Article I, Section 8, Clause 3:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

While the Supreme Court has interpreted Congress’s Commerce Clause authority to reach a wide range of activity, it has concluded that the Commerce Clause does not authorize Congress to regulate inactivity. In National Federation of Independent Business (NFIB) v. Sebelius,1 the Court held that Congress does not have the authority under the Commerce Clause to impose a requirement compelling certain individuals to maintain a minimum level of health insurance. The “individual mandate” provisions of the Affordable Care Act generally subject individuals who failed to purchase health insurance to a monetary penalty, administered through the tax code.2

Chief Justice John Roberts’s controlling opinion3 suggested that Congress’s authority to regulate interstate commerce presupposes the existence of a commercial activity to regulate. Further, his opinion noted that the commerce power had been uniformly described in previous cases as involving the regulation of an “activity.” 4 The individual mandate, on the other hand, compels an individual to become active in commerce on the theory that the individual’s inactivity affects interstate commerce. Justice Roberts suggested that regulation of individuals because they are doing nothing would result in an unprecedented expansion of congressional authority with few discernable limitations. While recognizing that most people are likely to seek health care at some point in their lives, Justice Roberts noted that there was no precedent for the argument that individuals who might engage in a commercial activity in the future could, on that basis, be regulated today.5

Footnotes

1

567 U.S. 519 (2012).

2

Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111–148, as amended. The Act’s “guaranteed-issue” and “community-rating” provisions necessitated the mandate because they prohibited insurance companies from denying coverage to those with pre-existing conditions or charging unhealthy individuals higher premiums than healthy individuals. Id. at §§ 300gg, 300gg-1, 300gg-3, 300gg-4. As these requirements provide an incentive for individuals to delay purchasing health insurance until they become sick, this would impose new costs on insurers, leading them to significantly increase premiums on everyone.

3

Although no other Justice joined Chief Justice Robert’s opinion, four dissenting Justices reached similar conclusions regarding the Commerce Clause and the Necessary and Proper Clause. NFIB, 567 U.S. at 646–707 (joint opinion of Scalia, Kennedy, Thomas and Alito, JJ., dissenting).

4

See, e.g., United States v. Lopez, 514 U.S. 549, 573 (1995) ( “Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained” ).

5

NFIB, 567 U.S. at 557.