NATIONAL FEDERATION OF INDEPENDENT BUSINESS V. SEBELIUS

567 U.S. --- (2012)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Argued March 26, 27, and 28, 2012
Decided June 28, 2012

CHIEF JUSTICE ROBERTS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-C, an opinion with respect to Part IV, in which Justice Breyer and Justice Kagan join, and an opinion with respect to Parts III-A, III-B, and III-D.

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III

A

2

The Government next contends that Congress has the power under the Necessary and Proper Clause to enact the individual mandate because the mandate is an “integral part of a comprehensive scheme of economic regulation”--the guaranteed-issue and community-rating insurance reforms. Brief for United States 24. Under this argument, it is not necessary to consider the effect that an individual's inactivity may have on interstate commerce; it is enough that Congress regulate commercial activity in a way that requires regulation of inactivity to be effective.

The power to “make all Laws which shall be necessary and proper for carrying into Execution” the powers enumerated in the Constitution, Art. I, § 8, cl. 18, vests Congress with authority to enact provisions “incidental to the [enumerated] power, and conducive to its beneficial exercise,” McCulloch, 17 U.S., at 418, 4 Wheat., at 418, 4 L. Ed. 579. Although the Clause gives Congress authority to “legislate on that vast mass of incidental powers which must be involved in [***58] the constitution,” it does not license the exercise of any “great substantive and independent power[s]” beyond those specifically enumerated. Id., 17 U.S., at 411, 421, 4 Wheat., at 411, 421, 4 L. Ed. 579. Instead, the Clause is “ 'merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those [powers] otherwise granted are included in the grant.' Kinsella v. United States, 361 U.S. 234, 247, 80 S. Ct. 297, 4 L. Ed. 2d 268 (1960) (quoting VI Writings of James Madison 383 (G. Hunt ed. 1906)).

As our jurisprudence under the Necessary and Proper Clause has developed, we [*2592] have been very deferential to Congress's determination that a regulation is “necessary.” We have thus upheld laws that are “ 'convenient, or useful' or 'conducive' to the authority's 'beneficial exercise.' Comstock, 560 U.S., at ___, 130 S. Ct. 1949, 1956, 176 L. Ed. 2d 878, 888 (quoting McCulloch, supra, at 413, 418, 4 Wheat., at 413, 418, 4 L. Ed. 579). But we have also carried out our responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution. Such laws, which are not “consist[ent] with the letter and [***59] spirit of the constitution,” McCulloch, supra, at 421, 4 Wheat., at 421, 4 L. Ed. 579, are not “proper [means] for carrying into Execution” Congress's enumerated powers. Rather, they are, “in the words of The Federalist, 'merely acts of usurpation' which 'deserve to be treated as such.' Printz v. United States, 521 U.S. 898, 924, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997) (alterations omitted) (quoting The Federalist No. 33, at 204 (A. Hamilton)); see also New York, 505 U.S., at 177, 112 S. Ct. 2408, 120 L. Ed. 2d 120; Comstock, supra, at ___, 130 S. Ct. 1949, 1967, 176 L. Ed. 2d 878, 902 (Kennedy, J., concurring in judgment) (“It is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause . . .”).

Applying these principles, the individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of [**481] the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. For example, we have upheld provisions permitting continued confinement [***60] of those already in federal custody when they could not be safely released, Comstock, supra, at ___, 130 S. Ct. 1949, 176 L. Ed. 2d 878, 894; criminalizing bribes involving organizations receiving federal funds, Sabri v. United States, 541 U.S. 600, 602, 605, 124 S. Ct. 1941, 158 L. Ed. 2d 891 (2004); and tolling state statutes of limitations while cases are pending in federal court, Jinks v. Richland County, 538 U.S. 456, 459, 462, 123 S. Ct. 1667, 155 L. Ed. 2d 631 (2003). The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power.

This is in no way an authority that is “narrow in scope,” Comstock, supra, at ___, 130 S. Ct. 1949, 1964, 176 L. Ed. 2d 878, 898, or “incidental” to the exercise of the commerce power, McCulloch, supra, at 418, 4 Wheat., at 418, 4 L. Ed. 579 . Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could [***61] reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it. Even if the individual mandate is “necessary” to the Act's insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.

The Government relies primarily on our decision in Gonzales v. Raich. In Raich, we considered “comprehensive legislation to regulate the interstate market” in marijuana. 545 U.S., at 22, 125 S. Ct. 2195, 162 L. Ed. 2d 1. Certain individuals sought an exemption from that regulation on the ground that they engaged in only intrastate possession and consumption. We denied any exemption, on the ground that marijuana is a fungible commodity, so that any marijuana could be readily diverted into the interstate market. Congress's attempt to regulate the interstate market for marijuana would therefore have been substantially undercut if it could not also regulate intrastate possession and consumption. Id., at [*2593] 19, 125 S. Ct. 2195, 162 L. Ed. 2d 1. Accordingly, we recognized that “Congress was acting well within its authority” under the Necessary and Proper Clause even though its “regulation ensnare[d] [***62] some purely intrastate activity.” Id., at 22, 125 S. Ct. 2195, 162 L. Ed. 2d 1; see also Perez, 402 U.S., at 154, 91 S. Ct. 1357, 28 L. Ed. 2d 686. Raich thus did not involve the exercise of any “great substantive and independent power,” McCulloch, supra, at 411, 4 L. Ed. 579 , of the sort at issue here. Instead, it concerned only the constitutionality of “individual applications of a concededly valid statutory scheme.” Raich, supra, at 23,125 S. Ct. 2195, 162 L. Ed. 2d 1 (emphasis added).

Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure to purchase health insurance, neither can it be upheld as a “necessary and proper” component of the insurance reforms. The commerce power thus does not authorize the mandate. Accord, post, at ___ - ___, 183 L. Ed. [**482] 2d, at 537-544 (joint opinion of Scalia, Kennedy, Thomas, and Alito, JJ., dissenting).

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Ginsburg, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Sotomayor, J., joined, and in which Breyer and Kagan, JJ., joined as to Parts I, II, III, and IV. Scalia, Kennedy, Thomas, and Alito, JJ., filed a dissenting opinion. Thomas, J., filed a dissenting opinion.