National Federation of Independent Businesses v. Sebelius - Opinion Announcement - June 28, 2012 (Part 2)

National Federation of Independent Businesses v. Sebelius

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Audio Transcription for Opinion Announcement - June 28, 2012 (Part 1) in National Federation of Independent Businesses v. Sebelius
Audio Transcription for Opinion Announcement - June 28, 2012 (Part 3) in National Federation of Independent Businesses v. Sebelius
Audio Transcription for Oral Argument - March 26, 2012 in National Federation of Independent Businesses v. Sebelius
Audio Transcription for Oral Argument - March 27, 2012 in National Federation of Independent Businesses v. Sebelius
Audio Transcription for Oral Argument - March 28, 2012 in National Federation of Independent Businesses v. Sebelius

Audio Transcription for Opinion Announcement - June 28, 2012 (Part 2) in National Federation of Independent Businesses v. Sebelius

Anthony M. Kennedy:

As the Chief Justice has indicated, Justices Scalia, Thomas, Alito and I have written a joint dissent.

In our view, the Act before us is invalid in its entirety.

The joint dissent is organized this way.

First, it considers the constitutionality of the Individual Mandate and that, of course, requires a discussion whether the mandate can be sustained as a valid exercise of Congress' power to regulate interstate commerce or as an exercise of its power to tax.

Second, the joint dissent considers the constitutionality of the expansion of Medicaid in light of the argument that it coerces States to surrender the power that must be vested in them under principles of federalism.

Third, the joint dissent considers the question whether the Act's other provisions can be preserved if the mandate in Medicare -- Medicaid Expansion are unconstitutional, first the Individual Mandate.

Now the statute requires a defined class of individuals to purchase health insurance.

This mandate is first defended by the Government as an exercise of Congress' power under the Commerce Clause.

It is true that if an individual does not purchase insurance, he or she affects the insurance market to a degree.

But the Government's theory would make one's mere existence, the basis for federal regulation.

There would been no structural limit on the power of Congress.

As a result, the Government's theory would change the relation between the citizen and the Federal Government in a fundamental way.

We cannot accept the Government's theory.

There are structural limits upon Congress' powers.

In other words, there are some things the Federal Government cannot do and that clear principle carries the day here.

It requires us to conclude that Congress' power to regulate interstate commerce does not give at the authority to enact the Individual Mandate.

This conclusion is supported by five Justices, the Chief Justice and the four members of this joint dissent.

Now, despite the fact that Congress exceeded its power to regulate interstate commerce when it passed the Individual Mandate, the majority of the Court holds that the Individual Mandate, if it's recast as a tax, is -- is constitutional.

The Court unanimously concludes that the Individual Mandate is not a tax under the Anti-Injunction Act but five members of the Court then pivot and hold that the Individual Mandate is a tax for constitutional purposes.

And to do this, the majority rewrites the statute Congress wrote, we disagree.

The Act requires a purchase of health insurance and punishes violation of that mandate with a penalty.

But what Congress has called a penalty, the Court calls a tax.

What Congress called a requirement, the Court calls an option.

And where Congress mandates that the person shall obtain insurance, the Court says he may but need not obtain insurance.

In short, the Court imposes a tax when Congress deliberately rejected a tax.

Judicial tax-writing is particularly troubling as a usurpation of the legislative rule.

It places the power to tax in the branch of the Government least accountable to the citizenry, but the Constitution requires taxes to originate in the House of Representatives, the legislative body most accountable to the people.

There, elected officials must weigh the need for the tax against the terrible price they might pay at their next election.

Imposing a tax through judicial legislation inverts the constitutional scheme.

In the case of the Affordable Care Act, Congress went to great lengths to structure the mandate as a penalty not a tax, but the majority now says that it is a tax, at least for the purposes of sustaining it but will not for the purpose of jurisdiction.