months, at least nineteen cases were filed in federal district courts nationwide; eventually, approximately half of these were appealed to the federal
courts of appeals.
While the legal claims raised during Round One were far ranging, the
cases uniformly sought to strike down the ACA in its entirety. The vast majority of cases focused on the “individual mandate,” a provision of the ACA
that requires most individuals to hold qualified health insurance or pay a
Round One culminated in National Federation of Independent Business
v. Sebelius (NFIB), a case the Supreme Court took on certiorari from the
Eleventh Circuit Court of Appeals.
6 Reflecting the divisions generated by
the ACA, the Court devoted six hours to oral argument and received over
140 briefs in the case (an all-time record).
7 By now, NFIB is well-known
for its holdings. The Court did not strike down the ACA. Even though a
majority of the Court found the individual mandate exceeded Congress’s
power under the Commerce Clause, it concluded that the law was a valid
exercise of Congress’s power to tax.
While acknowledging that past Supreme Courts had interpreted the
Commerce Clause expansively to allow Congress to regulate not just interstate commerce itself, but individual activities that, in the aggregate, “
substantially affect” interstate commerce, Chief Justice Robert’s opinion concludes that these cases uniformly reach “activity.”
9 This contrasts, he said,
with the individual mandate, which is an attempt to regulate “inactivity,”
i.e., the refusal to purchase health insurance.
10 He concluded that this attempt at regulation went beyond what the Commerce Clause allows and
moved instead into the area of “police power,” which is exclusively vested
in the States.
The federal government argued that the Court could also uphold the individual mandate under Congress’s constitutional power to lay and collect
taxes. This argument was definitely a secondary theory, representing only
217 lines in the voluminous transcript of the oral argument before the
Court. Yet, in a part of the opinion joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, Chief Justice Roberts held that the individual mandate
is a valid exercise of Congress’s taxation power. To reach this result, the
4. See id.
5. See 26 U.S. C. A. § 5000A(b)( 1) (West, WestlawNext through Pub. L. No. 113-93
(excluding Pub. L. No. 113-79) approved Apr. 1, 2014).
6. See NFIB, 132 S. Ct. at 2566.
7. See Nat’l Health Law Program, ACA LITIGATION, supra note 3.
8. NFIB, 132 S. Ct. at 2594-95.
9. Id. at 2587.
10. Id. at 2590.
11. Id. at 2591.