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Cite as: 567 U. S. ____ (2012) 1
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 11–393, 11–398 and 11–400
NATIONAL FEDERATION OF INDEPENDENT
BUSINESS, ET AL., PETITIONERS
11–393 v
KATHLEEN SEBELIUS, SECRETARY OF HEALTH
AND HUMAN SERVICES, ET AL
DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL., PETITIONERS
11–398 v
FLORIDA ET AL
11–400
FLORIDA, ET AL., PETITIONERS
V
DEPARTMENT OF HEALTH AND
HUMAN SERVICES ET AL
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 28, 2012]
JUSTICE SCALIA, JUSTICE KENNEDY, JUSTICE THOMAS
And JUSTICE ALITO, dissenting
Congress has set out to remedy the problem that the
Best health care is beyond the reach of many Americans
Who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The
Question in this case, however, is whether the complex
Structures and provisions of the Patient Protection and
Affordable Care Act (Affordable Care Act or ACA) go be-
Yond those powers. We conclude that they do
This case is in one respect difficult: it presents two
2 NATIONAL FEDERATION OF INDEPENDENT
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SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

Questions of first impression. The first of those is whether
Failure to engage in economic activity (the purchase of
Health insurance) is subject to regulation under the Commerce Clause. Failure to act does result in an effect
On commerce, and hence might be said to come under
This Court’s “affecting commerce” criterion of Commerce
Clause jurisprudence. But in none of its decisions has this
Court extended the Clause that far. The second question
Is whether the congressional power to tax and spend
U. S. Const., Art. I, §8, cl. 1, permits the conditioning of
A State’s continued receipt of all funds under a massive
State-administered federal welfare program upon its acceptance of an expansion to that program. Several of our
Opinions have suggested that the power to tax and spend
Cannot be used to coerce state administration of a federal
Program, but we have never found a law enacted under
The spending power to be coercive. Those questions are
Difficult
The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by the
Text of the 1789 Constitution, by the Tenth Amendment
Ratified in 1791, and by innumerable cases of ours in the
220 years since, is that there are structural limits upon
Federal power—upon what it can prescribe with respect to
Private conduct, and upon what it can impose upon the
Sovereign States. Whatever may be the conceptual limits
Upon the Commerce Clause and upon the power to tax
And spend, they cannot be such as will enable the Federal
Government to regulate all private conduct and to compel the States to function as administrators of federal
Programs
That clear principle carries the day here. The striking
Case of Wickard v. Filburn, 317 U. S. 111 (1942), which
Held that the economic activity of growing wheat, even
For one’s own consumption, affected commerce sufficiently
That it could be regulated, always has been regarded as

Cite as: 567 U. S. ____ (2012) 3
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
The ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow
Wheat (which is not an economic activity, or any activity
At all) nonetheless affects commerce and therefore can be
Federally regulated, is to make mere breathing in and out
The basis for federal prescription and to extend federal
Power to virtually all human activity
As for the constitutional power to tax and spend for
The general welfare: The Court has long since expanded
That beyond (what Madison thought it meant) taxing and
Spending for those aspects of the general welfare that were
Within the Federal Government’s enumerated powers
See United States v. Butler, 297 U. S. 1, 65–66 (1936)
Thus, we now have sizable federal Departments devoted
To subjects not mentioned among Congress’ enumerated
Powers, and only marginally related to commerce: the Department of Education, the Department of Health and
Human Services, the Department of Housing and Urban
Development. The principal practical obstacle that prevents Congress from using the tax-and-spend power to
Assume all the general-welfare responsibilities traditionally exercised by the States is the sheer impossibility of
Managing a Federal Government large enough to administer such a system. That obstacle can be overcome by
Granting funds to the States, allowing them to administer
The program. That is fair and constitutional enough when
The States freely agree to have their powers employed and
Their employees enlisted in the federal scheme. But it is a
Blatant violation of the constitutional structure when the
States have no choice
The Act before us here exceeds federal power both in
Mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding. These
Parts of the Act are central to its design and operation
And all the Act’s other provisions would not have been
Enacted without them. In our view it must follow that the
4 NATIONAL FEDERATION OF INDEPENDENT
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SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
Entire statute is inoperative
I
The Individual Mandate
Article I, §8, of the Constitution gives Congress the
Power to “regulate Commerce . . . among the several
States.” The Individual Mandate in the Act commands
That every “applicable individual shall for each month
Beginning after 2013 ensure that the individual, and any
Dependent of the individual who is an applicable individual, is covered under minimum essential coverage.” 26
U. S. C. §5000A(a) (2006 ed., Supp. IV). If this provision
“regulates” anything, it is the failure to maintain minimum essential coverage. One might argue that it regulates that failure by requiring it to be accompanied by
Payment of a penalty. But that failure—that abstention
From commerce—is not “Commerce.” To be sure, purchasing insurance is ”Commerce”; but one does not regulate
Commerce that does not exist by compelling its existence
In Gibbons v. Ogden, 9 Wheat. 1, 196 (1824), Chief
Justice Marshall wrote that the power to regulate commerce is the power “to prescribe the rule by which
Commerce is to be governed.” That understanding is con-
Sistent with the original meaning of “regulate” at the time
Of the Constitution’s ratification, when “to regulate” meant
“[t]o adjust by rule, method or established mode,” 2 N
Webster, An American Dictionary of the English Language (1828); “[t]o adjust by rule or method,” 2 S. Johnson
A Dictionary of the English Language (7th ed. 1785); “[t]o
Adjust, to direct according to rule,” 2 J. Ash, New and
Complete Dictionary of the English Language (1775); “to
Put in order, set to rights, govern or keep in order,” T
Dyche & W. Pardon, A New General English Dictionary

Cite as: 567 U. S. ____ (2012) 5
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

(16th ed. 1777).1
It can mean to direct the manner of
Something but not to direct that something come into
Being. There is no instance in which this Court or Congress (or anyone else, to our knowledge) has used “regulate”
In that peculiar fashion. If the word bore that meaning
Congress’ authority “[t]o make Rules for the Government and Regulation of the land and naval Forces,” U. S
Const., Art. I, §8, cl. 14, would have made superfluous
The later provision for authority “[t]o raise and support
Armies,” id., §8, cl. 12, and “[t]o provide and maintain a
Navy,” id., §8, cl. 13
We do not doubt that the buying and selling of health
Insurance contracts is commerce generally subject to
Federal regulation. But when Congress provides that
(nearly) all citizens must buy an insurance contract, it
Goes beyond “adjust[ing] by rule or method,” Johnson
Supra, or “direct[ing] according to rule,” Ash, supra; it
Directs the creation of commerce
In response, the Government offers two theories as to
Why the Individual Mandate is nevertheless constitutional. Neither theory suffices to sustain its validity
A
First, the Government submits that §5000A is “integral
To the Affordable Care Act’s insurance reforms” and “necessary to make effective the Act’s core reforms.” Brief
For Petitioners in No. 11–398 (Minimum Coverage Provision) 24 (hereinafter Petitioners’ Minimum Coverage Brief)
Congress included a “finding” to similar effect in the Act
——————
1
The most authoritative legal dictionaries of the founding era lack
Any definition for “regulate” or “regulation,” suggesting that the term
Bears its ordinary meaning (rather than some specialized legal meaning) in the constitutional text. See R. Burn, A New Law Dictionary 281
(1792); G. Jacob, A New Law Dictionary (10th ed. 1782); 2 T. Cunningham, A New and Complete Law Dictionary (2d ed. 1771)

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Itself. See 42 U. S. C. §18091(2)(H)
As discussed in more detail in Part V, infra, the Act
Contains numerous health insurance reforms, but most
Notable for present purposes are the “guaranteed issue”
And “community rating” provisions, §§300gg to 300gg–4
The former provides that, with a few exceptions, “each
Health insurance issuer that offers health insurance coverage in the individual or group market in a State must
Accept every employer and individual in the State that
Applies for such coverage.” §300gg–1(a). That is, an insurer may not deny coverage on the basis of, among other
Things, any pre-existing medical condition that the applicant may have, and the resulting insurance must cover
That condition. See §300gg–3
Under ordinary circumstances, of course, insurers would
Respond by charging high premiums to individuals with
Pre-existing conditions. The Act seeks to prevent this
Through the community-rating provision. Simply put, the
Community-rating provision requires insurers to calculate
An individual’s insurance premium based on only four
Factors: (i) whether the individual’s plan covers just
The individual or his family also, (ii) the “rating area” in
Which the individual lives, (iii) the individual’s age, and
(iv) whether the individual uses tobacco. §300gg(a)(1)(A)
Aside from the rough proxies of age and tobacco use (and
Possibly rating area), the Act does not allow an insurer to
Factor the individual’s health characteristics into the price
Of his insurance premium. This creates a new incentive
For young and healthy individuals without pre-existing
Conditions. The insurance premiums for those in this
Group will not reflect their own low actuarial risks but will
Subsidize insurance for others in the pool. Many of them
May decide that purchasing health insurance is not an economically sound decision—especially since the guaranteedissue provision will enable them to purchase it at the
Same cost in later years and even if they have developed a
Cite as: 567 U. S. ____ (2012) 7
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
Pre-existing condition. But without the contribution of
Above-risk premiums from the young and healthy, the
Community-rating provision will not enable insurers to
Take on high-risk individuals without a massive increase
In premiums
The Government presents the Individual Mandate as a
Unique feature of a complicated regulatory scheme governing many parties with countervailing incentives that must
Be carefully balanced. Congress has imposed an extensive
Set of regulations on the health insurance industry, and
Compliance with those regulations will likely cost the in-
Dustry a great deal. If the industry does not respond by
Increasing premiums, it is not likely to survive. And if
The industry does increase premiums, then there is a serious risk that its products—insurance plans—will become
Economically undesirable for many and prohibitively ex-
Pensive for the rest
This is not a dilemma unique to regulation of the healthinsurance industry. Government regulation typically
Imposes costs on the regulated industry—especially regulation that prohibits economic behavior in which most
Market participants are already engaging, such as “piecing out” the market by selling the product to different
Classes of people at different prices (in the present context
Providing much lower insurance rates to young and
Healthy buyers). And many industries so regulated face
The reality that, without an artificial increase in demand
They cannot continue on. When Congress is regulating
These industries directly, it enjoys the broad power to
Enact “‘all appropriate legislation’” to “‘protec[t]’” and
“‘advanc[e]’” commerce, NLRB v. Jones & Laughlin Steel
Corp., 301 U. S. 1, 36–37 (1937) (quoting The Daniel Ball
10 Wall. 557, 564 (1871)). Thus, Congress might protect
The imperiled industry by prohibiting low-cost competition
Or by according it preferential tax treatment, or even by
Granting it a direct subsidy

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Here, however, Congress has impressed into service
Third parties, healthy individuals who could be but are not
Customers of the relevant industry, to offset the undesirable consequences of the regulation. Congress’ desire to
Force these individuals to purchase insurance is motivated
By the fact that they are further removed from the market
Than unhealthy individuals with pre-existing conditions
Because they are less likely to need extensive care in
The near future. If Congress can reach out and command
Even those furthest removed from an interstate market to
Participate in the market, then the Commerce Clause
Becomes a font of unlimited power, or in Hamilton’s words
“the hideous monster whose devouring jaws . . . spare
Neither sex nor age, nor high nor low, nor sacred nor profane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961)
At the outer edge of the commerce power, this Court has
Insisted on careful scrutiny of regulations that do not
Act directly on an interstate market or its participants. In
New York v. United States, 505 U. S. 144 (1992), we held
That Congress could not, in an effort to regulate the disposal of radioactive waste produced in several different
Industries, order the States to take title to that waste
Id., at 174–177. In Printz v. United States, 521 U. S
898 (1997), we held that Congress could not, in an effort to
Regulate the distribution of firearms in the interstate market, compel state law-enforcement officials to perform
Background checks. Id., at 933–935. In United States v
Lopez, 514 U. S. 549 (1995), we held that Congress could
Not, as a means of fostering an educated interstate labor
Market through the protection of schools, ban the possession of a firearm within a school zone. Id., at 559–563
And in United States v. Morrison, 529 U. S. 598 (2000), we
Held that Congress could not, in an effort to ensure the full
Participation of women in the interstate economy, subject
Private individuals and companies to suit for gendermotivated violent torts. Id., at 609–619. The lesson of

Cite as: 567 U. S. ____ (2012) 9
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
These cases is that the Commerce Clause, even when sup-
Plemented by the Necessary and Proper Clause, is not
Carte blanche for doing whatever will help achieve the
Ends Congress seeks by the regulation of commerce. And
The last two of these cases show that the scope of the
Necessary and Proper Clause is exceeded not only when
The congressional action directly violates the sovereignty
Of the States but also when it violates the background
Principle of enumerated (and hence limited) federal power
The case upon which the Government principally relies
To sustain the Individual Mandate under the Necessary
And Proper Clause is Gonzales v. Raich, 545 U. S. 1 (2005)
That case held that Congress could, in an effort to restrain
The interstate market in marijuana, ban the local cultivation and possession of that drug. Id., at 15–22. Raich
Is no precedent for what Congress has done here. That
Case’s prohibition of growing (cf. Wickard, 317 U. S. 111)
And of possession (cf. innumerable federal statutes) did not
Represent the expansion of the federal power to direct into
A broad new field. The mandating of economic activity
Does, and since it is a field so limitless that it converts the
Commerce Clause into a general authority to direct the
Economy, that mandating is not “consist[ent] with the
Letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819)
Moreover, Raich is far different from the Individual
Mandate in another respect. The Court’s opinion in Raich
Pointed out that the growing and possession prohibitions
Were the only practicable way of enabling the prohibition
Of interstate traffic in marijuana to be effectively enforced
545 U. S., at 22. See also Shreveport Rate Cases, 234 U. S
342 (1914) (Necessary and Proper Clause allows regulations of intrastate transactions if necessary to the regulation of an interstate market). Intrastate marijuana could
No more be distinguished from interstate marijuana than
For example, endangered-species trophies obtained before

10 NATIONAL FEDERATION OF INDEPENDENT
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SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

The species was federally protected can be distinguished
From trophies obtained afterwards—which made it necessary and proper to prohibit the sale of all such trophies
See Andrus v. Allard, 444 U. S. 51 (1979)
With the present statute, by contrast, there are many
Ways other than this unprecedented Individual Mandate
By which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers
Could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when
They do enter the health insurance system. Or they could
Be denied a full income tax credit given to those who do
Purchase the insurance
The Government was invited, at oral argument, to
Suggest what federal controls over private conduct (other
Than those explicitly prohibited by the Bill of Rights or
Other constitutional controls) could not be justified as
Necessary and proper for the carrying out of a general
Regulatory scheme. See Tr. of Oral Arg. 27–30, 43–45
(Mar. 27, 2012). It was unable to name any. As we said at
The outset, whereas the precise scope of the Commerce
Clause and the Necessary and Proper Clause is uncertain
The proposition that the Federal Government cannot do
Everything is a fundamental precept. See Lopez, 514 U. S.,
At 564 (“[I]f we were to accept the Government’s arguments, we are hard pressed to posit any activity by an in-
Dividual that Congress is without power to regulate”)
Section 5000A is defeated by that proposition
B
The Government’s second theory in support of the Individual Mandate is that §5000A is valid because it is
Actually a “regulat[ion of] activities having a substantial
Relation to interstate commerce, . . . i.e., . . . activities that
Substantially affect interstate commerce.” Id., at 558–559
See also Shreveport Rate Cases, supra. This argument

Cite as: 567 U. S. ____ (2012) 11
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
Takes a few different forms, but the basic idea is that
§5000A regulates “the way in which individuals finance
Their participation in the health-care market.” Petitioners’
Minimum Coverage Brief 33 (emphasis added). That is
The provision directs the manner in which individuals
Purchase health care services and related goods (directing
That they be purchased through insurance) and is therefore a straightforward exercise of the commerce power
The primary problem with this argument is that §5000A
Does not apply only to persons who purchase all, or most
Or even any, of the health care services or goods that the
Mandated insurance covers. Indeed, the main objection
Many have to the Mandate is that they have no intention
Of purchasing most or even any of such goods or services
And thus no need to buy insurance for those purchases
The Government responds that the health-care market
Involves “essentially universal participation,” id., at 35
The principal difficulty with this response is that it is, in
The only relevant sense, not true. It is true enough that
Everyone consumes “health care,” if the term is taken to
Include the purchase of a bottle of aspirin. But the health
Care “market” that is the object of the Individual Mandate
Not only includes but principally consists of goods and
Services that the young people primarily affected by the
Mandate do not purchase. They are quite simply not
Participants in that market, and cannot be made so (and
Thereby subjected to regulation) by the simple device of
Defining participants to include all those who will, later in
Their lifetime, probably purchase the goods or services
Covered by the mandated insurance.2
Such a definition of
——————
2
JUSTICE GINSBURG is therefore right to note that Congress is “not
Mandating the purchase of a discrete, unwanted product.” Ante, at 22
(opinion concurring in part, concurring in judgment in part, and dis-
12 NATIONAL FEDERATION OF INDEPENDENT
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Market participants is unprecedented, and were it to be a
Premise for the exercise of national power, it would have
No principled limits
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. §18091(2)(A), since
Those decisions have “a substantial and deleterious effect
On interstate commerce,” Petitioners’ Minimum Coverage
Brief 34. But as the discussion above makes clear, the
Decision to forgo participation in an interstate market is
Not itself commercial activity (or indeed any activity at all)
Within Congress’ power to regulate. It is true that, at the
End of the day, it is inevitable that each American will
Affect commerce and become a part of it, even if not by
Choice. But if every person comes within the Commerce
Clause power of Congress to regulate by the simple reason
That he will one day engage in commerce, the idea of a
Limited Government power is at an end
Wickard v. Filburn has been regarded as the most expansive assertion of the commerce power in our history. A
Close second is Perez v. United States, 402 U. S. 146 (1971)
Which upheld a statute criminalizing the eminently local
Activity of loan-sharking. Both of those cases, however
——————
Senting in part). Instead, it is mandating the purchase of an unwanted
Suite of products—e.g., physician office visits, emergency room visits
Hospital room and board, physical therapy, durable medical equipment
Mental health care, and substance abuse detoxification. See Selected
Medical Benefits: A Report from the Dept. of Labor to the Dept. of
Health & Human Services (April 15, 2011) (reporting that over twothirds of private industry health plans cover these goods and services)
Online at http://www.bls.gov/ncs/ebs/sp/selmedbensreport.pdf (all Internet materials as visited June 26, 2012, and available in Clerk of Court’s
Case file)

Cite as: 567 U. S. ____ (2012) 13
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
Involved commercial activity. To go beyond that, and to
Say that the failure to grow wheat or the refusal to make
Loans affects commerce, so that growing and lending can
Be federally compelled, is to extend federal power to virtually everything. All of us consume food, and when we do
So the Federal Government can prescribe what its quality
Must be and even how much we must pay. But the mere
Fact that we all consume food and are thus, sooner or later
Participants in the “market” for food, does not empower
The Government to say when and what we will buy. That
Is essentially what this Act seeks to do with respect to the
Purchase of health care. It exceeds federal power
C
A few respectful responses to JUSTICE GINSBURG’s dissent on the issue of the Mandate are in order. That dissent duly recites the test of Commerce Clause power that
Our opinions have applied, but disregards the premise the
Test contains. It is true enough that Congress needs only a
“‘rational basis’ for concluding that the regulated activity
Substantially affects interstate commerce,” ante, at 15 (emphasis added). But it must be activity affecting commerce that is regulated, and not merely the failure to
Engage in commerce. And one is not now purchasing
The health care covered by the insurance mandate simply
Because one is likely to be purchasing it in the future. Our
Test’s premise of regulated activity is not invented out of
Whole cloth, but rests upon the Constitution’s requirement
That it be commerce which is regulated. If all inactivity
Affecting commerce is commerce, commerce is everything
Ultimately the dissent is driven to saying that there is
Really no difference between action and inaction, ante, at
26, a proposition that has never recommended itself
Neither to the law nor to common sense. To say, for example, that the inaction here consists of activity in “the selfinsurance market,” ibid., seems to us wordplay. By parity
14 NATIONAL FEDERATION OF INDEPENDENT
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SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

Of reasoning the failure to buy a car can be called participation in the non-private-car-transportation market. Commerce becomes everything
The dissent claims that we “fai[l] to explain why the
Individual mandate threatens our constitutional order.”
Ante, at 35. But we have done so. It threatens that order
Because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to
Act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers
Thus the dissent, on the theories proposed for the validity
Of the Mandate, would alter the accepted constitutional
Relation between the individual and the National Government. 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 34–35. Is not the power
To compel purchase of health insurance much lesser? No
Not if (unlike those other dispositions) its application rests
Upon a theory that everything is within federal control
Simply because it exists
The dissent’s exposition of the wonderful things the Fed-
Eral Government has achieved through exercise of its
Assigned powers, such as “the provision of old-age and
Survivors’ benefits” in the Social Security Act, ante, at 2
Is quite beside the point. The issue here is whether the
Federal government can impose the Individual Mandate
Through the Commerce Clause. And the relevant history
Is not that Congress has achieved wide and wonderful
Results through the proper exercise of its assigned powers
In the past, but that it has never before used the Commerce Clause to compel entry into commerce.3
The dissent
——————
3
In its effort to show the contrary, JUSTICE GINSBURG’S dissent comes

Cite as: 567 U. S. ____ (2012) 15
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
Treats the Constitution as though it is an enumeration of
Those problems that the Federal Government can address—among which, it finds, is “the Nation’s course in
The economic and social welfare realm,” ibid., and more
Specifically “the problem of the uninsured,” ante, at 7
The Constitution is not that. It enumerates not federally
Soluble problems, but federally available powers. The
Federal Government can address whatever problems it
Wants but can bring to their solution only those powers
That the Constitution confers, among which is the power to
Regulate commerce. None of our cases say anything else
Article I contains no whatever-it-takes-to-solve-a-nationalproblem power
The dissent dismisses the conclusion that the power to
Compel entry into the health-insurance market would
Include the power to compel entry into the new-car or
Broccoli markets. The latter purchasers, it says, “will be
Obliged to pay at the counter before receiving the vehicle
——————
Up with nothing more than two condemnation cases, which it says
Demonstrate “Congress’ authority under the commerce power to compel
An ‘inactive’ landholder to submit to an unwanted sale.” Ante, at 24
Wrong on both scores. As its name suggests, the condemnation power
Does not “compel” anyone to do anything. It acts in rem, against the
Property that is condemned, and is effective with or without a transfer
Of title from the former owner. More important, the power to condemn
For public use is a separate sovereign power, explicitly acknowledged in
The Fifth Amendment, which provides that “private property [shall not]
Be taken for public use, without just compensation.”
Thus, the power to condemn tends to refute rather than support
The power to compel purchase of unwanted goods at a prescribed price:
The latter is rather like the power to condemn cash for public use. If it
Existed, why would it not (like the condemnation power) be accompanied by a requirement of fair compensation for the portion of the
Exacted price that exceeds the goods’ fair market value (here, the
Difference between what the free market would charge for a healthinsurance policy on a young, healthy person with no pre-existing
Conditions, and the government-exacted community-rated premium)?

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Or nourishment,” whereas those refusing to purchase
Health-insurance will ultimately get treated anyway, at
Others’ expense. Ante, at 21. “[T]he unique attributes of
The health-care market . . . give rise to a significant freeriding problem that does not occur in other markets.”
Ante, at 28. 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
Ante, at 29. Those differences make a very good argument
By the dissent’s own lights, since they show that the failure to purchase health insurance, unlike the failure to
Purchase cars or broccoli, creates a national, social-welfare
Problem that is (in the dissent’s view) included among the
Unenumerated “problems” that the Constitution authorizes the Federal Government to solve. But those differences
Do not show that the failure to enter the health-insurance
Market, unlike the failure to buy cars and broccoli, is
An activity that Congress can “regulate.” (Of course one
Day the failure of some of the public to purchase American cars may endanger the existence of domestic automobile manufacturers; or the failure of some to eat broccoli
May be found to deprive them of a newly discovered cancerfighting chemical which only that food contains, producing
Health-care costs that are a burden on the rest of us—in
Which case, under the theory of JUSTICE GINSBURG’s dissent, moving against those inactivities will also come
Within the Federal Government’s unenumerated problemsolving powers.)
II
The Taxing Power
As far as §5000A is concerned, we would stop there
Congress has attempted to regulate beyond the scope of its

Cite as: 567 U. S. ____ (2012) 17
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
Commerce Clause authority,4
And §5000A is therefore
Invalid. The Government contends, however, as expressed
In the caption to Part II of its brief, that “THE MINIMUM
COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY
CONGRESS’S TAXING POWER.” Petitioners’ Minimum Coverage Brief 52. The phrase “independently authorized”
Suggests the existence of a creature never hitherto seen
In the United States Reports: A penalty for constitutional
Purposes that is also a tax for constitutional purposes. In
All our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty
Or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been
Imposed as a tax upon permissible action; or what was im-
Posed as a tax upon permissible action could have been a
Regulatory mandate enforced by a penalty. But we know
Of no case, and the Government cites none, in which the
Imposition was, for constitutional purposes, both.5
The
Two are mutually exclusive. Thus, what the Government’s
Caption should have read was “ALTERNATIVELY, THE
MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITHPENALTY BUT A TAX.” It is important to bear this in mind
In evaluating the tax argument of the Government and of
Those who support it: The issue is not whether Congress
——————
4
No one seriously contends that any of Congress’ other enumerated
Powers gives it the authority to enact §5000A as a regulation
5
Of course it can be both for statutory purposes, since Congress can
Define “tax” and “penalty” in its enactments any way it wishes. That is
Why United States v. Sotelo, 436 U. S. 268 (1978), does not disprove our
Statement. That case held that a “penalty” for willful failure to pay
One’s taxes was included among the “taxes” made non-dischargeable
Under the Bankruptcy Code. 436 U. S., at 273–275. Whether the
“penalty” was a “tax” within the meaning of the Bankruptcy Code had
Absolutely no bearing on whether it escaped the constitutional limitations on penalties

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Had the power to frame the minimum-coverage provision
As a tax, but whether it did so
In answering that question we must, if “fairly possible,”
Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the
Provision to be a tax rather than a mandate-with-penalty
Since that would render it constitutional rather than un-
Constitutional (ut res magis valeat quam pereat). But we
Cannot rewrite the statute to be what it is not. “‘“[A]l-
Though this Court will often strain to construe legis-
Lation so as to save it against constitutional attack, it
Must not and will not carry this to the point of perverting
The purpose of a statute . . .” or judicially rewriting it.’”
Commodity Futures Trading Comm’n v. Schor, 478 U. S
833, 841 (1986) (quoting Aptheker v. Secretary of State
378 U. S. 500, 515 (1964), in turn quoting Scales v. United
States, 367 U. S. 203, 211 (1961)). In this case, there is
Simply no way, “without doing violence to the fair meaning
Of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress
Enacted: a mandate that individuals maintain minimum
Essential coverage, enforced by a penalty
Our cases establish a clear line between a tax and a
Penalty: “‘[A] tax is an enforced contribution to provide for
The support of government; a penalty . . . is an exaction
Imposed by statute as punishment for an unlawful act.’”
United States v. Reorganized CF&I Fabricators of Utah
Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La
Franca, 282 U. S. 568, 572 (1931)). In a few cases, this
Court has held that a “tax” imposed upon private conduct
Was so onerous as to be in effect a penalty. But we have
Never held—never—that a penalty imposed for violation of
The law was so trivial as to be in effect a tax. We have
Never held that any exaction imposed for violation of
The law is an exercise of Congress’ taxing power—even
When the statute calls it a tax, much less when (as here)
The statute repeatedly calls it a penalty. When an act

Cite as: 567 U. S. ____ (2012) 19
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

“adopt[s] the criteria of wrongdoing” and then imposes a
Monetary penalty as the “principal consequence on those
Who transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38
(1922)
So the question is, quite simply, whether the exaction
Here is imposed for violation of the law. It unquestionably is. The minimum-coverage provision is found in 26
U. S. C. §5000A, entitled “Requirement to maintain minimum essential coverage.” (Emphasis added.) It commands
That every “applicable individual shall . . . ensure that the
Individual . . . is covered under minimum essential coverage.” Ibid. (emphasis added). And the immediately following provision states that, “[i]f . . . an applicable
Individual . . . fails to meet the requirement of subsection
(a) . . . there is hereby imposed . . . a penalty.” §5000A(b)
(emphasis added). And several of Congress’ legislative
“findings” with regard to §5000A confirm that it sets forth
A legal requirement and constitutes the assertion of regulatory power, not mere taxing power. See 42 U. S. C
§18091(2)(A) (“The requirement regulates activity . . .”);
§18091(2)(C) (“The requirement . . . will add millions of
New consumers to the health insurance market . . .”);
§18091(2)(D) (“The requirement achieves near-universal
Coverage”); §18091(2)(H) (“The requirement is an essential
Part of this larger regulation of economic activity, and the
Absence of the requirement would undercut Federal regulation of the health insurance market”); §18091(3) (“[T]he
Supreme Court of the United States ruled that insurance
Is interstate commerce subject to Federal regulation”)
The Government and those who support its view on the
Tax point rely on New York v. United States, 505 U. S. 144
To justify reading “shall” to mean “may.” The “shall” in
That case was contained in an introductory provision—a
Recital that provided for no legal consequences—which
Said that “[e]ach State shall be responsible for providing

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. . . for the disposal of . . . low-level radioactive waste.” 42
U. S. C. §2021c(a)(1)(A). The Court did not hold that
“shall” could be construed to mean “may,” but rather that
This preliminary provision could not impose upon the oper-
Ative provisions of the Act a mandate that they did not
Contain: “We . . . decline petitioners’ invitation to con-
Strue §2021c(a)(1)(A), alone and in isolation, as a command to the States independent of the remainder of the
Act.” New York, 505 U. S., at 170. Our opinion then
Proceeded to “consider each [of the three operative provisions] in turn.” Ibid. Here the mandate—the “shall”—is
Contained not in an inoperative preliminary recital, but in
The dispositive operative provision itself. New York provides no support for reading it to be permissive
Quite separately, the fact that Congress (in its own
Words) “imposed . . . a penalty,” 26 U. S. C. §5000A(b)(1)
For failure to buy insurance is alone sufficient to render
That failure unlawful. It is one of the canons of interpretation that a statute that penalizes an act makes it unlawful: “[W]here the statute inflicts a penalty for doing an act
Although the act itself is not expressly prohibited, yet to do
The act is unlawful, because it cannot be supposed that the
Legislature intended that a penalty should be inflicted for
A lawful act.” Powhatan Steamboat Co. v. Appomattox R
Co., 24 How. 247, 252 (1861). Or in the words of Chancellor Kent: “If a statute inflicts a penalty for doing an act
The penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute.”
1 J. Kent, Commentaries on American Law 436 (1826)
We never have classified as a tax an exaction imposed
For violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself
As a penalty. To be sure, we have sometimes treated as a
Tax a statutory exaction (imposed for something other
Than a violation of law) which bore an agnostic label that
Does not entail the significant constitutional consequences
Cite as: 567 U. S. ____ (2012) 21
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

Of a penalty—such as “license” (License Tax Cases, 5 Wall
462 (1867)) or “surcharge” (New York v. United States
Supra.). But we have never—never—treated as a tax an
Exaction which faces up to the critical difference between
A tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times in §5000A itself and else-
Where throughout the Act, Congress called the exaction in
§5000A(b) a “penalty.”
That §5000A imposes not a simple tax but a mandate to
Which a penalty is attached is demonstrated by the fact
That some are exempt from the tax who are not exempt from the mandate—a distinction that would make
No sense if the mandate were not a mandate. Section
5000A(d) exempts three classes of people from the definition of “applicable individual” subject to the minimum
Coverage requirement: Those with religious objections or
Who participate in a “health care sharing ministry,”
§5000A(d)(2); those who are “not lawfully present” in the
United States, §5000A(d)(3); and those who are incarcerated, §5000A(d)(4). Section 5000A(e) then creates a separate set of exemptions, excusing from liability for the
Penalty certain individuals who are subject to the minimum coverage requirement: Those who cannot afford
Coverage, §5000A(e)(1); who earn too little income to require filing a tax return, §5000A(e)(2); who are members
Of an Indian tribe, §5000A(e)(3); who experience only short
Gaps in coverage, §5000A(e)(4); and who, in the judgment
Of the Secretary of Health and Human Services, “have
Suffered a hardship with respect to the capability to obtain
Coverage,” §5000A(e)(5). If §5000A were a tax, these two
Classes of exemption would make no sense; there being no
Requirement, all the exemptions would attach to the penalty (renamed tax) alone
In the face of all these indications of a regulatory requirement accompanied by a penalty, the Solicitor General
Assures us that “neither the Treasury Department nor the
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Department of Health and Human Services interprets
Section 5000A as imposing a legal obligation,” Petitioners’
Minimum Coverage Brief 61, and that “[i]f [those subject
To the Act] pay the tax penalty, they’re in compliance with
The law,” Tr. of Oral Arg. 50 (Mar. 26, 2012). These selfserving litigating positions are entitled to no weight
What counts is what the statute says, and that is entirely
Clear. It is worth noting, moreover, that these assurances
Contradict the Government’s position in related litigation
Shortly before the Affordable Care Act was passed, the
Commonwealth of Virginia enacted Va. Code Ann. §38.2–
3430.1:1 (Lexis Supp. 2011), which states, “No resident of
[The] Commonwealth . . . shall be required to obtain or
Maintain a policy of individual insurance coverage except
As required by a court or the Department of Social Services . . . .” In opposing Virginia’s assertion of standing to
Challenge §5000A based on this statute, the Government
Said that “if the minimum coverage provision is unconstitutional, the [Virginia] statute is unnecessary, and if the
Minimum coverage provision is upheld, the state statute is
Void under the Supremacy Clause.” Brief for Appellant
In No. 11–1057 etc. (CA4), p. 29. But it would be void
Under the Supremacy Clause only if it was contradicted by
A federal “require[ment] to obtain or maintain a policy of
Individual insurance coverage.”
Against the mountain of evidence that the minimum
Coverage requirement is what the statute calls it—a requirement—and that the penalty for its violation is what
The statute calls it—a penalty—the Government brings
Forward the flimsiest of indications to the contrary. It
Notes that “[t]he minimum coverage provision amends the
Internal Revenue Code to provide that a non-exempted
Individual . . . will owe a monetary penalty, in addition to
The income tax itself,” and that “[t]he [Internal Revenue
Service (IRS)] will assess and collect the penalty in the
Same manner as assessable penalties under the Internal
Cite as: 567 U. S. ____ (2012) 23
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

Revenue Code.” Petitioners’ Minimum Coverage Brief 53
The manner of collection could perhaps suggest a tax if
IRS penalty-collection were unheard-of or rare. It is not
See, e.g., 26 U. S. C. §527(j) (2006 ed.) (IRS-collectible pen-
Alty for failure to make campaign-finance disclosures);
§5761(c) (IRS-collectible penalty for domestic sales of to-
Bacco products labeled for export); §9707 (IRS-collectible
Penalty for failure to make required health-insurance
Premium payments on behalf of mining employees). In
Reorganized CF&I Fabricators of Utah, Inc., 518 U. S
213, we held that an exaction not only enforced by the
Commissioner of Internal Revenue but even called a “tax”
Was in fact a penalty. “[I]f the concept of penalty means
Anything,” we said, “it means punishment for an unlawful
Act or omission.” Id., at 224. See also Lipke v. Lederer
259 U. S. 557 (1922) (same). Moreover, while the penalty
Is assessed and collected by the IRS, §5000A is administered both by that agency and by the Department of
Health and Human Services (and also the Secretary of
Veteran Affairs), see §5000A(e)(1)(D), (e)(5), (f)(1)(A)(v)
(f)(1)(E) (2006 ed., Supp. IV), which is responsible for
Defining its substantive scope—a feature that would be
Quite extraordinary for taxes
The Government points out that “[t]he amount of the
Penalty will be calculated as a percentage of household
Income for federal income tax purposes, subject to a floor
And [a] ca[p],” and that individuals who earn so little
Money that they “are not required to file income tax returns for the taxable year are not subject to the penalty”
(though they are, as we discussed earlier, subject to the
Mandate). Petitioners’ Minimum Coverage Brief 12, 53
But varying a penalty according to ability to pay is an
Utterly familiar practice. See, e.g., 33 U. S. C. §1319(d)
(2006 ed., Supp. 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. §488e(c); 7

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U. S. C. §§7734(b)(2), 8313(b)(2); 12 U. S. C. §§1701q–1(d)(3)
1723i(c)(3), 1735f–14(c)(3), 1735f–15(d)(3), 4585(c)(2); 15
U. S. C. §§45(m)(1)(C), 77h–1(g)(3), 78u–2(d), 80a–9(d)(4)
80b–3(i)(4), 1681s(a)(2)(B), 1717a(b)(3), 1825(b)(1), 2615(a)
(2)(B), 5408(b)(2); 33 U. S. C. §2716a(a)
The last of the feeble arguments in favor of petition-
Ers that we will address is the contention that what this
Statute repeatedly calls a penalty is in fact a tax because it
Contains no scienter requirement. The presence of such a
Requirement suggests a penalty—though one can imagine
A tax imposed only on willful action; but the absence of
Such a requirement does not suggest a tax. Penalties for
Absolute-liability offenses are commonplace. And where a
Statute is silent as to scienter, we traditionally presume
A mens rea requirement if the statute imposes a “severe
Penalty.” Staples v. United States, 511 U. S. 600, 618
(1994). Since we have an entire jurisprudence addressing
When it is that a scienter requirement should be inferred
From a penalty, it is quite illogical to suggest that a
Penalty is not a penalty for want of an express scienter
Requirement
And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core
Rather than where a tax would be found—in Title IX
Containing the Act’s “Revenue Provisions.” In sum, “the
Terms of [the] act rende[r] it unavoidable,” Parsons v
Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a
Regulatory penalty, not a tax
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute
But to rewrite it. Judicial tax-writing is particularly troubl-
Ing. Taxes have never been popular, see, e.g., Stamp Act
Of 1765, and in part for that reason, the Constitution
Requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must
Originate in the legislative body most accountable to the
Cite as: 567 U. S. ____ (2012) 25
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

People, where legislators must weigh the need for the tax
Against the terrible price they might pay at their next
Election, which is never more than two years off. The
Federalist No. 58 “defend[ed] the decision to give the
Origination power to the House on the ground that the
Chamber that is more accountable to the people should
Have the primary role in raising revenue.” United States
V. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no
Doubt that Congress knew precisely what it was doing
When it rejected an earlier version of this legislation that
Imposed a tax instead of a requirement-with-penalty. See
Affordable Health Care for America Act, H. R. 3962, 111th
Cong., 1st Sess., §501 (2009); America’s Healthy Future
Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of
Government least accountable to the citizenry
Finally, we must observe that rewriting §5000A as a tax
In order to sustain its constitutionality would force us to
Confront a difficult constitutional question: whether this is
A direct tax that must be apportioned among the States
According to their population. Art. I, §9, cl. 4. Perhaps it
Is not (we have no need to address the point); but the
Meaning of the Direct Tax Clause is famously unclear, and
Its application here is a question of first impression that
Deserves more thoughtful consideration than the lick-anda-promise accorded by the Government and its supporters
The Government’s opening brief did not even address the
Question—perhaps because, until today, no federal court
Has accepted the implausible argument that §5000A is
An exercise of the tax power. And once respondents raised
The issue, the Government devoted a mere 21 lines of its
Reply brief to the issue. Petitioners’ Minimum Coverage
Reply Brief 25. At oral argument, the most prolonged
Statement about the issue was just over 50 words. Tr. of
Oral Arg. 79 (Mar. 27, 2012). One would expect this Court
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To demand more than fly-by-night briefing and argument
Before deciding a difficult constitutional question of first
Impression
III
The Anti-Injunction Act
There is another point related to the Individual Mandate that we must discuss—a point that logically should
Have been discussed first: Whether jurisdiction over the
Challenges to the minimum-coverage provision is precluded
By the Anti-Injunction Act, which provides that “no suit
For the purpose of restraining the assessment or collection
Of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a) (2006 ed.)
We have left the question to this point because it
Seemed to us that the dispositive question whether the
Minimum-coverage provision is a tax is more appropriately
Addressed in the significant constitutional context of
Whether it is an exercise of Congress’ taxing power. Having found that it is not, we have no difficulty in deciding
That these suits do not have “the purpose of restraining
The assessment or collection of any tax.”6
——————
6
The amicus appointed to defend the proposition that the AntiInjunction Act deprives us of jurisdiction stresses that the penalty for
Failing to comply with the mandate “shall be assessed and collected
In the same manner as an assessable penalty under subchapter B of
Chapter 68,” 26 U. S. C. §5000A(g)(1) (2006 ed., Supp. IV), and that
Such penalties “shall be assessed and collected in the same manner
As taxes,” §6671(a) (2006 ed.). But that point seems to us to confirm
The inapplicability of the Anti-Injunction Act. That the penalty is to
Be “assessed and collected in the same manner as taxes” refutes the
Proposition that it is a tax for all statutory purposes, including with
Respect to the Anti-Injunction Act. Moreover, elsewhere in the Internal
Revenue Code, Congress has provided both that a particular payment
Shall be “assessed and collected” in the same manner as a tax and that
No suit shall be maintained to restrain the assessment or collection of
The payment. See, e.g., §§7421(b)(1), §6901(a); §6305(a), (b). The
Cite as: 567 U. S. ____ (2012) 27
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The Government and those who support its position on
This point make the remarkable argument that §5000A is
Not a tax for purposes of the Anti-Injunction Act, see Brief
For Petitioners in No. 11–398 (Anti-Injunction Act), but
Is a tax for constitutional purposes, see Petitioners’ Minimum Coverage Brief 52–62. The rhetorical device that
Tries to cloak this argument in superficial plausibility is
The same device employed in arguing that for constitutional purposes the minimum-coverage provision is a tax:
Confusing the question of what Congress did with the
Question of what Congress could have done. What qualifies as a tax for purposes of the Anti-Injunction Act, unlike
What qualifies as a tax for purposes of the Constitution, is
Entirely within the control of Congress. Compare Bailey v
George, 259 U. S. 16, 20 (1922) (Anti-Injunction Act barred
Suit to restrain collections under the Child Labor Tax
Law), with Child Labor Tax Case, 259 U. S., at 36–41
(holding the same law unconstitutional as exceeding Congress’ taxing power). Congress could have defined “tax”
For purposes of that statute in such fashion as to exclude
Some exactions that in fact are “taxes.” It might have
Prescribed, for example, that a particular exercise of the
Taxing power “shall not be regarded as a tax for purposes
Of the Anti-Injunction Act.” But there is no such prescription here. What the Government would have us believe in
——————
Latter directive would be superfluous if the former invoked the AntiInjunction Act
Amicus also suggests that the penalty should be treated as a tax
Because it is an assessable penalty, and the Code’s assessment provision authorizes the Secretary of the Treasury to assess “all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by this title.” §6201(a) (2006 ed., Supp
IV). But the fact that such items are included as “taxes” for purposes of
Assessment does not establish that they are included as “taxes” for
Purposes of other sections of the Code, such as the Anti-Injunction Act
That do not contain similar “including” language

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These cases is that the very same textual indications that
Show this is not a tax under the Anti-Injunction Act show
That it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the
Sophists
IV
The Medicaid Expansion
We now consider respondents’ second challenge to the
Constitutionality of the ACA, namely, that the Act’s dramatic expansion of the Medicaid program exceeds Congress’ power to attach conditions to federal grants to the
States
The ACA does not legally compel the States to participate in the expanded Medicaid program, but the Act authorizes a severe sanction for any State that refuses to go
Along: termination of all the State’s Medicaid funding. For
The average State, the annual federal Medicaid subsidy is
Equal to more than one-fifth of the State’s expenditures.7
A State forced out of the program would not only lose this
Huge sum but would almost certainly find it necessary to
Increase its own health-care expenditures substantially
Requiring either a drastic reduction in funding for other
Programs or a large increase in state taxes. And these
New taxes would come on top of the federal taxes already
Paid by the State’s citizens to fund the Medicaid program
In other States
The States challenging the constitutionality of the ACA’s
Medicaid Expansion contend that, for these practical
Reasons, the Act really does not give them any choice at
All. As proof of this, they point to the goal and the struc-
——————
7
“State expenditures” is used here to mean annual expenditures from
The States’ own funding sources, and it excludes federal grants unless
Otherwise noted
Cite as: 567 U. S. ____ (2012) 29
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
Ture of the ACA. The goal of the Act is to provide nearuniversal medical coverage, 42 U. S. C. §18091(2)(D), and
Without 100% State participation in the Medicaid program, attainment of this goal would be thwarted. 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. And if a substantial
Number of States were entirely expelled from the program
The number of persons without coverage would be even
Higher
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. But
No such scheme is to be found anywhere in the more than
900 pages of the Act. This shows, they maintain, that
Congress was certain that the ACA’s Medicaid offer was
One that no State could refuse
In response to this argument, the Government contends
That any congressional assumption about uniform state
Participation was based on the simple fact that the offer
Of federal funds associated with the expanded coverage is
Such a generous gift that no State would want to turn it
Down
To evaluate these arguments, we consider the extent of
The Federal Government’s power to spend money and to
Attach conditions to money granted to the States
A
No one has ever doubted that the Constitution authorizes the Federal Government to spend money, but for
Many years the scope of this power was unsettled. The
Constitution grants Congress the power to collect taxes “to
. . . provide for the . . . general Welfare of the United
States,” Art. I, §8, cl. 1, and from “the foundation of the
Nation sharp differences of opinion have persisted as to
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The true interpretation of the phrase” “the general welfare.” Butler, 297 U. S., at 65. Madison, it has been said
Thought that the phrase “amounted to no more than a
Reference to the other powers enumerated in the subsequent clauses of the same section,” while Hamilton “maintained the clause confers a power separate and distinct
From those later enumerated [and] is not restricted in
Meaning by the grant of them.” Ibid
The Court resolved this dispute in Butler. Writing for
The Court, Justice Roberts opined that the Madisonian
View would make Article I’s grant of the spending power a
“mere tautology.” Ibid. To avoid that, he adopted Hamilton’s approach and found that “the power of Congress to
Authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative
Power found in the Constitution.” Id., at 66. Instead, he
Wrote, the spending power’s “confines are set in the clause
Which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress.”
Ibid.; see also Steward Machine Co. v. Davis, 301 U. S
548, 586–587 (1937); Helvering v. Davis, 301 U. S. 619
640 (1937)
The power to make any expenditure that furthers “the
General welfare” is obviously very broad, and shortly after
Butler was decided the Court gave Congress wide leeway
To decide whether an expenditure qualifies. See Helvering
301 U. S., at 640–641. “The discretion belongs to Congress,” the Court wrote, “unless the choice is clearly
Wrong, a display of arbitrary power, not an exercise of
Judgment.” Id., at 640. Since that time, the Court has
Never held that a federal expenditure was not for “the
General welfare.”
B
One way in which Congress may spend to promote the
General welfare is by making grants to the States. Mone-
Cite as: 567 U. S. ____ (2012) 31
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Tary grants, so-called grants-in-aid, became more frequent
During the 1930’s, G. Stephens & N. Wikstrom, Ameri-
Can Intergovernmental Relations—A Fragmented Federal
Polity 83 (2007), and by 1950 they had reached $20 billion8
Or 11.6% of state and local government expenditures from
Their own sources.9
By 1970 this number had grown to
$123.7 billion10
Or 29.1% of state and local government
Expenditures from their own sources.11
As of 2010, federal outlays to state and local governments came to over
$608 billion or 37.5% of state and local government
Expenditures.12
When Congress makes grants to the States, it customarily attaches conditions, and this Court has long held that
The Constitution generally permits Congress to do this
See Pennhurst State School and Hospital v. Halderman
451 U. S. 1, 17 (1981); South Dakota v. Dole, 483 U. S
203, 206 (1987); Fullilove v. Klutznick, 448 U. S. 448, 474
(1980) (opinion of Burger, C. J.); Steward Machine, supra
At 593
C
This practice of attaching conditions to federal funds
——————
8
This number is expressed in billions of Fiscal Year 2005 dollars
9
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.whitehouse.gov/omb/
Budget/Historicals; id., Table 15.2—Total Government Expenditures:
1948–2011 (hereinafter Table 15.2)
10
This number is expressed in billions of Fiscal Year 2005 dollars
11
See Table 12.1; Dept. of Commerce, Bureau of Census, Statistical
Abstract of the United States: 2001, p. 262 (Table 419, Federal Grantsin-Aid Summary: 1970 to 2001)
12
See Statistical Abstract of the United States: 2012, p. 268 (Table
431, Federal Grants-in-Aid to State and Local Governments: 1990 to
2011)

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Greatly increases federal power. “[O]bjectives not thought
To be within Article I’s enumerated legislative fields, may
Nevertheless be attained through the use of the spending
Power and the conditional grant of federal funds.” Dole
Supra, at 207 (internal quotation marks and citation omitted); see also College Savings Bank v. Florida Prepaid
Postsecondary Ed. Expense Bd., 527 U. S. 666, 686 (1999)
(by attaching conditions to federal funds, Congress may
Induce the States to “tak[e] certain actions that Congress
Could not require them to take”)
This formidable power, if not checked in any way, would
Present a grave threat to the system of federalism created
By our Constitution. If Congress’ “Spending Clause power
To pursue objectives outside of Article I’s enumerated
Legislative fields,” Davis v. Monroe County Bd. of Ed., 526
U. S. 629, 654 (1999) (KENNEDY, J., dissenting) (internal
Quotation marks omitted), is “limited only by Congress’
Notion of the general welfare, the reality, given the vast
Financial resources of the Federal Government, is that
The Spending Clause gives ‘power to the Congress to tear
Down the barriers, to invade the states’ jurisdiction, and to
Become a parliament of the whole people, subject to no
Restrictions save such as are self-imposed,’” Dole, supra, at
217 (O’Connor, J., dissenting) (quoting Butler, 297 U. S.,
At 78). “[T]he Spending Clause power, if wielded without
Concern for the federal balance, has the potential to obliterate distinctions between national and local spheres of
Interest and power by permitting the Federal Government
To set policy in the most sensitive areas of traditional
State concern, areas which otherwise would lie outside
Its reach.” Davis, supra, at 654–655 (KENNEDY, J.,
Dissenting)
Recognizing this potential for abuse, our cases have long
Held that the power to attach conditions to grants to the
States has limits. See, e.g., Dole, supra, at 207–208; id.,
At 207 (spending power is “subject to several general re-

Cite as: 567 U. S. ____ (2012) 33
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
Strictions articulated in our cases”). For one thing, any
Such conditions must be unambiguous so that a State at
Least knows what it is getting into. See Pennhurst, supra
At 17. Conditions must also be related “to the federal
Interest in particular national projects or programs,”
Massachusetts v. United States, 435 U. S. 444, 461 (1978)
And the conditional grant of federal funds may not “induce
The States to engage in activities that would themselves be
Unconstitutional,” Dole, supra, at 210; see Lawrence County
V. Lead-Deadwood School Dist. No. 40–1, 469 U. S
256, 269–270 (1985). Finally, while Congress may seek to
Induce States to accept conditional grants, Congress may
Not cross the “point at which pressure turns into compulsion, and ceases to be inducement.” Steward Machine, 301
U. S., at 590. Accord, College Savings Bank, supra, at 687;
Metropolitan Washington Airports Authority v. Citizens for
Abatement of Aircraft Noise, Inc., 501 U. S. 252, 285 (1991)
(White, J., dissenting); Dole, supra, at 211
When federal legislation gives the States a real choice
Whether to accept or decline a federal aid package, the
Federal-state relationship is in the nature of a contractual
Relationship. See Barnes v. Gorman, 536 U. S. 181, 186
(2002); Pennhurst, 451 U. S., at 17. And just as a contract
Is voidable if coerced, “[t]he legitimacy of Congress’ power
To legislate under the spending power . . . rests on whether
The State voluntarily and knowingly accepts the terms
Of the ‘contract.’” Ibid. (emphasis added). If a federal
Spending program coerces participation the States have
Not “exercise[d] their choice”—let alone made an “informed
Choice.” Id., at 17, 25
Coercing States to accept conditions risks the destruction of the “unique role of the States in our system.”
Davis, supra, at 685 (KENNEDY, J., dissenting). “[T]he
Constitution has never been understood to confer upon
Congress the ability to require the States to govern according to Congress’ instructions.” New York, 505 U. S., at

34 NATIONAL FEDERATION OF INDEPENDENT
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SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
162. Congress may not “simply commandeer the legislative processes of the States by directly compelling them to
Enact and enforce a federal regulatory program.” Id.,
At 161 (internal quotation marks and brackets omitted)
Congress effectively engages in this impermissible compulsion when state participation in a federal spending
Program is coerced, so that the States’ choice whether to
Enact or administer a federal regulatory program is rendered illusory
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. [But]
Where the Federal Government compels States to regulate
The accountability of both state and federal officials is
Diminished.” New York, supra, at 168
Amici who support the Government argue that forcing
State employees to implement a federal program is more
Respectful of federalism than using federal workers to
Implement that program. See, e.g., Brief for Service Employees International Union et al. as Amici Curiae in No
11–398, pp. 25–26. They note that Congress, instead of
Expanding Medicaid, could have established an entirely
Federal program to provide coverage for the same group of
People. By choosing to structure Medicaid as a cooperative
Federal-state program, they contend, Congress allows for
More state control. Ibid
This argument reflects a view of federalism that our
Cases have rejected—and with good reason. When Congress compels the States to do its bidding, it blurs the
Lines of political accountability. 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.” New York, 505 U. S., at

Cite as: 567 U. S. ____ (2012) 35
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

168. But when the Federal Government compels the
States to take unpopular actions, “it may be state officials
Who will bear the brunt of public disapproval, while the
Federal officials who devised the regulatory program may
Remain insulated from the electoral ramifications of their
Decision.” Id., at 169; see Printz, supra, at 930. For this
Reason, federal officeholders may view this “departur[e]
From the federal structure to be in their personal interests
. . . as a means of shifting responsibility for the eventual
Decision.” New York, 505 U. S., at 182–183. And even state
Officials may favor such a “departure from the constitutional plan,” since uncertainty concerning responsibility
May also permit them to escape accountability. Id., at
182. If a program is popular, state officials may claim
Credit; if it is unpopular, they may protest that they were
Merely responding to a federal directive
Once it is recognized that spending-power legislation
Cannot coerce state participation, two questions remain:
(1) What is the meaning of coercion in this context? (2) Is
The ACA’s expanded Medicaid coverage coercive? We now
Turn to those questions
D
1
The answer to the first of these questions—the meaning
Of coercion in the present context—is straightforward. As
We have explained, the legitimacy of attaching conditions
To federal grants to the States depends on the voluntariness of the States’ choice to accept or decline the offered
Package. Therefore, if States really have no choice other
Than to accept the package, the offer is coercive, and the
Conditions cannot be sustained under the spending power
And as our decision in South Dakota v. Dole makes clear
Theoretical voluntariness is not enough
In South Dakota v. Dole, we considered whether the
Spending power permitted Congress to condition 5% of the

36 NATIONAL FEDERATION OF INDEPENDENT
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SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

State’s federal highway funds on the State’s adoption of
A minimum drinking age of 21 years. South Dakota argued that the program was impermissibly coercive, but we
Disagreed, reasoning that “Congress ha[d] directed only
That a State desiring to establish a minimum drinking age
Lower than 21 lose a relatively small percentage of certain
Federal highway funds.” 483 U. S., at 211. Because “all
South Dakota would lose if she adhere[d] to her chosen
Course as to a suitable minimum drinking age [was] 5%
Of the funds otherwise obtainable under specified highway grant programs,” we found that “Congress ha[d] of-
Fered relatively mild encouragement to the States to enact
Higher minimum drinking ages than they would otherwise
Choose.” Ibid. Thus, the decision whether to comply with
The federal condition “remain[ed] the prerogative of the
States not merely in theory but in fact,” and so the program at issue did not exceed Congress’ power. Id., at 211–
212 (emphasis added)
The question whether a law enacted under the spending
Power is coercive in fact will sometimes be difficult, but
Where Congress has plainly “crossed the line distinguishing encouragement from coercion,” New York, supra, at
175, a federal program that coopts the States’ political
Processes must be declared unconstitutional. “[T]he federal balance is too essential a part of our constitutional
Structure and plays too vital a role in securing freedom for
Us to admit inability to intervene.” Lopez, 514 U. S., at
578 (KENNEDY, J., concurring)
2
The Federal Government’s argument in this case at best
Pays lip service to the anticoercion principle. The Federal
Government suggests that it is sufficient if States are
“free, as a matter of law, to turn down” federal funds
Brief for Respondents in No. 11–400, p. 17 (emphasis
Added); see also id., at 25. According to the Federal Gov-
Cite as: 567 U. S. ____ (2012) 37
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
Ernment, neither the amount of the offered federal funds
Nor the amount of the federal taxes extracted from the
Taxpayers of a State to pay for the program in question is
Relevant in determining whether there is impermissible
Coercion. Id., at 41–46
This argument ignores reality. When a heavy federal
Tax is levied to support a federal program that offers large
Grants to the States, States may, as a practical matter, be
Unable to refuse to participate in the federal program and
To substitute a state alternative. Even if a State believes
That the federal program is ineffective and inefficient
Withdrawal would likely force the State to impose a huge
Tax increase on its residents, and this new state tax would
Come on top of the federal taxes already paid by residents
To support subsidies to participating States.13
Acceptance of the Federal Government’s interpretation of the anticoercion rule would permit Congress to dictate policy in areas traditionally governed primarily at the
State or local level. Suppose, for example, that Congress
Enacted legislation offering each State a grant equal to the
State’s entire annual expenditures for primary and secondary education. Suppose also that this funding came
With conditions governing such things as school curriculum, the hiring and tenure of teachers, the drawing of
School districts, the length and hours of the school day, the
——————
13
JUSTICE GINSBURG argues that “[a] State . . . has no claim on the
Money its residents pay in federal taxes.” Ante, at 59, n. 26. This is
True as a formal matter. “When the United States Government taxes
United States citizens, it taxes them ‘in their individual capacities’ as
‘the people of America’—not as residents of a particular State.” Ante, at
58, n. 26 (quoting U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779
839 (1995) (KENNEDY, J., concurring)). But unless JUSTICE GINSBURG
Thinks that there is no limit to the amount of money that can be
Squeezed out of taxpayers, heavy federal taxation diminishes the
Practical ability of States to collect their own taxes
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SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

School calendar, a dress code for students, and rules for
Student discipline. As a matter of law, a State could turn
Down that offer, but if it did so, its residents would not
Only be required to pay the federal taxes needed to support
This expensive new program, but they would also be forced
To pay an equivalent amount in state taxes. And if the
State gave in to the federal law, the State and its subdivisions would surrender their traditional authority in the
Field of education. Asked at oral argument whether such
A law would be allowed under the spending power, the
Solicitor General responded that it would. Tr. of Oral Arg
44–45 (Mar. 28, 2012)
E
Whether federal spending legislation crosses the line
From enticement to coercion is often difficult to determine
And courts should not conclude that legislation is unconstitutional on this ground unless the coercive nature of an
Offer is unmistakably clear. In this case, however, there
Can be no doubt. In structuring the ACA, Congress unambiguously signaled its belief that every State would have
No real choice but to go along with the Medicaid Expansion. If the anticoercion rule does not apply in this case
Then there is no such rule
1
The dimensions of the Medicaid program lend strong
Support to the petitioner States’ argument that refusing to
Accede to the conditions set out in the ACA is not a realistic option. Before the ACA’s enactment, Medicaid funded
Medical care for pregnant women, families with dependents, children, the blind, the elderly, and the disabled. See
42 U. S. C. §1396a(a)(10) (2006 ed., Supp. IV). The ACA
Greatly expands the program’s reach, making new funds
Available to States that agree to extend coverage to all
Individuals who are under age 65 and have incomes below

Cite as: 567 U. S. ____ (2012) 39
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
133% of the federal poverty line. See §1396a(a)
(10)(A)(i)(VIII). Any State that refuses to expand
Its Medicaid programs in this way is threatened with a
Severe sanction: the loss of all its federal Medicaid funds
See §1396c (2006 ed.)
Medicaid has long been the largest federal program of
Grants to the States. See Brief for Respondents in No. 11–
400, at 37. In 2010, the Federal Government directed
More than $552 billion in federal funds to the States. See
Nat. Assn. of State Budget Officers, 2010 State Expenditure Report: Examining Fiscal 2009–2011 State Spending
P. 7 (2011) (NASBO Report). Of this, more than $233
Billion went to pre-expansion Medicaid. See id., at 47.14
This amount equals nearly 22% of all state expenditures
Combined. See id., at 7
The States devote a larger percentage of their budgets
To Medicaid than to any other item. Id., at 5. Federal
Funds account for anywhere from 50% to 83% of each
State’s total Medicaid expenditures, see §1396d(b) (2006 ed.,
Supp. IV); most States receive more than $1 billion in
Federal Medicaid funding; and a quarter receive more than
——————
14
The Federal Government has a higher number for federal spending
On Medicaid. According to the Office of Management and Budget
Federal grants to the States for Medicaid amounted to nearly $273
Billion in Fiscal Year 2010. See Office of Management and Bud-
Get, Historical Tables, Budget of the U. S. Government, Fiscal Year
2013, Table 12.3—Total Outlays for Grants to State and Local Governments by Function, Agency, and Program: 1940–2013, http://
Www.whitehouse.gov/omb/budget/Historicals. In that Fiscal Year, total
Federal outlays for grants to state and local governments amounted to
Over $608 billion, see Table 12.1, and state and local government
Expenditures from their own sources amounted to $1.6 trillion, see
Table 15.2. Using these numbers, 44.8% of all federal outlays to both
State and local governments was allocated to Medicaid, amounting to
16.8% of all state and local expenditures from their own sources

40 NATIONAL FEDERATION OF INDEPENDENT
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$5 billion, NASBO Report 47. These federal dollars total
Nearly two thirds—64.6%—of all Medicaid expenditures
Nationwide.15
Id., at 46
The Court of Appeals concluded that the States failed to
Establish coercion in this case in part because the “states
Have the power to tax and raise revenue, and therefore can
Create and fund programs of their own if they do not like
Congress’s terms.” 648 F. 3d 1235, 1268 (CA11 2011); see
Brief for Sen. Harry Reid et al. as Amici Curiae in No. 11–
400, p. 21 (“States may always choose to decrease expenditures on other programs or to raise revenues”). But the
Sheer size of this federal spending program in relation to
State expenditures means that a State would be very hard
Pressed to compensate for the loss of federal funds by
Cutting other spending or raising additional revenue
Arizona, for example, commits 12% of its state expenditures to Medicaid, and relies on the Federal Government
To provide the rest: $5.6 billion, equaling roughly one-third
Of Arizona’s annual state expenditures of $17 billion. See
NASBO Report 7, 47. Therefore, if Arizona lost federal
Medicaid funding, the State would have to commit an
Additional 33% of all its state expenditures to fund an
Equivalent state program along the lines of pre-expansion
Medicaid. This means that the State would have to allocate 45% of its annual expenditures for that one purpose
See ibid
The States are far less reliant on federal funding for any
Other program. After Medicaid, the next biggest federal
——————
15
The Federal Government reports a higher percentage. According
To Medicaid.gov, in Fiscal Year 2010, the Federal Government made
Medicaid payments in the amount of nearly $260 billion, representing 67.79% of total Medicaid payments of $383 billion. See
Www.medicaid.gov /Medicaid-CHIP-Program-Information /By-State /ByState.html
Cite as: 567 U. S. ____ (2012) 41
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

Funding item is aid to support elementary and secondary
Education, which amounts to 12.8% of total federal outlays
To the States, see id., at 7, 16, and equals only 6.6% of
All state expenditures combined. See ibid. In Arizona
For example, although federal Medicaid expenditures are
Equal to 33% of all state expenditures, federal education
Funds amount to only 9.8% of all state expenditures. See
Ibid. And even in States with less than average federal
Medicaid funding, that funding is at least twice the size of
Federal education funding as a percentage of state expenditures. Id., at 7, 16, 47
A State forced out of the Medicaid program would face
Burdens in addition to the loss of federal Medicaid funding. For example, a nonparticipating State might be found
To be ineligible for other major federal funding sources
Such as Temporary Assistance for Needy Families (TANF)
Which is premised on the expectation that States will
Participate in Medicaid. See 42 U. S. C. §602(a)(3) (2006
Ed.) (requiring that certain beneficiaries of TANF funds be
“eligible for medical assistance under the State[’s Medicaid] plan”). 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. The Emergency Medical Treatment and Active Labor Act, §1395dd
Requires hospitals that receive any federal funding to
Provide stabilization care for indigent patients but does
Not offer federal funding to assist facilities in carrying out
Its mandate. Many of these patients are now covered by
Medicaid. If providers could not look to the Medicaid
Program to pay for this care, they would find it exceedingly difficult to comply with federal law unless they were
Given substantial state support. See, e.g., Brief for Economists as Amici Curiae in No 11–400, p. 11
For these reasons, the offer that the ACA makes to the
States—go along with a dramatic expansion of Medicaid or
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Potentially lose all federal Medicaid funding—is quite
Unlike anything that we have seen in a prior spendingpower case. In South Dakota v. Dole, the total amount
That the States would have lost if every single State
Had refused to comply with the 21-year-old drinking
Age was approximately $614.7 million—or about 0.19%
Of all state expenditures combined. See Nat. Assn
Of State Budget Officers, 1989 (Fiscal Years 1987–
1989 Data) State Expenditure Report 10, 84 (1989)
Http://www.nasbo.org/publications-data/state-expenditurereport/archives. South Dakota stood to lose, at most
Funding that amounted to less than 1% of its annual state
Expenditures. See ibid. Under the ACA, by contrast, the
Federal Government has threatened to withhold 42.3% of
All federal outlays to the states, or approximately $233
Billion. See NASBO Report 7, 10, 47. South Dakota
Stands to lose federal funding equaling 28.9% of its annual
State expenditures. See id., at 7, 47. Withholding $614.7
Million, equaling only 0.19% of all state expenditures
Combined, is aptly characterized as “relatively mild encouragement,” but threatening to withhold $233 billion
Equaling 21.86% of all state expenditures combined, is a
Different matter
2
What the statistics suggest is confirmed by the goal
And structure of the ACA. In crafting the ACA, Congress
Clearly expressed its informed view that no State could
Possibly refuse the offer that the ACA extends
The stated goal of the ACA is near-universal health care
Coverage. To achieve this goal, the ACA mandates that
Every person obtain a minimum level of coverage. It attempts to reach this goal in several different ways. The
Guaranteed issue and community-rating provisions are
Designed to make qualifying insurance available and
Affordable for persons with medical conditions that may
Cite as: 567 U. S. ____ (2012) 43
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
Require expensive care. Other ACA provisions seek to
Make such policies more affordable for people of modest
Means. Finally, for low-income individuals who are
Simply not able to obtain insurance, Congress expanded
Medicaid, transforming it from a program covering only
Members of a limited list of vulnerable groups into a program that provides at least the requisite minimum level
Of coverage for the poor. See 42 U. S. C. §§1396a(a)
(10)(A)(i)(VIII) (2006 ed., Supp. IV), 1396u–7(a), (b)(5)
18022(a). This design was intended to provide at least
A specified minimum level of coverage for all Americans
But the achievement of that goal obviously depends on
Participation by every single State. If any State—not
To mention all of the 26 States that brought this suit—
Chose to decline the federal offer, there would be a gaping
Hole in the ACA’s coverage
It is true that some persons who are eligible for Medicaid coverage under the ACA may be able to secure private
Insurance, either through their employers or by obtain-
Ing subsidized insurance through an exchange. See 26
U. S. C. §36B(a) (2006 ed., Supp. IV); Brief for Respondents in No. 11–400, at 12. But the new federal subsidies
Are not available to those whose income is below the federal poverty level, and the ACA provides no means, other
Than Medicaid, for these individuals to obtain coverage
And comply with the Mandate. The Government counters
That these people will not have to pay the penalty, see, e.g.,
Tr. of Oral Arg. 68 (Mar. 28, 2012); Brief for Respondents
In No. 11–400, at 49–50, but that argument misses the
Point: Without Medicaid, these individuals will not have
Coverage and the ACA’s goal of near-universal coverage
Will be severely frustrated
If Congress had thought that States might actually
Refuse to go along with the expansion of Medicaid, Congress would surely have devised a backup scheme so that
The most vulnerable groups in our society, those previously
44 NATIONAL FEDERATION OF INDEPENDENT
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Eligible for Medicaid, would not be left out in the cold. But
Nowhere in the over 900-page Act is such a scheme to be
Found. By contrast, because Congress thought that some
States might decline federal funding for the operation of
A “health benefit exchange,” Congress provided a backup
Scheme; if a State declines to participate in the operation
Of an exchange, the Federal Government will step in
And operate an exchange in that State. See 42 U. S. C
§18041(c)(1). Likewise, knowing that States would not
Necessarily provide affordable health insurance for aliens
Lawfully present in the United States—because Medicaid
Does not require States to provide such coverage—Con-
Gress extended the availability of the new federal insurance subsidies to all aliens. See 26 U. S. C. §36B(c)
(1)(B)(ii) (excepting from the income limit individuals
Who are “not eligible for the medicaid program . . . by
Reason of [their] alien status”). Congress did not make
These subsidies available for citizens with incomes below
The poverty level because Congress obviously assumed
That they would be covered by Medicaid. If Congress had
Contemplated that some of these citizens would be left
Without Medicaid coverage as a result of a State’s withdrawal or expulsion from the program, Congress surely
Would have made them eligible for the tax subsidies provided for low-income aliens
These features of the ACA convey an unmistakable
Message: Congress never dreamed that any State would
Refuse to go along with the expansion of Medicaid. Congress well understood that refusal was not a practical
Option
The Federal Government does not dispute the inference
That Congress anticipated 100% state participation, but it
Argues that this assumption was based on the fact that
ACA’s offer was an “exceedingly generous” gift. Brief for
Respondents in No. 11–400, at 50. As the Federal Government sees things, Congress is like the generous bene-
Cite as: 567 U. S. ____ (2012) 45
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

Factor who offers $1 million with few strings attached to
50 randomly selected individuals. Just as this benefactor
Might assume that all of these 50 individuals would snap
Up his offer, so Congress assumed that every State would
Gratefully accept the federal funds (and conditions) to go
With the expansion of Medicaid
This characterization of the ACA’s offer raises obvious
Questions. If that offer is “exceedingly generous,” as the
Federal Government maintains, why have more than half
The States brought this lawsuit, contending that the offer
Is coercive? And why did Congress find it necessary to
Threaten that any State refusing to accept this “exceedingly generous” gift would risk losing all Medicaid funds?
Congress could have made just the new funding provided
Under the ACA contingent on acceptance of the terms of
The Medicaid Expansion. Congress took such an approach
In some earlier amendments to Medicaid, separating new
Coverage requirements and funding from the rest of the
Program so that only new funding was conditioned on new
Eligibility extensions. See, e.g., Social Security Amendments of 1972, 86 Stat. 1465
Congress’ decision to do otherwise here reflects its understanding that the ACA offer is not an “exceedingly
Generous” gift that no State in its right mind would decline. Instead, acceptance of the offer will impose very
Substantial costs on participating States. It is true that
The Federal Government will bear most of the initial costs
Associated with the Medicaid Expansion, first paying
100% of the costs of covering newly eligible individuals
Between 2014 and 2016. 42 U. S. C. §1396d(y). But that
Is just part of the picture. Participating States will be
Forced to shoulder substantial costs as well, because after
2019 the Federal Government will cover only 90% of the
Costs associated with the Expansion, see ibid., with state
Spending projected to increase by at least $20 billion by
2020 as a consequence. Statement of Douglas W. Elmen-

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Dorf, CBO’s Analysis of the Major Health Care Legislation
Enacted in March 2010, p. 24 (Mar. 30, 2011); see also R
Bovbjerg, B. Ormond, & V. Chen, Kaiser Commission on
Medicaid and the Uninsured, State Budgets under Federal
Health Reform: The Extent and Causes of Variations in
Estimated Impacts 4, n. 27 (Feb. 2011) (estimating new
State spending at $43.2 billion through 2019). After 2019
State spending is expected to increase at a faster rate; the
CBO estimates new state spending at $60 billion through
2021. Statement of Douglas W. Elmendorf, supra, at 24
And these costs may increase in the future because of
The very real possibility that the Federal Government will
Change funding terms and reduce the percentage of funds
It will cover. This would leave the States to bear an increasingly large percentage of the bill. See Tr. of Oral
Arg. 74–76 (Mar. 28, 2012). Finally, after 2015, the States
Will have to pick up the tab for 50% of all administrative
Costs associated with implementing the new program, see
§§1396b(a)(2)–(5), (7) (2006 ed., Supp. IV), costs that could
Approach $12 billion between fiscal years 2014 and 2020
See Dept. of Health and Human Services, Center for Medicaid and Medicare Services, 2010 Actuarial Report on the
Financial Outlook for Medicaid 30
In sum, it is perfectly clear from the goal and structure
Of the ACA that the offer of the Medicaid Expansion was
One that Congress understood no State could refuse. The
Medicaid Expansion therefore exceeds Congress’ spending
Power and cannot be implemented
F
Seven Members of the Court agree that the Medicaid
Expansion, as enacted by Congress, is unconstitutional
See Part IV–A to IV–E, supra; Part IV–A, ante, at 45–55
(opinion of ROBERTS, C. J., joined by BREYER and KAGAN
JJ.). Because the Medicaid Expansion is unconstitutional
The question of remedy arises. The most natural remedy
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Would be to invalidate the Medicaid Expansion. However
The Government proposes—in two cursory sentences at
The very end of its brief—preserving the Expansion. 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. We cannot accept the Government’s
Suggestion
The reality that States were given no real choice but to
Expand Medicaid was not an accident. Congress assumed
States would have no choice, and the ACA depends on
States’ having no choice, because its Mandate requires
Low-income individuals to obtain insurance many of them
Can afford only through the Medicaid Expansion. Furthermore, a State’s withdrawal might subject everyone in
The State to much higher insurance premiums. That is
Because the Medicaid Expansion will no longer offset the
Cost to the insurance industry imposed by the ACA’s insurance regulations and taxes, a point that is explained in
More detail in the severability section below. To make the
Medicaid Expansion optional despite the ACA’s structure
And design “‘would be to make a new law, not to enforce
An old one. This is no part of our duty.’” Trade-Mark
Cases, 100 U. S. 82, 99 (1879)
Worse, the Government’s proposed remedy introduces a
New dynamic: States must choose between expanding
Medicaid or paying huge tax sums to the federal fisc for
The sole benefit of expanding Medicaid in other States. If
This divisive dynamic between and among States can be
Introduced at all, it should be by conscious congressional
Choice, not by Court-invented interpretation. We do not
Doubt that States are capable of making decisions when
Put in a tight spot. We do doubt the authority of this
Court to put them there
The Government cites a severability clause codified with
Medicaid in Chapter 7 of the United States Code stating
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That if “any provision of this chapter, or the application
Thereof to any person or circumstance, is held invalid, the
Remainder of the chapter, and the application of such
Provision to other persons or circumstances shall not be
Affected thereby.” 42 U. S. C. §1303 (2006 ed.). But that
Clause tells us only that other provisions in Chapter 7
Should not be invalidated if §1396c, the authorization for
The cut-off of all Medicaid funds, is unconstitutional. It
Does not tell us that §1396c can be judicially revised, to
Say what it does not say. Such a judicial power would
Not be called the doctrine of severability but perhaps
The doctrine of amendatory invalidation—similar to the
Amendatory veto that permits the Governors of some
States to reduce the amounts appropriated in legislation
The proof that such a power does not exist is the fact that
It would not preserve other congressional dispositions, but
Would leave it up to the Court what the “validated” legislation will contain. The Court today opts for permitting
The cut-off of only incremental Medicaid funding, but it
Might just as well have permitted, say, the cut-off of funds
That represent no more than x percent of the State’s budget. The Court severs nothing, but simply revises §1396c to
Read as the Court would desire
We should not accept the Government’s invitation to
Attempt to solve a constitutional problem by rewriting the
Medicaid Expansion so as to allow States that reject it
To retain their pre-existing Medicaid funds. Worse, the
Government’s remedy, now adopted by the Court, takes
The ACA and this Nation in a new direction and charts a
Course for federalism that the Court, not the Congress, has
Chosen; but under the Constitution, that power and authority do not rest with this Court
V
Severability
The Affordable Care Act seeks to achieve “near-

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Universal” health insurance coverage. §18091(2)(D) (2006
Ed., Supp. IV). The two pillars of the Act are the Individ-
Ual Mandate and the expansion of coverage under Medicaid
In our view, both these central provisions of the Act—the
Individual Mandate and Medicaid Expansion—are invalid
It follows, as some of the parties urge, that all other provisions of the Act must fall as well. The following section
Explains the severability principles that require this conclusion. 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
A
When an unconstitutional provision is but a part of a
More comprehensive statute, the question arises as to the
Validity of the remaining provisions. The Court’s authority to declare a statute partially unconstitutional has been
Well established since Marbury v. Madison, 1 Cranch 137
(1803), when the Court severed an unconstitutional provision from the Judiciary Act of 1789. And while the Court
Has sometimes applied “at least a modest presumption in
Favor of . . . severability,” C. Nelson, Statutory Interpretation 144 (2010), it has not always done so, see, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S
172, 190–195 (1999)
An automatic or too cursory severance of statutory
Provisions risks “rewrit[ing] a statute and giv[ing] it an
Effect altogether different from that sought by the measure viewed as a whole.” Railroad Retirement Bd. v. Alton
R. Co., 295 U. S. 330, 362 (1935). The Judiciary, if it
Orders uncritical severance, then assumes the legislative
Function; for it imposes on the Nation, by the Court’s
Decree, its own new statutory regime, consisting of poli-

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Cies, risks, and duties that Congress did not enact. That
Can be a more extreme exercise of the judicial power than
Striking the whole statute and allowing Congress to address the conditions that pertained when the statute was
Considered at the outset
The Court has applied a two-part guide as the framework for severability analysis. The test has been deemed
“well established.” Alaska Airlines, Inc. v. Brock, 480
U. S. 678, 684 (1987). First, if the Court holds a statutory
Provision unconstitutional, it then determines whether
The now truncated statute will operate in the manner Con-
Gress intended. If not, the remaining provisions must be
Invalidated. See id., at 685. In Alaska Airlines, the Court
Clarified that this first inquiry requires more than ask-
Ing whether “the balance of the legislation is incapable of
Functioning independently.” Id., at 684. Even if the remaining provisions will operate in some coherent way
That alone does not save the statute. The question is
Whether the provisions will work as Congress intended
The “relevant inquiry in evaluating severability is whether
The statute will function in a manner consistent with
The intent of Congress.” Id., at 685 (emphasis in original)
See also Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. ___, ___ (2010) (slip op., at
28) (the Act “remains fully operative as a law with these
Tenure restrictions excised”) (internal quotation marks
Omitted); United States v. Booker, 543 U. S. 220, 227
(2005) (“[T]wo provisions . . . must be invalidated in order
To allow the statute to operate in a manner consistent
With congressional intent”); Mille Lacs, supra, at 194 (“[E]m-
Bodying as it did one coherent policy, [the entire order]
Is inseverable”)
Second, even if the remaining provisions can operate as
Congress designed them to operate, the Court must determine if Congress would have enacted them standing
Alone and without the unconstitutional portion. If Con-
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Gress would not, those provisions, too, must be invalidated
See Alaska Airlines, supra, at 685 (“[T]he unconstitu-
Tional provision must be severed unless the statute cre-
Ated in its absence is legislation that Congress would not
Have enacted”); see also Free Enterprise Fund, supra, at
___ (slip op., at 29) (“[N]othing in the statute’s text or
Historical context makes it ‘evident’ that Congress, faced
With the limitations imposed by the Constitution, would
Have preferred no Board at all to a Board whose members
Are removable at will”); Ayotte v. Planned Parenthood of
Northern New Eng., 546 U. S. 320, 330 (2006) (“Would the
Legislature have preferred what is left of its statute to no
Statute at all”); Denver Area Ed. Telecommunications
Consortium, Inc. v. FCC, 518 U. S. 727, 767 (1996) (plurality opinion) (“Would Congress still have passed §10(a) had
It known that the remaining provisions were invalid”
(internal quotation marks and brackets omitted))
The two inquiries—whether the remaining provisions
Will operate as Congress designed them, and whether
Congress would have enacted the remaining provisions
Standing alone—often are interrelated. In the ordinary
Course, if the remaining provisions cannot operate according to the congressional design (the first inquiry), it almost
Necessarily follows that Congress would not have enacted
Them (the second inquiry). This close interaction may
Explain why the Court has not always been precise in
Distinguishing between the two. There are, however
Occasions in which the severability standard’s first inquiry
(statutory functionality) is not a proxy for the second
Inquiry (whether the Legislature intended the remaining
Provisions to stand alone)
B
The Act was passed to enable affordable, “near-universal”
Health insurance coverage. 42 U. S. C. §18091(2)(D)
The resulting, complex statute consists of mandates and

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Other requirements; comprehensive regulation and penalties; some undoubted taxes; and increases in some governmental expenditures, decreases in others. Under the
Severability test set out above, it must be determined if
Those provisions function in a coherent way and as Congress would have intended, even when the major provisions establishing the Individual Mandate and Medicaid
Expansion are themselves invalid
Congress did not intend to establish the goal of nearuniversal coverage without regard to fiscal consequences
See, e.g., ACA §1563, 124 Stat. 270 (“[T]his Act will reduce
The Federal deficit between 2010 and 2019”). And it did
Not intend to impose the inevitable costs on any one industry or group of individuals. The whole design of the Act
Is to balance the costs and benefits affecting each set
Of regulated parties. Thus, individuals are required to
Obtain health insurance. See 26 U. S. C. §5000A(a). Insur-
Ance companies are required to sell them insurance regardless of patients’ pre-existing conditions and to comply
With a host of other regulations. And the companies must
Pay new taxes. See §4980I (high-cost insurance plans);
42 U. S. C. §§300gg(a)(1), 300gg–4(b) (community rating);
§§300gg–1, 300gg–3, 300gg–4(a) (guaranteed issue);
§300gg–11 (elimination of coverage limits); §300gg–14(a)
(dependent children up to age 26); ACA §§9010, 10905
124 Stat. 865, 1017 (excise tax); Health Care and Education Reconciliation Act of 2010 (HCERA) §1401, 124 Stat
1059 (excise tax). States are expected to expand Medicaid
Eligibility and to create regulated marketplaces called ex-
Changes where individuals can purchase insurance. See
42 U. S. C. §§1396a(a)(10)(A)(i)(VIII) (2006 ed., Supp. IV)
(Medicaid Expansion), 18031 (exchanges). Some persons
Who cannot afford insurance are provided it through the
Medicaid Expansion, and others are aided in their purchase of insurance through federal subsidies available on
Health-insurance exchanges. See 26 U. S. C. §36B (2006
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SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
Ed., Supp. IV), 42 U. S. C. §18071 (2006 ed., Supp. IV)
(federal subsidies). The Federal Government’s increased
Spending is offset by new taxes and cuts in other federal
Expenditures, including reductions in Medicare and in
Federal payments to hospitals. See, e.g., §1395ww(r) (Medicare cuts); ACA Title IX, Subtitle A, 124 Stat. 847 (“Revenue Offset Provisions”). Employers with at least 50
Employees must either provide employees with adequate
Health benefits or pay a financial exaction if an employee
Who qualifies for federal subsidies purchases insurance
Through an exchange. See 26 U. S. C. §4980H (2006 ed.,
Supp. IV)
In short, the Act attempts to achieve near-universal
Health insurance coverage by spreading its costs to individuals, insurers, governments, hospitals, and employers—
While, at the same time, offsetting significant portions
Of those costs with new benefits to each group. For example, the Federal Government bears the burden of paying billions for the new entitlements mandated by the
Medicaid Expansion and federal subsidies for insurance
Purchases on the exchanges; but it benefits from reductions in the reimbursements it pays to hospitals. Hospitals lose those reimbursements; but they benefit from the
Decrease in uncompensated care, for under the insurance
Regulations it is easier for individuals with pre-existing
Conditions to purchase coverage that increases payments
To hospitals. Insurance companies bear new costs imposed
By a collection of insurance regulations and taxes, including
“guaranteed issue” and “community rating” requirements
To give coverage regardless of the insured’s pre-existing
Conditions; but the insurers benefit from the new, healthy
Purchasers who are forced by the Individual Mandate
To buy the insurers’ product and from the new lowincome Medicaid recipients who will enroll in insurance
Companies’ Medicaid-funded managed care programs. In
Summary, the Individual Mandate and Medicaid Expan-
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Sion offset insurance regulations and taxes, which offset
Reduced reimbursements to hospitals, which offset increases in federal spending. So, the Act’s major provisions
Are interdependent
The Act then refers to these interdependencies as
“shared responsibility.” See ACA Subtitle F, Title I, 124
Stat. 242 (“Shared Responsibility”); ACA §1501, ibid
(same); ACA §1513, id., at 253 (same); ACA §4980H, ibid
(same). In at least six places, the Act describes the Individual Mandate as working “together with the other provisions of this Act.” 42 U. S. C. §18091(2)(C) (2006 ed.,
Supp. IV) (working “together” to “add millions of new
Consumers to the health insurance market”); §18091(2)(E)
(working “together” to “significantly reduce” the economic
Cost of the poorer health and shorter lifespan of the uninsured); §18091(2)(F) (working “together” to “lower health
Insurance premiums”); §18091(2)(G) (working “together” to
“improve financial security for families”); §18091(2)(I)
(working “together” to minimize “adverse selection and
Broaden the health insurance risk pool to include healthy
Individuals”); §18091(2)(J) (working “together” to “signif-
Icantly reduce administrative costs and lower health
Insurance premiums”). The Act calls the Individual Mandate “an essential part” of federal regulation of health
Insurance and warns that “the absence of the requirement
Would undercut Federal regulation of the health insurance
Market.” §18091(2)(H)
C
One preliminary point should be noted before applying
Severability principles to the Act. To be sure, an argument
Can be made that those portions of the Act that none of the
Parties has standing to challenge cannot be held nonseverable. The response to this argument is that our cases
Do not support it. See, e.g., Williams v. Standard Oil Co
Of La., 278 U. S. 235, 242–244 (1929) (holding nonsever-

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Able statutory provisions that did not burden the parties)
It would be particularly destructive of sound government
To apply such a rule with regard to a multifaceted piece of
Legislation like the ACA. It would take years, perhaps
Decades, for each of its provisions to be adjudicated separately—and for some of them (those simply expending
Federal funds) no one may have separate standing. The
Federal Government, the States, and private parties ought
To know at once whether the entire legislation fails
The opinion now explains in Part V–C–1, infra, why the
Act’s major provisions are not severable from the Mandate
And Medicaid Expansion. It proceeds from the insurance
Regulations and taxes (C–1–a), to the reductions in reimbursements to hospitals and other Medicare reductions
(C–1–b), the exchanges and their federal subsidies (C–1–c)
And the employer responsibility assessment (C–1–d)
Part V–C–2, infra, explains why the Act’s minor provisions also are not severable
1
The Act’s Major Provisions
Major provisions of the Affordable Care Act—i.e., the
Insurance regulations and taxes, the reductions in federal
Reimbursements to hospitals and other Medicare spend-
Ing reductions, the exchanges and their federal subsidies
And the employer responsibility assessment—cannot remain
Once the Individual Mandate and Medicaid Expansion are
Invalid. That result follows from the undoubted inability
Of the other major provisions to operate as Congress intended without the Individual Mandate and Medicaid
Expansion. Absent the invalid portions, the other major
Provisions could impose enormous risks of unexpected bur-
Dens on patients, the health-care community, and the
Federal budget. That consequence would be in absolute
Conflict with the ACA’s design of “shared responsibility,”
And would pose a threat to the Nation that Congress did
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Not intend
A
Insurance Regulations and Taxes
Without the Individual Mandate and Medicaid Expansion, the Affordable Care Act’s insurance regulations and
Insurance taxes impose risks on insurance companies and
Their customers that this Court cannot measure. Those
Risks would undermine Congress’ scheme of “shared responsibility.” See 26 U. S. C. §4980I (2006 ed., Supp
IV) (high-cost insurance plans); 42 U. S. C. §§300gg(a)(1)
(2006 ed., Supp. IV), 300gg–4(b) (community rating);
§§300gg–1, 300gg–3, 300gg–4(a) (guaranteed issue);
§300gg–11 (elimination of coverage limits); §300gg–14(a)
(dependent children up to age 26); ACA §§9010, 10905
124 Stat. 865, 1017 (excise tax); HCERA §1401, 124 Stat
1059 (excise tax)
The Court has been informed by distinguished economists that the Act’s Individual Mandate and Medicaid
Expansion would each increase revenues to the insurance
Industry by about $350 billion over 10 years; that this
Combined figure of $700 billion is necessary to offset the
Approximately $700 billion in new costs to the insurance
Industry imposed by the Act’s insurance regulations and
Taxes; and that the new $700-billion burden would otherwise dwarf the industry’s current profit margin. See Brief
For Economists as Amici Curiae in No. 11–393 etc. (Severability), pp. 9–16, 10a
If that analysis is correct, the regulations and taxes will
Mean higher costs for insurance companies. Higher costs
May mean higher premiums for consumers, despite the
Act’s goal of “lower[ing] health insurance premiums.” 42
U. S. C. §18091(2)(F) (2006 ed., Supp. IV). Higher costs
Also could threaten the survival of health-insurance companies, despite the Act’s goal of “effective health insurance
Markets.” §18091(2)(J)
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The actual cost of the regulations and taxes may be
More or less than predicted. What is known, however, is
That severing other provisions from the Individual Mandate and Medicaid Expansion necessarily would impose
Significant risks and real uncertainties on insurance companies, their customers, all other major actors in the system, and the government treasury. And what also is
Known is this: Unnecessary risks and avoidable uncertainties are hostile to economic progress and fiscal stability
And thus to the safety and welfare of the Nation and the
Nation’s freedom. If those risks and uncertainties are to
Be imposed, it must not be by the Judiciary
B
Reductions in Reimbursements to Hospitals and
Other Reductions in Medicare Expenditures
The Affordable Care Act reduces payments by the Federal Government to hospitals by more than $200 billion
Over 10 years. See 42 U. S. C. §1395ww(b)(3)(B)(xi)–(xii)
(2006 ed., Supp. IV); §1395ww(q); §1395ww(r); §1396r–
4(f)(7)
The concept is straightforward: Near-universal coverage
Will reduce uncompensated care, which will increase hospitals’ revenues, which will offset the government’s re-
Ductions in Medicare and Medicaid reimbursements to
Hospitals. Responsibility will be shared, as burdens and
Benefits balance each other. This is typical of the whole
Dynamic of the Act
Invalidating the key mechanisms for expanding insurance coverage, such as community rating and the Medicaid Expansion, without invalidating the reductions in
Medicare and Medicaid, distorts the ACA’s design of
“shared responsibility.” Some hospitals may be forced to
Raise the cost of care in order to offset the reductions in
Reimbursements, which could raise the cost of insurance
Premiums, in contravention of the Act’s goal of “lower[ing]

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Health insurance premiums.” 42 U. S. C. §18091(2)(F)
(2006 ed., Supp. IV). See also §18091(2)(I) (goal of
“lower[ing] health insurance premiums”); §18091(2)(J)
(same). Other hospitals, particularly safety-net hospitals that
Serve a large number of uninsured patients, may be forced
To shut down. Cf. National Assn. of Public Hospitals, 2009
Annual Survey: Safety Net Hospitals and Health Systems
Fulfill Mission in Uncertain Times 5–6 (Feb. 2011). Like
The effect of preserving the insurance regulations and
Taxes, the precise degree of risk to hospitals is unknowable. It is not the proper role of the Court, by severing
Part of a statute and allowing the rest to stand, to impose
Unknowable risks that Congress could neither measure
Nor predict. And Congress could not have intended that
Result in any event
There is a second, independent reason why the reductions in reimbursements to hospitals and the ACA’s other
Medicare cuts must be invalidated. The ACA’s $455 billion in Medicare and Medicaid savings offset the $434-
Billion cost of the Medicaid Expansion. See CBO Estimate, Table 2 (Mar. 20, 2010). The reductions allowed
Congress to find that the ACA “will reduce the Federal
Deficit between 2010 and 2019” and “will continue to
Reduce budget deficits after 2019.” ACA §§1563(a)(1), (2)
124 Stat. 270
That finding was critical to the ACA. The Act’s “shared
Responsibility” concept extends to the federal budget
Congress chose to offset new federal expenditures with
Budget cuts and tax increases. That is why the United
States has explained in the course of this litigation that
“[w]hen Congress passed the ACA, it was careful to ensure
That any increased spending, including on Medicaid, was
Offset by other revenue-raising and cost-saving provisions.” Memorandum in Support of Government’s Motion
For Summary Judgment in No. 3–10–cv–91, p. 41
If the Medicare and Medicaid reductions would no longer

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Be needed to offset the costs of the Medicaid Expansion
The reductions would no longer operate in the manner
Congress intended. They would lose their justification and
Foundation. In addition, to preserve them would be “to
Eliminate a significant quid pro quo of the legislative com-
Promise” and create a statute Congress did not enact
Legal Services Corporation v. Velazquez, 531 U. S. 533
561 (2001) (SCALIA, J., dissenting). It is no secret that
Cutting Medicare is unpopular; and it is most improbable
Congress would have done so without at least the assurance that it would render the ACA deficit-neutral. See
ACA §§1563(a)(1), (2), 124 Stat. 270
C
Health Insurance Exchanges and Their Federal
Subsidies
The ACA requires each State to establish a healthinsurance “exchange.” Each exchange is a one-stop marketplace for individuals and small businesses to compare
Community-rated health insurance and purchase the
Policy of their choice. The exchanges cannot operate in the
Manner Congress intended if the Individual Mandate
Medicaid Expansion, and insurance regulations cannot
Remain in force
The Act’s design is to allocate billions of federal dollars
To subsidize individuals’ purchases on the exchanges. In-
Dividuals with incomes between 100 and 400 percent of
The poverty level receive tax credits to offset the cost of
Insurance to the individual purchaser. 26 U. S. C. §36B
(2006 ed., Supp. IV); 42 U. S. C. §18071 (2006 ed., Supp
IV). By 2019, 20 million of the 24 million people who will
Obtain insurance through an exchange are expected to
Receive an average federal subsidy of $6,460 per person
See CBO, Analysis of the Major Health Care Legislation
Enacted in March 2010, pp. 18–19 (Mar. 30, 2011). Without the community-rating insurance regulation, however
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The average federal subsidy could be much higher; for
Community rating greatly lowers the enormous premiums
Unhealthy individuals would otherwise pay. Federal
Subsidies would make up much of the difference
The result would be an unintended boon to insurance
Companies, an unintended harm to the federal fisc, and
A corresponding breakdown of the “shared responsibil-
Ity” between the industry and the federal budget that
Congress intended. Thus, the federal subsidies must be
Invalidated
In the absence of federal subsidies to purchasers, insurance companies will have little incentive to sell insurance
On the exchanges. Under the ACA’s scheme, few, if any
Individuals would want to buy individual insurance policies outside of an exchange, because federal subsidies
Would be unavailable outside of an exchange. Difficulty in
Attracting individuals outside of the exchange would in
Turn motivate insurers to enter exchanges, despite the
Exchanges’ onerous regulations. See 42 U. S. C. §18031
That system of incentives collapses if the federal subsidies
Are invalidated. Without the federal subsidies, individ-
Uals would lose the main incentive to purchase insurance
Inside the exchanges, and some insurers may be unwilling
To offer insurance inside of exchanges. With fewer buyers
And even fewer sellers, the exchanges would not operate
As Congress intended and may not operate at all
There is a second reason why, if community rating is
Invalidated by the Mandate and Medicaid Expansion’s
Invalidity, exchanges cannot be implemented in a manner
Consistent with the Act’s design. A key purpose of an
Exchange is to provide a marketplace of insurance options
Where prices are standardized regardless of the buy-
Er’s pre-existing conditions. See ibid. An individual who
Shops for insurance through an exchange will evaluate
Different insurance products. The products will offer
Different benefits and prices. Congress designed the ex-

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Changes so the shopper can compare benefits and prices
But the comparison cannot be made in the way Congress
Designed if the prices depend on the shopper’s pre-existing
Health conditions. The prices would vary from person to
Person. So without community rating—which prohibits
Insurers from basing the price of insurance on pre-existing
Conditions—the exchanges cannot operate in the manner
Congress intended
D
Employer-Responsibility Assessment
The employer responsibility assessment provides an
Incentive for employers with at least 50 employees to
Provide their employees with health insurance options
That meet minimum criteria. See 26 U. S. C. §4980H
(2006 ed., Supp. IV). Unlike the Individual Mandate
The employer-responsibility assessment does not require
Employers to provide an insurance option. Instead, it requires them to make a payment to the Federal Government if they do not offer insurance to employees and if
Insurance is bought on an exchange by an employee who
Qualifies for the exchange’s federal subsidies. See ibid
For two reasons, the employer-responsibility assessment
Must be invalidated. First, the ACA makes a direct link
Between the employer-responsibility assessment and the
Exchanges. The financial assessment against employers
Occurs only under certain conditions. One of them is the
Purchase of insurance by an employee on an exchange
With no exchanges, there are no purchases on the exchanges; and with no purchases on the exchanges, there is
Nothing to trigger the employer-responsibility assessment
Second, after the invalidation of burdens on individuals
(the Individual Mandate), insurers (the insurance regulations and taxes), States (the Medicaid Expansion), the
Federal Government (the federal subsidies for exchanges
And for the Medicaid Expansion), and hospitals (the reduc-
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Tions in reimbursements), the preservation of the employerresponsibility assessment would upset the ACA’s design
Of “shared responsibility.” It would leave employers as the
Only parties bearing any significant responsibility. That
Was not the congressional intent
2
The Act’s Minor Provisions
The next question is whether the invalidation of the
ACA’s major provisions requires the Court to invalidate
The ACA’s other provisions. It does
The ACA is over 900 pages long. Its regulations include
Requirements ranging from a break time and secluded
Place at work for nursing mothers, see 29 U. S. C. §207(r)(1)
(2006 ed., Supp. IV), to displays of nutritional content
At chain restaurants, see 21 U. S. C. §343(q)(5)(H)
The Act raises billions of dollars in taxes and fees, including exactions imposed on high-income taxpayers, see ACA
§§9015, 10906; HCERA §1402, medical devices, see 26
U. S. C. §4191 (2006 ed., Supp. IV), and tanning booths
See §5000B. It spends government money on, among other
Things, the study of how to spend less government money
42 U. S. C. §1315a. And it includes a number of provisions
That provide benefits to the State of a particular legislator
For example, §10323, 124 Stat. 954, extends Medicare
Coverage to individuals exposed to asbestos from a mine in
Libby, Montana. Another provision, §2006, id., at 284
Increases Medicaid payments only in Louisiana
Such provisions validate the Senate Majority Leader’s
Statement, “‘I don’t know if there is a senator that doesn’t
Have something in this bill that was important to them
. . . [And] if they don’t have something in it important to
Them, then it doesn’t speak well of them. That’s what this
Legislation is all about: It’s the art of compromise.’ ” Pear
In Health Bill for Everyone, Provisions for a Few, N. Y
Times, Jan. 4, 2010, p. A10 (quoting Sen. Reid). Often, a
Cite as: 567 U. S. ____ (2012) 63
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

Minor provision will be the price paid for support of a
Major provision. So, if the major provision were unconstitutional, Congress would not have passed the minor one
Without the ACA’s major provisions, many of these
Minor provisions will not operate in the manner Congress
Intended. For example, the tax increases are “Revenue
Offset Provisions” designed to help offset the cost to the
Federal Government of programs like the Medicaid Expansion and the exchanges’ federal subsidies. See Title
IX, Subtitle A—Revenue Offset Provisions, 124 Stat. 847
With the Medicaid Expansion and the exchanges invalidated, the tax increases no longer operate to offset costs
And they no longer serve the purpose in the Act’s scheme
Of “shared responsibility” that Congress intended
Some provisions, such as requiring chain restaurants to
Display nutritional content, appear likely to operate as
Congress intended, but they fail the second test for severability. There is no reason to believe that Congress would
Have enacted them independently. The Court has not
Previously had occasion to consider severability in the con-
Text of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its
Central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them
Passed despite opposition, or because their proponents
Could exact their enactment as the quid pro quo for their
Needed support. When we are confronted with such a socalled “Christmas tree,” a law to which many nongermane
Ornaments have been attached, we think the proper rule
Must be that when the tree no longer exists the ornaments
Are superfluous. We have no reliable basis for knowing
Which pieces of the Act would have passed on their own. It
Is certain that many of them would not have, and it is not
A proper function of this Court to guess which. To sever
The statute in that manner “‘would be to make a new law
Not to enforce an old one. This is not part of our duty.’”

64 NATIONAL FEDERATION OF INDEPENDENT
BUSINESS v. SEBELIUS

SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

Trade-Mark Cases, 100 U. S., at 99
This Court must not impose risks unintended by Congress or produce legislation Congress may have lacked the
Support to enact. For those reasons, the unconstitutionality of both the Individual Mandate and the Medicaid
Expansion requires the invalidation of the Affordable Care
Act’s other provisions
* * *
The Court today decides to save a statute Congress did
Not write. It rules that what the statute declares to be a
Requirement with a penalty is instead an option subject
To a tax. And it changes the intentionally coercive sanction of a total cut-off of Medicaid funds to a supposedly
Noncoercive cut-off of only the incremental funds that the
Act makes available
The Court regards its strained statutory interpretation
As judicial modesty. It is not. It amounts instead to a vast
Judicial overreaching. It creates a debilitated, inoperable
Version of health-care regulation that Congress did not
Enact and the public does not expect. It makes enactment
Of sensible health-care regulation more difficult, since
Congress cannot start afresh but must take as its point of
Departure a jumble of now senseless provisions, provisions
That certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and
The States to expend vast sums of money on requirements
That may or may not survive the necessary congressional
Revision
The Court’s disposition, invented and atextual as it is
Does not even have the merit of avoiding constitutional
Difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional
Question (what is a direct tax?) that the Court resolves
With inadequate deliberation. And the judgment on the
Medicaid Expansion issue ushers in new federalism con-

Cite as: 567 U. S. ____ (2012) 65
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

Cerns and places an unaccustomed strain upon the Union
Those States that decline the Medicaid Expansion must
Subsidize, by the federal tax dollars taken from their
Citizens, vast grants to the States that accept the Medicaid
Expansion. If that destabilizing political dynamic, so
Antagonistic to a harmonious Union, is to be introduced at
All, it should be by Congress, not by the Judiciary
The values that should have determined our course today are caution, minimalism, and the understanding that
The Federal Government is one of limited powers. But
The Court’s ruling undermines those values at every turn
In the name of restraint, it overreaches. In the name of
Constitutional avoidance, it creates new constitutional
Questions. In the name of cooperative federalism, it undermines state sovereignty
The Constitution, though it dates from the founding of
The Republic, has powerful meaning and vital relevance
To our own times. The constitutional protections that this
Case involves are protections of structure. Structural
Protections—notably, the restraints imposed by federalism
And separation of powers—are less romantic and have less
Obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments
Hence they tend to be undervalued or even forgotten by
Our citizens. It should be the responsibility of the Court to
Teach otherwise, to remind our people that the Framers
Considered structural protections of freedom the most im-
Portant ones, for which reason they alone were embodied in the original Constitution and not left to later
Amendment. The fragmentation of power produced by the
Structure of our Government is central to liberty, and
When we destroy it, we place liberty at peril. Today’s
Decision should have vindicated, should have taught, this
Truth; instead, our judgment today has disregarded it
For the reasons here stated, we would find the Act invalid in its entirety. We respectfully dissent. _________________
_________________
Cite as: 567 U. S. ____ (2012) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 11–393, 11–398 and 11–400
NATIONAL FEDERATION OF INDEPENDENT
BUSINESS, ET AL., PETITIONERS
11–393 v
KATHLEEN SEBELIUS, SECRETARY OF HEALTH
AND HUMAN SERVICES, ET AL
DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL., PETITIONERS
11–398 v
FLORIDA ET AL
11–400
FLORIDA, ET AL., PETITIONERS
V
DEPARTMENT OF HEALTH AND
HUMAN SERVICES ET AL
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 28, 2012]
JUSTICE THOMAS, dissenting
I dissent for the reasons stated in our joint opinion, but
I write separately to say a word about the Commerce
Clause. The joint dissent and THE CHIEF JUSTICE correctly apply our precedents to conclude that the Individual
Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper
Clause. Under those precedents, Congress may regulate
“economic activity [that] substantially affects interstate
Commerce.” United States v. Lopez, 514 U. S. 549, 560
(1995). I adhere to my view that “the very notion of a
2 NATIONAL FEDERATION OF INDEPENDENT
BUSINESS v. SEBELIUS

THOMAS, J., dissenting

‘substantial effects’ test under the Commerce Clause is
Inconsistent with the original understanding of Congress’
Powers and with this Court’s early Commerce Clause
Cases.” United States v. Morrison, 529 U. S. 598, 627
(2000) (THOMAS, J., concurring); see also Lopez, supra, at
584–602 (THOMAS, J., concurring); Gonzales v. Raich, 545
U. S. 1, 67–69 (2005) (THOMAS, J., dissenting). As I have
Explained, the Court’s continued use of that test “has
Encouraged the Federal Government to persist in its view
That the Commerce Clause has virtually no limits.” Morrison, supra, at 627. The Government’s unprecedented
Claim in this suit that it may regulate not only economic
Activity but also inactivity that substantially affects interstate commerce is a case in point

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