Chief Justice Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”(Barrett) Inarguably one of the most controversial cases of American history, NFIB(National Federation of Independent Business) v. Sebelius has also been one of the most far reaching cases in regards to impact. In 2010 Congress passed the Patient Protection and Affordable Care Act (ACA), also known as Obamacare. This act strove to solve the problem surrounding the healthcare market, and it is a very long, extensive, and complex act. The question before the court only addressed two statutes of the law, first the individual mandate, and second the Medicaid expansion plan. In this article I will be discussing the individual mandate, and why it was necessary to the statute and could not be severed, as well as the opinion of the Chief Justice in relation to the associate justices. 

The issue Congress saw in the healthcare program was that individuals would fail to purchase health insurance so when in case of an emergency they would receive care but not pay the bills. Healthcare providers could not refuse aid to anyone in a crisis simply because they were unable to pay. This drove up the healthcare prices for all those able to pay the bill in order to subsidize the hospital for those unable to pay. Congress decided to solve this issue by placing regulations and requirements around the health insurance companies. First, health insurance companies cannot turn down, or reject anyone who seeks insurance regardless of preexisting conditions. Second, it required that insurances charge the same for people at low risk as those with a higher risk. Therefore, because of the regulations from the ACA, health insurance providers wouldn’t function as other insurance providers.

With these two regulations in place it put pressure upon health insurance companies, who now need to accept everyone who comes to them seeking insurance, and charge all of them the same amount regardless of their risk level. Evidence showed that with both these regulations people with low risk and who were in better health would opt out of the health insurance market until the need arose that they would need healthcare. This would mean that health insurance companies would have no way to make a profit, because those that sustained it, meaning the healthy individuals, would only arrive when they needed healthcare, and the company could not turn them down. To solve this issue Congress formed what is known as the individual mandate, which required all individuals to obtain health insurance. 

In addition to the individual mandate, the ACA also stated that anyone who did not comply and purchase some form of health insurance would pay a penalty to the IRS during the tax refunds. It would function as a tax and would be similar to the price they would pay if participating in the health insurance market. 

Now that we have a basic understanding of what the individual mandate consists of and why it is necessary for the statute we can now dive into the opinion of the court and the Constitutional issues this act imposed. The individual mandate the court ruled is not constitutional under the necessary and proper clause or the commerce clause. This was not unanimous however, with the more liberal justices believing that it could be constitutional under those clauses, and conservative justices making up the majority that it couldn’t stand. Chief Justice Roberts then finds another way to look at the individual mandate and he decides to call it a tax, which power is granted Congress in Article I. 

The conservative justices on the court were skeptical of Roberts opinion because earlier in his delivery he decided that the penalty, which would be enacted if the individual failed to comply with the mandate, was not a tax. He decided this because of the Anti-Injunction Act, which is a law stating that issues involving taxes cannot be sued in court until after the tax is paid, in which the individual can then sue for recovery.  Since no one had paid the penalty because the individual mandate had not taken effect yet, the case should not have made its way up to the Supreme Court, and they shouldn’t even be arguing it. Essentially what Roberts said was under the meaning of the Anti-Injunction Act it is not a tax, but under the meaning of the Constitution it is a tax. The wording of the ACA is such that Congress defines the consequence to the individual mandate as a “penalty”. The conservative Justices respond to this by saying “Our cases establish a clear line between a tax and a penalty: ‘[A] tax is an enforced contribution to provide support for the government; a penalty…is an exaction imposed by statute as punishment for an unlawful act.’”-Dissenting Opinion, NFIB v. Sebelius (2012) But the conservative Justices go a step further saying if this is a tax, then it’s a direct tax which is not a power guaranteed congress by the Constitution, unless the tax is proportional to state population, which it wasn’t in this case. Roberts denies the “penalty” as being a direct tax, but never gave a reason as to why he thought that. 

The eventual outcome of this case was exceptionally surprising, since even with the swing vote, Kennedy sided with the conservatives, and Chief Justice Roberts, usually conservative wrote his own opinion opposing the conservative opinion. The eventual ruling of the case was as follows: The Anti-Injunction Act did not prevent the suit, Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomeyer, and Kagan ruled the individual mandate is a tax, while Justices Scalia, Thomas, Kennedy, and Alito ruled that it wasn’t a tax. Chief Justice Roberts joined with Justice Scalia, Kennedy, and Alito, decided that the individual mandate was not constitutional under the commerce clause, Justices Ginsburg, Breyer, Sotomeyer, and Kagan said that it was constitutional under the commerce clause, Justice Thomas dissented separately saying that the government was encouraged to push the limits of its power because of the “substantial effects test”. The majority did not give an opinion on severability because they found the act constitutional, but Justices Scalia, Kennedy, Thomas and Alito found the individual mandate could not be severed therefore the whole act was unconstitutional. 

With the individual mandate in place, and the court ruling it constitutional it provided a very expansive approach to constitutional power. Essentially, the Chief Justice implied that the court can make just about anything constitutional. The individual mandate effects all of us, and it increases the power the Federal Government has to control our everyday lives.