Where do Chief Justice Roberts and Ruth Bader Ginsburg agree, and where do they disagree in the NFIB v. Sebelius opinions? More broadly, do you think the Court should limit the Commerce Clause, or should Congress be given broad authority over economic affairs?
Week 13: The Commerce Clause
Constitutional Law (Powers): Spring 2020 
Chief Justice Roberts believes that the individual mandate is not permissible by the “necessary and proper” clause or the commerce clause. The commerce clause, for one, regulates what is already occurring, not preventing from something occurring, such as being uninsured. Justice Ruth Bader Ginsberg concludes that the commerce clause does permit the individual mandate because the commerce power extends to local and practice activities and other economic activities “that substantially affect interstate commerce.” The Court can intervene against Congress’ power if there was no effect on interstate commerce, but there is a “’rational basis’ for concluding that the regulated activity substantially affects means selected and the asserted ends.” Chief Justice Roberts and Justice Ruth Bader Ginsberg, however, agree that the individual mandate is characterized as a tax and is constitutionally permissible through that argument.
As mentioned by Justice Ruth Bader Ginsberg, the United States have already tried limiting the federal government’s power over economic affairs by leaving the regulation of commerce to the states. “This scheme proved unworkable, because the individual States, understandably focused on their own economic interests, often failed to take actions critical to the success of the Nation as a whole.” It is important for Congress to have broad authority because they can work togethers a goal with the unified nation in mind. This can also create a bigger and better platform for social and economic legislation that may not be as efficiently and effectively achieved through only state authority. Justice Ginsberg, after all, argues that “our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm,” precedent which should not be dismissed.
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It seems to be that Justice Ginsburg draws the line at Chief Justice Robert’s distinction between economic activity and inactivity. Her supporting arguments include precedents set by the Court, mentioning the “two familiar principles” that have guided the Court’s “pragmatic approach to judging whether Congress validly exercised its commerce power” (namely, the power to regulate economic activities that substantially affect interstate commerce and its framing and enactment of social and economic legislation). She seemed to really drive home the notion that those who don’t purchase insurance still participate heavily in the marketplace, so they are, therefore, greatly impacting the healthcare commerce (which goes back to the “substantially affect interstate commerce” principle. I mostly agree with Chief Justice Robert’s majority opinion here. I particularly like his writing when discussing the Medicaid expansion – “it is a gun to the head” stuck with me for the rest of the reading. Congress’ power here was and should always be limited in this sense. There is no good reason why such coercion should ever be allowed. I can’t phrase it better than the opinion, but to threaten to withhold all of the state’s funds is truly remarkable – captures the worst of “go big or go home”.
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The parts where Chief Justice Roberts and Ruth Bader Ginsburg agreed on the judgment in the part where both agreed that Congress cannot mandate what states should follow their instructions. Roberts argued that states should have a genuine choice to accept or not and Ginsburg dissent that the fact that the threat of withholding funds from states leaves them with no legitimate choice. The disagreement is where Roberts believed that individual mandate does not fall under the Commerce and Necessary and Proper clause while Ginsburg believed that it does. The court should limit the Commerce Clause because the government is being given too much power by taxing individuals who do not have health insurance and expanding the spending clause by threatening states that if they do not participate, the medical funding would be revoked. However, the states depend on funding from Congress and without it, the states would have no other choice. It should be left up to the individual to decide on their insurance policy. In the case, Wickard v. Filburn (1942), a farmer who produced wheat for his own use was fined $117 for violating the federal limit of wheat production, however, it is likely that the farmer needed wheat production to feed his family and make a living. Congress can advise others what to do, but to force it upon an individual/state is overreaching of one’s own limit.
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In the National Federation of Independent Business v. Sebelius opinions, Chief Justice Roberts and Associate Justice Ginsburg agree that the minimum coverage provision in the Affordable Care Act should be reversed. Roberts believes that Congress’s power to tax in the Constitution allows them to enact this minimum level of coverage provision. Ginsburg argues that Congress has the authority to decide what the nation should be doing in the economic and social welfare realm. As for the Medicaid expansion, Roberts states that Congress has no authority to order the states to regulate according to its instructions and that they are giving the states no choice. Ginsburg disagrees, and states that the Medicaid expansion is within Congress’s spending power. Ginsburg also states that she believes that Chief Justice Roberts is limiting Congress’s power, stopping them from being able to deal with national issues as they come.
I believe that the Court should limit the Commerce Clause in certain situations. Generally, Congress should be given authority over economic affairs. In the Constitution, they have a great deal of monetary power. However, if Congress is using the Commerce Clause in a situation where it doesn’t seem applicable, their justification is flimsy, or they are overstepping their bounds, then the Court should step in. It is important to maintain checks and balances between the three branches of government.
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Chief Justice Roberts and Justice Ginsburg were both part of the majority vote in the National Federation of Independent Business v. Sebelius (2012) Supreme Court case, there is a major discrepancy between their respective opinions. Roberts, delivering the opinion of the Court, held that the use of the individual mandate is constitutional, particularly because such power lies in Congress’ ability to “lay and collect [t]axes” (Article I, Section 8). Furthermore, Roberts wrote that the individual mandate does not extend to the provisions of the Commerce Clause, specifically because, “… the Constitution does not guarantee that individuals may avoid taxation through inactivity.”
Ginsburg, in opposition to Roberts’ opinion, asserted that the individual mandate should be supported under the Commerce Clause. Her dissenting opinion states, “… the uninsured, as a class, substantially affect interstate commerce.” In brief, her rationale centered around the premise that uninsured citizens “consume billions of dollars of health-care products and services each year.” As such, the transaction of those “products and services” frequently occur over state borders.
In line with Roberts and Justice Thomas’ thinking (the latter’s dissenting opinion), commerce should concern the practice of economic activity, and not the opposite, as Ginsburg suggests. The definition of commerce that I subscribe to is the exchange of products and services. Moreover, the Commerce Clause oversees such exchanges across international, state, and Indian territorial lines. To paraphrase Roberts and Thomas, to consider economic “inactivity” as a form of commercial exchange would be far too great of an expansion of Congress’ authority over such matters.
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NFIB v. Sebelius raised the question of Congress’ powers, specifically the Commerce Clause . The Supreme Court decision brought up various conclusions that addressed the constitutionality of the ACA’s individual mandate. Chief Justice Roberts and Ruth Bader agreed that the ACA is ” constitutional in part and unconstitutional in part.” Both chief justices concluded that the Congress exercising the individual mandate was interpreted as an imposing tax, which is validated under the Spending Clause. Justice Roberts then concluded that the individual mandate was not a valid exercise of Congress’ power to regulate commerce because it “does not regulate existing commercial activity…It instead compels individuals to become active in commerce by purchasing a product.” Justice Ginsburg dissents this opinion and concludes that when one does not purchase insurance, they are still a participant in the healthcare marketplace, which impacts healthcare commerce and can be regulated by Congress. Congress has the ability to exercise its commerce power in various ways, especially to address the urgent needs in critical times such as our current COVID-19 disaster. In this situation, Congress can impose its power to regulate the issues within interstate commerce, yet in my opinion the Commerce Clause should still be limited. Congress can use that power to restrict travel between states in order to regulate the overall public health of the country. But despite its abilities, I feel that it still does not grant them the power to regulate the overall behavior of people within a state. In times of a crisis like now, one national policy would not work in all places of the country, it is the state and local governments responsibilities to take action.
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Thanks, Justin – good to see the current situation raised in your comment. We will discuss it further in class
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In the NFIB v. Sebelius opinions both Justice Roberts and Ginsberg agree that the individual mandate present in the Affordable Care act is constitutional. These justices disagree on the reasoning behind this decision. Justice Roberts doesn’t view the commerce clause nor the necessary and proper clause as sufficient justifications for the individual mandate. According to Roberts in order for Congress to regulate commerce, there must some economic activity that exist. In this case the government would be forcing people to engage in the market, getting dangerously close to a scenario in which the government is making life choices for you. Instead, justice Roberts validates the individual mandate on the argument that it acts like a tax and thus falls under Congress’ taxing powers. Justice Ginsberg disagrees with this assessment and instead believes Congress’ actions can be justifies with the Commerce clause. Her arguments reflect a more passive Supreme Court that more or less gives Congress a blank check to solve modern problems. Justice Ginsberg would only intervene if Congress is acting irrationally, a subjective measure that meaningless and entirely dependent on how each justice defines the term.
I support the idea of Congress and the federal government getting more involved in economic affairs, whether it’s nationalizing certain industries or legalizing substances like marijuana. However, I disagree with the individual mandate since it forces people to buy a private commodity. If the government wants everyone to have health insurance, then they need to remove it from the free market and guarantee it to everyone as a right.
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Justice Roberts and Justice Ginsburg both see the individual mandate as a tax constitutionally justified under Congress’ tax power. The Justices disagree on the issues of Medicaid and the Commerce Clause. Justice Roberts sees the removal of all federal Medicaid money for not complying with the new expansions as “the point at which ‘pressure turns into compulsion.'”. His view of the Commerce clause argument focuses on the effect it has on people not involved in interstate commerce. Under the already expansive interpretation, forcing parties of interstate commerce to have health insurance might have been kosher. However, parties not involved in these activities give Congress to create an activity that they can then regulate making it unconstitutional. Justice Ginsburg sees it as well within Congress’ spending power. Her view of the Commerce Clause argument uses the plenary power doctrine as well as practicality. She argues that, in terms of practicality, requiring individuals not involved in interstate commerce to be involved is required for the ACA as a whole to work.
While I could not fully understand Justice Roberts’ tax power argument his counter to the Commerce clause argument made sense. Forcing the creation of activity so you can regulate it gives Congress almost unlimited power over the increasingly interstate U.S economy. Justice Ginsburg’s arguments relied on ideas such as plenary power, general welfare, etc. These ideas are slippery slopes to unlimited federal power because they assume enumerated powers have no limits. However, the structure of the federal government and the Bill of RIghts are extra limits to enumerated powers. The Commerce Clause has already been wrongly interpreted to give Congress too much power over the economy such as cases like Gonzales vs. Raich and “substantial effect test”. If you are not taking part in interstate commerce, there is no justification for federal commerce regulation to directly affect you.
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Excellent, Kalel – thanks
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Chief Justice Roberts stated in his decision, that individual mandate penalty is in fact a tax. He states, “penalty will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties, such as the penalty for claiming too large an income tax refund” (4). At this point, Chief Justice Ginsburg also agreed. However, it is noted that Chief Justice Ginsburg not only agreed but stated in a dissenting opinion that there was no clear distinction between “inactivity” and “activity” and there’s no support from the Constitution or prior cases. I feel as though I would need to review the clause in more depth and for a longer period of time, studying cases in which the commerce clause was of great impact, prior to feeling comfortable in deciding whether there should be a limit to its use. In the case of healthcare, as Ginsburg argued as part of her dissent, I do agree however, there are many cases in which draw up several other questions about its use.
m.jenniferbernard@gmail.com
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Chief Justice Roberts and Ruth Bader Gingsburg agree on the Commerce Clause regulation and that Founding Father implied in their wording of the Constitution that Commerce Clause needs exist first in order to regulate it. However, they disagreed over the powers of Congres where Justice Gingsburg said that Congress has powers for Medicaid expansion and Chief Justice Roberts said they did not.
My personal opinion complies with the dissent of four other Justices and I believe that the economic affairs of the States should be reserved to the States. Also, the Court should limit authority over the Commerce Clause because it exceeds the abilities of the Federal Government. As it was stated at the beginning of this case, the powers of the Federal Government are enumerated, and therefore explicitly states in the Constitution. The rest is reserved for the States.
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Thanks, Kate. This is excellent. However, the question is: what are the “economic affairs of the States?” Can they easily be distinguished from the “economic affairs” of the nation?
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Chief Justice Roberts and Ruth Ginsburg agree that the Individual Mandate penalty is a tax in the NFIB v. Sebelius. But R. B. Ginsburg disagrees with Chief Justice Roberts that the Individual Mandate is not a valid exercise of Congress’ power to regulating commerce. RBG believes that the distinction between economic activity and inactivity is unclear because individuals who fail to purchase insurance someway do participate in the healthcare marketplace thus impacting healthcare commerce that may be regulated by Congress.
I agree and disagree on whether the Court should limit the Commerce Clause an example given in the reading is that the government, in making it Commerce Clause argument, defended the mandate as a regulation requiring individuals to purchase health insurance. The government asks to read the mandate not as ordering individuals to buy insurance but rather as imposing a tax on those who do not buy that product. It later goes on to explain the imposition of a tax nonetheless leaves the individual with a lawful choice to do or not do a certain act. But then if Congress may regulate a decision under the Commerce Clause, an individual who disobeys may be subjected to criminal sanctions. So really the government is going force the individual in getting health insurance or force a tax on them for not doing so…
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Chief Justice Roberts found part of the Act Constitutional in some parts and unconstitutional in other parts. He stated that the Commerce Clause doesn’t have the authority to interfere with individuals and their rights to engage in commercial activity. The individual mandate provision was necessary and the necessary and proper clause only gave Congress the power to do things that were valid to some enumerated power. Ginsburg, however, concluded that the individual mandate should be upheld under the Commerce Clause because Congress believed that because many individuals were uninsured it was affecting interstate commerce. Ginsburg also disagreed that the Medicaid expansion was unconstitutional as States had no power over federal funds. The court should limit the Commerce Clause. Firstly, because Congress has the authority to ” “to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes”, however, what is commerce? Was it clearly defined by the framers? Congress has extended its powers within states. Although the Commerce Clause was intended to limit state restrictions, however with Congress getting involved to make sure individuals either get insurance or pay a certain penalty question states sovereignty. If the states don’t comply with Congress, then they don’t get enough funds. This in a way sounds like Congress is trying to control States under the Commerce Clause. The court should limit the Commerce Clause to ensure that states can have enough power to make their own decisions when it comes to healthcare.
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Chief Justice Roberts and Justice Ginsburg agreed that under the Taxing and Spending Clause Congress was allowed to exercise its authority and the mandate penalty tax was not a form of coercion.
Justice Roberts stated that under the Commerce Clause Congress power to regulate commerce did not force individuals to join business just to regulate existing sales activity. Justice Ginsburg disagreed stating a difference of economic activity and inactivity was unclear. She also stated that failure to purchase insurance will impact healthcare buying leading to Congress regulation.
Chief Justice Roberts concluded Medicaid expansion requirements as unconstitutionally Claiming that Congress is not granted such authority under the Spending Clause to threaten the states to withhold Federal funding of Medicaid, states refused to comply. On the other hand, Justice Ginsburg argued the conditions of federal funding under Congress are not restrained to spending agendas when first launched. This is because legislatures can often modify the law. This seems like a manipulation of power under congress as they can decide when and how to change the law for their convenience which is also a coercive measure!
I think that Congress should not be given broad authority over economic affairs as they were previous granted in Swift and Company v US 1905. As a representation of the government Congress are to be held a higher standard of integrity and should not use coercive tactics.
Under the National Federation of Independent Business v. Sebelius congress pressured States to accept conditions or else federal funding under Medicare which is the largest grain aid program would be withheld. The power to regulate interstate commerce should not be misused and should be implemented only in States that desire to participate in.
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Chief Justice Roberts and Ruth Bader Ginsburg agree that the Affordable Care Act is constitutional because it is using the Commerce Clause to regulate interstate commerce, which is in the constitutions. Both justices disagree on whether the power to regulate commerce should be left to the states because it will fail in trying to comply with the regulation. It is in the best interest of the economy and nation for Congress to regulate commerce as it can nationally solve these issues more effectively. Still, it can not force states to comply.
It isn’t fair that states don’t have the option to choose, and Congress has too much power as it is. Giving more economic hold to Congress may harm people because not every state is the same. It is in the best interest for the Court to limit the Commerce Clause and draw a line where it shouldn’t cross.
– Martin B. 4/20/2020
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In NFIB v. Sebelius, the Court ruled that the individual mandate of the affordable care act was unconstitutional. Chief Justice Roberts stated that Congress does the have the constitutional power to order people to buy health insurance on the basis of the commerce clause or the power to tax. The Court also ruled that Congress can tax people with higher income who do not have health insurance, but Congress cannot withhold Medicaid funds from the states in order to compel them to accept the new provisions. Ruth Bader Gingsburg concurred with the Courts. However she dissented with the courts ruling that Congress does not have the power to withhold Medicaid funds from the states. She believes that it is within Congressional spending power to withhold Medicaid funds unless states comply with the new provision.
I believe that Congressional power under the commerce clause should be limited. I agree with Chief Justice Robert that under the commerce clause, Congress cannot regulate a commerce that is not already in use. Congress should not be allowed to compel residents to purchase a product just because the refusal to do so affects interstate commerce. If the Courts does not reasonably limit Congress’ power under the commerce clause, this power will be abused. Just as we’ve seen with the Affordable Care Act, Congress will try to find loopholes in the Constitution that allows them to enforce certain laws. It is the Court’s duty to ensure that Congress does not abuse its power.
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Justices Roberts and Ginsberg agreed with the questions of the Anti-Injunction Act actually, it was a unanimous decision 9-0 the act did not bar the lawsuit. They also agreed on the Taxing and Spending Clause which empowers Congress to legislate, the individual mandate is a tax for the purpose of the constitutions Taxing and Spending Clause and is a valid exercise Congressional authority and concluded that the remainder of the Medicaid expansion provision without the unconstitutional threat to completely withdraw Medicaid funding, could stand as a valid exercise of Congress’s power under the Spending Clause. The Courts should expand authority over economic affairs because commerce is not defined in the Constitution. The opinions and decisions in reference to commerce sometimes fall along with the ideology of the Justices. Originalists may see commerce as trade or exchange of goods while modernists may see commerce as a means for social and economical intercourse between the people among the states.
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Chief Justice Roberts and Justice Ginsburg both agreed in the issuing opinion on NFIB v. SEBELIUS (2012) that the Commerce Clause does not give congress the power to require citizens to purchase health insurance with a mandate because ; The Commerce Clause can not regulate non-economic action but only existing active commerce. Congress can not defend itself with the Necessary and proper clause because it seeks to restructure the government as designed by the constitution. The mandate can “characterized as a tax”, which congress has the power to levy on citizens.
I believe that the Court should limit Congress’s access to regulate Commerce Powers. This judgement contains the concern that mandating a required purchase of an economic good over steps the role of the government and could lead to the government requiring you to make other purchases. It’s shameful that Americans are grossly uninsured and I celebrate the spirit of the ACA to address the problem. But I agree that setting a precedent of penalizing nonconsumer action opens up the door to other penalties that could grow in degree. This leads me back to the hand that the government plays in economics. The relationship between the health of individuals and economics is where the system is at fault. The cost of providing health care v. the profite to be made by insuring individuals in the event that they need care is where I would like to see more conversation because I am conflicted. More governmental regulation over some industries has brought many benefits; environmental regulations, workers rights but it potentially endangers the liberties of big bad businessmen. I say we should be responsible consumers and drive bad business out of business. And health care just shouldn’t be a business at all.
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The question both Supreme Court Justices were answering is if the ACA provisions, which are: the individual mandate requiring people to pay a penalty if they don’t have health insurance, and the enforcement of Medicaid expansion, are constitutionally valid. Congress argued that the Commerce Clause gives them the ability to regulate commerce; therefore they can in fact give penalties to people who choose not to purchase health insurance. They also argued that the penalty is taxable. Chief Justice Roberts opinionates that Congress is given the ability to regulate commerce that already exists in the Constitution such as monies. Furthermore, the Constitution does not allow Congress to regulate individuals’ activity in commerce by mandating them to purchase health care insurance by giving them a penalty if they don’t. Therefore, the penalty is not protected by the Commerce Clause but rather Congress’s ability to tax. Taxation was made to encourage certain activities and is backed by the Constitution.
Ruther Bader Ginsburg dissents with Chief Justice Roberts and states that Roberts uses wrong precedents to answer the issue. RBG states that the Framers made the Commerce Clause so that way Congress, with their expertise, can regulate any kind of range of commerce activity, including local, that can affect interstate commerce and the nation as a whole. Lastly, Congress should be given respect for their ability to fix economic and social issues. Therefore Congress can regulate commerce.
I agree with RBG’s dissent that the Commerce Clause given Congress the ability to decipher if whether an activity should be regulated on the bases that it might affect the nation as a whole. In this case with the question involving health care insurance, not having health care insurance does affect the nation as a whole, and this knowledge is based on stats that Congress is aware of. The provisions of the ACA are constitutionally based on these facts and congress should be given the ability as their jobs are to protect individuals livelihoods, not infringe upon them
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