A Summary of the Supreme Courts arguments over the Affordable Care Act (Obamacare):

NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. 648 F.3d 1235.

by Benjamin Shlomo, J.D.

Brought to you by the Student Chapter of AMA / TMA

Opinion of the Court Chief Justice Roberts: The Affordable Care Act is Constitutional, except Congress cannot withhold all Medicaid funding if states refuse the Medicaid expansion.
Parts I, II and III-C joined by Justices Breyer,Ginsburg,Kagan and Sotomayor, Part IV joined by Justices Breyer and Kagan. I. Summary of the issues:1 The Supreme Court makes the final ruling on whether laws passed by Congress are authorized or invalid under the Constitution of the United States,2 not if they were politically or socially beneficial.3 The majority out of the 9 Justices determines the outcome, each Justice choosing which parts of each authors opinion to agree with, and those in the minority often file concurring or dissenting opinions. This case concerned the Affordable Care Act (ACA), particularly the Individual Mandate, (IM) and Medicaid Expansion ( ME). The IM would require all American citizens to either buy private health insurance or pay the I.R.S. a shared responsibility payment (SRP).4 The ME would require states cover adults earning up to 133% of the federal poverty level or possibly lose all Medicaid funding.5 Other sections compel providers to insure those with preexisting conditions (the Guarranteed Issue provision), and at the same rates as others (the Community Rating provision).6 II. The Anti-Injunction Act does not bar this lawsuit. The Anti-Injunction Act (AIA) reads no suit for the purpose of restraining the assessment or collection of any tax shall be maintained,7 meaning plaintiffs must first pay any tax before retroactively challenging its constitutionality in court. The AntiInjunction Act and the Affordable Care Act, however, are creatures of Congresss own creation. How they relate to each other is up to Congress.8 Congress did not explicitly call the SRP a tax in the statute because it did not intend the AIA apply to it (although the SRP may still have the practical effect of a tax for evaluations of its constitutionality9). Thus, ACA can be challenged even before it takes effect in 2014. III. The Individual Mandate is Constitutional. A. The Interstate Commerce Clause does not authorize the IM. 1. The Interstate Commerce Clause (ICC) of the U.S. Constitution grants Congress the power to regulate Commerce with foreign Nations, and among the several States,10 which has been interpreted to include those activities that substantially affect interstate commerce.11 In Wickard v. Filburn, the Court held application of the ICC could stop a farmer from growing excess wheat for his own personal consumption--not commercial sale--because the aggregate effect of such activity might reduce farmers purchases of wheat across state lines.12 However, that case was distinguished from the current because the farmer was at least actively engaged in the production of wheat, while the uninsured are not always actively engaged in the consumption of health insurance or health care.13 The government argued health care was a unique product which everyone would one day use, but Roberts wrote: The proposition that Congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent.14 The power to regulate commerce presupposes the existence of commercial activity to be regulated.15 The ICC does not authorize the IM because [t]he Framers gave Congress the power to regulate commerce, not to compel it.16
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The Constitution does not use regulate as a synonym for create or compel: the document includes the power to coin Money, and regulate the Value thereof17; to raise and support Armiesprovide and maintain a Navy, and make Rules for theRegulation of the land and naval Forces.18 If regulate were so broadly interpreted as Ginsburg argues, the second phrase in each pair would be superfluous. 2. The Necessary and Proper Clause (N&PC), the authority [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,19 fails to rescue the ICC theory because the N&PC does not license creating a new great substantive and independent power,20 such as the power to regulate inactivity. B. The Individual Mandate may reasonably be characterized as a Tax.21 The Constitutions Tax and Spend Clause (T&SC), lets Congress lay and collect Taxes, Duties, Imposts and Excisesand provide for the common Defence and general Welfare of the United States.22 [I]n exercising its spending power, Congress may offer funds to the States, and may condition those offers [which] may well induce the States to adopt policies that the Federal Government itself could not impose.23 Using a fairly possible standard of interpretation,24 the SRP penalty for Americans who choose not to buy health insurance can be read as a tax.25 C. The IM is Constitutional under the Tax and Spend Clause. In justifying the interpretation of the shared responsibility payment as a tax rather than a punitive criminal fine, the Court considered that the payment was not so high as to compel purchasing insurance instead; applied regardless of whether the violation was willful; limited to a financial loss with no other criminal penalties; calculated according to standard taxation factors such as taxable income, number of dependents and joint filing status; filed with the annual tax return; and, collected by the I.R.S. in the same manner as taxes.26 By contrast, a 10% tax on companies knowingly employing children, enforced by the Department of Labor, was struck down as unconstitutional.27 No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census,28 meaning apportioned according to each states population, which the ACA is not. However, the Supreme Court has held in the past that direct taxes in this sense only refers to taxes on all citizens unconditionally, land or personal property.29 The SRP is conditional (on not having health insurance) rather than a universal capitation, and thus is not a direct tax.30 Apportionment does not apply. D. Limiting the ICC was necessary before addressing the T&SC issue. The language of the IM more naturally reads as a commerce issue, so the Court had to first consider the ICC before rescuing the IM as a Tax. IV. ACAs Medicaid expansion unconstitutionally threatens existing funding. A. Threatening to terminate all Medicaid funding is impermissibly coercive. The Federal Government may not compel the States to enact or administer a federal regulatory program.31 The separation of state and federal powers requires that T&SC funding conditions not exert a power akin to undue influence such that pressure turns into compulsion.32
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South Dakota v. Dole held Congress could condition 5% of highway funds on states raising the drinking age to 21, because the condition was directly related to one of the main purposes for which highway funds are expended--safe interstate travel and the amount--which made up less than % of most states total budget--was not coercive.33 When, for example, such conditions take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the States.34 The ME conditions not only the increased but also all current Medicaid funding.35 The threatened loss of over 10 percent of a States overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.36 Medicaid retains Congresss right to alter, amend, or repeal any provision.37 The Medicaid expansion, however, accomplishes a shift in kind, not merely degree.38 The program currently only covers unemployed parents at less than 37% and employed parents at less than 63% of the federal poverty level, pregnant women, the elderly and the disabled,39 50-83% of which is paid for by federal funding.40 ME expands coverage to anyone younger than 65 under 133% of the federal poverty level, 41 expands federal funding to defray 90% of the costs,42 and provides these classes merely the minimum coverage per person ACA requires43 rather than standard Medicaid benefits. The T&SC right does not include surprising participating States with postacceptance or retroactive conditions.44 A State could hardly anticipate that Congresss reservation of the right to alter or amend the Medicaid program included the power to transform it so dramatically.45 B. The remainder of ACAs Medicaid Expansion is constitutional. ACA specifies: If any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shall not be affected thereby.46 When the unconstitutional portions of a law are severable, the remainder may be left inact if that is what Congress would have intended in light of the Courts constitutional holding.47 It is not evident48 the Legislature would have preferred the whole ME struck down rather than merely the coervice condition (of cutting off all funding). The Court today limits the financial pressure the Secretary may apply to induce States to accept the terms of the Medicaid expansion. As a practical matter, that means States may now choose to reject the expansion; that is the whole point.49 Congress can condition the expanded federal funding on a state expanding Medicaid coverage, but may not threaten existing funding. Concurring, in Part, Opinion: Justice Ginsburg, All Parts joined by Justice Sotomayor, Parts I-IV joined by Justices Breyer and Kagan. I. The ICC authorizes the IM. Unlike the market for almost any other product or service, the market for medical care is one in which all individuals inevitably participate50Unlike markets for most products, however, the inability to pay for care does not mean that an uninsured individual will receive no care51Those with health insurance subsidize the medical
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care of those without it.52 $116 billion in health care was provided to the uninsured in 2008, who only paid for $73 billion of it.53 There is no true inactivity in healthcare. It is well established by decisions of this Court that the power to regulate commerce includespractices affecting such prices.54 Under the ICC Congress may regulate those activities which, in the aggregate,55 substantially affect56 interstate commerce. Congress estimated the uninsured as increase insurance premiums for everyone else by more than $1000 per year,57 which seems fairly substantial. Given these far-reaching effects on interstate commerce, the decision to forgo insurance is hardly inconsequential or equivalent to doing nothing.58 II. Commercial Inactivity is Regulable under the ICC. The farmer in Wickard was regulable, despite his commercial inactivity, because of potential future activity if he later sold his excess wheat along interstate routes. Likewise, Congress could criminalize--through the ICC--Marijuana grown for personal use because of potential future sale.59 Regulating an uninsured citizens inactivity in the health insurance market because of (inevitable) future healthcare activity is no different. III. The N&PC authorizes the IM. Insurance companies practices are activity, and Congress may inarguably pass the guarranteed issue and community rating provisions under the ICC. The 7 states that passed similar laws saw premiums skyrocket as people waited until after becoming ill to purchase insurance, until finally the companies abandoned the states.60 Massachussetts avoided this result by also compelling its citizens to buy insurance.61 Even if the ICC did not cover inactivity, the IM is a necessary and proper provision to make ACAs regulations on insurance companies feasible and is valid under the N&PC. IV. Invalidating ICC justification for the IM was unncecessary if the T&SC sufficed. V. The T&SC authorizes the ME. No exercise of the Tax and Spend Clause has ever been found unconstitutionally coercive before. Congress has no obligation62 because of past funding to keep paying states under the same terms.63 Dole requires only that T&SC conditions (a) promote the general welfare, (b) unambiguously inform States what is demanded of them, (c) be germane to the federal interest in particular national projects or programs, and (d) not induce the States to engage in activities that would themselves be unconstitutional.64 Roberts denied (b) was satisfied, but Medicaid itself explicitly reserved Congresss right to alter, amend, or repeal any provision thereof,65 putting all states on notice that future funding might be cut. Likewise, the Social Security expansion (to mandatorily include state employees) was held valid because of a similar right-to-amend clause.66 Rather than coercive, the ME actually saves most states money compared to current Medicaid because the increased state spending is more than offset by federal matching payments and eliminating the cost of uncompensated care for the uninsured.67 The ME is not some shift in kind as Roberts puts it; all it does is expand the class of beneficiaries--under the same terms as current Medicaid recipients68--as Congress has done progressively over the years (adding pregnant women, children under 6, poor families with children, etc.).69
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D. If ME is unconstitional, the remainder of ACA should stand as modified.70 This section is similar to Part IV-B of Roberts Opinion of the Court. Dissenting Opinion: Justice Scalia, All Parts joined by Justices Kennedy, Thomas and Alito. I. The ICC does not authorize the IM. This section is similar to Part III-A of Roberts Opinion of the Court. II. The T&SC does not authorize the IM because it is not a tax. Interpreting the IM as a tax would be doing violence to the fair meaning of the words used.71 A tax is an enforced contribution to provide forthe support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.72 [W]e have never heldneverthat a penalty imposed for violation of the law was so trivial as to be in effect a tax.73 If the IM were a tax, groups exempt under ACA--the poor and members of the Indian tribes74--would merely be released from the duty to pay; instead they are both released and guarranteed minimum insurance coverage, indicating that the duty to obtain insurance is a mandatory legal requirement (subject to a penalty), not a (taxable) legitimate option. Furthermore, ACA refers to the IM as a penalty 18 times throughout. 5000A of the law is entitled Requirement to maintain minimum essential coverage and states the individual shall obtain insurance (emphases added).75 The terms of the IM penalty are in Title I of [ACA], its operative core, rather than where a tax would be foundin Title IX, containing the Acts Revenue Provisions.76 [I]t cannot be supposed that the Legislature intended that a penalty should be inflicted for a lawful act.77 That the penalty is collected in the same manner as a tax is not dispositive. The I.R.S. regularly collects criminal fines such as for failing to disclose campaign financing,78 selling domestically tobacco labeled for export,79 failing to make insurance payments for miners,80 etc. Many criminal penalties are likewise calculated along tax criteria reflecting economic means81 and/or contain no mental state requirement like wilfullness.82 Even when explicitly called a tax and I.R.S.-enforced, a punishment for an unlawful act was held to be a penalty.83 Conversely, the Department of Health and Human Services defines the scope and application of IM penalties,84 a feature that would be quite extraordinary for taxes.85 III. The AIA does not apply because the IM is not a tax. The majority, in claiming the IM uses the word penalty to avoid AntiInjunction Act application (instead of writing explicitly that the AIA not apply) is confusing the question of what Congress did with the question of what Congress could have done.86 IV. The ME is unconstitutionally coercive. This section is similar to Part IV-A of Roberts Opinion of the Court. A state that withdrew from Medicaid is still required to care for its uninsured poor somehow,87 while its citizens continued paying the extra federal taxes that subsidize the ME in other states. Arizona, for example, would have to increase
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expenditures from 12% to 45% of its annual budget to compensate.88 In practice, this is not a realistic choice. The stated goal of ACA is universal health insurance coverage.89 Congress provided no backup system to insure citizens of those states that refused the ME, precisely because they were certain no state could. The government argued that this was because the federal funding was exceedingly generous,90 but the massive future administrative and funding costs91 explain why 26 states brought suit against ACA. V. Neither the IM nor ME are severable and thus all of ACA should be invalidated. In achieving its goals, ACA was a balanced plan of shared responsibility92: The federal government expanded Medicaid benefits but cut payments to hospitals; hospitals received less per person but no longer had to treat the uninsured for free. Insurance companies suffered the burden of covering preexisting conditions but were compensated by an influx of new healthy clients; individuals were forced to buy insurance but no longer paid hospitals to care for the uninsured.93 For example, the insurance industry would lose $700 billion to new ACA regulations and taxes but gain $350 billion from the IM and $350 billion from ME payments.94 Invalidating either the IM or the ME unravels the whole scheme. ACAs severability clause95 cannot authorize precise (and unconstitutional) rewriting of the statute, or the Court might just as well have permitted, say, the cut-off of funds that represent no more than x percent of the States budget.96 The Separation of Powers means the Judiciary/Court cannot perform the work of the Legislature/Congress. Morever, smaller ACA provisions--chain restaurants must display nutritional content,97 nursing mother regulations,98 targeted tax hikes,99 etc.--might only have been passed by Congress because they were paid for by revenue-generating provisions of the IM and ME, or as part of a quid-pro-quo bargain for a Congresspersons overall support. ACA is an omnibus enactment and it is not a proper function of this Court to guess which of the minor provisions would have passed without the major ones.100 Dissenting Opinion: Justice Thomas. Thomas reiterates101 his belief that substantially effects is the wrong test for ICC application because it does not limit Congresss power enough. Conclusion Only a majority opinion is binding. Roberts holding the ICC does not authorize the IM is unnecessary (to finding it constitutional), so arguably Part III-A (which no justice joined although the dissenters agreed with its arguments) is mere, nonbinding dictum on future courts. However, Roberts severing of the ME in Part IV-B (joined by Breyer and Kagan) is accepted in Part V of Ginsburgs concurring opinion (joined by Sotomayor) for a total of 5 justices; thus the Courts modification of ACA (all Medicaid funding cannot be conditioned on states accepting the ME) should be accepted by lower courts.

A Summary of Justice Opinions on each challenged issue

Alito AIA applies to stop lawsuit AIA does not apply because SRP not called a "tax" AIA does not apply because SRP not actually a tax Must decide ICC question IM is constitutional IM constitutional under ICC IM is a "Tax" IM constitutional under T&SC ME is constitutional (not coercive) ACA is severable ACA is constitutional No No Yes Yes No No No No No No No Breyer No Yes No No Yes Yes Yes Yes No Yes Yes Ginsburg No Yes No No Yes Yes Yes Yes Yes Yes Yes Kagan No Yes No No Yes Yes Yes Yes No Yes Yes Kennedy No No Yes Yes No No No No No No No Roberts No Yes No Yes Yes No Yes Yes No Yes Yes Scalia No No Yes Yes No No No No No No No Sotomayor No Yes No No Yes Yes Yes Yes Yes Yes Yes Thomas No No Yes Yes No No No No No No No

AIA = Anti-Injunction Act SRP = Shared Responsibility Repayment ICC = Interstate Commerce Clause (Constitution)

IM = Individual Mandate T&SC = Tax and Spend Clause (Constitution) ACA = Affordable Care Act

This text is intended to summarize the legal arguments for laypersons, and thus omits discussion of procedural matters, for example that the Court appointed amicus curiae to argue for and against relevant points no party was raising. Four lower circuits (D.C., 4th, 6th, 11) reached varying conclusions on ACA. The subject numbering system is the Courts, although the subject titles are my own. The citation 648 F.3d 1235 (2012). refers to quotes from this case. Citations to other Supreme Court cases are usually the form: Party v. Party, ___ U.S. ___ (Date). or Party v. Party, ___ F.3d. ___ (Date), where the blanks represent page and volume numbers. Citations with a symbol refer to Congressional laws and statutes. The citation Id. at _____ references the immediately prior citation, at a different section or page number. 2 United States v. Harris, 106 U. S. 629, 635 (1883). See also, Hooper v. California, 155 U. S. 648, 657 (1895): every reasonable construction must be resorted to, in order to save a statute from unconstitutionality. 3 Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July5, 1819, in John Marshalls Defense of McCulloch v. Maryland 190191 (G. Gunther ed. 1969): The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional. 4 26 U.S.C. 5000A (2010). 5 42 U.S.C. 1396c (2010). 6 Id., at 300g. 7 26 U. S. C. 7421(a) (2006 ed.). 8 648 F.3d 1235 (2012), p13. 9 License Tax Cases, 5 Wall. 462, 471 (1867). 10 Art. I, 8, cl. 3.
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United States v. Morrison, 529 U. S. 598, 618619 (2000), citing to United States v. Darby, 312 U. S. 100, 118119 (1941), internal quotation marks added. 12 Wickard v. Filburn, 317 U. S. 111 (1942). 13 648 F.3d 1235 (2012), p22, emphasis added. 14 Id., at p26. 15 Id., at p18, emphasis supplied. 16 Id., at p24, emphasis supplied. 17 U.S. Constitution, Art. I, 8, cl. 5. 18 Id., at cl. 12-14. 19 Id., at cl. 3. 20 McCulloch v. Maryland, 4 Wheat. 316, 411 (1819). 21 648 F.3d 1235 (2012), p44. 22 Art. I, 8, cl. 1. 23 648 F.3d 1235 (2012), p5, citing College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 686 (1999); and South Dakota v. Dole, 483 U. S. 203, 205206 (1987). 24 Crowell v. Benson, 285 U. S. 22, 62 (1932). 25 648 F.3d 1235. (2012), p33: the essential feature of any tax:it produces at least some revenue for the Government," citing to United States v. Kahriger, 345 U. S. 22, 28, n. 4 (1953). 26 26 USC 5000A (2006 ed.). 27 Bailey v. Drexel Furniture Co., 259 U. S. 20 (1922). See also, United States v. Butler, 297 U. S. 1 (1936). 28 U. S. Const., Art. I, 9, cl. 4. 29 Pollock v. Farmers Loan & Trust Co., 158 U. S. 601, 618 (1895); and Eisner v. Macomber, 252 U. S. 189, 218219 (1920). 30 Hylton v. United States, 3 Dall. 171, 175 (1796) (opinion of Chase, J.). 31 New York v. United States, 505 U. S. 144, 188 (1992). 32 Steward Machine Co. v. Davis, 301 U. S. 548, 590 (1937). 33 483 U. S. 203, 208 (1987). 34 648 F.3d 1235 (2012), p50. 35 42 USC 1396c (2012). 36 Id., at p50, referencing Nat. Assn. of State Budget Officers, Fiscal Year 2010 State Expenditure Report, p. 11,Table 5 (2011). 37 42 U. S. C. 1304 (2006 ed.). 38 648 F.3d 1235 (2012), p26.
39
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42 U. S. C. 1396a(a)(10) (2006 ed.). Id., at 1396d(b). 41 Id., at 1396a(a)(10)(A)(i)(VIII). 42 Id., at 1396d(y)(1). 43 Id., at 1396a(k)(1). 44 Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 25 (1981). 45 648 F.3d 1235 (2012), p54. 46 42 U. S. C. 1303 (2006 ed.). 47 United States v. Booker, 543 U. S. 220, 246 (2005). 48 Champlin Refining Co. v. Corporation Commn of Okla., 286 U. S. 210, 234 (1932).

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648 F.3d 1235 (2012), p57.

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648 F.3d 1235 (2012) (GINSBURG, J., concurring), p3, citing to Dept. of Health and Human Services, National Center for Health Statistics, Summary Health Statistics for U. S. Adults: National Health Interview Survey 2009, Ser. 10, No. 249, p. 124, Table 37 (Dec. 2010) (Over 99.5% of adults above 65 have visited a health-care professional.) 51 648 F.3d 1235., p5 (GINSBURG, J., concurring), citing to 42 U. S. C. 1395dd; Fla.Stat. 395.1041(3)(f) (2010); Tex. Health & Safety Code Ann. 311.022(a) and (b) (West 2010); American Medical Association, Council on Ethical and Judicial Affairs, Code of Medical Ethics, Current Opinions: Opinion 8.11Neglect of Patient, p. 70 (19981999 ed.). 52 648 F.3d 1235. (2012) (GINSBURG, J., concurring), p6. 53 42 U. S. C. 18091(2)(F) (2006 ed., Supp. IV). 54 Wickard v. Filburn, 317 U. S. 111, 128 (1942), emphasis added by Justice Ginsburg. 55 Id., 56 United States v. Darby, 312 U. S. 100, 118119 (1941). 57 42 U. S. C. 18091(2)(F) (2006 ed.). 58 648 F.3d 1235. (2012) (GINSBURG, J., concurring), p16. 59 Gonzales v. Raich, 545 U. S. 1, 19 (2005). 60 Hall, An Evaluation ofNew Yorks Reform Law, 25 J. Health Pol. Poly & L. 71,9192 (2000). 61 42 U. S. C. 18091(2)(D) (2006 ed., Supp. IV), citing to Mass. Gen. Laws, ch. 111M, 2 (West 2011). 62 College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 686 (1999). 63 Bennett v. Kentucky Dept. of Ed., 470 U. S. 656, 659660 (1985), see also Helvering v. Davis, 301 U. S. 619, 640641 (1937). 64 483 U. S. 203, 207208, 210 (1987), internal quotation marks omitted. 65 42 U. S. C. 1304 (2006 ed.). 66 Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U. S. 41, 5152 (1986). 67 Kaiser Commission on Medicaid & the Uninsured, Medicaid Coverage & Spending in Health Reform 16 (May 2010). 68 ACA 2001(a)(1), (3), 124 Stat. 271272, See also 42 U. S. C. 13961396v(b) (2006 ed. and Supp. IV). 69 42 U. S. C. 1396a(a)(10)(A)(i), 1396a(l) (2006 ed.); Medicare Catastrophic Coverage Act of 1988, 302, 102 Stat. 750; Omnibus BudgetReconciliation Act of 1989, 6401, 103 Stat. 2258; Omnibus Budget Reconciliation Act of 1990, 4601, 104 Stat.1388166. 70 Note that for brevity I omitted most of the sub-dividers in the minority opinions. 71 Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884). 72 United States v. La Franca, 282 U. S. 568, 572 (1931), See also, United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996). 73 648 F.3d 1235 (2012) (SCALIA, J., dissenting), p18, emphasis supplied. 74 26 U. S. C. 5000A(e) (2006 ed.). 75 New York v. United States, 505 U. S. 144 (1992): The word shall appeared in a mere introductory provision, thus the Courts holding that the statute as a whole was optional does not imply shall and may are synonyms when appear in active provisions of a law. 76 648 F.3d 1235. (SCALIA, J., dissenting), p24. 77 Powhatan Steamboat Co. v. Appomattox R. Co., 24 How. 247, 252 (1861). 78 26 U. S. C. 527(j) (2006 ed.). 79 Id., at 5761(c). 80 Id., at 9707.
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33 U. S. C. 1319(d) (2006 ed., Supp. IV); 6 U. S. C. 488e(c); 7 U. S. C. 7734(b)(2), 8313(b)(2); 12 U. S. C. 1701q1(d)(3), 1723i(c)(3), 1735f 14(c)(3), 1735f15(d)(3), 4585(c)(2); 15 U. S. C. 45(m)(1)(C), 77h1(g)(3), 78u2(d), 80a9(d)(4),80b3(i)(4), 1681s(a)(2)(B), 1717a(b)(3), 1825(b) (1), 2615(a)(2)(B), 5408(b)(2); 33 U. S. C. 2716a(a). 82 Staples v. United States, 511 U. S. 600, 618 (1994). 83 Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213 (1996). 84 5000A(e)(1)(D) (2006 ed., Supp. IV). 85 648 F.3d 1235. (2012) (SCALIA, J., dissenting), p23. 86 Id., at p27, emphasis supplied. 87 The Emergency Medical Treatment and Active Labor Act, 1395dd, requires any hospital receiving federal funding to care for the indigent poor. See also, Endnote 39, supra. 88 National Association of State Budged Officers, Report 7, 47. 89 42 U. S. C. 18091(2)(D) (2006 ed.). 90 Brief for Respondents in No. 11400, at 50. 91 Statement of Douglas W. Elmendorf, CBOs Analysis of the Major Health Care Legislation Enacted in March 2010, p. 24 (Mar. 30, 2011); see also R.Bovbjerg, B. Ormond, & V. Chen, Kaiser Commission on Medicaid and the Uninsured, State Budgets under Federal Health Reform: The Extent and Causes of Variations in Estimated Impacts 4, n. 27 (Feb. 2011) (estimating new state spending at $43.2 billion through 2019). 92 42 U. S. C. 18091(2)(C) (2006 ed.). 93 Id., at 18091(2)(C)-(J). 94 Brief for Economists as Amici Curiae in No. 11393 etc. (Severability), pp. 916, 10a., See also, CBO, Analysis of the Major Health Care Legislation Enacted in March 2010, pp. 1819 (Mar. 30, 2011), finding ACAs $455 billion in Medicare and Medicaid savings offset the $434 billion cost of the ME. 95 42 U. S. C. 1303 (2006 ed.).

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648 F.3d 1235. (2012) (SCALIA, J., dissenting), p48. 21 U. S. C. 343(q)(5)(H) (2006 ed.). 98 29 U. S. C. 207(r)(1) (2006 ed.).
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26 U. S. C. 4191 (2006 ed., Supp. IV).

648 F.3d 1235. (2012) (SCALIA, J., dissenting), p63. 101 United States v. Morrison, 529 U. S. 598, 627 (2000) (THOMAS, J., concurring).