122 (1942); Perez v. United States, 402 U.S. 146, 91 S.Ct. The Government disagrees. The answer to the first of these questions — the meaning of coercion in the present context — is straightforward. 2195. If anything, the Court's analysis suggested the latter. 1531. According to the States, this means that the entire Act must fall. "The discretion belongs to Congress," the Court wrote, "unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment." Under its proposal, States would receive the additional Medicaid funds if they expand eligibility, but States would keep their pre-existing Medicaid funds if they do not expand eligibility. § 1396a(a)(10). The States therefore had no law-based ground on which to complain about the amendment, despite the significant character of the change. post, at 2648 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.) 296, 78 L.Ed.2d 17 (1983). The dissent protests that the Necessary and Proper Clause has been held to include "the power to enact criminal laws,... the power to imprison, ... and the power to create a national bank," ante, at 2627. THE CHIEF JUSTICE's reliance on cases in which this Court has affirmed Congress' "broad authority to enact federal legislation" under the Necessary and Proper Clause, Comstock, 560 U.S., at ___, 130 S.Ct., at 1956, is underwhelming. What counts is what the statute says, and that is entirely clear. Even if States could elect to remain in the old Medicaid program, while declining to participate in the Expansion, there would be a gaping hole in coverage. See Congressional Budget Office, CBO's 2011 Long-Term Budget Outlook 37 (June 2011). Section 5000A is therefore constitutional, because it can reasonably be read as a tax. Co., 470 U.S. 451, 467-468, n. 22, 105 S.Ct. Or Congress could "den[y] a full income tax credit" to those who do not purchase insurance. United States v Windsor (2013) Abortion. A State could hardly anticipate that Congress's reservation of the right to "alter" or "amend" the Medicaid program included the power to transform it so dramatically. Ante, at 2604 (citing 42 U.S.C. 23 (1824). [50] See Office of Management and Budget, Historical Tables, Budget of the U.S. Government, Fiscal Year 2013, Table 12.1 — Summary Comparison of Total Outlays for Grants to State and Local Governments: 1940-2017 (hereinafter Table 12.1), http://www. ... the prominence of these of types of regulatory motivations may be of minimal significance, with the focus instead on the nature of the exactions imposed and the manner in which they are administered. Given the nature of the threat and the programs at issue here, we must agree. of Ed., [2634] 470 U.S. 656, 659-660, 105 S.Ct. Where all Congress has done is to "encourag[e] state regulation rather than compe[l] it, state governments remain responsive to the local electorate's preferences; state officials remain accountable to the people. Original Item: Although the Clause gives Congress authority to "legislate on that vast mass of incidental powers which must be involved in the constitution," it does not license the exercise of any "great substantive and independent power[s]" beyond those specifically enumerated. 883, 81 L.Ed. Id., at 1305-1306. 2408. Const., Amdt. Statement of Douglas W. Elmendorf, supra, at 24. The commerce power does not, THE CHIEF JUSTICE announces, permit Congress to "compe[l] individuals to become active in commerce by purchasing a product." But that failure — that abstention from commerce — is not "Commerce." Michael A. Carvin, for respondents National Federation of Independent Business. 449. 249, p. 124, Table 37 (Dec. 2010) (Over 99.5% of adults above 65 have visited a health-care professional.). Under ordinary circumstances, of course, insurers would respond by charging high premiums to individuals with pre-existing conditions. The individual mandate cannot be upheld as an exercise of Congress's power under the Commerce Clause. 579 (1819). § 1396a(a)(10). 26 U.S.C. Here, petitioners challenged the ACA before paying any penalty for not getting coverage under the individual mandate. And "a vegetable-purchase mandate" (or a car-purchase mandate) is not "likely to have a substantial effect on the health-care costs" borne by other Americans. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. The conditions imposed by Congress ensure that the funds are used by the States to "provide for the ... general Welfare" in the manner Congress intended. 603, 181 L.Ed.2d 420 (2011). MANDATE: THE LAWLESS MEDICINE OF NFIB V. SEBELIUS Gregory P. Magarian* INTRODUCTION The Supreme Court’s decision in National Federation of Independent Business v. Sebelius1 (NFIB) shocked the legal world. Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. National Federation of Independent Business v. Sebelius: Case arguing against the individual mandate as a part of the ACA. March 31, 2017 by: Content Team. Thank you. I, § 8, cl. Such measures "encourage [2602] a State to regulate in a particular way, [and] influenc[e] a State's policy choices." This is not to say, as the joint dissent suggests, that we are "rewriting the Medicaid Expansion." This is particularly true when the ACA could just as well be comprehended as demonstrating Congress' mere expectation, in light of the uniformity of past participation and the generosity of the federal contribution, that States would not withdraw. In light of the ACA's goal of near-universal coverage, petitioners argue, if Congress had thought that anything less than 100% state participation was a realistic possibility, Congress would have provided a backup scheme. See 26 U.S.C. The Medicaid expansion leaves unchanged the vast majority of these provisions; it adds beneficiaries to the existing program and specifies the rate at which States will be reimbursed for services provided to the added beneficiaries. In a variation on this attempted exercise of federal power, the Government points out that Congress in this Act has purported to regulate "economic and financial decision[s] to forego [sic] health insurance coverage and [to] attempt to self-insure," 42 U.S.C. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Yet National Federation of Independent Business v. Sebelius emerged as a watershed case that could remake the constitutional landscape. I find no satisfying response to that question in his opinion.[26]. But for individuals who are not exempt and do not receive health insurance through a third party, the means of satisfying the requirement is to purchase insurance from a private company. § 5000A(e)(2). 883 (KENNEDY, J., dissenting). of Health and Human Svcs. The "[s]hared responsibility payment," as the statute entitles it, is paid into the Treasury by "taxpayer[s]" when they file their tax returns. As economists would describe what happens, the uninsured "free ride" on those who pay for health insurance. 11-14 (describing the "death spiral" in the insurance market Washington experienced when the State passed a law requiring coverage for preexisting conditions). § 1396u-7 (2006 ed. § 18091(2)(D) (2006 ed., Supp. 904, 81 L.Ed. Thus, what the Government's caption should have read was "ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX." IV) (noting the success of Massachusetts' reforms). We accordingly asked whether "the financial inducement offered by Congress" was "so coercive as to pass the point at which `pressure turns into compulsion.'" This analysis also shows how closely interrelated the Act is, and this is all the more reason why it is judicial usurpation to impose an entirely new mechanism for withdrawal of Medicaid funding, see Part IV-F, supra, which is one of many examples of how rewriting the Act alters its dynamics. Part V-C-2, infra, explains why the Act's minor provisions also are not severable. [48] The joint dissent mentioned that "the Constitution requires tax increases to originate in the House of Representatives" per the Origination Clause,[49] though that issue was not addressed by the majority opinion.[50]. Post, at 2661. 3245, 92 L.Ed.2d 675 (1986) (quoting Aptheker v. Secretary of State, 378 U.S. 500, 515, 84 S.Ct. House Minority Leader Nancy Pelosi, who as Speaker of the House had been instrumental in the passage of the ACA, said that Senator Edward Kennedy of Massachusetts, a longtime proponent of health care reform who died before the bill became law, could now "rest. The minimum coverage provision, in contrast, acts "directly upon individuals, without employing the States as intermediaries." The Government observes that the Social Security Act, which includes the original Medicaid provisions, contains a clause expressly reserving "[t]he right to alter, amend, or repeal any provision" of that statute. The Act increases federal funding to cover the States' costs in expanding Medicaid coverage, although States will bear a portion of the costs on their own. It amounts instead to a vast judicial overreaching. See Enochs v. Williams Packing & Nav. The text of the pertinent statutes suggests otherwise. See 26 U.S.C. This is in no way an authority that is "narrow in scope," Comstock, supra, at ___, 130 S.Ct., at 1964, or "incidental" to the exercise of the commerce power, McCulloch, supra, at 418. Id., at 41-46. 82 ("The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon."). This characterization of the ACA's offer raises obvious questions. Even More About NFIB v. Sebelius. If the Federal Government makes a controversial decision while acting on its own, "it is the Federal Government that makes the decision in full view of the public, and it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular." That system "rests on what might at first seem a counter-intuitive insight, that `freedom is enhanced by the creation of two governments, not one.'" 1476 (emphasis [2669] in original). Ante, at 2594 (internal quotation marks omitted). Congress found that the cost-shifting just described "increases family [insurance] premiums by on average over $1,000 a year." Predicating tax abatement on a State's adoption of a particular type of unemployment legislation was therefore a means to "safeguard [the Federal Government's] own treasury." Three considerations allay this concern. To recoup the losses, hospitals pass on the cost to insurers through higher rates, and insurers, in turn, pass on the cost to policy holders in the form of higher premiums. Raich thus did not involve the exercise of any "great substantive and independent power," McCulloch, supra, at 411, of the sort at issue here. See Brief for National Health Law Program et al. Adults: National Health Interview Survey 2009, Ser. "); Albright v. Oliver, 510 U.S. 266, 275, 114 S.Ct. Requiring individuals to purchase vegetables is thus several steps removed from solving the problem. 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. See Springer v. United States, 102 U.S. 586, 596-598, 26 L.Ed. This argument is difficult to fathom. 26 U.S.C. 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). See ibid. § 527(j) (2006 ed.) See also supra, at 2615-2617. See Title IX, Subtitle A — Revenue Offset Provisions, 124 Stat. § 300gg(a)(1)(A). v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. See infra, at 2638 (describing Bennett v. Kentucky Dept. Trist (Dec. 1831), in 9 Writings of James Madison 471, 475 (G. Hunt ed. See Dept. Other ACA provisions seek to make such policies more affordable for people of modest means. § 5000A(a). Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States. The Constitution may restrict state governments — as it does, for example, by forbidding them to deny any person the equal protection of the laws. And withdrawal or expulsion from the Medicaid program would not relieve a State's hospitals of their obligation under federal law to provide care for patients who are unable to pay for medical services. In this case, however, there can be no doubt. 295 (1890)). 1357 ("Petitioner is clearly a member of the class which engages in `extortionate credit transactions'..." (emphasis deleted)). See Letter from James Madison to Edmund Randolph (Apr. 285, 76 L.Ed. NFIB v. Sebelius (2012). 1624 (KENNEDY, J., concurring). Ultimately the dissent is driven to saying that there is really no difference between action and inaction, ante, at 2622, a proposition that has never recommended itself, neither to the law nor to common sense. But it would certainly not be that easy. 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. § 7421(a) (emphasis added). We ask only whether Congress has the power under the Constitution to enact the challenged provisions. See also McCulloch, 4 Wheat., at 415 (The Necessary and Proper Clause is lodged "in a constitution[,] intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."). "[76] Katyal also mentioned that the federal government told the court that long-standing laws contain clauses that condition money on state performance of certain activities. But while that label is fatal to the application of the Anti-Injunction Act, supra, at 2582-2583, it does not determine whether the payment may be viewed as an exercise of Congress's taxing power. § 5000A(e). IV) ("In determining the amount of a civil penalty the court shall consider ... the economic impact of the penalty on the violator"); see also 6 U.S.C. 721 (1949) (quoting Panhandle Oil Co. v. Mississippi ex rel. The payment is not limited to willful violations. 419, 66 L.Ed. ; see also Steward Machine Co. v. Davis, 301 U.S. 548, 586-587, 57 S.Ct. 2365 (holding unconstitutional a statute obligating state law enforcement officers to implement a federal gun-control law); New York, 505 U.S., at 176-177, 112 S.Ct. The Affordable Care Act is constitutional in part and unconstitutional in part. I, § 8, cl. 2126, 72 L.Ed.2d 532 (1982) (O'Connor, J., concurring in judgment in part and dissenting in part) (brackets in original and internal quotation marks omitted)), Medicaid "is designed to advance cooperative federalism." 1531. This argument has multiple flaws. 2195 (emphasis added). Post, at 2664-2666; see, e.g., post, at 2664 ("In crafting the ACA, Congress clearly expressed its informed view that no State could possibly refuse the offer that the ACA extends."). After 2019, state spending is expected to increase at a faster rate; the CBO estimates new state spending at $60 billion through 2021. "); post, at 2666 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.) 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