick or healthy, either to obtain insurance or to pay the specified penalty. As earlier ob­served, because every person is at risk of needing care at any moment, all those who lack insurance, regardless of their current health status, adversely affect the price of health care and health insurance. See supra, at 6–7. Moreover, an insurance-purchase requirement limited to those in need of immediate care simply could not work. Insurance companies would either charge these individu­als prohibitively expensive premiums, or, if community­ rating regulations were in place, close up shop. See supra, at 9–11. See also Brief for State of Maryland and 10 Other States et al. as Amici Curiae in No. 11–398, p. 28 (hereinafter Maryland Brief) (“No insurance regime can survive if people can opt out when the risk insured against is only a risk, but opt in when the risk materializes.”). “[W]here we find that the legislators . . . have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.” Katzenbach, 379 U. S., at 303–304. Congress’ enactment of the minimum coverage provision, which addresses a specific interstate problem in a practical, experience­ informed manner, easily meets this criterion.


Rather than evaluating the constitutionality of the minimum coverage provision in the manner established by our precedents, THE CHIEF JUSTICE relies on a newly minted constitutional doctrine. The commerce power does not, THE CHIEF JUSTICE announces, permit Congress to “compe[l] individuals to become active in commerce by purchasing a product.” Ante, at 20 (emphasis deleted).


THE CHIEF JUSTICE’s novel constraint on Congress’ commerce power gains no force from our precedent and for that reason alone warrants disapprobation. See infra, at 23–27. But even assuming, for the moment, that Congress lacks authority under the Commerce Clause to “compel individuals not engaged in commerce to purchase an unwanted product,” ante, at 18, such a limitation would be inapplicable here. Everyone will, at some point, consume health-care products and services. See supra, at 3. Thus, if THE CHIEF JUSTICE is correct that an insurance­ purchase requirement can be applied only to those who “actively” consume health care, the minimum coverage provision fits the bill.

THE CHIEF JUSTICE does not dispute that all U. S. resi­dents participate in the market for health services over the course of their lives.See ante, at 16 (“Everyone will eventually need health care at a time and to an extent they cannot predict.”). But, THE CHIEF JUSTICE insists, the uninsured cannot be considered active in the market for health care, because “[t]he proximity and degree of connection between the [uninsured today] and [their] subsequent commercial activity is too lacking.” Ante, at 27.

This argument has multiple flaws. First, more than 60% of those without insurance visit a hospital or doctor’s office each year. See supra, at 5. Nearly 90% will within five years.4 An uninsured’s consumption of health care is thus quite proximate: It is virtually certain to occur in the next five years and more likely than not to occur this year. Equally evident, Congress has no way of separating those uninsured individuals who will need emergency medical care today (surely their consumption of medical care is sufficiently imminent) from those who will not need medical services for years to come. No one knows when an emergency will occur, yet emergencies involving the unin­sured arise daily. To capture individuals who unexpectedly will obtain medical care in the very near future, then, Congress needed to include individuals who will not go to a doctor anytime soon. Congress, our decisions instruct, has authority to cast its net that wide. See Perez v. United States, 402 U. S. 146, 154 (1971) (“[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so.” (in­ternal quotation marks omitted)).5 [TM Note: continued below, as in PDF]
See Dept. of Health and Human Services, National Center for Health Statistics, Summary Health Statistics for U. S. Adults: National Health Interview Survey 2009, Ser. 10, No. 249, p. 124, Table 37 (Dec. 2010).
Echoing THE CHIEF JUSTICE, the joint dissenters urge that the min­imum coverage provision impermissibly regulates young people who “have no intention of purchasing [medical care]” and are too far “re­moved from the [health-care] market.” See post, at 8, 11. This criticism ignores the reality that a healthy young person may be a day away from needing health care. See supra, at 4. A victim of an accident or unforeseen illness will consume extensive medical care immediately, though scarcely expecting to do so.


 Second, it is Congress’ role, not the Court’s, to delineate the boundaries of the market the Legislature seeks to regulate. THE CHIEF JUSTICE defines the health-care market as including only those transactions that will occur either in the next instant or within some (unspecified) proximity to the next instant. But Congress could reason­ably have viewed the market from a long-term erspective, encompassing all transactions virtually certain to occur over the next decade, see supra, at 19, not just those oc­curring here and now.

Third, contrary to THE CHIEF JUSTICE’s contention, our precedent does indeed support “[t]he proposition that Congress may dictate the conduct of an individual today because of prophesied future activity.” Ante, at 26. In Wickard, the Court upheld a penalty the Federal Govern­ment imposed on a farmer who grew more wheat than he was permitted to grow under the Agricultural Adjustment Act of 1938 (AAA). 317 U. S., at 114–115. He could not be penalized, the farmer argued, as he was growing the wheat for home consumption, not for sale on the open market. Id., at 119. The Court rejected this argument. Id., at 127–129. Wheat intended for home consumption, the Court noted, “overhangs the market, and if induced by rising prices, tends to flow into the market and check price increases [intended by the AAA].” Id., at 128. Similar reasoning supported the Court’s judgment in Raich, which upheld Congress’ authority to regulate mari­juana grown for personal use. 545 U. S., at 19. Home­ grown marijuana substantially affects the interstate market for marijuana, we observed, for “the high demand in the interstate market will [likely] draw such marijuana into that market.” Ibid.

Our decisions thus acknowledge Congress’ authority, under the Commerce Clause, to direct the conduct of an individual today (the farmer in Wickard, stopped from growing excess wheat; the plaintiff in Raich, ordered to cease cultivating marijuana) because of a prophesied future transaction (the eventual sale of that wheat or marijuana in the interstate market). Congress’ actions are even more rational in this case, where the future activity (the consumption of medical care) is certain to occur, the sole uncertainty being the time the activity will take place.

Maintaining that the uninsured are not active in the health-care market, THE CHIEF JUSTICE draws an analogy to the car market. An individual “is not ‘active in the car market,’” THE CHIEF JUSTICE observes, simply because he or she may someday buy a car. Ante, at 25. The analogy is inapt. The inevitable yet unpredictable need for medi­cal care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nour­ishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price. See Thomas More Law Center v. Obama, 651 F. 3d 529, 565 (CA6 2011) (Sutton, J., concurring in part) (“Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life.”). Upholding the minimum coverage provision on the ground that all are participants or will be participants in the health-care market would therefore carry no implica­tion that Congress may justify under the Commerce Clause a mandate to buy other products and services. Nor is it accurate to say that the minimum coverage provision “compel[s] individuals . . . to purchase an un­wanted product,” ante, at 18, or “suite of products,” post, at 11, n. 2 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.). If unwanted today, medical service secured by insurance may be desperately needed tomorrow. Virtually everyone, I reiterate, consumes health care at some point in his or her life. See supra, at 3. Health insurance is a means of paying for this care, nothing more. In requiring individuals to obtain insurance, Congress is therefore not mandating the purchase of a discrete, unwanted product.

Rather, Congress is merely defining the terms on which individuals pay for an interstate good they consume: Persons subject to the mandate must now pay for medical care in advance (instead of at the point of service) and through insurance (instead of out of pocket). Establishing payment terms for goods in or affecting interstate com­merce is quintessential economic regulation well within Congress’ domain. See, e.g., United States v. Wrightwood Dairy Co., 315 U. S. 110, 118 (1942). Cf. post, at 13 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.) (recognizing that “the Federal Government can prescribe [a commodity’s] quality . . . and even [its price]”).

THE CHIEF JUSTICE also calls the minimum coverage provision an illegitimate effort to make young, healthy individuals subsidize insurance premiums paid by the less hale and hardy. See ante, at 17, 25–26. This complaint, too, is spurious. Under the current health-care system, healthy persons who lack insurance receive a benefit for which they do not pay: They are assured that, if they need it, emergency medical care will be available, although they cannot afford it. See supra, at 5–6. Those who have in­surance bear the cost of this guarantee. See ibid. By requiring the healthy uninsured to obtain insurance or pay a penalty structured as a tax, the minimum coverage
provision ends the free ride these individuals currently enjoy.

In the fullness of time, moreover, today’s young and healthy will become society’s old and infirm. Viewed over a lifespan, the costs and benefits even out: The young who pay more than their fair share currently will pay less than their fair share when they become senior citizens. And even if, as undoubtedly will be the case, some individuals, over their lifespans, will pay more for health insurance than they receive in health services, they have little to complain about, for that is how insurance works. Every insured person receives protection against a catastrophic loss, even though only a subset of the covered class will ultimately need that protection.


In any event, THE CHIEF JUSTICE’s limitation of the commerce power to the regulation of those actively en­gaged in commerce finds no home in the text of the Consti­tution or our decisions. Article I, §8, of the Constitution grants Congress the power “[t]o regulate Commerce . . .among the several States.” Nothing in this language implies that Congress’ commerce power is limited to regulating those actively engaged in commercial transactions.

Indeed, as the D. C. Circuit observed, “[a]t the time the Constitution was [framed], to ‘regulate’ meant,” among other things, “to require action.” See Seven-Sky v. Holder, 661 F. 3d 1, 16 (2011). Arguing to the contrary, THE CHIEF JUSTICE notes that “the Constitution gives Congress the power to ‘coin Money,’ in addition to the power to ‘regulate the Value thereof,’” and similarly “gives Congress the power to ‘raise and support Armies’ and to ‘provide and maintain a Navy,’ in addition to the power to ‘make Rules for the Government and Regulation of the land and naval Forces.’” Ante, at 18–19 (citing Art. I, §8, cls. 5, 12–14). In separating the power to regulate from the power to bring the subject of the regulation into existence, THE CHIEF JUSTICE asserts, “[t]he language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated.” Ante, at 19.

This argument is difficult to fathom. Requiring individ­uals to obtain insurance unquestionably regulates the interstate health-insurance and health-care markets, both of them in existence well before the enactment of the ACA. See Wickard, 317 U. S., at 128 (“The stimulation of com­merce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.”). Thus, the “some­ thing to be regulated” was surely there when Congress created the minimum coverage provision.6

Nor does our case law toe the activity versus inactiv­ity line. In Wickard, for example, we upheld the penalty imposed on a farmer who grew too much wheat, even though the regulation had the effect of compelling farmers to purchase wheat in the open market. Id., at 127–129. “[F]orcing some farmers into the market to buy what they could provide for themselves” was, the Court held, a valid means of regulating commerce. Id., at 128–129. In another context, this Court similarly upheld Congress’ author­ity under the commerce power to compel an “inactive” land­holder to submit to an unwanted sale. See Monongahela Nav. Co. v. United States, 148 U. S. 312, 335–337 (1893) (“[U]pon the [great] power to regulate commerce[,]” Con­gress has the authority to mandate the sale of real property to the Government, where the sale is essential to the improvement of a navigable waterway (emphasis added)); Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641,  [TM Note: continued below, as in the PDF]
THE CHIEF JUSTICE’s reliance on the quoted passages of the Consti­tution, see ante, at 18–19, is also dubious on other grounds. The power to “regulate the Value” of the national currency presumably includes the power to increase the currency’s worth—i.e., to create value where none previously existed. And if the power to “[r]egulat[e] . . . the land and naval Forces” presupposes “there is already [in existence] some­thing to be regulated,” i.e., an Army and a Navy, does Congress lack authority to create an Air Force?


657–659 (1890) (similar reliance on the commerce power regarding mandated sale of private property for railroad construction).

In concluding that the Commerce Clause does not per­mit Congress to regulate commercial “inactivity,” and therefore does not allow Congress to adopt the practical solu­tion it devised for the health-care problem, THE CHIEF JUSTICE views the Clause as a “technical legal conception,” precisely what our case law tells us not to do. Wickard, 317 U. S., at 122 (internal quotation marks omitted). See also supra, at 14–16. This Court’s former endeavors to impose categorical limits on the commerce power have not fared well. In several pre-New Deal cases, the Court attempted to cabin Congress’ Commerce Clause authority by distinguishing “commerce” from activity once conceived to be noncommercial, notably, “production,” “mining,” and “manufacturing.” See, e.g., United States v. E. C. Knight Co., 156 U. S. 1, 12 (1895) (“Commerce succeeds to manu­facture, and is not a part of it.”); Carter v. Carter Coal Co., 298 U. S. 238, 304 (1936) (“Mining brings the subject matter of commerce into existence. Commerce disposes of it.”). The Court also sought to distinguish activities hav­ing a “direct” effect on interstate commerce, and for that reason, subject to federal regulation, from those having only an “indirect” effect, and therefore not amenable to federal control. See, e.g., A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 548 (1935) (“[T]he distinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one.”).

These line-drawing exercises were untenable, and the Court long ago abandoned them. “[Q]uestions of the power of Congress [under the Commerce Clause],” we held in Wickard, “are not to be decided by reference to any formula which would give controlling force to nomenclature such as ‘production’ and ‘indirect’ and foreclose consideration of the actual effects of the activity in question upon inter­state commerce.” 317 U. S., at 120. See also Morrison, 529 U. S., at 641–644 (Souter, J., dissenting) (recounting the Court’s “nearly disastrous experiment” with formalis­tic limits on Congress’ commerce power). Failing to learn from this history, THE CHIEF JUSTICE plows ahead with his formalistic distinction between those who are “active in commerce,” ante, at 20, and those who are not. 

It is not hard to show the difficulty courts (and Con­gress) would encounter in distinguishing statutes that reg­ulate “activity” from those that regulate “inactivity.” As Judge Easterbrook noted, “it is possible to restate most actions as corresponding inactions with the same effect.” Archie v. Racine, 847 F. 2d 1211, 1213 (CA7 1988) (enbanc). Take this case as an example. An individual who opts not to purchase insurance from a private insurer can be seen as actively selecting another form of insurance: self-insurance. See Thomas More Law Center, 651 F. 3d, at 561 (Sutton, J., concurring in part) (“No one is in­active when deciding how to pay for health care, as self­-insurance and private insurance are two forms of action for addressing the same risk.”). The minimum coverage provision could therefore be described as regulating activ­ists in the self-insurance market.7 Wickard is another example. Did the statute there at issue target activity (the growing of too much wheat) or inactivity (the farmer’s failure to purchase wheat in the marketplace)? If any­ thing, the Court’s analysis suggested the latter. See 317 U. S., at 127–129.

At bottom, THE CHIEF JUSTICE’s and the joint dissent­-   [TM NOTE: continued below, as in PDF]
THE CHIEF JUSTICE’s characterization of individuals who choose not to purchase private insurance as “doing nothing,” ante, at 20, is simi­larly questionable. A person who self-insures opts against prepayment for a product the person will in time consume. When aggregated, exercise of that option has a substantial impact on the health-care market. See supra, at 5–7, 16–17.

ers’ “view that an individual cannot be subject to Com­merce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate mar­ket expresses a concern for individual liberty that [is] more redolent of Due Process Clause arguments.” SevenSky, 661 F. 3d, at 19. See also Troxel v. Granville, 530 U. S. 57, 65 (2000) (plurality opinion) (“The [Due Process] Clause also includes a substantive component that pro­vides heightened protection against government interfer­ ence with certain fundamental rights and liberty inter­ests.” (internal quotation marks omitted)). Plaintiffs have abandoned any argument pinned to substantive due pro­cess, however, see 648 F. 3d 1235, 1291, n. 93 (CA11 2011), and now concede that the provisions here at issue do not offend the Due Process Clause.8


CONTINUED (at 27 in original PDF)

Taylor Marsh, a veteran political analyst and former Huffington Post contributor, is the author of The Hillary Effect, available at Barnes and Noble and on Amazon. Her new-media blog covers national politics, women and power.

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