National Federation of Independent Businesses v. Sebelius Page 2

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Media for 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
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 1) in National Federation of Independent Businesses v. Sebelius

John G. Roberts, Jr.:

Under the government's logic, that authorizes Congress to compel unwilling citizens to act as the government would have them act.

Congress already enjoys vast power to regulate much of what we do except in the government's theory would allow Congress the same license to regulate what we do not do.

That would fundamentally change the relationship between the American citizen and the federal government.

Now, to an economist perhaps, there is no difference between activity and inactivity.

Both can have measurable economic effects on commerce.

But the distinction between doing something and doing nothing would not have been lost on the framers who were practical statesmen, not academic theorists.

The framers gave Congress the power to regulate commerce not to compel it.

For over 200 years, this Court's decisions and Congress' actions have reflected this understanding.

There is no reason to depart from it now.

But the government says that health insurance is different because everyone will eventually need healthcare.

According to the government, that means the uninsured even though doing nothing can be "regulated in advance."

That assertion is inconsistent with a limited consumption of federal power.

The Commerce Clause is not a general license to regulate an individual from cradle to grave simply because he will predictably engage in particular transactions.

The government also contends that Congress could enact the individual mandate because the mandate is important to other parts of the Healthcare Act.

Other provisions of the Act whose validity under the Commerce Clause is not challenged here, restrict the ability of health insurance companies to charge higher prices to less healthy individuals.

Those provisions will likely cause insurance companies to raise the prices they charge everyone.

According to the government, the individual mandate is in the constitution's language, necessary and proper to support those provisions because it will compel healthy individuals to subsidize the cost of insuring those who are less healthy.

Our cases interpreting the necessary and proper clause have been very differential to Congress' determination of what is necessary.

But we have also explained that the clause is not a grant of a great and independent power.

The clause only allows Congress to do things that are incidental to the exercise of its other powers.

Compelling people to enter commerce precisely because they have chosen not to cannot be considered a necessary and proper supplement to the Commerce Clause.

There are separate writings on this subject but the majority of this Court agrees that the Commerce Clause cannot sustain the individual mandate.

That brings us to the Government's second argument that the mandate maybe upheld under Congress' power to lay and collect taxes.

The Government's tax power argument asks us to interpret the statute not as ordering individuals to buy insurance but rather as imposing the tax on those who go without it.

Under the mandate, if an individual does not buy health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes.

The government says, that means the mandate can be interpreted as establishing a condition not only health insurance that triggers a tax, the required payment to the IRS.

Under that theory, the mandate makes going without insurance just another thing the government taxes like buying gasoline or earning income.

And if the mandate is just a tax hike on taxpayers who don't have health insurance, it may be within Congress' constitutional power to tax.

Under our precedent, if there are two possible interpretations of a statute and one of those interpretations violates the constitutions -- the constitution, courts should adopt the interpretation that allows the statute to be upheld.

Thus, the question here isn't whether the interpretation of the statute, the Government offers to support its tax argument is the best interpretation.