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NFIB v. Sebelius (2012)

The Facts

The Patient Protection and Affordable Care Act required that all Americans purchase government-approved health insurance or pay a “penalty” for failing to do so. Challengers argued that no enumerated power justified this individual mandate, not even the Commerce Clause, because Congress was not seeking to regulate existing economic activity but rather forcing people to engage in economic activity against their will.

The Decision

The U.S. Supreme Court upheld the individual mandate. The deciding vote was cast for a reading of the individual mandate that wasn’t adopted by any other justice. Chief Justice Roberts rejected the government’s expansive Commerce Clause arguments for the mandate, reasoning that “the Government’s logic would justify a mandatory purchase to solve almost any problem.” But the Chief Justice accepted the administration’s fallback argument, namely that the mandate was actually a tax, rather than a penalty, and so could be justified under Congress’s taxing power. The Chief Justice stated that, while “(t)he most straightforward reading of the mandate is that it commands individuals to purchase insurance,” he was obliged to rely upon any “fairly possible” reading of the law that would “save (the) statute from unconstitutionality.” Even as Chief Justice Roberts acknowledged that construing the individual mandate as a tax rather as a penalty wasn’t “the most natural interpretation,” he adopted it in the face of some 18 references to the mandate as a penalty in the ACA itself. Rather than perform his duty to nullify an unconstitutional law, he rewrote it.

The Consequences

The Court’s decision not only led to the greatest expansion of federal power since the New Deal, but it also distorted the system of checks and balances upon which our freedom depends. When the legislation was being drafted and debated, President Barack Obama and members of Congress consistently denied that the ACA imposed any new taxes on Americans in order to make it more politically palatable. As U.S. District Judge Roger Vinson commented in his decision striking down the law earlier in the U.S. District Court for the Northern District of Florida, “Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an ‘Alice-in-Wonderland’ tack and argue in court that Congress really meant something else entirely.” In NFIB, the Court signaled its willingness to collaborate with the other branches in evading this means of political accountability.

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