Chief Justice ROBERTS delivered an opinion with respect to Parts I-IV.
I. In Sebelius, this Court held that the individual mandate was not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, 2582 (2012). The revised individual mandate is invalid for virtually identical reasons. The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl.3. This Court stated that “[t]he power to regulate commerce presupposes the existence of commercial activity to be regulated.” Sebelius at 2586. The individual mandate, when it was presented, was not a part of existing commercial or economic activity. The purpose of the individual mandate was to compel people to purchase health insurance. As stated in Sebelius, there has never been precedent giving Congress the ability to compel people to participate in unwanted commercial activity under the Commerce Clause. Id at 2586. “The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding.” Id at 2589. The suit at hand is distinguishable because at the time the Sebelius decision was released, no one had yet been required to participate in the individual mandate or pay a penalty for not participating. Now, in 2018, individuals all over the United States have both purchased health insurance because of the individual mandate or elected to pay the penalty for not purchasing insurance. Although Sebelius struck down the individual mandate as invalid under the Commerce Clause, it is now the time to reexamine whether the individual mandate is an existing commercial activity.
In order to answer this question, we must examine the results of the individual mandate as enacted in Sebelius. The first result is that individuals have decided to purchase insurance that, prior to the ACA, chose not to have health insurance. Primarily, these individuals chose to purchase insurance to avoid paying the shared responsibility payment (“penalty”). That brings us to the second result. The individuals who opted out of purchasing insurance had to pay a penalty to the IRS. Since the penalty was upheld as a tax controlled by the taxing power of Congress in Sebelius, there is no reason to examine the validity of the tax under the Commerce Clause. Art. I, §8, cl.1. What does need to be considered, however, is the status of the first result.
Does the fact that prior uninsured individuals now participate in the health insurance market due to the individual mandate constitute “commerce”? In other words, does the individual mandate’s effect on the insurance market now give Congress power under the Commerce Clause that they did not have in Sebelius? United States v. Lopez identifies Congressional authority under the Commerce Clause in three categories of activities; (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce; or (3) economic activities having a substantial effect upon interstate commerce. United States v. Lopez, 115 S.Ct. 1624, 559 (1995). The individual mandate is not related to the channels of interstate commerce (roadways, waterways, etc.). Additionally, the individual mandate is not related to protecting the instrumentalities of interstate commerce (cars, ships, aircraft, etc.). Therefore, if the revised individual mandate is to be sustained, it must substantially affect existing interstate commerce (emphasis added).
Arguably, the revised individual mandate could be considered an essential part of an existing economic activity, i.e. the health insurance market. It could also be argued that without the individual mandate, there would be a dissimilar incentive to purchase health insurance and therefore, it substantially affects interstate commerce. However, the current aim of the revised individual mandate has not changed…