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Paul D. Clement, Bancroft, PLLC, Lee Alfred Casey, Andrew Grossman, Baker & Hostetler, LLP, David B. Rivkin, Michael Anthony Carvin, Gregory Katsas, C. Kevin Marshall, Hashim M. Mooppan, Jones Day, Washington, DC, Scott Douglas Makar, Joseph W. Jacquot, Timothy David Osterhaus, Blaine H. Winship, Tallahassee, FL, Joseph R. Evans, Evanns & Walsh, Beverly Hills, CA, for Plaintiffs-Appellees.
Katherine Jean Spohn, Lincoln, NE, for State of Nebraska.
William James Cobb, III, Austin, TX, for State of Texas.
Eric B. Beckenhauer, Dana Kaersvang, Neal Kumar Katyal, Brian G. Kennedy, Samantha L. Chaifetz, Alisa B. Klein, Mark B. Stern, U.S. Dept. of Justice, Civ. Div., App. Staff, Washington, DC, for Defendants-Appellants.
Rochelle Bobroff, Nat. Sr. Citizens Law Ctr., Elizabeth B. Wydra, Constitutional Accountability Ctr., Ian Millhiser, Ctr. For Am. Progress, Philip Horton, Arnold & Porter, LLP, Stuart R. Cohen, AARP Found. Lit., Michael B. Kimberly, Mayer Brown, LLP, Frank Paul Bland, Jr., Pub. Justice, PC, Catherine E. Stetson, Hogan Lovells, US LLP, Walter Estes Dellinger, III; Jeffrey A. Lamken, MoloLamken, LLP, K. Lee Blalack, II, O'Melveny & Myers, LLP, Molly Suda, K&L Gates, Erik S. Jaffe; Kenneth Alan Klukowski, Family Research Council, Cory L. Andrews, Wash. Legal Found., John P., El-wood, Vinson, & Elkins, LLP, Hans F., Bader, Competitive Enterprise Inst., Ilya Shapiro, David Rittgers, Cato Inst., Charles J. Cooper, Cooper & Kirk, Steven Engel, Steven Bradbury, Dechert, LLP, Michael E. Rosman, Ctr. for Individual Rights, Carrie Lynn Severino, Judicial Crisis Network, Michael D. Peterson, McGuiness Yager, Washington, DC, Geoffrey D. Strommer, Hobbs, Strauss, Dean, Walker, Keith S. Dubanevich, Or. Dept. of Justice, Kurt Rohlfs, Chernoff Vilhauer, Portland, OR, J. Andrew Hirth, Jefferson City, MO, Jonathan Weissglass, Altshuler Berzon, LLP, San Francisco, CA, John Michael Stephan, Boston, MA, John Stewart Mills, The Mills Firm, PA, Gregory J. Philo; Paolo Giuseppe Annino, FSU College of Law, Tallahassee, FL, Jane [**2] Perkins, [*1240] Nat. Health Law Program, Chapel Hill, NC, Adam J. Berger, Schroeder Goldmark Bender, Seattle, WA, Melissa Hart, University of Colorado Law Sch., Boulder, CO, Edward Lawrence White, III, Am. Ctr. for Law & Justice, Ann Arbor, MI, Steven J. Lechner, Mountain States Legal Found., Lakewood, CO, Deborah Dewart, Swansboro, NC, George E. Tragos, The Law Office of Tragos & Sartes, Clearwater, FL, Richard Peter Hutchison, Landmark Legal Found., Kansas City, MO, Timothy Sandefur, Luke A. Wake, Pac. Legal Found., Sacramento, CA, Dorinda C. Bordlee, Bioethics Defense Fund, Metairie, LA, Thomas M. Christina, Ogletree, Deakins, NAsh, Smoak & Stewart, PC, Greenville, SC, Victor L. Moldovan, McGuire Woods, LLP, Rebekah N. Plowman, Nelson, Mullins, Riley & Scar-borough, LLP, Frank B. Strickland, Anne Ware Lewis, Bryan P. Tyson, Strickland, Brockington, Lewis, LLP, Atlanta, GA, Karen Bryant Tripp, Houston, TX, James F. Blumstein, Professor, Sch. of Law, Nashville, TN, David B. Kopel, Independence Inst., Golden, CO, Deborah Nirmala Misir, Grant Martin Lally, Lally & Misir, Mineola, NY, Anthony T. Caso, Ctr. for Const. Jurisprudence, Chapman Univ. Sch. of Law, Orange, CA, Mario Loyola, Texas Pub. Policy Found., Austin, TX, Geoffrey D. Talmon, Talmon Law Office, PLLC, Boise, ID, Carlos Ramos-Mrosovsky, Baker & Hostetler, LLP, New York City, Noah H. Huffstetler, III, Nelson, Mullins, Riley & Scarborough, LLP, Raleigh, NC, Daniel A. Himebaugh, Pac. Legal Found., Bellevue, WA, for Amici Curiae.
Appeals from the United States District Court for the Northern District of Florida.
Before DUBINA, Chief Judge, and HULL and MARCUS, Circuit Judges.[fn1]
[fn1] This opinion was written jointly by Judges Dubina and Hull. Cf. Waters v. Thomas, 46 F.3d 1506, 1509 (11th Cir. 1995) (authored by Anderson and Carnes, J.J.) (citing Peek v. Kemp, 784 F.2d 1479 (11th Cir.) (en banc) (authored by Vance and Anderson, J.J.), cert. denied, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986)).
DUBINA, Chief Judge, and HULL, Circuit Judge:
Soon after Congress passed the Patient Protection and Affordable Care Act, Pub.L. No. 111-148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010 ("HCERA"), Pub.L. No. 111-152, 124 Stat. 1029 (2010) (the "Act"), the plaintiffs brought this action challenging the Act's constitutionality. The plaintiffs are 26 states, private individuals Mary Brown and Kaj Ahlburg, and the National Federation of Independent Business ("NFIB") (collectively the "plaintiffs").[fn2] The defendants are the federal Health and Human Services ("HHS"), Treasury, and Labor Departments and their Secretaries (collectively the "government").
The district court granted summary judgment (1) to the government on the state plaintiffs' claim that the Act's expansion of Medicaid is unconstitutional and (2) to the plaintiffs on their claim that the Act's individual mandate — that individuals purchase and continuously maintain health insurance from private companies[fn3] — is un-constitutional. The district court concluded [*1241] that the individual mandate exceeded congressional authority under Article I of the Constitution because it was not enacted pursuant to Congress's tax power and it exceeded Congress's power under the Commerce Clause and the Necessary and Proper Clause. The district court also concluded that the individual mandate provision was not severable from the rest of the Act and declared the entire Act invalid.
The government appeals the district court's ruling that the individual mandate is unconstitutional and its severability holding. The state plaintiffs cross-appeal [**3] the district court's ruling on their Medicaid expansion claim. For the reasons that follow, we affirm in part and reverse in part.[fn4]
Legal issues concerning the constitutionality of a legislative act present important but difficult questions for the courts. Here, that importance and difficulty are heightened because (1) the Act itself is 975 pages in the format published in the Public Laws;[fn5] (2) the district court, agreeing with the plaintiffs, held all of the Act was un-constitutional; and (3) on appeal, the government argues all of the Act is constitutional.
We, as all federal courts, must begin with a presumption of constitutionality, meaning that "we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 1748, 146 L.Ed.2d 658 (2000).
As an initial matter, to know whether a legislative act is constitutional requires knowing what is in the Act. Accordingly, our task is to figure out what this sweeping and comprehensive Act actually says and does. To do that, we outline the congressional findings that identify the problems the Act addresses, and the Act's legislative response and overall structure, encompassing nine Titles and hundreds of laws on a diverse array of subjects. Next, we set forth in greater depth the contents of the Act's five components most relevant to this appeal: the insurance industry reforms, the new state-run Exchanges, the individual mandate, the employer penalties, and the Medicaid expansion.
After that, we analyze the constitutionality of the Medicaid expansion and explain why we conclude that the Act's Medicaid expansion is constitutional.
We then review the Supreme Court's decisions on Congress's commerce power, discuss the individual mandate — which requires Americans to purchase an expensive product from a private insurance company from birth to death — and explicate how Congress exceeded its commerce power in enacting its individual mandate. We next outline why Congress's tax power does not provide an alternative constitutional basis for upholding this unprecedented individual mandate. Lastly, because of the Supreme Court's strong presumption of severability and as a matter of judicial restraint, we conclude that the individual mandate is severable from the remainder of the Act. Our opinion is organized as follows: [*1242]
II. THE ACT
A. Congressional Findings
B. Overall Structure of Nine Titles
C. Terms and Definitions
D. Health Insurance Reforms
E. Health Benefit Exchanges
F. Individual Mandate
G. Employer Penalty
H. Medicaid Expansion
III. CONSTITUTIONALITY OF MEDICAID EXPANSION
A. History of the Medicaid Program
B. Congress's Power under the Spending Clause
IV. SUPREME COURT'S COMMERCE CLAUSE DECISIONS
V. CONSTITUTIONALITY OF INDIVIDUAL MANDATE UNDER THE COMMERCE POWER
A. First Principles
B. Dichotomies and Nomenclature
C. Unprecedented Nature of the Individual Mandate
D. Wickard and Aggregation
E. Broad Scope of Congress's Regulation
F. Government's Proposed Limiting Principles [**4]
G. Congressional Findings
H. Areas of Traditional State Concern
I. Essential to a Larger Regulatory Scheme
VI. CONSTITUTIONALITY OF INDIVIDUAL MANDATE UNDER THE TAX POWER
A. Repeated Use of the Term "Penalty" in the Individual Mandate
B. Designation of Numerous Other Provisions in the Act as "Taxes"
C. Legislative History of the Individual Mandate
As a threshold matter, we consider the government's challenge to the plaintiffs' standing to bring this lawsuit. "Article III of the Constitution limits the jurisdiction of federal courts to `cases' and `controversies. `"Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998) (citations omitted). As we have explained:
The case-or-controversy constraint, in turn, imposes a dual limitation on federal courts commonly referred to as "justiciability." Basically, justiciability doctrine seeks to prevent the federal courts from encroaching on the powers of the other branches of government and to ensure that the courts consider only those matters that are presented in an adversarial context. Because the judiciary is unelected and unrepresentative, the Article III case-or-controversy limitation, as embodied in justiciability doctrine, presents an important restriction on the power of the federal courts.
Id. (citations omitted). Indeed, there are "three strands of justiciability doctrine — standing, ripeness, and mootness — that go to the heart of the Article III case or controversy requirement." Harrell v. The Fla. Bar, 608 F.3d 1241, 1247 (11th Cir. 2010) (quotation marks and alterations omitted).
As for the first strand, "[i]t is by now axiomatic that a plaintiff must have standing to invoke the jurisdiction of the federal courts." KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1266 (11th Cir. 2006). "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty., 450 F.3d 1295, 1304 (11th Cir. 2006) (quotation marks omitted). To demonstrate standing, a plaintiff must show that "(1) he has suffered, or imminently [*1243] will suffer, an injury-in-fact; (2) the injury is fairly traceable to [the statute]; and (3) a favorable judgment is likely to redress the injury." Harrell, 608 F.3d at 1253; see also Lujan v. Defenders of Wild-life, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). "The plaintiff bears the burden of establishing each of these elements." Elend v. Basham, 471 F.3d 1199, 1206 (11th Cir. 2006). And standing must be established for each claim a plaintiff raises. See Harrell, 608 F.3d at 1253-54. "We review standing determinations de novo." Bochese v. Town, of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005).
In fact, "[s]tanding is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a party's claims." Id. at 974 (quotation marks and alteration omitted). And "we are obliged to consider questions of standing regardless of whether the parties have raised them." Id. at 975.
Notably, the government does not contest the standing of the individual plaintiffs or of the NFIB to challenge the individual mandate. In fact, the government expressly concedes that one of the individual plaintiffs [**5] — Mary Brown — has standing to challenge the individual mandate. See Government's Opening Br. at 6 n. 1 ("Defendants do not dispute that plaintiff Brown's challenge to the minimum coverage provision is justiciable."). Nor does the government dispute the state plaintiffs' standing to challenge the Medicaid provisions.
The only question raised by the government is whether the state plaintiffs have standing to challenge the individual man-date. The government claims that the state plaintiffs do not have standing because they are impermissibly suing the government as parens patriae — or as representatives of their citizens — in violation of the rule articulated in Massachusetts v. Mellon, 262 U.S. 447, 485-86, 43 S.Ct. 597, 600, 67 L.Ed. 1078 (1923).[fn6] The state plaintiffs respond that they are not in violation of the Mellon rule, but rather have standing to challenge the individual man-date for three independent reasons: first, because the increased enrollment in Medicaid spurred by the individual mandate will cost the states millions of dollars in additional Medicaid funding; second, because they are injured by other provisions of the Act — such as the Medicaid expansion — from which the individual mandate cannot be severed; and finally, because the individual mandate intrudes upon their sovereign interest in enacting and enforcing state statutes that shield their citizens from the requirement to purchase health insurance. States' Opening Br. at 67-69.
 Although the question of the state plaintiffs' standing to challenge the individual mandate is an interesting and difficult one, in the posture of this case, it is purely academic and one we need not confront today. The law is abundantly clear that so long as at least one plaintiff has standing to raise each claim — as is the case here — we need not address whether the remaining plaintiffs have standing. See, e.g., Watt v. Energy Action Educ. Found, 454 U.S. 151, 160, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981) ("Because we find California has standing, we do not consider the standing of the other plaintiffs."); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n. 9, 97 S.Ct. 555, 562 & n. 9, 50 L.Ed.2d 450 (1977) ("Because of the presence of this plaintiff, we need not consider whether the other [*1244] individual and corporate plaintiffs have standing to maintain suit."); ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1195 (11th Cir. 2009) ("Because Balzli has standing to raise those claims, we need not decide whether either of the organizational plaintiffs also has standing to do so."); Jackson v. Okaloosa Cnty., 21 F.3d 1531, 1536 (11th Cir. 1994) ("In order for this court to have jurisdiction over the claims before us, at least one named plaintiff must have standing for each of the claims."); Mountain States Legal Found, v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996) ("For each claim, if constitutional and prudential standing can be shown for at least one plaintiff, we need not consider the standing of the other plaintiffs to raise that claim."). Because it is beyond dispute that at least one plaintiff has standing to raise each claim here — the individual plaintiffs and the NFIB have standing to challenge the individual man-date, and the state plaintiffs undeniably have standing to challenge the Medicaid provisions [**6] — this case is justiciable, and we are permitted, indeed we are obliged, to address the merits of each. Accordingly, we turn to the constitutionality of the Act.
II. THE ACT
A. Congressional Findings
The congressional findings for the Act, including those relating to the individual mandate, are contained in two pages, now codified in 42 U.S.C. § 18091(a)(1)-(3). Approximately 50 million people are uninsured.[fn7] The congressional findings focus on these uninsureds, health insurance, and health care. Id.
1. The Uninsured and Cost-Shifting Problems
The congressional findings state that some individuals make "an economic and financial decision to forego health insurance coverage and attempt to self-insure, which increases financial risks to households and medical providers." Id. § 18091(a)(2)(A). In its findings, Congress determined that the decision by the uninsured to forego insurance results in a cost-shifting scenario. Id. § 18091(a)(2)(F).
Congress's findings identify a multi-step process that starts with consumption of health care: (1) some uninsured persons consume health care; (2) some fail to pay the full costs; (3) in turn the unpaid costs of that health care — $43 billion in 2008 — are shifted to and spread among medical providers; (4) thereafter medical providers, by imposing higher charges, spread and shift the unpaid costs to private insurance companies; (5) then private insurance companies raise premiums for health policies and shift and spread the unpaid costs to already-insured persons; and (6) consequently already-insured persons suffer higher premiums. Id. § 18091(a)(2). Also, some uninsured persons continue not to buy coverage because of higher premiums. Id.
The findings state that this cost-shifting scenario increases family premiums on average by $1,000 per year. Id. § 18091(a)(2)(F). Although not in the findings, the data show the cost-shifting increases individual premiums on average by $368-$410 per year.[fn8] The cost-shifting [*1245] represents roughly 8% of average premiums.[fn9]
In its findings, Congress also points out that national health care spending in 2009 was approximately $2.5 trillion, or 17.6% of the national economy.[fn10]Id. § 18091(a)(2)(B). Thus, the $43 billion in shifted costs represents about 1.7% of total health care expenditures. Of that $2.5 trillion in national health care spending in 2009, federal, state, and local governments paid $1.1 trillion, or 44%.[fn11]
Private insurers still paid for 32% of health care spending in 2009, [fn12] id., through: (1) primarily private employer-based insurance plans, or (2) the private individual insurance market. The private employer-based health system covers 176 million Americans. Id. § 18091(a)(2)(D). The private individual insurance market covers 24.7 million people.[fn13] Undisputedly, "[h]ealth insurance and health care services are a significant part of the national economy." Id. § 18091(a)(2)(B).
2. $90 Billion Private Underwriting Costs Problem
Congress also recognized that many of the uninsured desire insurance but have been denied coverage or cannot afford it. Its findings emphasize the barriers created by private insurers' underwriting practices and related administrative [**7] costs. Id. § 18091(a)(2)(J). Private insurers want healthy insureds and try to protect them-selves against unhealthy entrants through medical underwriting, especially in the individual market. As a result of medical underwriting, many uninsured Americans — ranging from 9 million to 12.6 million — voluntarily sought health coverage in the individual market but were denied coverage, charged a higher premium, or offered only limited coverage that excludes a preexisting condition.[fn14] [*1246]
In its findings, Congress determined that the "[a]dministrative costs for private health insurance" were $90 billion in 2006, comprising "26 to 30 percent of premiums in the current individual and small group markets." Id. The findings state that Congress seeks to create health insurance markets "that do not require underwriting and eliminate its associated administrative costs." Id. The Act requires private insurers to allow all applicants to enroll. 42 U.S.C. § 300gg-1(a). Congress stated that the Act, by eliminating underwriting costs, will lower health insurance premiums. Id.
3. Congress's Solutions
Given the 50 million uninsured, $43 billion in uncompensated costs, and $90 billion in underwriting costs, Congress determined these problems affect the national economy and interstate commerce. Id. § 18091(a)(2). The congressional findings identify what the Act regulates: (1) the "health insurance market," (2) "how and when health care is paid for," and (3) "when health insurance is purchased." Id. § 18091(a)(2)(A), (H). The findings also state that the Act's reforms will significantly reduce the number of the uninsured and will lower health insurance premiums. Id. § 18091(a)(2)(F).
To reduce the number of the uninsured, the Act employs five main tools: (1) comprehensive insurance industry reforms which alter private insurers' underwriting practices, guarantee issuance of coverage, overhaul their health insurance products, and restrict their premium pricing structure; (2) creation of state-run "Health Benefit Exchanges" as new marketplaces through which individuals, families, and small employers, now pooled together, can competitively purchase the new insurance products and obtain federal tax credits and subsidies to do so; (3) a mandate that individuals must purchase and continuously maintain health insurance or pay annual penalties; (4) penalties on private employers who do not offer at least some type of health plan to their employees; and (5) the expansion of Medicaid eligibility and subsidies.
The Act's Medicaid expansion alone will cover 9 million of the 50 million uninsured by 2014 and 16 million by 2016.[fn15] The Act's health insurance reforms remove private insurers' barriers to coverage and restrict their pricing to make coverage accessible to the 9 to 12 million uninsured who were denied coverage or had their preexisting conditions excluded.[fn16] The Act's new Exchanges, with significant federal tax credits and subsidies, are predicted to make insurance available to 9 million in 2014 and 22 million by 2016.[fn17]
Congress's findings state that the Act's multiple provisions, combined together:[**8] [fn18] [*1247]
(1) "will add millions of new consumers to the health insurance market" and "will increase the number and share of Americans who are insured";
(2) will reduce the number of the uninsured, will broaden the health insurance risk pool to include additional healthy individuals, will increase economies of scale, and will significantly reduce insurance companies' administrative costs, all of which will lower health insurance premiums;
(3) will build upon and strengthen the private employer-based health insurance system, which already covers "176,000,000 Americans"; and
(4) will achieve "near-universal" coverage of the uninsured.
Although the congressional findings summarily refer to "the uninsured," the parties' briefs and the 52 amici briefs contain, and indeed rely on, additional data about the uninsured. Before turning to the Act, we review that data.[fn19]
4. Data about the Uninsured and Un-compensated Care
So who are the uninsured? As to health care usage, the uninsured do not fall into a single category. Many of the uninsured do not seek health care each year. Of course, many do. In 2007, 57% of the 40 million uninsured that year used some medical services; in 2008, 56% of the 41 million uninsured that year used some medical services.[fn20]
As to medical services, 50% of uninsured people had routine checkups in the past two years; 68% of uninsured people had routine checkups in the past five years.[fn21] In 2008, the uninsured made more than 20 million visits to emergency rooms, [fn22] and 2.1 million were hospitalized.[fn23] The medical care used by each uninsured person cost about $2,000 on average in 2007, and $1,870 on average in 2008.[fn24] [*1248]
When the uninsured do seek health care, what happens? Some pay in full. Some partially pay. Some pay nothing. Data show the uninsured paid on average 37% of their health care costs out of pocket in 2007, and 46.01% in 2008, [fn25] while third parties pay another 26% on their behalf.[fn26] Not surprisingly, the poorer uninsured, on average, consume more health care for which they do not pay.[fn27] Even in house-holds at or above the median income level ($41,214) in 2000, the uninsured paid, on average, less than half their medical care costs.[fn28]
It is also undisputed that people are uninsured for a wide variety of reasons. The uninsured are spread across different income brackets:
(1) less than $25,000: 15.5 million uninsured, or about 31%;
(2) $25,000 to $49,999: 15.3 million uninsured, or about 30%;
(3) $50,000 to $74,999: 9.4 million uninsured, or about 18%;
(4) $75,000 or more: 10.6 million uninsured, or about 21%.[fn29]
As the data show, many of the uninsured have low to moderate incomes and simply cannot afford insurance. Some of the uninsured can afford insurance and tried to obtain it, but were denied coverage based on health status.[fn30] Some are voluntarily uninsured and self-finance because they can pay for their medical care or have modest medical care needs. Some may not have considered the issue. There is no one reason why people are uninsured. It is also not surprising, therefore, that Congress has attacked the uninsured problem through multiple reforms and numerous avenues in the Act that we outline later.
Given [**9] these identified problems, congressional findings, and data as background, we now turn to Congress's legislative response in the Act.
B. Overall Structure of Nine Titles
The sweeping and comprehensive nature of the Act is evident from its nine Titles:
I. Quality, Affordable Health Care for All Americans
II. Role of Public Programs
III. Improving the Quality and Efficiency of Health Care
IV. Prevention of Chronic Disease and Improving Public Health
V. Health Care Workforce VI. Transparency and Program Integrity [*1249]
VII. Improving Access to Innovative Medical Therapies
VIII. Community Living Assistance Services and Supports
IX. Revenue Provisions[fn31]
The Act's provisions are spread throughout many statutes and different titles in the United States Code. As our Appendix A demonstrates, the Act's nine Titles contain hundreds of new laws about hundreds of different areas of health insurance and health care. Appendix A details most parts of the Act with section numbers. Here, we merely list the broad subject matter in each Title.
Title I contains these four components mentioned earlier: (1) the insurance industry reforms; (2) the new state-run Exchanges; (3) the individual mandate; and (4) the employer penalty. Act §§ 1001-1568. Title II shifts the Act's focus to publicly-funded programs designed to provide health care for the uninsured, such as Medicaid, CHIP, and initiatives under the Indian Health Care Improvement Act. Id. §§ 2001-2955. Title II contains the Medicaid expansion at issue here. Title II's provisions also create, or expand, other publicly-funded programs. Id.
Title III primarily addresses Medicare. Id. §§ 3001-3602. Title IV concentrates on prevention of illness. Id. §§ 4001-4402. Title V seeks to increase the supply of health care workers through education loans, training grants, and other programs. Id. §§ 5001-5701.
Title VI creates new transparency and anti-fraud requirements for physician-owned hospitals participating in Medicare and for nursing facilities participating in Medicare or Medicaid. Id. §§ 6001-6801. Title VI includes the Elder Justice Act, designed to eliminate elder abuse, neglect, and exploitation. Id.
Title VII extends and expands certain drug discounts in health care facilities serving low-income patients. Id. §§ 7001-7103. Title VIII establishes a national, voluntary long-term care insurance program for purchasing community living assistance services and support by persons with functional limitations. Id. §§ 8001-8002. Title IX contains revenue provisions. Id. §§ 9001-9023.
We include Appendix A because it documents (1) the breadth and scope of the Act; (2) the multitudinous reforms enacted to reduce the number of the uninsured; (3) the large number and diverse array of new, or expanded, federally-funded programs, grants, studies, commissions, and councils in the Act; (4) the extensive new federal requirements and regulations on myriad subjects; and (5) how many of the Act's provisions on their face operate separately and independently.
We now examine in depth the five parts of the Act largely designed to reduce the number of [**10] the uninsured. Because of the Act's comprehensive and complex regulatory scheme, it is critical to examine what the Act actually does and does not do. We start with some terms and definitions.
C. Terms and Definitions
The Act regulates three aspects of health insurance: (1) "markets," the out-lets where consumers may purchase insurance products; (2) "plans," the insurance products themselves; and (3) "benefits," the health care services or items covered under an insurance plan.
Given its focus on making health insurance available to the uninsured, the Act recognizes and regulates four markets for health insurance products: (1) the "individual [*1250] market"; (2) the "small group market"; (3) the "large group market"; and (4) the new Exchanges, to be created and run by each state.
The term "group market" means "the health insurance market under which individuals obtain health insurance coverage (directly or through any arrangement) on behalf of themselves (and their dependents) through a group health plan maintained by an employer." Id. § 18024(a)(1).
Within the "group market," the Act distinguishes between the "large group market" and the "small group market." The term "large group market" refers to the market under which individuals purchase coverage through a group plan of a "large employer." Id. §§ 300gg-91(e)(3), 18024(a)(3). A "large employer" is an employer with over 100 employees. Id. §§ 300gg-91(e)(2), 18024(b)(1).
The term "small group market" refers to the market under which individuals purchase coverage through a group plan of a "small employer," or an employer with no more than 100 employees. Id. §§ 300gg-91(e)(4), (5), 18024(a)(3), (b)(2).
The term "Exchanges" refers to the health benefit exchanges that each state must create and operate.[fn32] Id. § 18031(b). Companies (profit and nonprofit) participating in the Exchanges will offer insurance for purchase by individuals and employees of small employers. See id.; id. § 18042. The uninsured can obtain significant federal tax credits and subsidies through the Exchanges. See 26 U.S.C. § 36B; 42 U.S.C. § 18071. In 2017, the States will have the option to open the Exchanges to large employers. 42 U.S.C. § 18032(f)(2)(B).
2. "Essential Health Benefits Package" Term
Two key terms in the Act are: (1) "essential health benefits package" and (2) "minimum essential coverage." Although they sound similar, each has a different meaning.
The term "essential health benefits package" refers to the comprehensive benefits package that must be provided by plans in the individual and small group markets by 2014. Id. § 300gg-6(a) (effective Jan. 1, 2014); id. § 18022(a). The Act does not impose the essential health benefits package on plans offered by large group employers to their employees.
An "essential health benefits package" must: (1) provide coverage for the "essential health benefits" described in § 18022(b); (2) limit the insured's cost-sharing, as provided in § 18022(c); and (3) provide "either the bronze, silver, gold, or platinum level of coverage" described in § 18022(d). Id. § 18022(a).
The Act leaves it to HHS to define the [**11] term "essential health benefits." Id. § 18022(b). However, that definition of "essential health benefits" must include at least these ten services:
(A) Ambulatory patient services.
(B) Emergency services.
(D) Maternity and newborn care.
(E) Mental health and substance use disorder services, including behavioral health treatment.
(F) Prescription drugs.
(G) Rehabilitative and habilitative services and devices. [*1251]
(H) Laboratory services.
(I) Preventive and wellness services and chronic disease management.
(J) Pediatric services, including oral and vision care.
Id. § 18022(b)(1).[fn33] The bronze, silver, gold, and platinum levels of coverage reflect the levels of cost-sharing (or actuarial value of benefits) in a plan and do not represent the level or type of services. Id. § 18022(d)(1)-(2). For example, a bronze plan covers 60% of the benefits' costs, and the insured pays 40% out of pocket; a platinum plan covers 90%, with the insured paying 10%. Id. § 18022(d)(1)(A), (D).
3. Individual Mandate's "Minimum Essential Coverage" Term
The Act uses a wholly different term — "minimum essential coverage" — in connection with the individual mandate. "Minimum essential coverage" is the type of plan needed to satisfy the individual man-date. A wide variety of health plans are considered "minimum essential coverage": (1) government-sponsored programs, (2) eligible employer-sponsored health plans, (3) individual market health plans, (4) grandfathered health plans, and (5) health plans that qualify for, and are offered in, a state-run Exchange. 26 U.S.C. § 5000A(a), (f)(1).
Many of these plan types will satisfy the mandate even if they do not have the "essential health benefits package" and regardless of the level of benefits or coverage. The requirement of the "essential health benefits package" is directly tied to some of the insurance product reforms, but not the individual mandate.
We turn to the Act's first component: the insurance reforms.
D. Health Insurance Reforms
To reduce the number of the uninsured, the Act heavily regulates private insurers and reforms their health insurance products. We list examples of the major reforms.
1. Guaranteed issue. Insurers must permit every employer or individual who applies in the individual or group markets to enroll. 42 U.S.C. § 300gg-1(a) (effective Jan. 1, 2014). However, insurers "may restrict enrollment in coverage described [in subsection (a)] to open or special enrollment periods."[fn34] Id. § 300gg-1(b)(1) (effective Jan. 1, 2014).
2. Guaranteed renewability. Insurers in the individual and group markets must renew or continue coverage at the individual or plan sponsor's option in the absence of certain exceptions, such as premium nonpayment, fraud, or the insurer's discontinuation of coverage in the relevant market. Id. § 300gg-2(b).
3. Waiting periods. Under group health plans, insurers may impose waiting periods of up to 90 days before a potential enrollee is eligible to be covered under the [*1252] plan. Id. §§ 300gg-7 (effective Jan. 1, 2014), 300gg-3(b)(4). The Act places no limits on insurers' waiting periods for applications in the individual market.
4. Elimination of preexisting conditions limitations. Insurers may no longer deny [**12] or limit coverage due to an individual's preexisting medical conditions. The Act prohibits preexisting condition exclusions for children under 19 within six months of the Act's enactment, and eliminates preexisting condition exclusions for adults beginning in 2014.[fn35] Id. § 300gg-3.
5. Prohibition on health status eligibility rules. Insurers may not establish eligibility rules based on any of the health status-related factors listed in the Act.[fn36] Id. § 300gg-4 (effective Jan. 1, 2014).
6. Community rating. In the individual and small group markets and the Exchanges, insurers may vary premium rates only based on (1) whether the plan covers an individual or a family; (2) "rating area"; (3) age (limited to a 3-to-1 ratio); and (4) tobacco use (limited to a 1.5-to-1 ratio). Id. § 300gg(a)(1). Each state must establish one or more rating areas subject to HHS review. Id. § 300gg(a)(2)(B). This rule prevents insurers from varying premiums within a geographic area based on gender, health status, or other factors.
7. Essential health benefits package. The individual and small group market plans must contain comprehensive coverage known as the "essential health benefits package," defined above. Id. §§ 300gg-6(a) (effective Jan. 1, 2014), 18022(a). The Act does not impose this requirement on large group market plans.[fn37]
8. Preventive service coverage. Insurers must provide coverage for certain enumerated preventive health services without any deductibles, copays, or other cost-sharing requirements. Id. § 300gg-13(a).
9. Dependent coverage. Insurers must allow dependent children to remain on their parents' policies until age 26. Id. § 300gg-14(a).
10. Elimination of annual and lifetime limits. Insurers may no longer establish lifetime dollar limits on essential health benefits. Id. § 300gg-11(a)(1)(A), (b). Insurers may retain annual dollar limits on essential health benefits until 2014.[fn38] Id. § 300gg-11(a). [*1253]
11. Limits on cost-sharing by insureds. "Cost-sharing"[fn39] includes out-of-pocket "deductibles, coinsurance, repayments, or similar charges" and "qualified medical expenses."[fn40] Id. § 18022(c)(3)(A). Annual cost-sharing limits apply to group health plans, health plans sold in the individual market, and qualified health plans offered through an Exchange.[fn41] Id. §§ 300gg-6(b) (effective Jan. 1, 2014), 18022(a), (c).
12. Deductibles. Deductibles for any plans offered in the small group market are capped at $2,000 for plans covering single individuals and $4,000 for any other plan, adjusted after 2014. Id. §§ 300gg-6(b) (effective Jan. 1, 2014), 18022(c)(2). The deductible limits do not apply to individual plans or large group plans. See id.
13. Medical loss ratio. Insurers must maintain certain ratios of premium revenue spent on the insureds' medical care versus overhead expenses. Id. § 300gg-18(a), (b)(1). In the large group market, insurers must spend 85% of their premium revenue on patient care and no more than 15% on overhead. Id. § 300gg-18(a), (b)(1)(A)(i). In the individual and small group markets, insurers must spend 80% of their revenue on patient care and no more than 20% on overhead. Id. § 300gg-18(a), (b)(1)(A)(ii). This medical-loss ratio requirement applies to all plans (including grandfathered plans). Id. § 300gg-18(a)[**13] , (b)(1). Insurers must report to HHS their ratio of incurred claims to earned premiums. Id. § 300gg-18(a).
14. Premium increases. HHS, along with all states, shall annually review "unreasonable" increases in premiums beginning in 2010. Id. § 300gg-94(a)(1). Issuers must justify any unreasonable premium increase. Id. § 300gg-94(a)(2).
15. Prohibition on coverage rescissions. Insurers may not rescind coverage except for fraud or intentional misrepresentation of material fact. Id. § 300gg-12.
16. Single risk pool. Insurers must consider all individual-market enrollees in their health plans (except enrollees in grandfathered plans) to be members of a single risk pool (whether enrolled privately or through an Exchange). Id. § 18032(c)(1). Small group market enrollees must be considered in the same risk pool. Id. § 18032(c)(2).
17. Temporary high risk pool program. To cover many of the uninsured immediately, the Act directs HHS to establish a "temporary high risk health insurance pool program" to offer coverage to uninsured individuals with preexisting conditions until the prohibition on preexisting condition exclusions for adults becomes effective in 2014. Id. § 18001(a). The premiums for persons with a preexisting condition remain what a healthy person would pay. Id. §§ 18001(c)(2)(C), 300gg(a)(1). The Act allocates $5 billion to HHS to cover this high-risk pool. When this temporary program ends in 2014, such individuals will be transferred to coverage through an Exchange. Id. § 18001(a)-(d), (g) [*1254]
18. State regulation maintained. States will license insurers and enforce both federal and state insurance laws. Id. § 18021(a)(1)(C). The Act provides for the continued operation of state regulatory authority, even with respect to interstate "health care choice compacts," which enable qualified health plans to be offered in more than one state.[fn42] Id. § 18053(a).
In addition to reforming health insurance products, the Act requires the creation of Exchanges where the uninsured can buy the new products. We examine this second component of the Act, also designed to make insurance more accessible and affordable and thus reduce the number of the uninsured.
E. Health Benefit Exchanges
1. Establishment of State-Run Exchanges
By January 1, 2014, all states must establish "American Health Benefit Exchanges" and "Small Business Health Options Program Exchanges," which are insurance marketplaces where individuals, families, and small employers can shop for the Act's new insurance products. Id. § 18031(b). Consumers can compare prices and buy coverage from one of the Exchange's issuers. Id. § 18031(b), (c). Exchanges centralize information and facilitate the use of the Act's significant federal tax credits and other subsidies to purchase health insurance. See 26 U.S.C. § 36B; 42 U.S.C. §§ 18031, 18071, 18081-83. States may create and run the Exchanges through a governmental or nonprofit entity. 42 U.S.C. § 18031(d)(1).
States may establish regional, interstate, or subsidiary Exchanges. Id. § 18031(f). The federal government will provide funding until January 1, 2015, to establish Exchanges. Id. § 18031(a). Insurers may offer their products inside or outside these Exchanges, or both. Id. § 18032(d[**14] ).
Importantly, the Exchanges draw upon the states' significant experience regulating the health insurance industry. See id. § 18041. The Act allows states some flexibility in operations and enforcement, though states must either (1) directly adopt the federal requirements set forth by HHS, or (2) adopt state regulations that effectively implement the federal standards, as determined by HHS. Id. § 18041(b). In a subsection entitled, "No interference with State regulatory authority," the Act provides that "[n]othing in this chapter shall be construed to preempt any State law that does not prevent the application of the provisions of this chapter." Id. § 18041(d).
2. Qualified Individuals and Employers in the Exchanges
The Act provides that "qualified individuals" and "qualified employers" may purchase insurance through the Exchanges. Id. § 18031(d)(2). Although "qualified individuals" is broadly defined, [fn43] "qualified [*1255] employers" are initially limited to small employers, but in 2017, states may allow large employers to participate in their Exchanges. Id. § 18032(f)(2)(A), (B). Qualified employers can purchase group plans in or out of Exchanges. Id. § 18032(d)(1).
3. Qualified Health Plans in the Exchanges
The Act prescribes the types of plans available in the Exchanges, known as "qualified health plans." Id. § 18031(d)(2)(B)(i). A "qualified health plan" is a health plan that: (1) is certified as a qualified health plan in each Exchange through which the plan is offered; (2) provides an "essential health benefits package"; and (3) is offered by an issuer that (a) is licensed and in good standing in each state where it offers coverage, and (b) complies with HHS regulations and any requirements of the Exchange. Id. § 18021(a)(1). The issuer must agree, inter alia, to offer at least one plan in the "silver" level and one in the "gold" level in each Exchange in which it participates, as described in § 18022(d). Id. § 18021(a)(1)(C). The issuer must charge the same premium rate regardless of whether a plan is offered in an Exchange or directly.[fn44] Id.
4. "Essential Health Benefits Package" and Catastrophic Plans
The "essential health benefits package" is required of all qualified health plans sold in the Exchanges. Id. § 18021(a)(1)(B). States may require that a qualified health plan offered in that state cover benefits in addition to "essential health benefits," but the state must defray the costs of additional coverage through payments directly to patients or insurers. Id. § 18031(d)(3)(B).
One significant exception to the "essential health benefits package" requirement is the catastrophic plan in the individual market only. In and outside the Exchanges, insurers may offer catastrophic plans which provide no benefits until a certain level of out-of-pocket costs — $6,950 for self-only coverage and $11,900 for family coverage in 2011 — are incurred. Id. § 18022(e); see id. § 18022(c)(1), (e)(1)(B)(i); 26 U.S.C. § 223(c)(2)(A)(ii), (g); I.R.S. Pub. 969, at 3 (2010). The level of out-of-pocket costs is equal to the current limits on out-of-pocket spending for high deductible health plans adjusted after 2014. 42 U.S.C. § 18022(e), (c)(1).
This catastrophic plan exception applies only if the plan: (1) is sold in the individual market; ([**15] 2) restricts enrollment to those under age 30 or certain persons exempted from the individual mandate; (3) provides the essential health benefits coverage after the out-of-pocket level is met; and (4) provides coverage for at least three primary care visits. Id. § 18022(e)(1), (2).
5. Federal Premium Tax Credit
To reduce the number of the uninsured, the Act also establishes considerable federal tax credits for individuals and families (1) with household incomes between 1 and 4 times the federal poverty level; (2) who do not receive health insurance through an employer; and (3) who purchase health insurance through an Exchange.[fn45] 26 U.S.C. § 36B(a), (b), (c)(1)(A)-(C). [*1256]
To receive the credit, eligible individuals must enroll in a plan offered through an Exchange and report their income to the Exchange. 42 U.S.C. § 18081(b). If the individual's income level qualifies, the Treasury pays the premium tax credit amount directly to the individual's insurance plan issuer. Id. § 18082(c)(2)(A). The individual pays only the dollar difference between the premium tax credit and the total premium charged. Id. § 18082(c)(2)(B). The credit amount is tied to the cost of the second-cheapest plan in the silver level offered through an Exchange where the individual resides, though the credit may be used for any plan purchased through an Exchange.[fn46] See 26 U.S.C. § 36B(b)(2).
6. Federal Cost-Sharing Subsidies
The Act also provides a variety of federal cost-sharing subsidies to reduce the out-of-pocket expenses for individuals who (1) enroll in a qualified health plan sold through an Exchange in the silver level of coverage, and (2) have a household income between 1 and 4 times the federal poverty level. 42 U.S.C. § 18071.
As noted earlier, the Exchanges, with significant federal tax credits and subsidies, are predicted to make insurance available to 9 million in 2014 and 22 million by 2016.[fn47] We now turn to the Act's third component: the individual mandate. [*1257]
F. Individual Mandate
The individual mandate and its penalty are housed entirely in the Internal Revenue Code, in subtitle D, labeled "Miscellaneous Excise Taxes." 26 U.S.C. § 5000A et seq. The Act mandates that, after 2013, all "applicable individuals" (1) shall maintain "minimum essential coverage" for themselves and their dependents, or (2) pay a monetary penalty. Id. § 5000A(a)-(b). Taxpayers must include the penalty on their annual federal tax return. Id. § 5000A(b)(2). Married taxpayers filing a joint return are jointly liable for any penalty. Id. § 5000A(b)(3)(B).
1. "Minimum Essential Coverage"
At first glance, the term "minimum essential coverage," as used in the Internal Revenue Code, sounds like it refers to a base level of benefits or services. However, the Act uses a different term — the "essential health benefits package" in Title 42 — to describe health care benefits and services. 42 U.S.C. § 300gg-6(a) (effective Jan. 1, 2014). In contrast, "minimum essential coverage" refers to a broad array of plan types that will satisfy the individual mandate. 26 U.S.C. § 5000A(f)(1).
An individual can satisfy the mandate's "minimum essential coverage" requirement through: (1) any government-funded health plan such as Medicare Part A, Medicaid, TRICARE, or CHIP; (2) any "eligible employer-sponsored plan"; (3) any health plan in [**16] the individual market; (4) any grandfathered health plan; or (5) as a catch-all, "such other health benefits coverage" that is recognized by HHS in coordination with the Treasury. Id. The man-date provisions in § 5000A do not specify what benefits must be in that plan. The listed plans, in many instances, satisfy the mandate regardless of the level of benefits or coverage.
2. Government-Sponsored Programs
For example, a variety of government-sponsored programs will satisfy the individual mandate. For individuals 65 or over, enrolling in Medicare Part A will suffice. Id. § 5000A(f)(1)(A)(i). Individuals and families may satisfy the mandate by enrolling in Medicaid, if eligible. Id. § 5000A(f)(1)(A)(ii). Qualifying children under age 19 can satisfy the mandate by enrolling in CHIP. Id. § 5000A(f)(1)(A)(iii). Government-sponsored programs for veterans, active and former military personnel and their families, active Peace Corps volunteers, and active and retired civilian Defense Department personnel and their dependents satisfy the mandate. Id. § 5000A(f)(1)(A)(iv), (v), (vi).
3. Eligible Employer-Sponsored Plans
Individuals may also satisfy the mandate by purchasing coverage through any "eligible employer-sponsored plan." Id. § 5000A(f)(1)(B). An "eligible employer-sponsored plan" is a "group health plan or group health insurance coverage" offered "by an employer to the employee," which is defined broadly as: (1) a governmental plan established by the federal, state, or local government for its employees; (2) "any other plan or coverage offered in the small or large group market within a State"; or (3) a grandfathered health plan [*1258] offered in a group market. Id. § 5000A(f)(2). Health plans of large employers satisfy the individual mandate whatever the nature of the benefits offered to the employee.[fn48]
Whether a "self-insured health plan" of large employers satisfies the mandate is another story.[fn49] The mandate's § 5000A(f)(2) refers to plans in the "small or large group market." Id. § 5000A(f)(2) (emphasis added). A "self-insured health plan," by definition, is not sold or offered in a "market." It is thus not clear whether large employers' self-insured plans will constitute "eligible employer-sponsored plans" in § 5000A(f)(2) and thereby satisfy the mandate. It may be that HHS will later recognize "self-insured plans" under the "other coverage" or "grandfathered plan" categories in the mandate's § 5000A(f)(2).
4. Plans in the Individual Market
Individuals can also satisfy the mandate by purchasing insurance in the individual market through Exchanges or directly from issuers. Id. § 5000A(f)(1)(C). The Act imposes the "essential health benefits package" requirement on plans sold in the individual and small group markets. 42 U.S.C. § 300gg-6 (effective Jan. 1, 2014). However, in the individual market, insurers can offer catastrophic plans to persons under age 30 or certain persons exempted from the mandate. Id. § 18022(e).
5. Grandfathered Plans
An already-insured individual can fulfill the individual mandate by being covered by any "grandfathered health plan," 26 U.S.C. § 5000A(f)(1)(D), which is any group health plan or health insurance coverage in which an individual was enrolled on March [**17] 23, 2010.[fn50] 42 U.S.C. § 18011(a)(1), (e).
While not subject to many of the Act's product reforms, grandfathered plans must comply with some provisions, among them the extension of dependent coverage until age 26, the medical-loss ratio requirements, and the prohibitions on (1) preexisting condition exclusions, (2) lifetime limits on coverage, (3) excessive waiting periods, and (4) unfair rescissions of coverage. Id. § 18011(a)(2)-(4), (e). Under the "interim final regulations" issued by HHS, plans will lose their grandfathered status if they choose to significantly (1) cut or eliminate benefits; (2) increase copayments, deductibles, or out-of-pocket costs for their enrollees; (3) decrease the share of premiums employers contribute for workers in group plans; or (4) decrease annual limits.[fn51] 45 C.F.R. § 147.140(g). [*1259]
6. "Other Coverage Recognized" by HHS
The individual mandate even provides a catch-all that leaves open the door to other health coverage. The "minimum essential coverage" requirement may be met by any other coverage that HHS, in coordination with the Treasury, recognizes for purposes of meeting this requirement. 26 U.S.C. § 5000A(f)(1)(E).
7. Exemptions and Exceptions to Individual Mandate
The individual mandate, however, does not apply to eight broad categories of persons, either by virtue of an exemption from the mandate or an exception to the mandate's penalty. The Act carves out these three exemptions from the individual mandate: (1) persons with religious exemptions; (2) aliens not legally present in the country; and (3) incarcerated persons. Id. § 5000A(d).
The Act also excepts five additional categories of persons from the individual mandate penalty: (1) individuals whose required annual premium contribution exceeds 8% of their household income for the taxable year;[fn52] (2) individuals whose household income for the taxable year is below the federal income tax filing threshold in 26 U.S.C. § 6012(a)(1); (3) members of Indian tribes; (4) individuals whose gaps in health insurance coverage last less than three months; and (5) as a catch-all, individuals who, as determined by HHS, have suffered a "hardship" regarding their ability to obtain coverage under a qualified health plan. Id. § 5000A(e).
8. Calculation of Individual Mandate Penalty
If an applicable individual fails to purchase an insurance plan in one of the many ways allowed, the individual must pay a penalty. Id. § 5000A(b)(1). The annual penalty will be either: (1) a flat dollar amount, or (2) a percentage of the individual's income if higher than the flat rate. Id. § 5000A(c)(1). However, the percentage-of-income figure is capped at the national average premium amount for bronze-level plans in the Exchanges.[fn53] Id.
The flat dollar penalty amount, which sets the floor, is equal to $95 in 2014, $325 in 2015, and $695 in 2016. Id. § 5000A(c)(2)(A), (c)(3)(A)-(C). Beyond 2016, it remains $695, except for inflation adjustments.[fn54] Id. § 5000A(c)(3)(D).
The percentage-of-income number that will apply, if higher than the flat dollar amount, is a set percentage of the taxpayer's income that is in excess of the tax-filing threshold (defined in 26 U.S.C. § 6012(a)(1)).[fn55] Id. § 5000A(c)(2). In any [*1260] event, the total penalty for the taxable year cannot exceed the national average premium of a bronze-level [**18] qualified health plan. Id. § 5000A(c)(1).
9. Collection of Individual Mandate Penalty
An individual who fails to pay the penalty is not subject to criminal or additional civil penalties. Id. § 5000A(g)(2)(A), (B). The IRS's authority to use liens or levies does not apply to the penalty. Id. § 5000A(g)(2)(B). No interest accrues on the penalty. The Act contains no enforcement mechanism. See id. All the IRS, practically speaking, can do is offset any tax refund owed to the uninsured taxpayer.[fn56]
We now review the Act's fourth component aimed at reducing the number of the uninsured: the employer penalty.
G. Employer Penalty
The Act imposes a penalty, also housed in the Internal Revenue Code, on certain employers if they do not offer coverage, or offer inadequate coverage, to their employees. Id. § 4980H(a), (b). The penalty applies to employers with an average of at least 50 full-time employees. Id. § 4980H(a), (b), (c)(2). The employer must pay a penalty if the employer: (1) does not offer its full-time employees the opportunity to enroll in "minimum essential coverage" under an "eligible employer-sponsored plan" as defined in 9 5000A(f)(2); or (2) offers minimum essential coverage (i) that is "unaffordable," or (ii) that consists of a plan whose share of the total cost of benefits is less than 60% (i.e., does not provide "minimum value"); and (3) at least one full-time employee purchases a qualified health plan through an Exchange and is allowed a premium tax credit or a subsidy. Id. § 4980H(a), (c).
The employer penalty is tied to an employer's failure to offer "minimum essential coverage." Id. § 4980H(a), (b). Recall that "minimum essential coverage" is not the same thing as the "essential health benefits package." Thus, a large employer may avoid the penalty so long as it offers any plan in the large group market in the state, and the plan is "affordable" and provides "minimum value." Id. § 4980H(b)(1), (e)(3).
A small employer's plan, however, must include an "essential health benefits package" and also be "affordable" and provide "minimum value." 42 U.S.C. §§ 300gg-6(a) (effective Jan. 1, 2014), 18022(a)(1)-(3). The Act also provides tax incentives for certain small employers (up to 25 employees) to purchase health insurance for their workers. 26 U.S.C. § 45R.
1. Calculation of Penalty Amount
The penalty amount depends on whether the employee went to the Exchange because the employer's plan (1) was not "minimum essential coverage" or (2) was either "unaffordable" or did not provide "minimum value." The penalty translates to $2,000 to $3,000 per employee annually. Id. § 4980H.
An employer that does not offer "minimum essential coverage" to all full-time employees faces a tax penalty of $166.67 per month (one-twelfth of $2,000) for each of its full-time employees, until the employer offers such coverage (subject to an exemption for the first 30 full-time employees). Id. § 4980H(a), (c)(1), (c)(2)(D). This particular penalty applies for as long as at least one employee, eligible for a [*1261] premium tax credit or a subsidy, enrolls in a qualified health plan through an Exchange. Id.
In the "unaffordable coverage"[fn57] or "no minimum value" scenarios, the employer faces a tax penalty of $250 per month (one-twelfth of $3,000) for each employee who (1) turns down the employer-[**19] sponsored plan; (2) purchases a qualified health plan in an Exchange; and (3) is eligible for a federal premium tax credit or subsidy in an Exchange.[fn58] Id. § 4980H(b)(1).
2. Automatic Enrollment
An automatic enrollment requirement applies to employers who (1) have more than 200 employees and (2) elect to offer coverage to their employees. Id. § 218a. Such employers must automatically enroll new and current full-time employees, who do not opt out, in one of the employer's plans. Id. The maximum 90-day waiting period rule applies, however. Id.; 42 U.S.C. § 300gg-7 (effective Jan. 1, 2014).
3. Temporary Reinsurance Program for Employers' Early Retirees
To reduce the number of the uninsured, the Act provides for immediate coverage for even retired employees 55 years and older who are not yet eligible for Medicare. A federal temporary reinsurance program will reimburse former employers who allow their early retirees and the retirees' dependents and spouses to participate in their employment-based plans. The federal government will reimburse a portion of the plan's cost.[fn59] 42 U.S.C. § 18002(a)(1), (a)(2)(C).
We turn to the Act's fifth component: the Medicaid expansion, which alone will cover millions of the uninsured.
H. Medicaid Expansion
The Act expands Medicaid eligibility and subsidies by amending 42 U.S.C. § 1396a, the section of the Medicaid Act outlining what states must offer in their coverage plans. The Act imposes these substantive requirements on the states' plans, starting in 2014, unless otherwise noted:
(1) States will be required to cover adults under age 65 (who are not pregnant and not already covered) with incomes up to 133% of the federal poverty level ("FPL"). Id. § 1396a(a)(10)(A)(i)(VIII). This is a significant change, because previously [*1262] the Medicaid Act did not set a base-line income level for mandatory eligibility. Thus, many states currently do not provide Medicaid to childless adults and cover parents only at much lower income levels.
(2) States will be required to provide Medicaid to all children whose families earn up to 133% of the FPL, including children currently covered through separate CHIP programs. Id. §§ 1396a(a)(10)(A)(i)(VII), 1396a(Z)(D(D), 1396a(Z)(2)(C). States currently must provide Medicaid to children under age 6 with family income up to 133% of the FPL and children ages 6 through 18 with family income up to 100% of the FPL. Id. §§ 1396a(a)(10)(A)(i)(IV), (VI), (VII), 1396a(Z)(1)(B)-(D), 1396a(Z)(2)(A)-(C).
(3) States are required to at least maintain existing Medicaid eligibility levels for adults and children (that were in place as of March 23, 2010) until a state's Exchange is fully operational. Id. § 1396a(gg)(1). Whereas states previously had the option to raise or lower their eligibility levels, states cannot institute more restrictive eligibility standards until the new policies take place. Id.
(4) Children under age 26 who were receiving Medicaid but were "aged out" of foster care will be newly eligible to continue receiving Medicaid. Id. § 1396a(a)(10)(A)(i)(IX) (effective Jan. 1, 2014).
(5) The new law will increase Medicaid payments for primary care services provided by primary care doctors to 100% of the Medicare payment rates for 2013 and 2014. Id. § 1396a(a)(13)(C). States will [**20] receive 100% federal funding for the cost of the increasing payment rates for 2013 and 2014.[fn60] Id. § 1396d(dd).
Having covered the Act's five major components, we examine the two components challenged as unconstitutional: (1) the Medicaid expansion and (2) the individual mandate.
III. CONSTITUTIONALITY OF MEDICAID EXPANSION
 The state plaintiffs challenge the district court's grant of summary judgment in favor of the government on the state plaintiffs' claim that the Act's expansion of the Medicaid program, enacted pursuant to the Spending Clause, is unduly coercive under South Dakota v. Dole, 483 U.S. 203, 211, 107 S.Ct. 2793, 2798, 97 L.Ed.2d 171 (1987). For the reasons given below, we conclude that it is not.
A. History of the Medicaid Program
Medicaid is a long-standing partnership between the national and state sovereigns that has been in place for nearly half a century. "In 1965, Congress enacted the Medicaid Act, 42 U.S.C. § 1396 et seq., as Title XIX of the Social Security Act." Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1232 (11th Cir. 2011); see also Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 2680, 65 L.Ed.2d 784 (1980). "Medicaid is a jointly financed federal-state co-operative program, designed to help states furnish medical treatment to their needy citizens." Reese, 637 F.3d at 1232. The Medicaid Act "prescribes substantive requirements governing the scope of each state's program." Curtis v. Taylor, 625 F.2d 645, 649 (5th Cir. 1980).[fn61] "Section 1396a provides that a `State plan for medical assistance' must meet various guidelines, including the provision of certain [*1263] categories of care and services." Reese, 637 F.3d at 1232 (citing 42 U.S.C. § 1396a). "Some of these categories are discretionary, while others are mandatory for participating states." Id. (citing 42 U.S.C. § 1396a(a)(10)).
Under the Act, the Medicaid program serves as a cornerstone for expanded health care coverage. As explained above in Section 11(H), the Act expands Medicaid eligibility and provides significant Medicaid subsidies to the impoverished. As a result of the Act's Medicaid expansion, an estimated 9 million of the 50 million uninsured will be covered for health care by 2014 (and 16 million by 2016 and 17 million by 2021).[fn62]
The federal government will pay 100% of the fees associated with the increased Medicaid eligibility and subsidies beginning in 2014 and until 2016; that percentage will then drop gradually each year until reaching 90% in 2020. 42 U.S.C. § 1396d(y)(1). The federal government will not cover administrative expenses associated with implementing the new Medicaid policies. See id. Under 42 U.S.C. § 1396c, a state whose plan does not comply with the requirements under § 1396a will be notified by HHS of its noncompliance, and "further payments will not be made to the State (or, in [HHS's] discretion . . . payments will be limited to categories under or parts of the State plan not affected by such failure), until [HHS] is satisfied that there will no longer be any such failure to comply." Id. § 1396c.
B. Congress's Power under the Spending Clause
The Spending Clause provides that "Congress shall have Power . . . to pay the Debts and provide for the common Defence and general Welfare of the United States." U.S. CONST. art. I, § 8, cl. 1. The Spending Clause permits Congress to "fix the terms on which it shall disburse federal money to the States." Pennhurst State Sch. & Hosp. v. Halderman[**21] , 451 U.S. 1, 17, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981). "[Legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions." Id. at 17, 101 S.Ct. at 1540.
There are four primary restrictions on legislation enacted pursuant to the Spending Clause. First, the exercise of the spending power must be in pursuit of the general welfare. See Helvering v. Davis, 301 U.S. 619, 640, 57 S.Ct. 904, 908, 81 L.Ed. 1307 (1937). Second, the conditions on the receipt of federal funds must be reasonably related to the legislation's stated goal. Dole, 483 U.S. at 207, 107 S.Ct. at 2796. Third, Congress's intent to condition funds on a particular action must be unambiguous and must enable the states to knowingly exercise their choice whether to participate. Pennhurst, 451 U.S. at 17, 101 S.Ct. at 1540. Finally, the federal legislation cannot "induce the States to engage in activities that would themselves be unconstitutional." Dole, 483 U.S. at 210, 107 S.Ct. at 2798. The state plaintiffs do not contend the Act's Medicaid expansion violates any of these restrictions.[fn63] [*1264]
Rather, the state plaintiffs argue that the Medicaid expansion violates an additional limitation on the use of the spending power to encourage state legislation, one that derives not from the spending power alone, but also from the Tenth Amendment's reservation of certain powers to the states. U.S. CONST. amend. X; see Charles C Steward Mach. Co. v. Davis, 301 U.S. 548, 585, 57 S.Ct. 883, 890, 81 L.Ed. 1279 (1937); West Virginia v. HHS, 289 F.3d 281, 286-87 (4th Cir. 2002). Congress may not employ the spending power in such a way as to "coerce" the states into compliance with the federal objective. See Dole, 483 U.S. at 211, 107 S.Ct. at 2798; Steward Mach., 301 U.S. at 589-91, 57 S.Ct. at 892-93; cf. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 687, 119 S.Ct. 2219, 2231, 144 L.Ed.2d 605 (1999) (holding that a state's waiver of its sovereign immunity is not voluntary where Congress has made it a condition of the state's participation in an otherwise lawful activity). This restriction is different from the restrictions stemming from the spending power because it addresses whether the legislation, while perhaps an appropriate use of the spending power, goes beyond the Spending Clause by forcing the states to participate in a federal program. Cf. Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (holding that Congress may not enact a law pursuant to one of its enumerated powers and then compel state officers to execute those federal laws); see also Steward Mach., 301 U.S. at 585, 57 S.Ct. at 890. That is, the coercion test asks whether the federal scheme removes state choice and compels the state to act because the state, in fact, has no other option.
The coercion doctrine was first discussed at length by the Supreme Court in Charles C. Steward Machine Co. v. Davis. In that case, a corporation challenged the imposition of an employment tax under the newly enacted Social Security Act. Addressing the corporation's argument that the federal government improperly coerced states into participation in the Social Security program, the Supreme Court stated:
The difficulty with the petitioner's contention is that it confuses motive with coercion. Every tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed. In like manner every rebate from a tax when conditioned upon conduct is in some measure [**22] a temptation. But to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties. The outcome of such a doctrine is the acceptance of a philosophical determinism by which choice becomes impossible. Till now the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems. . . . Nothing in the case suggests the exertion of a power akin to undue influence, if we assume that such a concept can ever be applied with fitness to the relations between state and nation. Even on that assumption the location of the point at which pressure turns into compulsion, and ceases to be inducement, would be a question of degree, at times, perhaps, of fact. [*1265]
This discussion of the coercion doctrine was later revived by the Supreme Court in South Dakota v. Dole. In Dole, the state of South Dakota challenged 23 U.S.C. § 158, which directed the Secretary of Transportation to withhold a percentage of federal highway funds otherwise allocable to the states if states failed to maintain a minimum drinking-age requirement of 21 years. 483 U.S. at 205, 107 S.Ct. at 2795. The Court noted that Congress may attach conditions on the receipt of federal funds to meet certain policy objectives, including those that Congress could not otherwise meet through direct regulation. Id. at 206-07, 107 S.Ct. at 2795-96. After analyzing whether the minimum drinking-age condition met the four restrictions on the Spending Clause discussed above, the Court noted, "Our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which `pressure turns into compulsion.'" Id. at 211, 107 S.Ct. at 2798 (quoting Steward Mack, 301 U.S. at 590, 57 S.Ct. at 892). It further opined:
When we consider, for a moment, that all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specified highway grant programs, the argument as to coercion is shown to be more rhetoric than fact. . . .
Here Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose. But the enactment of such laws remains the prerogative of the States not merely in theory but in fact.
Id. (emphasis added). Thus, the Court once again recognized the coercion doctrine, but found no violation.
The limited case law on the doctrine of coercion and the fact that the Supreme Court has never devised a test to apply it has left many circuits with the conclusion that the doctrine, twice recognized by the Supreme Court, is not a viable defense to Spending Clause legislation. See, e.g., Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 278 (5th Cir. 2005) (en banc) ("It goes without saying that, because states have the independent power to lay and collect taxes, they retain the ability to avoid the imposition of unwanted federal regulation simply by rejecting federal funds."); AW. v. Jersey City Pub. Schs., 341 F.3d 234, 243-44 (3d Cir. 2003) (noting that the state's freedom to tax makes it difficult to find a federal [**23] law coercive, even when that law threatens to withhold all federal funding in a particular area); Kansas v. United States, 214 F.3d 1196, 1201-02 (10th Cir. 2000) ("The cursory statements in Steward Machine and Dole mark the extent of the Supreme Court's discussion of a coercion theory. The Court has never employed the theory to invalidate a funding condition, and federal courts have been similarly reluctant to use it." (footnote Omitted)); id. at 1202 (observing that the theory is "unclear, suspect, and has little precedent to support its application"); California v. United States, 104 F.3d 1086, 1092 (9th Cir. 1997) (noting in a Medicaid expansion case that "to the extent that there is any viability left in the coercion theory, it is not reflected in the facts of this record"); Nevada v. Skinner, 884 F.2d 445, 448 (9th Cir. 1989) ("The difficulty if not the impropriety of making judicial judgments regarding a state's financial capabilities renders the coercion theory highly suspect as a method for resolving disputes between federal and state governments."); Oklahoma v. Schweiker, 655 F.2d 401, 414 [*1266] (D.C. Cir. 1981) ("The courts are not suited to evaluating whether the states are faced here with an offer they cannot refuse or merely a hard choice. . . . We therefore follow the lead of other courts that have explicitly declined to enter this thicket when similar funding conditions have been at issue.") (pre-Dole); N.H. Dep't of Emp't Sec. v. Marshall, 616 F.2d 240, 246 (1st Cir. 1980) ("Petitioners argue, however, that this option of the state to refuse to participate in the program is illusory, since the severe financial consequences that would follow such refusal negate any real choice. . . . We do not agree that the carrot has become a club because rewards for conforming have increased. It is not the size of the stakes that controls, but the rules of the game.") (pre-Dole).
Even in those circuits that do recognize the coercion doctrine, it has had little success. See West Virginia v. HHS, 289 F.3d at 290, 294-95 (rejecting a coercion doctrine challenge to previous Medicaid Act amendments on the ground that the Secretary may choose to withhold only some funds); Jim C. v. United States, 235 F.3d 1079, 1081-82 (8th Cir. 2000) (en banc) (holding that loss of all federal education funds, in that case amounting to 12% of the state's education budget, was "politically painful" but not coercive). Indeed, our review of the relevant case law indicates that no court has ever struck down a law such as this one as unduly coercive.
There are two cases in which the Supreme Court has struck down a statute because it violated the Tenth Amendment's prohibition on commandeering state legislators and executive officials to perform the federal government's work. While not Spending Clause cases, these cases do give us an understanding of when a law may be considered so coercive as to violate the Tenth Amendment. In New York v. United States, the Court struck down as unduly coercive a portion of the Low-Level Radio-active Waste Policy Amendments Act that required states to "take title" to waste created within the state, noting that Congress has ample opportunity to create incentives for states to act the way that Congress desires. 505 U.S. 144, 176-77, 112 S.Ct. 2408, 2428-29, 120 L.Ed.2d 120 (1992); see also Printz, 521 U.S. 898, 117 S.Ct. 2365 (holding, in accord with New York, that Congress [**24] cannot compel states to enact or administer federal regulatory programs).[fn64] It is clear from these two cases that Congress cannot directly compel a state to act, nor can Congress hinge the state's right to regulate in an area that the state has a constitutional right to regulate on the state's participation in a federal program. Either act is clearly unconstitutionally coercive.
If anything can be said of the coercion doctrine in the Spending Clause context, however, it is that it is an amorphous one, honest in theory but complicated in application. But this does not mean that we can cast aside our duty to apply it; indeed, it is a mystery to us why so many of our sister circuits have done so. To say that the coercion doctrine is not viable or does not exist is to ignore Supreme Court precedent, an exercise this Court will not do. [*1267] As the district court noted, "The reluctance of some circuits to deal with this issue because of the potential legal and factual complexities is not entitled to a great deal of weight, because courts deal every day with the difficult complexities of applying Constitutional principles set forth and defined by the Supreme Court." Florida ex rel. McCollum v. HHS, 716 F.Supp.2d 1120, 1160 (N.D.Fla. 2010).[fn65] If the government is correct that Congress should be able to place any and all conditions it wants on the money it gives to the states, then the Supreme Court must be the one to say it.
For now, we find it a reasonable conclusion that Dole instructs that the Tenth Amendment places certain limitations on congressional spending; namely, that Congress cannot place restrictions so burden-some and threaten the loss of funds so great and important to the state's integral function as a state — funds that the state has come to rely on heavily as part of its everyday service to its citizens — as to compel the state to participate in the "optional" legislation. This is the point where "`pressure turns into compulsion.`" Dole, 483 U.S. at 211, 107 S.Ct. at 2798 (quoting Steward Mack, 301 U.S. at 590, 57 S.Ct. at 892).
And so it is not without serious thought and some hesitation that we conclude that the Act's expansion of Medicaid is not unduly coercive under Dole and Steward Machine. There are several factors, which, for us, are determinative. First, the Medicaid-participating states were warned from the beginning of the Medicaid program that Congress reserved the right to make changes to the program. See 42 U.S.C. § 1304 ("The right to alter, amend, or repeal any provision of this chapter is hereby reserved to the Congress."); McRae, 448 U.S. at 301, 100 S.Ct. at 2680 (noting "[a]lthough participation in the Medicaid program is entirely optional, once a State elects to participate, it must comply with the requirements" that Congress sees fit to impose). Indeed, Congress has made numerous amendments to the program since its inception in 1965. 42 U.S.C. § 1396a Note (listing amendments).[fn66] In each of these previous amendments, the states were given the option to comply with the changes, or lose all or part of their funding. Id. § 1396c. None of these amendments has been struck down as unduly coercive.
Second, the federal government will bear nearly all of the costs associated with the expansion. The states will only have [*1268] to pay [**25] incidental administrative costs associated with the expansion until 2016; after which, they will bear an increasing percentage of the cost, capping at 10% in 2020.[fn67] Id. § 1396d(y)(1). If states bear little of the cost of expansion, the idea that states are being coerced into spending money in an ever-growing program seems to us to be "more rhetoric than fact." Dole, 483 U.S. at 211, 107 S.Ct. at 2798.
Third, states have plenty of notice — nearly four years from the date the bill was signed into law — to decide whether they will continue to participate in Medicaid by adopting the expansions or not. This gives states the opportunity to develop new budgets (indeed, Congress allocated the cost of the entire expansion to the federal government initially, with the cost slowly shifting to the states over a period of six years) to deal with the expansion, or to develop a replacement program in their own states if they decide to do so. Fourth, like our sister circuits, we cannot ignore the fact that the states have the power to tax and raise revenue, and therefore can create and fund programs of their own if they do not like Congress's terms. See Pace, 403 F.3d at 278; Jersey City Pub. Schs., 341 F.3d at 243-44.
Finally, we note that while the state plaintiffs vociferously argue that states who choose not to participate in the expansion will lose all of their Medicaid funding, nothing in the Medicaid Act states that this is a foregone conclusion. Indeed, the Medicaid Act provides HHS with the discretion to withhold all or merely a portion of funding from a noncompliant state. 42 U.S.C. § 1396c; see also West Virginia v. HHS, 289 F.3d at 291-92; Dole, 483 U.S. at 211, 107 S.Ct. at 2798 (finding no coercion when "all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specified highway grant programs").
Taken together, these factors convince us that the Medicaid-participating states have a real choice — not just in theory but in fact — to participate in the Act's Medicaid expansion. See Dole, 483 U.S. at 211, 107 S.Ct. at 2798. Where an entity has a real choice, there can be no coercion. See Steward Mack., 301 U.S. at 590, 57 S.Ct. at 892 (noting that in the absence of undue influence, "the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems").
Accordingly, the district court's grant of summary judgment to the government on the Medicaid expansion issue is affirmed.
We now turn to the constitutionality of the Act's fourth component: the individual mandate. We begin with the relevant constitutional clauses and Supreme Court precedent.
IV. SUPREME COURT'S COMMERCE CLAUSE DECISIONS
Two constitutional provisions govern our analysis of whether Congress acted within its commerce authority in enacting the individual mandate: the Commerce Clause and the Necessary and Proper Clause. U.S. CONST. art. I, § 8, cls. 3, 18.
Seven words in the Commerce Clause — "[t]o regulate Commerce . . . among the [*1269] several States," id. art. I, § 8, cl. 3 — have spawned a 200-year debate over the permissible scope of this enumerated power. For many years, the Supreme Court described Congress's commerce power as regulating "traffic" — the "buying and selling, or the interchange of [**26] commodities" — and "intercourse" among states, including transportation. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-90, 6 L.Ed. 23 (1824). Under this early understanding of the Clause, Congress could not reach commerce that was strictly internal to a state. See id. at 194-95 ("The enumeration pre-supposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State.").
Ultimately, in recognition of a modern and integrated national economy and society, the New Deal decisions of the Supreme Court charted an expansive doctrinal path. See, e.g., United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937). These Supreme Court decisions adopted a broad view of the Commerce Clause, in tandem with the Necessary and Proper Clause, and permitted Congress to regulate purely local, intrastate economic activities that substantially affect interstate commerce. The "substantial effects" doctrine, along with the related "aggregation" doctrine, expanded the reach of Congress's commerce power exponentially. Nonetheless, the Supreme Court has staunchly maintained that the commerce power contains outer limits which are necessary to preserve the federal-state balance in the Constitution.
We therefore review the principal Commerce Clause precedents that inform our analysis of the difficult question before us. Although extensive, this survey is necessary to understanding the rudiments of the Supreme Court's existing Commerce Clause doctrines that we, as an inferior Article III court, must apply.
A. Wickard v. Filburn
One of the early "substantial effects" decisions is Wickard v. Filburn, 317 U.S. Ill, 63 S.Ct. 82, 87 L.Ed. 122 (1942), where the Supreme Court held that Congress's wheat production quotas were constitutional as applied to a plaintiff farmer's home-grown and home-consumed wheat. The Agricultural Adjustment Act of 1938 ("AAA") sought to control the volume of wheat in interstate and foreign commerce by placing acreage limits on farmers. Id. at 115, 63 S.Ct. at 84. This scheme was intended to prevent wheat surpluses and shortages, attendant price instability, and obstructions to commerce. Id.
Plaintiff Filburn operated a small farm raising wheat. Id. at 114, 63 S.Ct. at 84. Filburn sold some of this wheat crop, allocated a portion as feed for livestock and poultry on his farm, used another portion as flour for home consumption, and pre-served the remainder for future seedings. Id. Although his AAA allotment was only 11.1 acres, Filburn sowed and harvested 23 acres of wheat — 11.9 excess acres that the Supreme Court treated as home-consumed wheat.[fn68] Id. at 114-15, 63 S.Ct. at 84. This violation subjected him to a penalty of 49 cents a bushel.[fn69] Id. Filburn sued, claiming that Congress's acreage quotas on his home-consumed wheat exceeded its [*1270] commerce power because the regulated activities were local in nature and their effects upon interstate commerce were "indirect." Id. at 119, 63 S.Ct. at 86.
The Supreme Court examined the factors of home-consumed wheat that impinged on interstate commerce — factors which could potentially frustrate Congress's regulatory [**27] scheme if not controlled. The Court declared that home-consumed wheat "constitutes the most variable factor in the disappearance of the wheat crop," since "[c]onsumption on the farm where grown appears to vary in an amount greater than 20 per cent of average production." Id. at 127, 63 S.Ct. at 90. Filburn's home-consumed wheat therefore "compete[d]" with wheat sold in commerce, since "it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market." Id. at 128, 63 S.Ct. at 91.
The Wickard Court recognized that "the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices" and "it can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions." Id. at 128, 63 S.Ct. at 90-91. Therefore, the objectives of the AAA acreage quotas — "to increase the market price of wheat and to that end to limit the volume thereof that could affect the market" — constituted appropriate regulatory goals. Id.
Despite the fact that Congress's commerce power "has been held to have great latitude," id. at 120, 63 S.Ct. at 86, the Supreme Court recognized the novelty of its decision, remarking that "there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof." Id. at 120, 63 S.Ct. at 86-87. However, the Wickard Court concluded that "even if [Filburn's] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earner time have been defined as `direct' or `indirect. `"Id. at 125, 63 S.Ct. at 89. The Court declared that "questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as `production' and `indirect' and foreclose consideration of the actual effects of the activity in question upon interstate commerce." Id. at 120, 63 S.Ct. at 87; see also id. at 123-24, 63 S.Ct. at 88 (stating that "the relevance of the economic effects in the application of the Commerce Clause . . . has made the mechanical application of legal formulas no longer feasible").
Even though Filburn's own contribution to wheat demand "may be trivial by itself," this was "not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial." Id. at 127-28, 63 S.Ct. at 90. Since Filburn's home-grown wheat slackened demand for market-based wheat and placed downward pressures on price, "Congress may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices." Id. at 128-29, 63 S.Ct. at 91.
The Supreme Court noted that restricting Filburn's acreage could have the effect of forcing Filburn [**28] to buy wheat in the market: "It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, [*1271] is an unfair promotion of the markets and prices of specializing wheat growers." Id. at 129, 63 S.Ct. at 91. Rejecting this, the Supreme Court stated, "It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated and that advantages from the regulation commonly fall to others." Id.
B. United States v. South-Eastern Underwriters Association
Although not concerning the "substantial effects" doctrine, the 1944 case United States v. South-Eastern Underwriters Association, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944), is important to our analysis, as it marked the Supreme Court's first recognition that the insurance business is commerce — and where it is conducted across state borders, it constitutes interstate commerce capable of being regulated by Congress.[fn70] Id. at 553, 64 S.Ct. at 1173. The Supreme Court emphasized the interstate character of insurance business practices, which resulted in a "continuous and indivisible stream of intercourse among the states composed of collections of premiums, payments of policy obligations, and the countless documents and communications which are essential to the negotiation and execution of policy contracts." Id. at 541, 64 S.Ct. at 1167. The defendants' insurance policies "covered not only all kinds of fixed local properties, but also . . . movable goods of all types carried in interstate and foreign commerce by every media of transportation." Id. at 542, 64 S.Ct. at 1168.
The South-Eastern Underwriters Court rejected the notion that, if any components of the insurance business constitute interstate commerce, the states may not exercise regulatory control over the industry. Id. at 548, 64 S.Ct. at 1171. Nevertheless, the Court pronounced that "[n]o commercial enterprise of any kind which conducts its activities across state lines has been held to be wholly beyond the regulatory power of Congress under the Commerce Clause. We cannot make an exception of the business of insurance." Id. at 553, 64 S.Ct. at 1173.
C. Heart of Atlanta Motel v. United States
In another landmark Commerce Clause case, Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), the Supreme Court held that Congress acted within its commerce authority in enacting Title II of the Civil Rights Act of 1964, which prohibited discrimination in public accommodations. The plaintiff owned and operated a 216-room motel whose guests were primarily out-of-state visitors. Id. at 243, 85 S.Ct. at 350-51. The motel refused to rent rooms to black patrons. Id. at 243, 85 S.Ct. at 351.
The Supreme Court detailed the "overwhelming evidence that discrimination by hotels and motels impedes interstate travel." Id. at 253, 85 S.Ct. at 355. The Court noted that it had "long been settled" that transportation of persons in interstate [*1272] commerce is within Congress's regulatory power, regardless of "whether the transportation is commercial in character." Id. at 256, 85 S.Ct. at 357. Additionally, Supreme Court precedents confirmed that "the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof . . . which might have a substantial [**29] and harmful effect upon that commerce." Id. at 258, 85 S.Ct. at 358. Thus, "Congress may — as it has — prohibit racial discrimination by motels serving travelers, however `local' their operations may appear." Id.
The Heart of Atlanta Motel Court acknowledged that "Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination," but the means employed in removing such obstructions are "within the sound and exclusive discretion of the Congress" and are "subject only to one caveat — that the means chosen by it must be reasonably adapted to the end permitted by the Constitution." Id. at 261-62, 85 S.Ct. at 360. The means chosen by Congress in Title II clearly met this standard.[fn71]
D. United States v. Lopez
For the next thirty years, the Supreme Court applied an expansive interpretation of Congress's commerce power and upheld a wide variety of statutes. See, e.g., Preseault v. ICC, 494 U.S. 1, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) (upholding statute amending National Trails System Act in facial challenge); Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (sustaining Surface Mining Control and Reclamation Act in facial challenge); Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971) (sustaining Title II of Consumer Credit Protection Act in as-applied challenge); Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968) (upholding validity of amendments to Fair Labor Standards Act of 1938 in facial challenge), overruled on other grounds, Nat'l League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). These cases reflect a practical need to allow federal regulation of a growing and unified national economy.
In 1995, the Supreme Court decided United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the first Supreme Court decision since the 1930s to rule that Congress had exceeded its commerce power. Lopez concerned the Gun-Free School Zones Act of 1990, which made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C. § 922(q)(1)(A) (1993). The defendant Alfonso Lopez, a twelfth-grade student, was convicted of carrying a concealed handgun to his Texas school. Lopez, 514 U.S. at 551, 115 S.Ct. at 1626.
In a 5-4 opinion, the Lopez Court invalidated § 922(q). The Lopez Court first observed that the Constitution created a federal government of enumerated, delegated, and thus limited powers. Id. at 552, 115 S.Ct. at 1626. Although the Supreme Court's New Deal precedents expanded Congress's commerce power, the Lopez Court recognized that "this power is subject to outer limits." Id. at 557, 115 S.Ct. at 1628. The Lopez Court then enumerated the "three broad categories of activity that Congress may regulate under its commerce power": (1) "the use of the channels [*1273] of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; and (3) "those activities that substantially affect interstate commerce."[fn72] Id. at 558-69, 115 S.Ct. at 1629-30. After determining that § 922(q) could be sustained only under this third category, the Lopez Court identified four factors influencing its analysis of whether gun possession in school [**30] zones substantially affects interstate commerce.
First, the Lopez Court differentiated between economic and non-economic activity, stressing how prior cases utilizing the substantial effects test to reach intrastate conduct had all involved economic activity. The Supreme Court stated that "Section 922(q) is a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enterprise" and was "not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Id. at 561, 115 S.Ct. at 1630-31. The Court opined that "[e]ven Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intra-state activity, involved economic activity in a way that the possession of a gun in a school zone does not." Id. at 560, 115 S.Ct. at 1630 (emphasis added). The Lopez Court acknowledged that "a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty," yet "so long as [Congress's] enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause always will engender `legal uncertainty.`" Id. at 566, 115 S.Ct. at 1633.
Second, the Lopez Court found it significant that § 922(q) did not contain a "jurisdictional element" to "ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at 561, 115 S.Ct. at 1631. Instead, the Act penalized "mere possession" and lacked any requirement that there be "an explicit connection with or effect on interstate commerce."[fn73] Id. at 562, 115 S.Ct. at 1631.
Third, the Court noted that Congress provided no legislative findings demonstrating the purported nexus between gun possession around schools and its effects on interstate commerce. Id. at 562-63, 115 S.Ct. at 1631-32.
Fourth, the Lopez Court examined the actual relationship between gun possession in a school zone and its effects on interstate commerce. The government posited three effects: (1) violent crime, even when purely local, generates substantial costs that are spread to the wider populace through insurance; (2) individuals are deterred from traveling to areas beset by violent crime; and (3) guns in schools imperil the learning environment, which in turn adversely impacts national productivity. Id. at 563-64, 115 S.Ct. at 1632. [*1274]
The Lopez Court declared that the government's arguments yielded no limiting principles. For example, under the government's proffered "costs of crime" theory, "Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." Id. at 564, 115 S.Ct. at 1632. Likewise, the "national productivity" rationale afforded no bounds, either. If Congress could employ its Commerce Clause authority to "regulate activities that adversely affect the learning environment, then, a fortiori it also can regulate the educational process directly." Id. at 566, 115 S.Ct. at 1633. Indeed, "Congress could regulate any activity that it found was related to the economic productivity of individual [**31] citizens," including "marriage, divorce, and child custody." Id. at 564, 115 S.Ct. at 1632.
The Supreme Court pronounced that these links were too attenuated to conclude that the regulated activity "substantially affects" interstate commerce: "[I]f we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Id. "To up-hold the Government's contentions," the Supreme Court continued, "we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Id. at 567, 115 S.Ct. at 1634.
Lastly, the Lopez Court acknowledged that some of the Supreme Court's precedents gave "great deference to congressional action" but refused to expand the "broad language" of these precedents any further, since "[t]o do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated." Id. Such judicial abdication would dissolve the "distinction between what is truly national and what is truly local" and subvert constitutional notions of federalism. Id. at 567-68, 115 S.Ct. at 1634.
Although both joined the majority opinion in full, two justices wrote separately and echoed the majority's emphasis on the significance of the federal-state balance in the structure of the Constitution, and the need for judicial intervention when Congress has "tipped the scales too far." See id. at 568-83, 115 S.Ct. at 1634-42 (Kennedy, J., concurring);[fn74] id. at 584-602, [*1275] 115 S.Ct. at 1642-51 (Thomas, J., concurring).[fn75]
E. United States v. Morrison
In another 5-4 decision, the Supreme Court in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), reapplied the Lopez principles and invalidated a section of the Violence Against Women Act of 1994 ("VAWA"), 42 U.S.C. § 13981, which provided a federal civil remedy for victims of gender-motivated violence.[fn76]
In enacting the VAWA, Congress made specific findings about the relationship between gender-motivated violence and its substantial effects on interstate commerce. Congress declared its objectives were "to protect victims of gender motivated violence" and "to promote public safety, health, and activities affecting interstate commerce."[fn77] Id. § 13981(a).
The Morrison Court observed that since the New Deal case of Jones & Laughlin Steel, "Congress has had considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous case law permitted." Morrison, 529 U.S. at 608, 120 S.Ct. at 1748. Lopez clarified, however, that "Congress' regulatory authority is not without effective bounds." Id.
The Supreme Court stated that "a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case." Id. at 610, 120 S.Ct. at 1750. The Morrison Court pointed out that "[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity." Id. at 613, 120 S.Ct. at 1751. "While we need not adopt a categorical rule against aggregating the effects of any non-economic activity in order to decide these cases," the Supreme Court reiterated that "our cases have upheld Commerce Clause regulation [**32] of intrastate activity only where that activity is economic in nature." Id.
The Supreme Court next noted that § 13981 contained no jurisdictional element. It commented that another provision of the VAWA, which similarly provided a federal remedy for gender-motivated crime, did contain a jurisdictional hook. Id. at 613 n. 5, 120 S.Ct. at 1752 n. 5 (discussing 18 U.S.C. § 2261(a)(1), which at the time applied only to an individual "who travels across a State line or enters or leaves Indian country").
Unlike § 922(q) in Lopez, § 13981 was "supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families." Id. at 614, 120 S.Ct. at 1752. Nonetheless, the Morrison Court stated that congressional findings were not dispositive, echoing Lopez's statement that "[s]imply because Congress may conclude that a particular activity substantially affects [*1276] interstate commerce does not necessarily make it so." Id. (alteration in original) (quoting Lopez, 514 U.S. at 557 n. 2, 115 S.Ct. at 1624 n. 2).
The Morrison Court determined that "Congress' findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution's enumeration of powers." Id. at 615, 120 S.Ct. at 1752. The congressional findings in Morrison asserted that gender-motivated violence deterred potential victims from interstate travel and employment in interstate business, decreased national productivity, and increased medical costs. Id. According to the Morrison Court, "[t]he reasoning that petitioners advance seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States' police power) to every attenuated effect upon interstate commerce." Id. The logical entailment of this "but-for causal chain" of reasoning "would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption." Id. at 615, 120 S.Ct. at 1752-53. Such arguments suggested no stopping point, and Congress could thereby exercise powers traditionally reposed in the states.[fn78] Id. at 615-16, 120 S.Ct. at 1753.
F. Gonzales v. Raich
Next came Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), where the Supreme Court, in a 6-3 vote, concluded that Congress acted within its commerce power in prohibiting the plaintiffs' wholly intrastate production and possession of marijuana, even though California state law approved the drug's use for medical purposes. The legislation at issue was the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq., in which Congress sought to "conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances" and "prevent the diversion of drugs from legitimate to illicit channels." Raich, 545 U.S. at 12-13, 125 S.Ct. at 2203. Congress consequently "devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA." Id. at 13, 125 S.Ct. at 2203. Under the CSA, marijuana is classified as a "Schedule I" drug, meaning that the manufacture, distribution, or [**33] possession of marijuana constitutes a criminal offense. Id. at 14, 125 S.Ct. at 2204.
In 1996, California voters passed Proposition 215, which exempted from criminal prosecution physicians who recommend marijuana to a patient for medical purposes, as well as patients and primary caregivers who possess and cultivate marijuana for doctor-approved medical purposes.[fn79] Id. at 5-6, 125 S.Ct. at 2199. The [*1277] two California plaintiffs, Angel Raich and Diane Monson, suffered from serious medical conditions and used marijuana as medication for several years, as recommended by their physicians. Id. at 6-7, 125 S.Ct. at 2199-2200. Monson cultivated her own marijuana, while Raich relied upon two caregivers to provide her with locally grown marijuana at no cost. Id. at 7, 125 S.Ct. at 2200.
After federal agents seized and destroyed Monson's cannabis plants, the Raich plaintiffs sued. Id. They acknowledged that the CSA was within Congress's commerce authority and did not contend that any section of the CSA was unconstitutional. Id. at 15, 125 S.Ct. at 2204. Instead, they argued solely that the CSA was unconstitutional as applied to then-manufacture, possession, and consumption of cannabis for personal medical use. Id. at 7-8,125 S.Ct. at 2200.
In rejecting the plaintiffs `"quite limited" as-applied challenge, the Raich Court stated that its case law "firmly establishes Congress' power to regulate purely local activities that are part of an economic `class of activities' that have a substantial effect on interstate commerce." Id. at 15, 17, 125 S.Ct. at 2204-05. The Supreme Court emphasized that, in assessing Congress's commerce power, its review was a "modest one": "We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a `rational basis' exists for so concluding." Id. at 22, 125 S.Ct. at 2208. The Raich Court commented that "[w]hen Congress decides that the `total incidence' of a practice poses a threat to a national market, it may regulate the entire class," and it need not "legislate with scientific exactitude." Id. at 17, 125 S.Ct. at 2206 (quotation marks omitted). "[W]e have reiterated," the Supreme Court continued, "that when `a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence. `"Id. (quotation marks omitted) (quoting Lopez, 514 U.S. at 558, 115 S.Ct. at 1629).
The Supreme Court found similar regulatory concerns underlying both the CSA in Raich and the AAA wheat provisions in Wickard. Just as rising market prices could draw wheat grown for home consumption into the interstate market and depress prices, a "parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market." Id. at 19, 125 S.Ct. at 2207. In both cases, there was a threat of unwanted commodity diversion that could disrupt Congress's regulatory control over interstate commerce. Id.
According to the Raich Court, Wickard established that "Congress can regulate purely intrastate activity that is not itself `commercial,' in that it is not produced for sale, if it concludes [**34] that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity." Id. at 18, 125 S.Ct. at 2206. Characterizing the similarities between the plaintiffs' case and Wickard as "striking," the Raich Court explained that "[i]n both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity." Id. at 18-19, 125 S.Ct. at 2206-07.
The Raich Court opined that the failure to regulate intrastate production and possession of marijuana would leave a "gaping hole" in the CSA's regulatory scheme: CSA enforcement would be frustrated by the difficulty in distinguishing between locally [*1278] cultivated marijuana and out-of-state marijuana, and the marijuana authorized by state law could be diverted into "illicit channels." Id. at 22, 125 S.Ct. at 2209. The Raich Court rejected the notion that California had "surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market." Id. at 30, 125 S.Ct. at 2213. Accordingly, even though the CSA "ensnares some purely intrastate activity," the Raich Court "refuse[d] to excise individual components of that larger scheme." Id. Instead, "congressional judgment that an exemption for such a significant segment of the total market would undermine the orderly enforcement of the entire regulatory scheme is entitled to a strong presumption of validity." Id. at 28, 125 S.Ct. at 2212.
The Raich Court concluded that the statutory challenges in Lopez and Morrison were "markedly different" from the plaintiffs' statutory challenge to the CSA. Id. at 23, 125 S.Ct. at 2209. Whereas the Raich plaintiffs sought to "excise individual applications of a concededly valid statutory scheme," the Supreme Court noted that "in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress' commerce power in its entirety." Id. The Raich Court considered this distinction between facial and as-applied challenges "pivotal" because "[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class." Id. (alteration in original) (quoting Perez, 402 U.S. at 154, 91 S.Ct. at 1361). Additionally, since the CSA was a "lengthy and detailed statute creating a comprehensive framework," its statutory scheme was "at the opposite end of the regulatory spectrum" from the statutes in Lopez and Morrison. Id. at 24, 125 S.Ct. at 2210.
Once again central to the Court's analysis was whether the regulated activities were economic or noneconomic. The Raich Court defined "[e]conomics" as referring to "the production, distribution, and consumption of commodities." Id. at 25-26, 125 S.Ct. at 2211 (quoting WEBSTER'S THIRD NEW INT'L DICTIONARY 720 (1966)). In contrast to the activities regulated in Lopez and Morrison, the Raich Court concluded that "the activities regulated by the CSA are quintessentially economic." Id. at 25, 125 S.Ct. at 2211. Indeed, the activities engaged in by the plaintiffs themselves fit the Court's definition of [**35] economic, since they involved the production, distribution, and consumption of marijuana.
Concurring in only the Raich judgment, Justice Scalia commented that under his understanding of the commerce power, "the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce." Id. at 34-35, 125 S.Ct. at 2216 (Scalia, J., concurring).
Justice Scalia cited "two general circumstances" in which the regulation of intrastate activities may be "necessary to and proper for the regulation of interstate commerce." Id. at 35, 125 S.Ct. at 2216. First, "the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants." Id. at 35, 125 S.Ct. at 2216. Yet, "[t]his principle is not without limitation," as the cases of Lopez and Morrison made [*1279] clear. Id. at 35-36, 125 S.Ct. at 2216-17. Second, Justice Scalia submitted that "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce." Id. at 37, 125 S.Ct. at 2217. The "relevant question" then becomes "whether the means chosen are `reasonably adapted' to the attainment of a legitimate end under the commerce power." Id.
In addition to relying on these Commerce Clause cases, both parties and the district court conducted a separate analysis of the Necessary and Proper Clause's implications for the Act. We review some foundational principles relating to that Clause, focusing our attention on United States v. Comstock, 560 U.S. ___, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010).
G. Necessary and Proper Clause: United States v. Comstock
Congress has the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its enumerated power. U.S. CONST. art. I, § 8, cl. 18. The Necessary and Proper Clause is intimately tied to the enumerated power it effectuates. The Supreme Court has recognized that the Necessary and Proper Clause "is not the delegation of a new and independent power, but simply provision for making effective the powers thereto-fore mentioned." Kansas v. Colorado, 206 U.S. 46, 88, 27 S.Ct. 655, 663, 51 L.Ed. 956 (1907). It is "merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those [powers] otherwise granted are included in the grant." Kinsella v. United States, 361 U.S. 234, 247, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960) (alterations in original) (quoting VI WRITINGS OF JAMES MADISON 383 (Gaillard Hunt ed., 1906)). It reaffirms that Congress has the incidental powers necessary to carry its enumerated powers into effect.
The Supreme Court's most definitive statement of the Necessary and Proper Clause's function remains Chief Justice Marshall's articulation in McCulloch v. Maryland: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted [**36] to that end, which are not prohibited, but consist with the letter and -spirit of the constitution, are constitutional." 17 U.S. (4 Wheat.) 316, 421, 4 L.Ed. 579 (1819). Thus, when legislating within its enumerated powers, Congress has broad authority: "the Necessary and Proper Clause makes clear that the Constitution's grants of specific federal legislative authority are accompanied by broad power to enact laws that are `convenient, or useful' or `conducive' to the authority's `beneficial exercise.`" Comstock, 560 U.S. at ___, 130 S.Ct. at 1956 (quoting McCulloch, 17 U.S. at 413, 418).
As it relates to the commerce power, the Supreme Court has essentially bound up the Necessary and Proper Clause with its substantial effects analysis.[fn80] As Justice Scalia noted in Raich, "Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause." [*1280] 545 U.S. at 34, 125 S.Ct. at 2216 (Scalia, J., concurring).
Comstock represents the Supreme Court's most recent, detailed application of Necessary and Proper Clause doctrine. In Comstock, the Supreme Court held that Congress acted pursuant to its Article I powers in enacting a federal civil-commitment statute, 18 U.S.C. § 4248, that authorized the Department of Justice to detain mentally ill, sexually dangerous prisoners beyond the term of their sentences. The majority opinion enumerated five "considerations" that supported the statute's-constitutional validity: "(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute's enactment in light of the Government's custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute's accommodation of state interests, and (5) the statute's narrow scope." Comstock, 560 U.S. at ___, 130 S.Ct. at 1965.
On the breadth of the Necessary and Proper Clause, the Comstock Court noted that (1) the federal government is a government of enumerated powers, but (2) is also vested "`with ample means`" for the execution of those powers. Id. (quoting McCulloch, 17 U.S. at 408). The Supreme Court must determine whether a federal statute "constitutes a means that is rationally related to the implementation of a constitutionally enumerated power." Id. "[T]he relevant inquiry is simply `whether the means chosen are reasonably adapted to the attainment of a legitimate end under the commerce power' or under other powers that the Constitution grants Congress the authority to implement." Id. at ___130 S.Ct. at 1957 (quotation marks omitted) (quoting Raich, 545 U.S. at 37, 125 S.Ct. at 2217 (Scalia, J., concurring)).
Turning to the second factor — the history of federal involvement — the Supreme Court recognized that, beginning in 1855, persons charged with or convicted of federal offenses could be confined to a federal mental institution for the duration of their sentences. Id. at ___, 130 S.Ct. at 1959. Since 1949, Congress had also "authorized the postsentence detention of federal prisoners who suffer from a mental illness and who are thereby dangerous." Id. at ___, 130 S.Ct. at 1961. The Supreme Court observed that "[a]side from its specific focus on sexually [**37] dangerous persons, § 4248 is similar to the provisions first enacted in 1949" and therefore represented "a modest addition to a longstanding federal statutory framework, which has been in place since 1855." Id.
As to the third factor — reasons for enactment in light of the government's interest — the Supreme Court concluded that "Congress reasonably extended its longstanding civil-commitment system to cover mentally ill and sexually dangerous persons who are already in federal custody, even if doing so detains them beyond the termination of their criminal sentence." Id. The federal government: (1) is the custodian of its prisoners and (2) has the power to protect the public from the threats posed by the prisoners in its charge. Id.
Turning to the fourth factor — accommodation of state interests — the Comstock Court ruled that § 4248 "properly accounts for state interests." Id. at ___, 130 S.Ct. at 1962. The Supreme Court found persuasive that the statute required the Attorney General (1) to allow (and indeed encourage) the state in which the prisoner was domiciled or tried to take custody and (2) to immediately release the prisoner if the state seeks to assert authority over him.[fn81] Id. [*1281]
On the fifth and final factor — the statute's narrow scope — the Comstock Court found the statute not "too sweeping in its scope" and the link between § 4248 and an enumerated Article I power "not too attenuated." Id. at ___, 130 S.Ct. at 1963. The Supreme Court concluded that Lopez's admonition that courts should not "pile inference upon inference" did not present any problems with respect to the civil-commitment statute. Id. (quoting Lopez, 514 U.S. at 567, 115 S.Ct. at 1634). Specifically, the Comstock Court discerned that "the same enumerated power that justifies the creation of a federal criminal statute, and that justifies the additional implied federal powers that the dissent considers legitimate, justifies civil commitment under § 4248 as well." Id. at ___, 130 S.Ct. at 1964. The Supreme Court rejected the notion that "Congress's authority can be no more than one step removed from a specifically enumerated power." Id. at ___, 130 S.Ct. at 1963.
Lastly, the Supreme Court emphasized that § 4248 had been applied to "only a small fraction of federal prisoners." Id. at ___, 130 S.Ct. at 1964 (citing evidence that "105 individuals have been subject to § 4248 out of over 188,000 federal inmates"). The Supreme Court concluded that "§ 4248 is a reasonably adapted and narrowly tailored means of pursuing the Government's legitimate interest as a federal custodian in the responsible administration of its prison system" and thus did not endow Congress with a general police power. Id. at ___, 130 S.Ct. at 1965.
Although concurring in the judgment, Justice Kennedy and Justice Alito[fn82] did not join the Court's majority opinion. Because Justice Kennedy's concurring opinion focuses on Commerce Clause and federalism issues, we provide extended treatment of it here.
Justice Kennedy's primary disagreement with the majority concerned its application of a "means-ends rationality" test. He advised that "[t]he terms `rationally related' and `rational basis' must be employed with care, particularly if either is to be used as a stand-alone test." [**38] Id. at ___, 130 S.Ct. at 1966 (Kennedy, J., concurring). Justice Kennedy observed that the phrase "rational basis" is typically employed in Due Process Clause contexts, where the Court adopts a very deferential review of congressional acts. Id. Under the Lee Optical test applied in such due process settings, the Court merely asks [*1282] whether "`it might be thought that the particular legislative measure was a rational way to correct`" an evil. Id. (quoting Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-S8, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955)). By contrast, Justice Kennedy asserted, "under the Necessary and Proper Clause, application of a `rational basis' test should be at least as exacting as it has been in the Commerce Clause cases, if not more so." Id.
The Commerce Clause precedents of Raich, Lopez, and Hodel "require a tangible link to commerce, not a mere conceivable rational relation, as in Lee Optical." Id. at ___, 130 S.Ct. at 1967. "The rational basis referred to in the Commerce Clause context is a demonstrated link in fact, based on empirical demonstration." Id. Justice Kennedy reiterated Lopez's admonition that "`[s]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.`" Id. (quoting Lopez, 514 U.S. at 557 n. 2, 115 S.Ct. at 1629 n. 2). In this regard, "[w]hen the inquiry is whether a federal law has sufficient links to an enumerated power to be within the scope of federal authority, the analysis depends not on the number of links in the congressional-power chain but on the strength of the chain." Id. at ___, 130 S.Ct. at 1966.
In summary, these landmark Supreme Court decisions — Wickard, South-Eastern Underwriters, Heart of Atlanta Motel, Lopez, Morrison, Raich, and Comstock — together set forth the governing principles and analytical framework we must apply to the commerce power issues presented here.
V. CONSTITUTIONALITY OF INDIVIDUAL MANDATE UNDER THE COMMERCE POWER
With a firm understanding of the Act's provisions, the congressional findings, and the Supreme Court's Commerce Clause precedents, we turn to the central question at hand: whether the individual mandate is beyond the constitutional power granted to Congress under the Commerce Clause and Necessary and Proper Clause.
In this Section, we begin with first principles. We then examine the subject matter the individual mandate seeks to regulate, and whether it can be readily categorized under the classes of activity the Supreme Court has previously identified. We follow with a discussion of the unprecedented nature of the individual mandate. Next, we analyze whether the individual mandate is a valid exercise of Congress's power to regulate activities that substantially affect interstate commerce. In this regard, we appraise whether the government's argument furnishes judicially enforceable limiting principles and address the individual mandate's far-reaching implications for our federalist structure. Lastly, we consider the government's alternative argument that the individual mandate is an essential part of a larger regulation of economic activity.
We conclude that the individual mandate exceeds Congress'[**39] s commerce power.
A. First Principles
As the Supreme Court has observed, "The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the `powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. `"City of Boerne v. Flores, 521 U.S. 507, 516, 117 S.Ct. 2157, 2162, 138 L.Ed.2d 624 (1997) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L.Ed. 60 (1803)). The judiciary is called upon not only to interpret the laws, but at times to enforce the Constitution's limits [*1283] on the power of Congress, even when that power is used to address an intractable problem.
In enforcing these limits, we recognize that the Constitution established a federal government that is "`acknowledged by all to be one of enumerated powers.`" Comstock, 560 U.S. at ___, 130 S.Ct. at 1956 (quoting McCulloch, 17 U.S. at 405). In describing this constitutional structure, the Supreme Court has emphasized James Madison's exposition in The Federalist No. 45: "`The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.`" Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 2399, 115 L.Ed.2d 410 (1991) (quoting THE FEDERALIST NO. 45, at 292-93 (James Madison) (Clinton Rossiter ed., 1961)); see also Lopez, 514 U.S. at 552, 115 S.Ct. at 1626 (quoting same). In that same essay, Madison noted that the commerce power was one such enumerated power: "The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained." THE FEDERALIST No. 45, at 289 (James Madison) (E.H. Scott ed., 1898). The commerce power has since come to dominate federal legislation.
The power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed." Gibbons, 22 U.S. at 196. As the Supreme Court instructs us, "The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere." Katzenbach v. McClung, 379 U.S. 294, 305, 85 S.Ct. 377, 384, 13 L.Ed.2d 290 (1964). In fact, if the object of congressional legislation falls within the sphere contemplated by the Commerce Clause, "[t]hat power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it." Jones & Laughlin Steel Corp., 301 U.S. at 37, 57 S.Ct. at 624 (citation and quotation marks omitted).
It is because of the breadth and depth of this power that even when the Supreme Court has blessed Congress's most expansive invocations of the Commerce Clause, it has done so with a word of warning: "Undoubtedly the scope of this power must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government." Id. It is this dualistic nature of the Commerce Clause power — necessarily broad yet potentially dangerous to the fundamental structure of our [**40] government — that has led the Court to adopt a flexible approach to its application, one that is often difficult to apply. As Chief Justice Hughes noted,
Whatever terminology is used, the criterion is necessarily one of degree and must be so defined. This does not satisfy those [who] seek for mathematical or rigid formulas. But such formulas are not provided by the great concepts of the Constitution such as `interstate commerce,' `due process,' `equal protection.' In maintaining the balance of the constitutional grants and limitations, it is inevitable that we should define their applications in the gradual process of inclusion and exclusion.
Santa Cruz Fruit Packing Co. v. NLRB., 303 U.S. 453, 467, 58 S.Ct. 656, 660, 82 L.Ed. 954 (1938); see also Lopez, 514 U.S. at 566, 115 S.Ct. at 1633 ("But, so long as [*1284] Congress' authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause always will engender `legal uncertainty.`").
Thus, it is not surprising that Lopez begins not with categories or substantial effects tests, but rather "first principles," reaffirming the "constitutionally mandated division of authority [that] was adopted by the Framers to ensure protection of our fundamental liberties.`" 514 U.S. at 553, 115 S.Ct. at 1626 (citing Gregory, 501 U.S. at 458, 111 S.Ct. at 2400). While the substantial growth and development of Congress's power under the Commerce Clause has been well-documented, the Court has often reiterated that the power therein granted remains "subject to outer limits." Id. at 557, 115 S.Ct. at 1628. When Congress oversteps those outer limits, the Constitution requires judicial engagement, not judicial abdication.
The Supreme Court has placed two broad limitations on congressional power under the Commerce Clause. First, Congress's regulation must accommodate the Constitution's federalist structure and pre-serve "a distinction between what is truly national and what is truly local." Id. at 567-68, 115 S.Ct. at 1634. Second, the Court has repeatedly warned that courts may not interpret the Commerce Clause in a way that would grant to Congress a general police power, "which the Founders denied the National Government and reposed in the States." Morrison, 529 U.S. at 618, 120 S.Ct. at 1754; see also Lopez, 514 U.S. at 584, 115 S.Ct. at 1642 (Thomas, J., concurring) ("[W]e always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power; our cases are quite clear that there are real limits to federal power.").
Therefore, in determining if a congressional action is within the limits of the Commerce Clause, we must look not only to the action itself but also its implications for our constitutional structure. See Lopez, 514 U.S. at 563-68, 115 S.Ct. at 1632-34. While these structural limitations are often discussed in terms of federalism, their ultimate goal is the protection of individual liberty. See Bond v. United States, 564 U.S. ___, ___, 131 S.Ct. 2355, 2363, 180 L.Ed.2d 269 (2011) ("Federalism secures the freedom of the individual."); New York v. United States, 505 U.S. at 181, 112 S.Ct. at 2431 ("The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities. . . . To the contrary, the Constitution [**41] divides authority between federal and state governments for the protection of individuals.").
With this at stake, we examine whether Congress legislated within its constitutional boundaries in enacting the individual mandate.[fn83] We begin this analysis with a "presumption of constitutionality," meaning that "we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." Morrison, 529 U.S. at 607, 120 S.Ct. at 1748.
B. Dichotomies and Nomenclature
The parties contend that the answer to the question of the individual mandate's constitutionality is straightforward. The government emphasizes that Congress [*1285] intended to regulate the health insurance and health care markets to ameliorate the cost-shifting problem created by individuals who forego insurance yet at some time in the future seek health care for which they cannot pay. 42 U.S.C. § 18091(a)(1)(A), (H). One of the tools Congress employed to solve that problem is an economic mandate requiring Americans to purchase and continuously maintain health insurance. The government argues that the individual mandate is constitutional because it regulates "quintessentially economic" activity related to an industry of near universal participation, whereas the regulations in Lopez and Morrison touched on criminal conduct, which is not "in any sense of the phrase, economic activity." Morrison, 529 U.S. at 613, 120 S.Ct. at 1751. The government submits that Congress has mandated only how Americans finance their inevitable health care needs.
The plaintiffs respond that the plain text of the Constitution and Supreme Court precedent support the conclusion that "activity" is a prerequisite to valid congressional regulation under the commerce power. The plaintiffs stress that Congress's authority is to "regulate" commerce, not to compel individuals to enter into commerce so that the federal government may regulate them. The plaintiffs point out that by choosing not to purchase insurance, the uninsured are outside the stream of commerce. Indeed, the nature of the conduct is marked by the absence of a commercial transaction. Since they are not engaged in commerce, or activities associated with commerce, they cannot be regulated pursuant to the Commerce Clause. The plaintiffs emphasize that, in 220 years of constitutional history, Congress has never exercised its commerce power in this manner.
Whereas the parties and many commentators have focused on this distinction between activity and inactivity, we find it useful only to a point. Beginning with the plain language of the text, the Commerce Clause gives Congress the power to "regulate Commerce." U.S. CONST. art. I, § 8, cl. 3. The power to regulate commerce, of course, presupposes that something exists to regulate. In its first comprehensive discussion of the Commerce Clause, the Supreme Court in Gibbons attempted to define commerce, stating, "Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing [**42] rules for carrying on that intercourse." Gibbons, 22 U.S. at 189-90 (emphasis added). The nature of Chief Justice Marshall's formulation presaged the Supreme Court's tendency to describe commerce in very general terms, since an attempt to formulate a precise and all-encompassing definition would prove impractical.
However, the Supreme Court has always described the commerce power as operating on already existing or ongoing activity. The Gibbons Court stated, "If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State." Id. at 195 (emphasis added). In its recent cases, the Supreme Court has continued to articulate Congress's commerce authority in terms of "activity." In Lopez, the Court identified "three broad categories of activity that Congress may regulate under its commerce power" and concluded that "possession of a gun in a local school zone is in no sense an economic activity." 514 U.S. at 558, 567, 115 S.Ct. at 1629, 1634 (emphasis added); see also Raich, 545 U.S. at 26, 125 S.Ct. at 2211 ("[T]he CSA is a statute that directly regulates economic, commercial activity." [*1286] (emphasis added)); Morrison, 529 U.S. at 611, 120 S.Ct. at 1750 ("Lopez `s review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor." (emphasis added)).
As our extensive discussion of the Supreme Court's precedent reveals, Commerce Clause cases run the gamut of possible regulation. But the diverse fact patterns of Wickard, South-Eastern Underwriters, Heart of Atlanta Motel, Lopez, Morrison, and Raich share at least one commonality: they all involved attempts by Congress to regulate preexisting, freely chosen classes of activities.
Nevertheless, we are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case. Although the Supreme Court's Commerce Clause cases frequently speak in activity-laden terms, the Court has never expressly held that activity is a precondition for Congress's ability to regulate commerce — perhaps, in part, because it has never been faced with the type of regulation at issue here.
We therefore must refine our understanding of the nature of the individual mandate and the subject matter it seeks to regulate. The uninsured have made a decision, either consciously or by default, to direct their financial resources to some other item or need than health insurance. Congress described "the activity" it sought to regulate as "economic and financial decisions about how and when health care is paid for, and when health insurance is purchased." 42 U.S.C. § 18091(a)(2)(A) (emphasis added). It deemed such decisions as activity that is "commercial and economic in nature." Id. Congress linked the individual mandate to this decision: "In the absence of th[is] requirement, some individuals would make an economic and financial [**43] decision to forego health insurance coverage and attempt to self-insure. . . ." Id.
That Congress casts the individual man-date as regulating economic activity is not surprising. In Morrison, the Supreme Court acknowledged that "thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature." 529 U.S. at 613, 120 S.Ct. at 1751. Raich confirmed the continued viability of this distinction between economic and noneconomic activity in assessing Congress's commerce authority. See 545 U.S. at 25-26, 125 S.Ct. at 2210-11.
The parties here disagree about where the individual mandate falls within this "economic versus noneconomic activity" framework. On one hand, a decision not to purchase insurance and to self-insure for health care is a financial decision that has more of an economic patina than the gun possession in Lopez or the gender-motivated violence in Morrison. But whether such an economic decision constitutes economic activity as previously conceptualized by the Supreme Court is not so clear, nor do we find this sort of categorical thinking particularly helpful in assessing the constitutionality of such an unprecedented congressional action. After all, in choosing not to purchase health insurance, the individuals regulated by the individual mandate are hardly involved in the "production, distribution, and consumption of commodities," which was the broad definition of economics provided by the Raich Court.[fn84] 545 U.S. at 25, 125 S.Ct. at 2211 [*1287] (citation and quotation marks omitted). Rather, to the extent the uninsured can be said to be "active," their activity consists of the absence of such behavior, at least with respect to health insurance.[fn85] Simply put, the individual mandate cannot be neatly classified under either the "economic activity" or "noneconomic activity" headings.
This confirms the wisdom in the conclusion that the Court's attempts throughout history to define by "semantic or formalistic categories those activities that were commerce and those that were not" are doomed to fail. Lopez, 514 U.S. at 569, 115 S.Ct. at 1635 (Kennedy, J., concurring). Compare United States v. E.C. Knight Co., 156 U.S. 1, 13, 15 S.Ct. 249, 254, 39 L.Ed. 325 (1895) (approving manufacturing-commerce dichotomy), with Standard Oil Co. v. United States, 221 U.S. 1, 68-69, 31 S.Ct. 502, 519, 55 L.Ed. 619 (1911) (declaring manufacturing-commerce dichotomy "unsound"). See also Lopez, 514 U.S. at 572, 115 S.Ct. at 1636 (Kennedy, J., concurring) (noting "the Court's recognition of the importance of a practical conception of the commerce power"); Wickard, 317 U.S. at 120, 63 S.Ct. at 87 (stating that "questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as `production' and `indirect`"); Swift & Co. v. United States, 196 U.S. 375, 398, 25 S.Ct. 276, 280, 49 L.Ed. 518 (1905) (observing that "commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business"). Yet, confusing though these dichotomies and doctrinal vacillations have been, they appear animated by one overarching goal: to provide courts with meaningful, judicially administrable limiting principles by which to assess Congress's exercise of its Commerce Clause power.
Properly formulated, we perceive the question before [**44] us to be whether the federal government can issue a mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives.[fn86] These types of purchasing decisions are legion. Every day, Americans decide what products to buy, where to invest or save, and how to pay for future contingencies such as their retirement, their children's education, and their health care. The government contends that embedded in the Commerce Clause is the power to override these ordinary decisions and redirect those funds to other purposes. Under this theory, because Americans have money to spend and must inevitably make decisions on where to spend it, the Commerce Clause gives Congress the power to direct and compel an individual's spending in order to further its overarching regulatory goals, such as reducing the number of uninsureds and the amount of uncompensated health care.
In answering whether the federal government may exercise this asserted power [*1288] to issue a mandate for Americans to purchase health insurance from private companies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress's exercise of its commerce authority affords sufficient and meaningful limiting principles; and (3) the far-reaching implications for our federalist structure.
C. Unprecedented Nature of the Individual Mandate
 Both parties have cited extensively to previous Supreme Court opinions defining the scope of the Commerce Clause. Economic mandates such as the one contained in the Act are so unprecedented, however, that the government has been unable, either in its briefs or at oral argument, to point this Court to Supreme Court precedent that addresses their constitutionality. Nor does our independent review reveal such a precedent.
The Supreme Court has sustained Congress's authority to regulate steamboat traffic, Gibbons, 22 U.S. 1; trafficking of lottery tickets across state lines, The Lottery Case, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492 (1903); and carrying a woman across state lines for "immoral purposes," Hoke v. United States, 227 U.S. 308, 320, 33 S.Ct. 281, 283, 57 L.Ed. 523 (1913). Through the Commerce Clause, Congress may prevent the interstate transportation of liquor, United States v. Simpson, 252 U.S. 465, 40 S.Ct. 364, 64 L.Ed. 665 (1920); punish an automobile thief who crosses state lines, Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699 (1925); and prevent diseased herds of cattle from bringing their contagion from Georgia to Florida, Thornton v. United States, 271 U.S. 414, 46 S.Ct. 585, 70 L.Ed. 1013 (1926).
In the modern era, the Commerce Clause has been used to regulate labor practices, Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615; impose minimum working conditions, Darby, 312 U.S. 100, 61 S.Ct. 451; limit the production of wheat for home consumption, Wickard, 317 U.S. Ill, 63 S.Ct. 82; regulate the terms of insurance contracts, South-Eastern Underwriters, 322 U.S. 533, 64 S.Ct. 1162; prevent discrimination in hotel accommodations, Heart of Atlanta Motel, 379 U.S. 241, 85 S.Ct. 348, and restaurant services, Katzenbach, 379 U.S. 294, 85 S.Ct. 377; and prevent the home production of marijuana for medical purposes, Raich, 545 U.S. 1, 125 S.Ct. 2195. What the Court has never done is interpret the Commerce Clause to allow Congress to dictate the financial decisions of Americans through an economic [**45] mandate.
Both the Congressional Budget Office ("CBO") and the Congressional Research Service ("CRS") have commented on the unprecedented nature of the individual mandate. When the idea of an individual mandate to purchase health insurance was first floated in 1994, the CBO stated that a "mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action." SPEC. STUDIES DIV., CONG. BUDGET OFFICE, THE BUDGETARY TREATMENT OF AN INDIVIDUAL MANDATE TO BUY HEALTH INSURANCE 1 (1994) [hereinafter CBO MANDATE MEMO]. The CBO observed that Congress "has never required people to buy any good or service as a condition of lawful residence in the United States," noting that "mandates typically apply to people as parties to economic transactions, rather than as members of society." Id. at 1-2. Meanwhile, in reviewing the present legislation in 2009, the CRS warned:
Despite the breadth of powers that have been exercised under the Commerce Clause, it is unclear whether the clause would provide a solid constitutional foundation for legislation containing a requirement to have health insurance. [*1289]
Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service.
JENNIFER STAMAN & CYNTHIA BROUGHER, CONG. RESEARCH SERV., R. 40725, REQUIRING INDIVIDUALS TO OBTAIN HEALTH INSURANCE: A CONSTITUTIONAL ANALYSIS 3 (2009).
The fact that Congress has never before exercised this supposed authority is telling. As the Supreme Court has noted, "the utter lack of statutes imposing obligations on the States' executive (notwithstanding the attractiveness of that course to Congress), suggests an assumed absence of such power." Printz, 521 U.S. at 907-08, 117 S.Ct. at 2371; see also Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. ___, ___, 131 S.Ct. 1632, 1641, 179 L.Ed.2d 675 (2011) ("Lack of historical precedent can indicate a constitutional infirmity."); Alden v. Maine, 527 U.S. 706, 743-44, 119 S.Ct. 2240, 2261, 144 L.Ed.2d 636 (1999). Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products. Yet even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority. Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle.[fn87] See Printz, 521 U.S. at 905, 117 S.Ct. at 2370 ("[I]f . . . earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist.").
Traditionally, Congress has sought to encourage commercial activity it favors while discouraging what it does not. This is instructive. Not only have prior congressional actions not asserted the power now claimed, they "contain some indication of precisely the opposite assumption." Id. at 910, 117 S.Ct. at 2372. Instead of requiring action, [**46] Congress has sought to encourage it. The instances of such encouragement are ubiquitous, but the example of flood insurance provides a particularly relevant illustration of how the individual mandate departs from conventional exercises of congressional power.
In passing the National Flood Insurance Act of 1968, Congress recognized that "from time to time flood disasters have created personal hardships and economic distress which have required unforeseen disaster relief measures and have placed an increasing burden on the Nation's resources." 42 U.S.C. § 4001(a)(1). Despite considerable expenditures on public programs designed to prevent floods, those programs had "not been sufficient to protect adequately against growing exposure to future flood losses." Id. § 4001(a)(2). In response to this problem, however, Congress did not require everyone who owns a house in a flood plain to purchase flood insurance. In fact, Congress did not even require anyone who chooses to build a new house in a flood plain to buy insurance. Rather, Congress created a series of incentives designed to encourage voluntary purchase of flood insurance. These incentives included requiring flood insurance before the home owner could receive federal financial assistance or federally regulated loans. See id. § 4012a(a), (b)(1). [*1290]
Without an "individual mandate," the flood insurance program has largely been a failure. See Bryant J. Spann, Note, Going Down for the Third Time: Senator Kerry's Reform Bill Could Save the Drowning National Flood Insurance Program, 28 GA. L. REV. 593, 597 (1994) ("One of the most astounding facts to surface from the Midwestern flood of 1993 was that so few homeowners eligible for flood insurance actually had it. Of the states impacted by the flood, Illinois had the highest percentage of eligible households covered, with 8.7%."). One key reason for this low participation is not surprising. "Disaster relief, as a political issue, is almost invincible. No politician wants to be on record as opposing disaster relief, particularly for his or her own constituents." Id. at 602. People living in a flood plain know that even if they do not have insurance, they can count on the virtually guaranteed availability of federal funds.[fn88] Nevertheless, despite the unpredictability of flooding, the inevitability that floods will strike flood plains, and the cost shifting inherent in uninsured property owners seeking disaster relief funds, Congress has never taken the obvious and expedient step of invoking the power the government now argues it has and forcing all property owners in flood plains to purchase insurance.[fn89]
Contrast flood insurance with the very few instances of activity in which Congress has compelled Americans to engage solely as a consequence of being citizens living in the United States. Given the attractiveness of the power to compel behavior in order to solve important problems, we find it illuminating that Americans have, historically, been subject only to a limited set of personal mandates: serving on juries, registering for the draft, filing [**47] tax returns, and responding to the census. These man-dates are in the nature of duties owed to the government attendant to citizenship, and they contain clear foundations in the constitutional text.[fn90] Additionally, all these mandates involve a citizen directly interacting with the government, whereas the individual mandate requires an individual to enter into a compulsory contract with a private company. In these respects, the individual mandate is a sharp departure from all prior exercises of federal power.
The draft is an excellent example of this sort of duty, particularly as it is one upon which the Supreme Court has spoken. In the Selective Draft Law Cases, the Supreme Court reviewed challenges to the draft instituted in 1917 upon the entry of the United States into World War I. 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918). The Court rejected these challenges on several grounds, primarily based on the long history of the draft both in the United States and other nations. Id. at 379-87, 38 S.Ct. at 162-64. But it also pointed to the relationship between citizens and government: "It may not be doubted that the very [c]onception of a just government and its duty to the citizen includes the reciprocal [*1291] obligation of the citizen to render military service in case of need and the right to compel it." Id. at 378, 38 S.Ct. at 161.
It is striking by comparison how very different this economic mandate is from the draft. First, it does not represent the solution to a duty owed to the government as a condition of citizenship. Moreover, unlike the draft, it has no basis in the history of our nation, much less a long and storied one. Until Congress passed the Act, the power to regulate commerce had not included the authority to issue an economic mandate. Now Congress seeks not only the power to reach a new class of "activity" — financial decisions whose effects are felt some time in the future — but it wishes to do so through a heretofore untested power: an economic mandate.
Having established the unprecedented nature of the individual mandate and the lack of any Supreme Court case addressing this issue, we are left to apply some basic Commerce Clause principles derived largely from Wickard, Lopez, Morrison, and Raich.
D. Wickard and Aggregation
It is not surprising that Wickard, which the Lopez Court considered "perhaps the most far reaching example of Commerce Clause authority over intrastate activity,"[fn91] 514 U.S. at 560, 115 S.Ct. at 1630, provides perhaps the best perspective on an economic mandate. Congress's restrictions on Roscoe Filburn's wheat acreage potentially forced him to purchase wheat on the open market. In doing so, Congress was able to artificially inflate the price of wheat by simultaneously decreasing supply and increasing demand. But Wickard is striking not for its similarity to our present case, but in how different it is. Although Wickard represents the zenith of Congress's powers under the Commerce Clause, the wheat regulation therein is remarkably less intrusive than the individual mandate.
Despite the fact that Filburn was a commercial farmer[fn92] and thus far more amenable to Congress's commerce power than an ordinary [**48] citizen, the legislative act did not require him to purchase more wheat. Instead, Filburn had any number of other options open to him. He could have decided to make do with the amount of wheat he was allowed to grow. He could have redirected his efforts to agricultural endeavors that required less wheat. He could have even ceased part of his farming operations. The wheat-acreage regulation imposed by Congress, even though it lies at the outer bounds of the commerce power, was a limitation — not a mandate — and left Filburn with a choice. The Act's economic mandate to purchase insurance, on the contrary, leaves no choice and is more far-reaching.
Although this distinction appears, at first blush, to implicate liberty concerns not at issue on appeal, [fn93] in truth it strikes at the heart of whether Congress has acted within its enumerated power. Individuals subjected to this economic mandate [*1292] have not made a voluntary choice to enter the stream of commerce, but instead are having that choice imposed upon them by the federal government. This suggests that they are removed from the traditional subjects of Congress's commerce authority, in the same manner that the regulated actors in Lopez and Morrison were removed from the traditional subjects of Congress's commerce authority by virtue of the noneconomic cast of their activity.
This departure from commerce power norms is made all the more salient when we consider principles of aggregation, the chief addition of Wickard to the Commerce Clause canon. Aggregation may suffice to bring otherwise non-regulable, "trivial" instances of intrastate activity within Congress's reach if the cumulative effect of this class of activity (i.e., the intrastate activity "taken together with that of many others similarly situated") substantially affects interstate commerce. Wickard, 317 U.S. at 127-28, 63 S.Ct. at 90. Aggregation is a doctrine that allows Congress to apply an otherwise valid regulation to a class of intrastate activity it might not be able to reach in isolation.[fn94]
In Morrison and Lopez, the Supreme Court declined to apply aggregation to the noneconomic activity at issue, reasoning that "in every case where we have sustained federal regulation under the aggregation principle in [Wickard], the regulated activity was of an apparent commercial character." Morrison, 529 U.S. at 611 n. 4, 120 S.Ct. at 1750 n. 4. The Court thereby resisted "additional expansion" of the substantial effects and aggregation doctrines. Lopez, 514 U.S. at 567, 115 S.Ct. at 1634.
The question before us is whether Congress may regulate individuals outside the stream of commerce, on the theory that those "economic and financial decisions" to avoid commerce themselves substantially affect interstate commerce. Applying aggregation principles to an individual's decision not to purchase a product would expand the substantial effects doctrine to one of unlimited scope. Given the economic reality of our national marketplace, any person's decision not to purchase a good would, when aggregated, substantially affect interstate commerce in that good.[fn95] From a doctrinal standpoint, we see no way to cabin [**49] the government's theory only to decisions not to purchase health insurance. If an individual's mere decision not to purchase insurance were subject to Wickard's aggregation principle, we are unable to conceive of any product whose purchase Congress could not mandate under this line of argument.[fn96] Although any decision not to purchase a good or service entails commercial consequences, this does [*1293] not warrant the facile conclusion that Congress may therefore regulate these decisions pursuant to the Commerce Clause. See id. at 580, 115 S.Ct. at 1640 (Kennedy, J., concurring) ("In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far.").
Thus, even assuming that decisions not to buy insurance substantially affect interstate commerce, that fact alone hardly renders them a suitable subject for regulation. See, e.g., Morrison, 529 U.S. at 617, 120 S.Ct. at 1754 ("We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce." (emphasis added)). Instead, what matters is the regulated subject matter's connection to interstate commerce. That nexus is lacking here. It is immaterial whether we perceive Congress to be regulating inactivity or a financial decision to forego insurance. Under any framing, the regulated conduct is defined by the absence of both commerce or even "the production, distribution, and consumption of commodities" — the broad definition of economics in Raich. 545 U.S. at 25, 125 S.Ct. at 2211. To connect this conduct to interstate commerce would require a "but-for causal chain" that the Supreme Court has rejected, as it would allow Congress to regulate anything. Morrison, 529 U.S. at 615, 120 S.Ct. at 1752.
E. Broad Scope of Congress's Regulation
The scope of Congress's regulation also affects the constitutional inquiry. Indisputably, the health insurance and health care industries involve, and substantially affect, interstate commerce, and Congress can regulate broadly in both those realms. Nonetheless, Congress, in exercising its commerce authority, must be careful not to sweep too broadly by including within the ambit of its regulation activities that bear an insufficient nexus with interstate commerce. See Morrison, 529 U.S. at 613 & n. 5, 120 S.Ct. at 1751-52 & n. 5 (distinguishing invalidated statute from analogous statute requiring explicit interstate nexus); Lopez, 514 U.S. at 561-62, 115 S.Ct. at 1631 (same).
In this regard, the individual mandate's attempt to reduce the number of the uninsured and correct the cost-shifting problem is woefully overinclusive. The language of the mandate is not tied to those who do not pay for a portion of their health care (i.e., the cost-shifters). It is not even tied to those who consume health care. Rather, the language of the man-date is unlimited, and covers even those who do not enter the health care market at all. Although overinclusiveness may not be fatal for constitutional purposes, the Supreme Court has indicated that it is a factor to be added to the constitutional equation.
For example, in Lopez the vast majority of the regulated behavior ([**50] firearm possession) did possess an interstate character.[fn97] [*1294] However, the Supreme Court ultimately found this fact insufficient to save the statute. Rather, the Supreme Court commented that an interstate-tying element in the statute itself "would ensure, through case-by-case inquiry, that the [activity] in question affects interstate commerce."[fn98] Lopez, 514 U.S. at 561, 115 S.Ct. at 1631.
Here, the decision to forego insurance similarly lacks an established interstate tie or any "case-by-case inquiry." See id. Aside from the categories of exempted individuals, the individual mandate is applied across-the-board without regard to whether the regulated individuals receive, or have ever received, uncompensated care — or, indeed, seek any care at all, either now or in the future.[fn99] Thus, the Act contains no language "which might limit its reach to a discrete set of [activities] that additionally have an explicit connection with or effect on interstate commerce." See id. at 562, 115 S.Ct. at 1631.
The individual mandate sweeps too broadly in another way. Because the Supreme Court's prior Commerce Clause cases all deal with already-existing activity — not the mere possibility of future activity (in this case, health care consumption) that could implicate interstate commerce — the Court never had to address any temporal aspects of congressional regulation. However, the premise of the government's position — that most people will, at some point in the future, consume health care — reveals that the individual mandate is even further removed from traditional exercises of Congress's commerce power.[fn100]
It is true that Congress may, in some instances, regulate individuals who are consuming health care but not themselves causing the cost-shifting problem. Cf. Raich, 545 U.S. at 17, 125 S.Ct. at 2206 ("We have never required Congress to legislate with scientific exactitude."); id. at 22[*1295] , 125 S.Ct. at 2209 ("That the regulation ensnares some purely intrastate activity is of no moment."). As the plaintiffs acknowledged at oral argument, when the uninsured actually enter the stream of commerce and consume health care, Congress may regulate their activity at the point of consumption.
But the individual mandate does not regulate behavior at the point of consumption. Indeed, the language of the individual mandate does not truly regulate "how and when health care is paid for." 42 U.S.C. § 18091(a)(2)(A). It does not even require those who consume health care to pay for it with insurance when doing so. Instead, the language of the individual mandate in fact regulates a related, but different, subject matter: "when health insurance is purchased." Id. If an individual's participation in the health care market is uncertain, their participation in the insurance market is even more so.
In sum, the individual mandate is breathtaking in its expansive scope. It regulates those who have not entered the health care market at all. It regulates those who have entered the health care market, but have not entered the insurance market (and have no intention of doing so). It is overinclusive in when it regulates: it conflates those who presently consume health care with those who will not consume health care [**51] for many years into the future. The government's position amounts to an argument that the mere fact of an individual's existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life. This theory affords no limiting principles in which to confine Congress's enumerated power.
F. Government's Proposed Limiting Principles
"We pause to consider the implications of the Government's arguments." Lopez, 514 U.S. at 564, 115 S.Ct. at 1632. The government clearly appreciates the far-reaching implications of the individual mandate. The government has struggled to avoid the conclusion that Congress may order Americans' other economic decisions through the use of economic mandates. At oral argument, the government's counsel specifically disclaimed the argument that Congress could compel a person to purchase insurance solely on the basis of his financial decision to spend his money else-where. Rather, the government seems to view an economic mandate as an emergency tool of sorts, for use in extreme and unique situations and only to the extent the underlying regulated conduct meets a number of fact-based criteria.
The government submits that health care and health insurance are factually unique and not susceptible of replication due to: (1) the inevitability of health care need; (2) the unpredictability of need; (3) the high costs of health care; (4) the federal requirement that hospitals treat, until stabilized, individuals with emergency medical conditions, regardless of their ability to pay;[fn101] (5) and associated cost-shifting.
The first problem with the government's proposed limiting factors is their lack of constitutional relevance.[fn102] These five [*1296] factual criteria comprising the government's "uniqueness" argument are not limiting principles rooted in any constitutional understanding of the commerce power. Rather, they are ad hoc factors that — fortuitously — happen to apply to the health insurance and health care industries. They speak more to the complexity of the problem being regulated than the regulated decision's relation to interstate commerce. They are not limiting principles, but limiting circumstances.
Apparently recognizing that these factors appear in many subjects worthy of regulation, the government acknowledged at oral argument that the mere presence of many of these factors is not sufficient. Presented with three examples of industries characterized by some or all of these market deficiencies — elder care, other types of insurance, and the energy market — the government argued that an economic mandate in these three settings is distinguishable.
However, virtually all forms of insurance entail decisions about timing and planning for unpredictable events with high associated costs — insurance protecting against loss of life, disability from employment, business interruption, theft, flood, tornado, and other natural disasters, long-term nursing care requirements, and burial costs. Under the government's proposed limiting principles, there is no reason [**52] why Congress could not similarly compel Americans to insure against any number of un-foreseeable but serious risks.[fn103] High costs and cost-shifting in premiums are simply not limited to hospital care, but occur when individuals are disabled, cannot work, experience an accident, need nursing care, die, and myriad other insurance-related contingencies.
This gives rise to a second fatal problem with the government's proposed limits: administrability. We are at a loss as to how such fact-based criteria can serve as the sort of "judicially enforceable" limitations on the commerce power that the Supreme Court has repeatedly emphasized as necessary to that enumerated power. Lopez, 514 U.S. at 566, 115 S.Ct. at 1633; see also Morrison, 529 U.S. at 608 n. 3, 120 S.Ct. at 1749 n. 3 (rejecting dissent's "remarkable theory that the commerce power is without judicially enforceable boundaries"). We are loath to invalidate an act of Congress, and do so only after extensive circumspection. But the role that the Court would take were we to adopt the position of the government is far more troublesome. Were we to adopt the "limiting principles" proffered by the government, [*1297] courts would sit in judgment over every economic mandate issued by Congress, determining whether the level of participation in the underlying market, the amount of cost-shifting, the unpredictability of need, or the strength of the moral imperative were enough to justify the mandate.
But the commerce power does not admit such limitations; rather it "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Gibbons, 22 U.S. at 196. If Congress may compel individuals to purchase health insurance from a private company, it may similarly compel the purchase of other products from private industry, regardless of the "unique conditions" the government cites as warrant for Congress's regulation here. See Government's Opening Br. at 19.
Moreover, the government's insistence that we defer to Congress's fact findings underscores the lack of any judicially enforceable stopping point to the government's "uniqueness" argument. Presumably, a future Congress similarly would be able to articulate a unique problem requiring a legislative fix that entailed compelling Americans to purchase a certain product from a private company. The government apparently seeks to set the terms of the limiting principles courts should apply, and then asks that we defer to Congress's judgment about whether those conditions have been met. The Supreme Court has firmly rejected such calls for judicial abdication in the Commerce Clause realm. See Lopez, 514 U.S. at 557 n. 2, 115 S.Ct. at 1629 n. 2 ("`[W]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.`" (quoting Heart of Atlanta Motel, 379 U.S. at 273, 85 S.Ct. at 366 (Black, J., concurring))).
At root, the government's uniqueness argument relies upon a convenient sleight of hand to deflect attention from the central issue [**53] in the case: what is the nature of the conduct being regulated by the individual mandate, and may Congress reach it? Because an individual's decision to forego purchasing a product is so incongruent with the "activities" previously reached by Congress's commerce power, the government attempts to limit the individual mandate's far-reaching implications. Accordingly, the government adroitly and narrowly redefines the regulated activity as the uninsured's health care consumption and attendant cost-shifting, or the timing and method of payment for such consumption.[fn104]
The government's reluctance to define the conduct being regulated as the decision to forego insurance is understandable. After all, if the decision to forego purchasing a product is deemed "economic activity" (merely because it is inevitable that an individual in the future will consume in a related market), then decisions not to purchase a product would be subject to the sweeping doctrine of aggregation, and such no-purchase decisions of all Americans would fall within the federal commerce power. Consequently, the government could no longer fall back on "uniqueness" [*1298] as a limiting factor, since Congress could enact purchase mandates no matter how pedestrian the relevant product market.
As an inferior court, we may not craft new dichotomies — "uniqueness" versus "non-uniqueness," or "cost-shifting" versus "non-cost-shifting" — not recognized by Supreme Court doctrine. To do so would require us to fabricate out of whole cloth a five-factor test that lacks any antecedent in the Supreme Court's Commerce Clause jurisprudence. Thus, not only do the "uniqueness" factors lack judicial administrability, present Commerce Clause doctrine prohibits inferior courts, like us, from applying them anyway.
Ultimately, the government's struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none.
G. Congressional Findings
This brings us to the congressional findings. See 42 U.S.C. § 18091(a)(1)-(3). We look to congressional findings to help us "evaluate the legislative judgment that the activity in question substantially affected interstate commerce." Lopez, 514 U.S. at 549, 115 S.Ct. at 1632.
Here, tracking the language of Supreme Court decisions, the congressional findings begin with the statement that the individual insurance mandate "is commercial and economic in nature" and "substantially affects interstate commerce." 42 U.S.C. § 18091(a)(1). Of course, the relevant inquiry is not whether the regulation itself substantially affects interstate commerce but rather whether the underlying activity being regulated substantially affects interstate commerce.
Later on, the findings do ground the individual mandate in Congress's effort to address this multistep cost-shifting scenario: (1) some uninsureds consume health care; (2) in turn, some of them do not pay their full medical costs and instead shift them to medical providers; (3) medical providers thereafter shift these costs to "private insurers"; and (4) private insurers then shift them to insureds [**54] through higher premiums.[fn105] Id. § 18091(a)(2). The average annual premium increase is $1,000 for insured families, id. and $400 for individuals.[fn106] The findings state that the mandate will reduce the number of the uninsured and the $43 billion cost-shifting and thereby "lower health insurance premiums."[fn107] Id. § 18091(a)(2)(F).
Of course, "the existence of congressional findings is not sufficient, by it-self, to sustain the constitutionality of Commerce Clause legislation." Morrison, 529 U.S. at 614, 120 S.Ct. at 1752. Rather, the Supreme Court has insisted that courts examine congressional findings regarding substantial effects. See Lopez, 514 U.S. at 557 n. 2, 115 S.Ct. at 1629 n. 2 ("`[S]imply because Congress may conclude that a particular activity substantially [*1299] affects interstate commerce does not necessarily make it so.`" (quoting Hodel, 452 U.S. at 311, 101 S.Ct. at 2391 (Rehnquist, J., concurring))).
As a preliminary matter, we recount what the record reveals regarding the cost-shifting effects of the uninsured. To the extent the data show anything, the data demonstrate that the cost-shifters are largely persons who either (1) are exempted from the mandate, (2) are excepted from the mandate penalty, or (3) are now covered by the Act's Medicaid expansion.
For example, illegal aliens and other nonresidents are cost-shifters ($8.1 billion, or 18.9% of the $43 billion), [fn108] but they are exempted from the individual mandate entirely. 26 U.S.C. § 5000A(d)(3). Low-income persons are the largest segment of cost-shifters ($15 billion, or 34.8% of the $43 billion), [fn109] but they are covered by the Act's Medicaid expansion or excepted from the mandate penalty. Id. § 5000A(e)(1), (2) (excepting individuals (1) whose premium contribution exceeds 8% of household income or (2) whose household income is below the specified income tax filing threshold). Previously, the uninsured with preexisting health conditions sought, but were denied, coverage and ended up in the cost-shifting pool ($8.7 billion, or 20.1%).[fn110] However, the Act's insurance reforms now guarantee them coverage and move them out of the future cost-shifting pool. Already-insured persons who do not pay their out-of-pocket costs (such as co-payments and deductibles) are cost-shifters ($3.3 billion, or 7.6%), [fn111] but they are already covered by insurance without the mandate. In addition, the cost-shifter uninsureds who cannot pay the average $2,000 medical bill also cannot pay the average $4,500 premium, [fn112] yielding another disconnect.
In reality, the primary persons regulated by the individual mandate are not cost-shifters but healthy individuals who forego purchasing insurance. The Act confirms as much. To help private insurers, the congressional findings acknowledge that the individual mandate seeks to "broaden the health insurance risk pool to include healthy individuals," to "minimize adverse selection,"[fn113] to increase "the size of purchasing pools," and to promote "economies of scale." 42 U.S.C. § 18091(a)(2)(I)[*1300] , (J). The individual man-date forces healthy and voluntarily uninsured individuals to purchase insurance from private insurers and pay premiums now in order to subsidize the private insurers' costs in covering more unhealthy individuals under the Act's reforms. Congress sought to mitigate [**55] its reforms' regulatory costs on private insurers[fn114] by compelling healthy Americans outside the insurance market to enter the private insurance market and buy the insurers' products. This starkly evinces how the Act is forcing market entry by those out-side the market.
Nevertheless, we need not, and do not, rely on the factual disparity between the persons regulated by the individual man-date and the cost-shifting problem. After all, courts "need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a `rational basis `exists for so concluding."[fn115] Raich, 545 U.S. at 22, 125 S.Ct. at 2208 (emphasis added). The government would have this be the end of the constitutional inquiry.
But the government skips important analytical steps. Rational basis review is not triggered by the mere fact of Congress's invocation of Article I power; rather, the Supreme Court has applied rational basis review to a more specific question under the Commerce Clause: whether Congress has a "rational basis" for concluding that the regulated "activities, when taken in the aggregate, substantially affect interstate commerce."[fn116] Id. (emphasis added). As discussed in subsection D, supra, courts must initially assess whether the subject matter targeted by the regulation is suitable for aggregation in the first place. Relatedly, courts, in the rational basis inquiry, must also examine whether the link between the regulated activity and interstate commerce is too attenuated, lest there be no discernible stopping point to Congress's commerce power.[fn117] See Lopez, [*1301] 514 U.S. at 562-68, 115 S.Ct. at 1630-34.
The wholesale deference the government would have us apply here cannot be squared with the Supreme Court's decisions in Morrison and Lopez. Here, "Congress' findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that [courts] have already rejected as unworkable if we are to maintain the Constitution's enumeration of powers." Morrison, 529 U.S. at 615, 120 S.Ct. at 1752. It is highly instructive that the Lopez and Morrison Courts rejected a similar cost-shifting theory now propounded by the government. In examining the actual relationship between gun possession and interstate commerce, the Lopez Court refused to accept what it referred to as the government's "cost of crime" theory. 514 U.S. at 564, 115 S.Ct. at 1632. It did so despite the government's argument that the "costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population." Id. at 563-64, 115 S.Ct. at 1632 (emphasis added).
Similarly, in Morrison the Supreme Court considered a stockpile[fn118] of congressional findings attesting to the link between domestic violence and medical costs frequently borne by third parties. See, e.g., 529 U.S. at 629-36, 120 S.Ct. at 1760-64 (Souter, J., dissenting); see also id. at 632, 120 S.Ct. at 1762 (`"Over 1 million women in the United States seek medical assistance each year for injuries sustained [from] their husbands or other partners.`" (quoting S.Rep. No. 101-545, at 37 (1990))); id. (" `[E]stimates suggest that we spend $5 to $10 billion a year on health care, criminal justice, and other social costs of domestic violence.`" ([**56] quoting S.Rep. No. 103-138, at 41 (1993))).
In Morrison, the Supreme Court also recounted Congress's express finding that gender-motivated violence substantially affected interstate commerce "`by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; . . . by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.`" Id. at 615, 120 S.Ct. at 1752 (majority opinion) (emphasis added) (quoting H.R. Conf. Rep. No. 103-711, at 385 (1994)). The Morrison Court did not dispute the above figures about medical costs, but instead considered them largely extraneous to the threshold question of whether the subject matter of the regulation had a sufficient nexus to interstate commerce. See id. at 617, 120 S.Ct. at 1754. [*1302]
In both Lopez and Morrison, the Supreme Court determined that the government's cost-shifting argument provided too attenuated a link to Congress's commerce power. Under such a cost-shifting theory, "it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign." Lopez, 514 U.S. at 564, 115 S.Ct. at 1632.
For example, we harbor few doubts that an individual's decisions about "marriage, divorce, and child custody," if aggregated, would have substantial effects on interstate commerce. See id. at 564, 115 S.Ct. at 1632. Yet, the mere fact of an activity's substantial effects on interstate commerce does not thereby render that activity an appropriate subject for Congress's plenary commerce authority. Such a holding would require the Supreme Court to over-turn Lopez and Morrison.
We see no reason why the inferential leaps in this case are any less attenuated than those in Lopez and Morrison. The cost-shifting accompanying the criminal acts of violence at issue in Lopez and Morrison — hospital bills borne by third parties, property damage and insurance consequences, law enforcement expenditures and incarceration costs — is at least as apparent as the multi-step cost-shifting scenario associated with the medically uninsured. Meanwhile, in all three cases, the regulated conduct giving rise to the cost-shifting is divorced from a commercial transaction or the "production, distribution, and consumption of commodities." Raich, 545 U.S. at 26, 125 S.Ct. at 2211.
At best, we can say that the uninsured may, at some point in the unforeseeable future, create that cost-shifting consequence. Yet this readily leads to a scenario where we must "pile inference upon inference" to sustain Congress's legislation, a practice the Supreme Court admonishes us to avoid. See Lopez, 514 U.S. at 567, 115 S.Ct. at 1634. If anything, the temporal aspects present here, but not in Lopez or Morrison, render the regulated "activity" even further remote.[fn119]
We next explain how the individual man-date impairs important federalism concerns.
H. Areas of Traditional State Concern
Before examining the states' traditional role in regulating insurance and health care, we fully recognize that Congress has the [**57] power under the Commerce Clause to regulate broadly in those arenas. In fact, Congress has legislated expansively and constitutionally in the fields of insurance and health care. See, e.g., Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub.L. No. 104-191, 110 Stat. 1936 (1996); Consolidated Omnibus [*1303] Budget Reconciliation Act of 1985 ("COBRA"), Pub.L. No. 99-272, 100 Stat. 82 (1986); Employee Retirement Income Security Act of 1974 ("ERISA"), Pub.L. 93-406, 88 Stat. 829 (1974); Social Security Amendments of 1965, Pub.L. No. 89-97, 79 Stat. 286 (1965) (establishing Medicare and Medicaid); Federal Food, Drug, and Cosmetic Act, Pub.L. No. 75-717, 52 Stat. 1040 (1938). It is clear that Congress has enacted comprehensive legislation regarding health insurance and health care. The Act is another such example. Yet, the narrow constitutional question here is whether one provision — § 5000A — in that massive regulation goes too far.
For the individual mandate to be sustained, it must be enacted pursuant to a valid exercise of Article I power. It simply will not suffice to say that, because Congress has regulated broadly in a field, it may regulate in any fashion it pleases. The Constitution supplies Congress with various tools to effectuate its legislative power, but it also denies others. In assessing Congress's exercise of power, courts recognize that the structural limits embedded in the Constitution are of equal dignity to the express prohibitions — and may even be a more prevalent source of limitation. See, e.g., Comstock, 560 U.S. at ___, 130 S.Ct. at 1968 (Kennedy, J., concurring) (rejecting notion that "the Constitution's express prohibitions" are "the only, or even the principal, constraints on the exercise of congressional power" (emphasis added)).[fn120]
The Supreme Court's Commerce Clause jurisprudence emphasizes that, in assessing the constitutionality of Congress's exercise of its commerce authority, a relevant factor is whether a particular federal regulation trenches on an area of traditional state concern. See Morrison, 529 U.S. at 611, 613, 615-16, 120 S.Ct. at 1750-51, 1753; Lopez, 514 U.S. at 561 n. 3, 564-68, 115 S.Ct. at 1631 n. 3, 1632-34. The Supreme Court has expressed concern that "Congress might use the Commerce Clause to completely obliterate the Constitution's distinction between national and local authority." Morrison, 529 U.S. at 615, 120 S.Ct. at 1752; see also Raich, 545 U.S. at 35-36, 125 S.Ct. at 2216-17 (Scalia, J., concurring); Lopez, 514 U.S. at 557, 567-68, 115 S.Ct. at 1628-29, 1634; id. at 577, 115 S.Ct. at 1638-39 (Kennedy, J., concurring) (stating that if Congress were to assume control over areas of traditional state concern, "the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory. The resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power" (citation omitted)). Coupled with this consideration, the Supreme Court recognizes that the Constitution "withhold[s] from Congress a plenary police power." Lopez, 514 U.S. at 566, 115 S.Ct. at 1633; see also Morrison, 529 U.S. at 618-19, 120 S.Ct. at 1754; cf. Comstock, 560 U.S. at ___, 130 S.Ct. at 1964; id. at ___, 130 S.Ct. at 1967 [*1304] (Kennedy, J., concurring) (stating that the police power "belongs to the States and the States alone").
In addition, whether the regulated subject matter is an area of traditional state concern impacts three of the five Comstock factors pertinent to a Necessary and Proper Clause [**58] analysis: (1) whether there is a long history of federal involvement in this arena, (2) whether the statute accommodates or supplants state interests, and (3) the statute's narrow scope. 560 U.S. at ___, 130 S.Ct. at 1965.
With these principles in mind, we examine whether insurance and health care qualify as areas of traditional state concern. Prior to the Supreme Court's 1944 decision in South-Eastern Underwriters, "the States enjoyed a virtually exclusive domain over the insurance industry." St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 539, 98 S.Ct. 2923, 2928, 57 L.Ed.2d 932 (1978). Thus, South-Eastern Underwriters was "widely perceived as a threat to state power to tax and regulate the insurance industry." United States Dep't of Treasury v. Fabe, 508 U.S. 491, 499-500, 113 S.Ct. 2202, 2207, 124 L.Ed.2d 449 (1993); see also Cantor v. Detroit Edison Co., 428 U.S. 579, 608 n. 4, 96 S.Ct. 3110, 3126 n. 4, 49 L.Ed.2d 1141 (1976) (Blackmun, J., concurring) ("Congress' expressed concern [was that the result in South-Eastern Underwriters] would `greatly impair or nullify the regulation of insurance by the States,' bringing to a halt their `experimentation and investigation in the area.`"). "To allay those fears, Congress moved quickly to restore the supremacy of the States in the realm of insurance regulation." Fabe, 508 U.S. at 500, 113 S.Ct. at 2207 (emphasis added).
In 1945, a year after South-Eastern Underwriters, Congress passed the McCarran-Ferguson Act, 59 Stat. 33, ch. 20, 15 U.S.C. §§ 1011-1015.[fn121] The McCarran-Ferguson Act preserved state regulatory control over insurance, which was largely considered by Congress to be a "local matter." W. & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 653, 101 S.Ct. 2070, 2075, 68 L.Ed.2d 514 (1981) (quoting H.R. Rep. No. 143, at 2 (1945)). The passage of the McCarran-Ferguson Act signaled Congress's recognition of the states' historical role in regulating insurance within their boundaries — and its unwillingness to supplant their vital function as a source of experimentation. Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 429, 66 S.Ct. 1142, 1155, 90 L.Ed. 1342 (1946) ("Obviously Congress' purpose [in passing the McCarran-Ferguson Act] was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance."); see also Ne. Bancorp, Inc. v. Bd. of Governors of Fed. Reserve Sys., 472 U.S. 159, 179, 105 S.Ct. 2545, 2556, 86 L.Ed.2d 112 (1985) (O'Connor, J., concurring) ("The business of insurance is also of uniquely local concern. . . . [and] historically ha[s] been regulated by the States in recognition of the critical part [it] play[s] in securing the financial well-being of local citizens and businesses." (citations omitted)). Our Circuit has reached a similar conclusion. Blue Cross & Blue Shield v. Nielsen, 116 F.3d 1406, 1413 (11th Cir. 1997) ("Adjustment of the rights and interests [*1305] of insurers, health care providers, and insureds is a subject matter that falls squarely within the zone of traditional state regulatory concerns.").
Thus, insurance qualifies as an area of traditional state regulation. This recognition counsels caution, and supplies reviewing courts with even greater cause for doubt when faced with an unprecedented economic mandate of dubious constitutional status. Cf. Lopez, 514 U.S. at 583, 115 S.Ct. at 1641 (Kennedy, J., concurring) ("The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary [**59] and usual sense of that term.").
The health care industry also falls within the sphere of traditional state regulation. A state's role in safeguarding the health of its citizens is a quintessential component of its sovereign powers. The Supreme Court has declared that the "structure and limitations of federalism . . . allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons." Gonzales v. Oregon, 546 U.S. 243, 270, 126 S.Ct. 904, 923, 163 L.Ed.2d 748 (2006) (quotation marks and citation omitted). Numerous Supreme Court decisions have identified the regulation of health matters as a core facet of a state's police powers. See, e.g., Hill v. Colorado, 530 U.S. 703, 715, 120 S.Ct. 2480, 2489, 147 L.Ed.2d 597 (2000) ("It is a traditional exercise of the States' police powers to protect the health and safety of their citizens." (quotation marks and citation omitted)); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569, 111 S.Ct. 2456, 2462, 115 L.Ed.2d 504 (1991) ("The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals."); Head v. N.M. Bd. of Exam'rs in Optometry, 374 U.S. 424, 428, 83 S.Ct. 1759, 1762, 10 L.Ed.2d 983 (1963) ("[T]he statute here involved is a measure directly addressed to protection of the public health, and the statute thus falls within the most traditional concept of what is compendiously known as the police power."); Barsky v. Bd. of Regents, 347 U.S. 442, 449, 74 S.Ct. 650, 654, 98 L.Ed. 829 (1954) ("It is elemental that a state has broad power to establish and enforce standards of conduct within its borders relative to the health of everyone there. It is a vital part of a state's police power."); Jacobson v. Massachusetts, 197 U.S. 11, 25, 25 S.Ct. 358, 360, 49 L.Ed. 643 (1905) ("According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety."); see also Raich, 545 U.S. at 42, 125 S.Ct. at 2221 (O'Connor, J., dissenting) ("This case exemplifies the role of States as laboratories. The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens.").[fn122] [*1306]
Although the states and the federal government both play indispensable roles in regulating matters of health, modern Supreme Court precedents have confirmed the view that the health of a state's citizens is predominantly a state-based concern: "the regulation of health and safety matters is primarily, and historically, a matter of local concern." Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 719, 105 S.Ct. 2371, 2378, 85 L.Ed.2d 714 (1985). The Supreme Court similarly has stated that the narrower category of "health care" is an area of traditional state concern. See, e.g., Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 387, 122 S.Ct. 2151, 2171, 153 L.Ed.2d 375 (2002) (referring to "`the field of health care`" as "`a subject of traditional state regulation`" (quoting Pegram v. Herdrich, 530 U.S. 211, 237, 120 S.Ct. 2143, 2158, 147 L.Ed.2d 164 (2000))); N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 661, 115 S.Ct. 1671, 1680, 131 L.Ed.2d 695 (1995) ("[General health care regulation . . . historically has been a matter of local concern.").
Here, it is undisputed that the individual mandate supersedes a multitude of the states' policy choices in these key areas of traditional state concern. Congress's encroachment upon these areas of traditional state concern is yet another factor that weighs [**60] in the plaintiffs' favor, and strengthens the inference that the individual mandate exceeds constitutional boundaries. The inference is particularly compelling here, where Congress has used an economic mandate to compel Americans to purchase and continuously maintain insurance from a private company.
We recognize the argument that, if states can issue economic mandates, Congress should be able to do so as well. Yes, some states have exercised their general police power to require their citizens to buy certain products — most pertinently, for our purposes, health insurance itself.[fn123] But if anything, this gives us greater constitutional concern, not less. Indeed, if the federal government possesses the asserted power to compel individuals to purchase insurance from a private company forever, it may impose such a mandate on individuals in states that have elected not to employ their police power in this manner.[fn124] After all, if and when Congress actually operates within its enumerated commerce power, Congress, by virtue of the Supremacy Clause, may ultimately supplant the states. When this occurs, a state is no longer permitted to tailor its policymaking goals to the specific needs of its citizenry. This is precisely why it is critical that courts preserve constitutional boundaries and ensure that Congress only operates within the proper scope of its enumerated commerce power. [*1307]
In sum, the fact that Congress has enacted this insurance mandate in an area of traditional state concern is a factor that strengthens the inference of a constitutional violation. When this federalism factor is added to the numerous indicia of constitutional infirmity delineated above, we must conclude that the individual mandate cannot be sustained as a valid exercise of Congress's power to regulate activities that substantially affect interstate commerce.
We do not reach this conclusion lightly, and we recognize that "[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." Morrison, 529 U.S. at 607, 120 S.Ct. at 1748. But we believe a compelling showing has been made here, and "the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far." Lopez, 514 U.S. at 578, 115 S.Ct. at 1639 (Kennedy, J., concurring) (citations omitted).
I. Essential to a Larger Regulatory Scheme
We lastly consider the government's separate contention that the individual mandate is a necessary and proper exercise of Congress's commerce power because it is essential to Congress's broader regulation of the insurance and health care markets.
The government's argument derives from a Commerce Clause doctrine of recent vintage. In 1995, the Lopez Court commented that the Gun-Free School Zones Act was "not an essential part of a larger regulation of economic activity, in which the regulatory scheme [**61] could be undercut unless the intrastate activity were regulated." Id. at 561, 115 S.Ct. at 1631 (majority opinion). Ten years later in Raich, although plainly operating within the economic-noneconomic rubric adopted in Lopez and Morrison, the Supreme Court adverted to the "essential part of a larger regulation of economic activity" language in Lopez as a further reason to sustain Congress's action.[fn125] However, several features of the individual mandate materially distinguish this case from Raich and demonstrate why the government's "essential to a broader regulation of commerce" argument fails here.
First, the Supreme Court has implied that the "larger regulatory scheme" doctrine primarily implicates as-applied challenges as opposed to the facial challenge at issue here. For instance, the Supreme Court has employed the "larger regulatory scheme" doctrine when a plaintiff asserts that, although Congress's statute is a permissible regulation within its commerce power, the statute cannot be validly applied to his particular intrastate activity. Raich, 545 U.S. at 15, 23-24, 125 S.Ct. at 2204, 2209-10. In such an instance, the Supreme Court may determine that the failure to reach a plaintiffs intrastate activities would undermine Congress's efforts to police the interstate market. Id. at 28, 125 S.Ct. at 2212. However, the Supreme Court has to date never sustained [*1308] a statute on the basis of the "larger regulatory scheme" doctrine in a facial challenge, where plaintiffs contend that the entire class of activity is outside the reach of congressional power.[fn126]
On this facial versus as-applied point, the Raich Court declared that "the statutory challenges at issue in [Lopez and Morrison] were markedly different from the challenge respondents pursue in the case at hand. Here, respondents ask us to excise individual applications of a concededly valid statutory scheme. In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress' commerce power in its entirety." Id. at 23, 125 S.Ct. at 2209. The Court deemed this facial versus as-applied distinction "pivotal," as "we have often reiterated that `[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class.`" Id. (quoting Perez, 402 U.S. at 154, 91 S.Ct. at 1361). The plaintiffs here, of course, are not asking for courts to excise, as trivial, individual instances of a class — rather, the plaintiffs contend the mandate to purchase insurance from a private company falls outside of Congress's commerce power in its entirety.
But even accepting that this larger regulatory scheme doctrine fully applies in facial challenges, the government's argument still fails here. To see why, we discuss how the Supreme Court utilized the doctrine in the as-applied setting of Raich, the only instance in which a statute has been sustained by the larger regulatory scheme doctrine. The Supreme Court in Raich observed that, in enacting the CSA, "Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled [**62] substance except in a manner authorized by the CSA." Id. at 13, 125 S.Ct. at 2203 (emphasis added). By classifying marijuana as a Schedule I drug, Congress sought to eliminate all interstate traffic in the commodity. The Supreme Court concluded that "the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety." Id. at 19, 125 S.Ct. at 2207 (emphasis added).
Additionally, the fungible nature of the commodity — i.e., the inability to distinguish intrastate marijuana from interstate marijuana — also undermined Congress's ability to enforce its concededly valid total CSA ban on commercial transactions in the interstate market. The Raich Court stated that "[g]iven the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA."[fn127] Id. at 22, [*1309] 125 S.Ct. at 2209 (citation omitted) (emphasis added). Consequently, the Raich Court determined that Congress's regulation was justified by the possibility that the plaintiffs' intrastate activities could frustrate or impede a validly enacted congressional statute regulating interstate commerce.
In this case, the government contends that the individual mandate is essential to its broader regulation of the insurance market. For example, the government submits that Congress's insurance industry reforms — specifically, its community-rating and guaranteed-issue reforms — will encourage individuals to delay purchasing private insurance until an acute medical need arises. Therefore, the government argues that unless the individual mandate forces individuals into the private insurance pool before they get sick or injured, Congress's insurance industry reforms will be unsustainable by the private insurance companies. The government emphasizes that the congressional findings state that the individual mandate "is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold." 42 U.S.C. § 18091(a)(2)(I).
We first note the truism that the mere placement of a particular regulation in a broader regulatory scheme does not, ipso facto, somehow render that regulation essential to that scheme. It would be nonsensical to suggest that, in announcing its "larger regulatory scheme" doctrine, the Supreme Court gave Congress carte blanche to enact unconstitutional regulations so long as such enactments were part of a broader, comprehensive regulatory scheme. We do not construe the Supreme Court's "larger regulatory scheme" doctrine as a magic words test, where Congress's statement that a regulation is "essential" thereby immunizes its enactment from constitutional inquiry. Such a reading would [**63] eviscerate the Constitution's enumeration of powers and vest Congress with a general police power.
Ultimately, we conclude that the Supreme Court's "larger regulatory scheme" doctrine embodies an observation put forth in the New Deal case of Jones & Laughlin Steel Corp.: "Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control." 301 U.S. at 37, 57 S.Ct. at 624 (emphasis [*1310] added). Justice Scalia's concurring opinion in Raich suggests a similar interpretation. There, he stated that the "larger regulatory scheme" statement in Lopez "referred to those cases permitting the regulation of intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.`" Raich, 545 U.S. at 36, 125 S.Ct. at 2217 (Scalia, J., concurring) (emphasis added) (quoting United States v. Wrightwood Dairy Co., 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86 L.Ed. 726 (1942)). In other words, the Necessary and Proper Clause enables Congress in some instances to reach intra-state activities that markedly burden or obstruct Congress's ability to regulate interstate commerce.
In Raich, the plaintiffs' intrastate activities — growing and consuming marijuana — obstructed and burdened Congress's total CSA ban on interstate marijuana traffic, both because the fungible nature of marijuana frustrated Congress's ability to police the interstate market and because evidence indicated that intrastate marijuana is often diverted into the interstate market. Yet it is evident that the conduct regulated by the individual mandate — an individual's decision not to purchase health insurance and the concomitant absence of a commercial transaction — in no way "burdens" or "obstructs" Congress's ability to enforce its regulation of the insurance industry. Congress's statutory reforms of health insurance products — such as guaranteed issue and community rating — do not reference or make their implementation in any way dependent on the individual mandate.
The individual mandate does not remove an obstacle to Congress's regulation of insurance companies. An individual's uninsured status in no way interferes with Congress's ability to regulate insurance companies. The uninsured and the individual mandate also do not prevent insurance companies' regulatory compliance with the Act's insurance reforms. At best, the individual mandate is designed not to enable the execution of the Act's regulations, but to counteract the significant regulatory costs on insurance companies and adverse consequences stemming from the fully executed reforms. That may be a relevant political consideration, but it does not convert an unconstitutional regulation (of an individual's decision to forego purchasing an expensive product) into a constitutional means to ameliorate adverse cost consequences on private insurance companies engendered by Congress's broader regulatory reform [**64] of their health insurance products.[fn128]
The government's assertion that the individual mandate is "essential" to Congress's broader economic regulation is further undermined by components of the Act itself. In Raich, Congress devised a "closed regulatory system," id. at 13, 125 S.Ct. at 2203, designed to eliminate all interstate marijuana traffic. Here, by contrast, Congress itself carved out eight broad exemptions and exceptions to the individual mandate (and its penalty) that impair its scope and functionality. See [*1311] 26 U.S.C. § 5000A(d)-(e). Even if the individual mandate remained intact, the "adverse selection" problem identified by Congress would persist not only with respect to these eight broad exemptions, but also with respect to those healthy persons who choose to pay the mandate penalty. Those who pay the penalty one year instead of purchasing insurance may still get sick the next year and then decide to purchase insurance, for which they could not be denied.
Additionally, Congress has hamstrung its own efforts to ensure compliance with the mandate by opting for toothless enforcement mechanisms. Eschewing the IRS's traditional enforcement tools, the Act waives all criminal penalties for non-compliance and prevents the IRS from using liens or levies to collect the penalty. Id. § 5000A(g)(2). Thus, to the extent the uninsureds' ability to delay insurance purchases would leave a "gaping hole" in Congress's efforts to reform the insurance market, Congress has seen fit to bore the hole itself.
For these reasons, we conclude that the individual mandate contained in the Act exceeds Congress's enumerated commerce power. This conclusion is limited in scope. The power that Congress has wielded via the Commerce Clause for the life of this country remains undiminished. Congress may regulate commercial actors. It may forbid certain commercial activity. It may enact hundreds of new laws and federally-funded programs, as it has elected to do in this massive 975-page Act. But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.
It cannot be denied that the individual mandate is an unprecedented exercise of congressional power. As the CBO observed, Congress "has never required people to buy any good or service as a condition of lawful residence in the United States." CBO MANDATE MEMO, supra p. 115, at 1. Never before has Congress sought to regulate commerce by compelling non-market participants to enter into commerce so that Congress may regulate them. The statutory language of the man-date is not tied to health care consumption — past, present, or in the future. Rather, the mandate is to buy insurance now and forever. The individual mandate does not wait for market entry.
Because the Commerce Clause is an enumerated power, the Supreme Court's decisions all emphasize the need for judicially enforceable limitations on its exercise. The individual mandate embodies no such limitations, [**65] at least none recognized by extant Commerce Clause doctrine. If an individual's decision not to purchase an expensive product is subject to the sweeping doctrine of aggregation, then that purchase decision will almost always substantially affect interstate commerce. The government's five factual elements of "uniqueness," proposed as constitutional limiting principles, are nowhere to be found in Supreme Court precedent. Rather, they are ad hoc, devoid of constitutional substance, incapable of judicial administration — and, consequently, illusory. The government's fact-based criteria would lead to expansive involvement by the courts in congressional legislation, requiring us to sit in judgment over when the situation is serious enough to justify an economic mandate.
This lack of limiting principles also implicates two overarching considerations within the Supreme Court's Commerce Clause jurisprudence: (1) preserving the [*1312] federal-state balance and (2) withholding from Congress a general police power. Morrison, 529 U.S. at 617-19, 120 S.Ct. at 1754; Lopez, 514 U.S. at 566-68, 115 S.Ct. at 1633-34; Jones & Laughlin Steel Corp., 301 U.S. at 30, 57 S.Ct. at 621. These concerns undergird the Constitution's dual sovereignty structure, ensuring that the federal government remains a government of enumerated powers.
As demonstrated at length throughout our opinion, Congress has broad power to deal with the problems of the uninsured, and it wielded that power pervasively in this comprehensive and sweeping Act. As to the individual mandate provision, however, Congress exceeded its enumerated commerce power. The structure of the Constitution interposes obstacles by design, in order to prevent the arrogation of power by one branch or one sovereign. See Gregory, 501 U.S. at 458, 111 S.Ct. at 2400 ("Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front."). We cannot ignore these structural limits on the Commerce Clause because of the seriousness and intractability of the problem Congress sought to resolve in the Act.
The Supreme Court has often found itself forced to strike down congressional enactments even when the law is designed to address particularly difficult and universally acknowledged problems. For instance, in Clinton v. City of New York, 52A U.S. 417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998), the Supreme Court addressed a problem of Congress's own creation — deficit spending. The Line Item Veto Act was "of first importance, for it seems undeniable the Act will tend to restrain persistent excessive spending." Id. at 449, 118 S.Ct. at 2108 (Kennedy, J., concurring). The problem the act addressed was momentous: "A nation cannot plunder its own treasury without putting its Constitution and its survival in peril." Id.
Nevertheless, the Supreme Court invalidated the Line Item Veto Act, recognizing that the Constitution establishes restraints on the power of Congress to act, even in regards to the mechanism by which it withholds or allocates [**66] funding. The fact that constitutional tools sometimes "prove insufficient] cannot validate an otherwise unconstitutional device" because "[t]he Constitution's structure requires a stability which transcends the convenience of the moment." Id. at 453, 118 S.Ct. at 2110; see also New York v. United States, 505 U.S. at 178, 112 S.Ct. at 2429 (noting that "[n]o matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority" to supersede its constitutionally imposed boundaries); INS v. Chadha, 462 U.S. 919, 958-59, 103 S.Ct. 2764, 2788, 77 L.Ed.2d 317 (1983) ("In purely practical terms, it is obviously easier for action to be taken by one House without submission to the President; but it is crystal clear from the records of the Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency.").