Part II: National Federation of Independent Business v. Sebelius: The Concurring Opinion

Nicole Tachibana[1]

National Federation of Independent Business v. Sebelius decided the constitutionality of the 2010 Patient Protection and Affordable Care Act (PPACA).[2] By expanding coverage, PPACA created a huge financial burden to the federal government and to the states, leaving a large number of the states to question PPACA’s constitutionality. Twenty-six states petitioned the United States Supreme Court for review of the constitutionality of the individual mandate after a series of split decisions at the appellate level.[3] The states not only asked the Court to find the individual mandate unconstitutional, but asked for the dismantlement of the entire law; opponents called the individual mandate “the backbone” of PPACA. If the Court found the individual mandate unconstitutional, the whole law must also fail.[4] Below is a summary of the concurring opinion.

A. The Commerce Clause: “Congress had a rational basis for concluding that the uninsured, as a class, substantially affect interstate commerce.”

The concurring opinion was penned by Justice Ruth Bader Ginsberg and joined by Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan in part. While the concurrence agreed with the outcome that Chief Justice John Roberts reached—that the Anti-Injunction Act did not bar the judicial review of the case and that the taxing power under the Constitution allows Congress to mandate minimum health insurance coverage—the concurrence went one step further. Justice Ginsberg stated that she would hold that the minimum health insurance coverage mandate is a valid use of Congress’s Commerce Clause powers.[5] 

Ginsberg stressed the expansive economic nature and national importance of healthcare coverage. In 2009 alone, health care expenses “account[ed] for 17.6% of our Nation’s economy” with Americans spending $2.5 trillion on health care.[6] Unlike other industries, according to Ginsberg, healthcare is distinctive because “the market for medical care is one in which all individuals inevitably participate,” with almost 100% of Americans visiting a healthcare professional in their lifetime.[7] As a group, uninsured Americans have a disproportionate impact on healthcare, consuming over $100 billon in healthcare services.[8]   

To combat the rising costs of healthcare and to insure more Americans, Congress studied the different methods states took and analyzed what worked. For example, several states enacted guaranteed-issue and community-rating laws.[9] The guaranteed-issue laws address the preexisting conditions problem, preventing insurers from denying coverage based on a previous or current medical condition, while the community-rating laws required insurers to price policies according to communities (and not based on individual ratings which could lead to higher premiums for those with preexisting conditions).[10] Congress found that these two protections created a “death spiral” for the insurance markets in those states: increased premiums, reduction in the number of individuals with coverage, and reduced insurance products and providers.[11] Massachusetts alone seemed to create a system that avoided these issues. In addition to a guaranteed-issue and community-rating laws, that state required most residents obtain certain minimum health coverage.[12] The result: Massachusetts has less than 2% of its population uninsured and has drastically cut the amount spent on uncompensated care.[13] Congress used the Massachusetts model as a base for PPACA’s “individual mandate”[14] reforms.

The individual mandate created a lot of controversy. Chief Justice Roberts pointed out in his majority opinion that “Congress has never attempted to rely [on the Commerce Clause] to compel individuals not engaged in commerce to purchase an unwanted product.”[15] Roberts stated that the Commerce Clause gives Congress the power to “regulate Commerce” under Article I, Section 8, clause 3, not the power to create commerce. Roberts argued that the term “regulate” does not equate to the term “create.”[16]

Ginsberg disagreed. She wrote that the Framers of the Constitution recognized that the Constitution was merely an outline and not a detailed blueprint to be followed precisely.[17] Recognizing the need for flexibility to address “various crises of human affairs,”[18] she pointed out the Court’s pragmatic approach to the Court’s previous view of the Commerce Clause. Under Gonzales v. Raich, the Court held that Congress has power under the Commerce Clause to regulate economic activities that substantially affect interstate commerce.[19] Second, the Court traditionally gave Congress strong deference to legislation directed at national economic policy.[20] The framework the Court uses is the rational basis test: (1) Did Congress have a “‘rational basis’ for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a ‘reasonable connection between the regulatory means selected and the asserted ends.’”[21]

Under this test, Justice Ginsberg concluded that the individual mandate is constitutional as a proper use of the Commerce Clause. Interstate commerce is clearly impacted: individuals without health insurance, as discussed above, consume billions of dollars in healthcare-related goods and services each year. In addition, individuals cross state lines for medical care for various reasons and companies frequently produce medical goods and services that also cross state lines.[22] The second prong of the test is also met. Congress “acted reasonably” after studying the issue of health insurance costs and insuring the uninsured. The regulatory means selected, i.e. the individual mandate, is a reasonable connection to the asserted ends, i.e. reducing the population of uninsured and reducing healthcare costs.

In response to Chief Justice Roberts’ argument that it was improper for Congress to use the Commerce Clause to “compel” individuals to buy an “unwanted product,” Ginsberg pointed out three flaws.[23] First, as mentioned above, healthcare is distinctive because “the market for medical care is one in which all individuals inevitably participate.”[24] Second, the Court overstepped its bounds by determining the boundary of the market Congress attempted to regulate. For example, Roberts said that the market only included occurring or about to occur transactions. But Ginsberg argued that Congress can reasonably view the market from a “long-term perspective” to regulate that market, and Congress, as recognized by the Court in Wickard and Raich, has the power to direct conduct today because of a “prophesied future transaction.”[25] Ginsberg pointed out that the future transactions in Wickard and Raich (the possibility of selling certain crops on the open market) were more attenuated than the connections between uninsured and the possibility of seeking healthcare. The question with healthcare is not, “Will the uninsured seek health insurance?” but “When?” 

In response to Roberts’ argument that upholding the individual mandate under the Commerce Clause would give Congress “carte blanche” to enact purchase mandates, Ginsberg pointed out that healthcare is unique in that everyone will be involved eventually and is unique in the cost-shifting problems.[26] Additionally, Congress cannot just use the Commerce Clause as a catchall for noneconomic activity. For instance, the Court rejected the use of the Commerce Clause in Lopez and Morrison, holding that the activities in question were noneconomic in nature.[27] 

B. The Medicaid expansion: States are on notice about the possibility of amendments, and the Federal Government is paying 100% of initial costs of the expansion and 90% of the ongoing costs.

Chief Justice Roberts invalidated the Medicaid expansion, the requirement that states comply with the expansion of Medicaid to those under the poverty level, as “a gun to the head.”[28] Ginsberg agreed with Roberts’ remedy—to simply block that particular provision from going into effect—but disagreed with his reasoning. According to Ginsberg, the Medicaid Act expressly allows the federal government to make amendments and adjustments to the program. This “notice” was given decades ago when the act was originally signed into law.[29] In addition, Congress has amended Medicaid over fifty times with some amendments expanding coverage to include sizable groups including pregnant women and children living at or below the poverty level.[30] In addition, as Ginsberg pointed out, the expansion will be funded initially by federal funds at 100% and slowly reduced to 90% for ongoing maintenance.[31]

The issue that the states had, and Roberts agreed, was that states were required to expand Medicaid or risk losing all the Medicaid funds.[32] Roberts said this change was not, as contemplated under PPACA, the “right to alter somewhat” or “amend, but not too much.”[33] Ginsberg stated that the states have no “law-based ground” to complain about any amendment.[34] Ginsberg pointed to Bowen v. Public Agencies Opposed to Social Security Entrapment,[35] where the federal government repealed the part of Social Security that allowed states to withdrawal from Social Security. In Bowen, the Court upheld the federal government’s actions, stating that the act expressly reserved the right to amend the act and that provision, as a result, put states on notice.

Finally, Ginsberg addressed the coercion issue. Roberts attempted to draw a line where persuasion by the federal government (allowed) crosses the line into coercion (not allowed).[36] Ginsberg stated that these were “judgments that def[ied] judicial calculation.”[37] In addition, the states had no right to these funds, but only the anticipation of receiving these funds.

In sum, the concurrence agreed in conclusion with the majority opinion but would uphold the individual mandate under the Commerce Clause and would uphold the Medicaid expansion under the spending power.  


[1] J.D. 2012, University of Denver Sturm College of Law. This article is a continuation of Nicole Tachibana, Part I: National Federation of Independent Business et al. v. Sebelius: A Summary of the Recent Healthcare Decision, 90 Denv. U. L. Rev. Online (July 9, 2012), available at

[2] 26 U.S.C. § 5000A (2010) (the section at issue is the so-called “individual mandate”).

[3] Adam Liptak, Supreme Court Is Asked to Rule on Health Care, N.Y. Times (Sept. 28, 2011),

[4] Id.

[5] Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. __, *1-2 (2012) (Ginsberg, J., concurring).

[6] Id. at *3.

[7] Id. Ginsberg cited a study from the Department of Health and Human Services, National Center for Health Statistics, Summary Health Statistics for U. S. Adults: National Health Interview Survey 2009, which stated that over 99.5% of older adults have visited a healthcare professional.

[8] See Tachibana, supra note 1, at Part I.A.i, for a more detailed description of the cost-shifting issue.

[9] Nat’l Fed’n of Indep. Bus., 567 U.S. at *10-11 (Ginsberg, J., concurring).

[10] Id. at *10.

[11] Id. at *10-11.

[12] Id. at *12.

[13] Id.

[14] “Individual mandate” refers to PPACA’s requirement that individuals must either obtain insurance or pay a specified penalty. This penalty is upheld under the majority opinion as a tax by Chief Justice Roberts. However, Ginsberg said it should be upheld as a proper use of the Commerce Clause under Court precedent. Ginsberg called Roberts’ reasoning a “newly minted constitutional doctrine.” Id. at *18.

[15] Id. at *16 (majority opinion).

[16] Id.

[17] Id. at *14 (Ginsberg, J., concurring).

[18] Id.

[19] Id. at *15 (discussing Gonzales v. Raich, 545 U.S. 1, 17 (2005)).

[20] Id. (quoting Hodel v. Indiana, 452, U.S. 314, 326 (1981) (“This [C]ourt will certainly not substitute its judgment for that of Congress unless the relation of the subject to interstate commerce and its effect upon it are clearly non-existent”)).

[21] Id. at *15-16.

[22] Id. at *16-17.

[23] Id. at *3.

[24] Id.

[25] Id. at *20-21. In Wickard v. Filburn, 317 U.S. 111, 114-15 (1942), a farmer was stopped from growing excess wheat due the eventual sale and impact of wheat on the interstate market. Similarly, in Gonzales v. Raich, 545 U.S. 1, 17 (2005), the plaintiff was ordered to cease cultivating marijuana because of the impact of the marijuana in the interstate market.

[26] Nat’l Fed’n of Indep. Bus., 567 U.S. at *28 (Ginsberg, J., concurring).

[27] Id. In United States v. Lopez, 514 U.S. 549, 573 (1995), the Court rejected the use of the Commerce Clause for criminalizing the possession of a gun in a school zone. In United States v. Morrison, 529 U.S. 598, 627 (2000), the Court also rejected the Commerce Clause as a mechanism for regulating gender-motivated violence.

[28] Nat’l Fed’n of Indep. Bus., 567 U.S. at *51.

[29] Congress reserved the right to alter, amend, or repeal any provision of the Medicaid Act. 42 U.S.C. § 1304 (1935).

[30] Nat’l Fed’n of Indep. Bus., 567 U.S. at *41-42 (Ginsberg, J., concurring).

[31] Id. at *51.

[32] Nat’l Fed’n of Indep. Bus., 567 U.S. at *51. (Roberts, J., majority opinion).

[33] Id. at *55 (Ginsberg, J., concurring).

[34] Id.

[35] 477 U.S. 41, 51–52 (1986).

[36] Nat’l Fed’n of Indep. Bus., 567 U.S. at *57 (Ginsberg, J., concurring).

[37] Id. at *59.