NATIONAL FEDERATION OF INDEPENDENT BUSINESS V. SIBELIUS
567 U.S. --- (2012)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
Argued March 26, 27, and 28, 2012
Decided June 28, 2012
CHIEF JUSTICE ROBERTS announced the
judgment of the Court and delivered the opinion of the Court with respect to
Parts I, II, and III-C, an opinion with respect to Part IV, in which Justice
Breyer and Justice Kagan join, and an opinion with respect to Parts III-A,
III-B, and III-D.
* * * * *
III
A
2
The Government next contends that
Congress has the power under the Necessary and Proper Clause to enact the
individual mandate because the mandate is an “integral part of a comprehensive
scheme of economic regulation”--the guaranteed-issue and community-rating
insurance reforms. Brief for United States 24. Under
this argument, it is not necessary to consider the effect that an individual's
inactivity may have on interstate commerce; it is enough that Congress regulate
commercial activity in a way that requires regulation of inactivity to be
effective.
The power to “make
all Laws which shall be necessary and proper for carrying into Execution” the
powers enumerated in the Constitution, Art. I, § 8, cl. 18, vests Congress with authority to enact
provisions “incidental to the [enumerated] power, and conducive to its
beneficial exercise,” McCulloch, 17
U.S., at 418, 4 Wheat., at 418, 4 L. Ed. 579. Although
the Clause gives Congress authority to “legislate on that vast mass of
incidental powers which must be involved in [***58] the constitution,” it does not
license the exercise of any “great substantive and independent power[s]” beyond
those specifically enumerated. Id., 17 U.S., at 411, 421, 4 Wheat.,
at 411, 421, 4 L. Ed. 579. Instead, the Clause is “ 'merely
a declaration, for the removal of all uncertainty, that the means of carrying
into execution those [powers] otherwise granted are included in the grant.' Kinsella v. United States, 361 U.S. 234,
247, 80 S. Ct. 297, 4 L. Ed. 2d 268 (1960) (quoting VI Writings of James
Madison 383 (G. Hunt ed. 1906)).
As our jurisprudence under the
Necessary and Proper Clause has developed, we [*2592] have been very deferential to
Congress's determination that a regulation is “necessary.” We have thus upheld laws
that are “ 'convenient, or useful' or 'conducive' to
the authority's 'beneficial exercise.' Comstock,
560 U.S., at ___, 130 S. Ct. 1949, 1956, 176 L. Ed. 2d 878, 888 (quoting McCulloch, supra, at 413, 418, 4 Wheat., at 413, 418, 4 L. Ed. 579). But we have also carried
out our responsibility to declare unconstitutional those laws that undermine
the structure of government established by the Constitution. Such laws, which
are not “consist[ent] with
the letter and [***59] spirit of the
constitution,” McCulloch, supra, at
421, 4 Wheat., at 421, 4 L. Ed. 579, are not “proper [means] for carrying into
Execution” Congress's enumerated powers. Rather, they are, “in 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,
117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997) (alterations omitted) (quoting The
Federalist No. 33, at 204 (A. Hamilton)); see also New York, 505 U.S., at 177, 112 S. Ct. 2408, 120 L. Ed. 2d 120; Comstock, supra, at ___, 130 S. Ct.
1949, 1967, 176 L. Ed. 2d 878, 902 (Kennedy, J., concurring in judgment) (“It
is of fundamental importance to consider whether essential attributes of state
sovereignty are compromised by the assertion of federal power under the
Necessary and Proper Clause . . .”).
Applying these principles, the
individual mandate cannot be sustained under the Necessary and Proper Clause as
an essential component of
[**481] the insurance reforms. Each of our prior cases upholding
laws under that Clause involved exercises of authority derivative of, and in
service to, a granted power. For example, we have upheld provisions permitting
continued confinement [***60] of those
already in federal custody when they could not be safely released, Comstock,
supra, at ___, 130 S. Ct. 1949, 176 L. Ed. 2d 878, 894; criminalizing bribes
involving organizations receiving federal funds, Sabri v. United States, 541 U.S. 600, 602, 605, 124 S. Ct. 1941, 158 L.
Ed. 2d 891 (2004); and tolling state statutes of limitations while cases are
pending in federal court, Jinks v. Richland
County, 538 U.S. 456, 459, 462, 123 S. Ct. 1667, 155 L. Ed. 2d 631 (2003).
The individual mandate, by contrast, vests Congress with the extraordinary
ability to create the necessary predicate to the exercise of an enumerated
power.
This is in no way an authority that is
“narrow in scope,” Comstock, supra,
at ___, 130 S. Ct. 1949, 1964, 176 L. Ed. 2d 878, 898, or “incidental” to the
exercise of the commerce power, McCulloch, supra, at 418, 4 Wheat.,
at 418, 4 L. Ed. 579 . 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
[***61] 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
effective.
The Government relies primarily on our
decision in Gonzales v. Raich. In Raich, we considered “comprehensive legislation to regulate
the interstate market” in marijuana. 545 U.S., at 22, 125 S.
Ct. 2195, 162 L. Ed. 2d 1. 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 consumption. Id., at [*2593] 19, 125 S. Ct. 2195, 162 L. Ed. 2d 1.
Accordingly, we recognized that “Congress was acting well within its authority”
under the Necessary and Proper Clause even though its “regulation ensnare[d] [***62] some purely
intrastate activity.” Id., at 22, 125 S. Ct. 2195, 162 L. Ed. 2d 1; see also
Perez, 402 U.S., at 154, 91 S. Ct. 1357, 28 L. Ed. 2d 686. Raich thus did not involve the
exercise of any “great substantive and independent power,” McCulloch, supra, at 411, 4 L. Ed. 579 ,
of the sort at issue here. Instead, it concerned only the constitutionality of
“individual applications of a concededly valid statutory scheme.” Raich, supra, at
23,125 S. Ct. 2195, 162 L. Ed. 2d 1 (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 reforms. The commerce power thus does not authorize
the mandate. Accord, post, at ___ - ___, 183 L. Ed. [**482] 2d, at 537-544 (joint opinion of
Scalia, Kennedy, Thomas, and Alito, JJ., dissenting).
* * * * *
Ginsburg, J., filed an opinion
concurring in part, concurring in the judgment in part, and dissenting in part,
in which Sotomayor, J., joined, and in which Breyer and Kagan, JJ., joined as to Parts I, II, III,
and IV. Scalia, Kennedy, Thomas, and Alito, JJ.,
filed a dissenting opinion. Thomas, J., filed a
dissenting opinion.