I’m normally a Huge advocate for brevity in these posts… but because I think its unlikely people will read substantial parts of this document, or that it is more likely to be read with less friction, this one is a whopper, and is getting longer by the hour. [disclaimer: I’m no law expert. Far from it. If something herein is incorrect, let me know. I’m trying to be over abundantly citatious (my new word) to make up for my lack of political fluency… I’m writing this mostly for my personal understanding of the goings on.]
This post is broken up into 7 parts: 1) Initial Summary, 2) Laying the groundwork, 3) Roberts on Taxation, 4) The Irony, 5) The Bishops Response, 6) On Roberts rebuttal of the interstate commerce defense 7) Ending thoughts.
Or go read the document for yourself. If its not painfully apparent by the end of this post, I would rather you go read from the real thing, and educate yourself. Then go have a beer with a lawyer friend to translate for you. ( I did, and it helps. )
7) End thoughts (moved to the front):
- A very narrow definition of regulating interstate commerce was clearly made. You can’t be by law compelled to act (purchase a product). This seems to be pretty definitive and is hugely important.
- He ruled that since the penalty for refusing to comply with the individual mandate functions like a tax, is collected by the IRS, and was so argued by the Justice Department in the oral arguments, then we should call it a tax.
- Congress has the authority to tax, so he simply deferred to congress here. The taxing ability of congress is already large, so it didn’t do anything outrageous there.
- The Supreme Court will only stop Congress if they have chosen some illegitimate means. However unsavory, if legitimate, we reap what we sow with our congressional votes.
- I think Chief Justice Roberts called it like he saw it. Roberts forced the hand of supports of the law. The supporters of the reform have to defend the PPACA as a massive tax increase and only as a tax increase. There is reasonable claim to make that we were repeatedly and strongly lied to about this. (No word mincing. I mean lied to. Read “the irony” section for my reasoning which you are welcome to disagree with.) Ole’ bait and switch.
- The HHS Mandate and ACA are two different debates. The Bishops have not challenged the constitutionality of the overall health care reform. They are in favor of truly life-affirming legislation, and part of the ACA does this. Not all, but part does.
- Possibly most importantly… states can decline to participate in Obama-care without penalty of losing existing medicare aid. If states take money, then the government can tell them how to use it, but the government can’t remove existing funding from states who refuse to comply with this law. I have no idea how this will play out, but it seems to cut this off at the ankles. (Someone fill me in on this last part here.)
1) Initial Summary:
This morning (June 28th) the Supreme Court gave its ruling via slip opinion on the PPACA (Patient Protection and Affordable Care Act). In short, the core of the act stands, not as a mandate that Americans buy insurance, but that they be taxed if they don’t, (the key is it’s tax definition), and does not violate the constitution since congress has the power to tax and spend. The law will, as it currently stands, go into effect as scheduled on January 1st, 2014. For those with no patience, see you later. The rest is just details… Onward comrades, into the deep!
- The supreme court hears cases to determine a laws constitutionality.
- The Individual Mandate should not be conflated with the HHS Mandate about contraception, sterilization, and early abortion.
- The HHS Mandate (which goes into effect August 1) was not being disputed today, though as a part of the overall healthcare law, if the entire ACA were overturned the HHS Mandate would have gone down with it.
- The constantly rising number of Religious-Liberty lawsuits will still be going to court.
“(Begin page 6, emphasis mine) Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.“
2) Laying the ground work (what this is, and how the gov. plans to defend it):
This ruling is over two key provisions, the individual mandate, and the medicare expansion. Not the entire thing.
“(Begin page 7)
In 2010, Congress enacted the Patient Protection and
Affordable Care Act, 124 Stat. 119. The Act aims to increase the number of Americans covered by health insurance and decrease the cost of health care. The Act’s 10 titles stretch over 900 pages and contain hundreds of provisions.
This case concerns constitutional challenges to two key provisions, commonly referred to as the individual mandate and the Medicaid expansion. The individual mandate requires most Americans to maintain “minimum essential” health insurance coverage. 26 U. S. C. §5000A. The mandate does not apply to some individuals, such as prisoners and undocumented aliens.§5000A(d). Many individuals will receive the required coverage through their employer, or from a government program such as Medicaid or Medicare. See §5000A(f).
But for individuals who are not exempt and do not receive health insurance through a third party, the means of satisfying the requirement is to purchase insurance from a private company. Beginning in 2014, those who do not comply with the mandate must make a “[s]hared responsibility payment” to the Federal Government. §5000A(b)(1). That payment, which the Act describes as a “penalty,” is calculated as a percentage of household income, subject to a floor based on a specified dollar amount and a ceiling based on the average annual premium the individual would have to pay for qualifying private health insurance. §5000A(c).
In 2016, for example, the penalty will be 2.5 percent of an individual’s household income, but no less than $695 and no more than the average yearly premium for insurance that covers 60 percent of the cost of 10 specified services (e.g.,
prescription drugs and hospitalization). Ibid.; 42 U. S. C.
§18022. The Act provides that the penalty will be paid to
the Internal Revenue Service with an individual’s taxes,
and “shall be assessed and collected in the same manner”
(Begin page 8)
as tax penalties, such as the penalty for claiming too
large an income tax refund. 26 U. S. C. §5000A(g)(1). The
Act, however, bars the IRS from using several of its normal enforcement tools, such as criminal prosecutions and
levies. §5000A(g)(2). And some individuals who are subject to the mandate are nonetheless exempt from the
penalty—for example, those with income below a certain
threshold and members of Indian tribes. §5000A(e).
(Skip down to page 10)
The second provision of the Affordable Care Act directly
challenged here is the Medicaid expansion. Enacted in
1965, Medicaid offers federal funding to States to assist
pregnant women, children, needy families, the blind, the
elderly, and the disabled in obtaining medical care. See 42
U. S. C. §1396a(a)(10). In order to receive that funding,
States must comply with federal criteria governing matters such as who receives care and what services are provided at what cost. By 1982 every State had chosen to
participate in Medicaid. Federal funds received through
the Medicaid program have become a substantial part of
state budgets, now constituting over 10 percent of most
States’ total revenue.
The Affordable Care Act expands the scope of the Medicaid program and increases the number of individuals the States must cover. For example, the Act requires state programs to provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level, whereas many States now cover adults with children only if their income is considerably lower, and do not cover
childless adults at all. See §1396a(a)(10)(A)(i)(VIII). The
Act increases federal funding to cover the States’ costs in
expanding Medicaid coverage, although States will bear a
portion of the costs on their own. §1396d(y)(1). If a State
does not comply with the Act’s new coverage requirements, it may lose not only the federal funding for those
requirements, but all of its federal Medicaid funds. See
(Skip down to page 15 )
(This is the most concise summary from the governments position.)
The Government advances two theories for the proposition that Congress had constitutional authority to enact the individual mandate. First, the Government argues that Congress had the power to enact the mandate under the Commerce Clause. Under that theory, Congress may order individuals to buy health insurance because the failure to do so affects interstate commerce, and could undercut the Affordable Care Act’s other reforms. Second, the Government argues that if the commerce power does not support the mandate, we should nonetheless uphold it as an exercise of Congress’s power to tax. According to the Government, even if Congress lacks the power to direct individuals to buy insurance, the only effect of the individual mandate is to raise taxes on those who do not do so, and thus the law may be upheld as a tax.
3) Roberts on Taxation:
After disagreeing with the other four who voted in favor, explaining why the ACA is unconstitutional on the basis of the federal government regulating Interstate Commerce, and why it does not pass as a “necessary and proper” component of insurance reform, Justice Roberts states that, not as a penalty, but as a tax the ACA is constitutional. As a NYTimes piece summarizes, (emphasis mine)
“Chief Justice Roberts, though, agreed with the conservatives on the merits of the Commerce Clause issue, but ruled that because the mandate — despite being explicitly described as a “penalty” — could be construed as a tax instead, it should be allowed to stand. He mustered constitutional rather than political arguments for this construal, of course — citing, for instance, a prior decision in which the Court stated that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.””
Perhaps since the court has been vilified as an activist right wing court by some, this was his chance to try to tip the scales of history so that his court, “The Roberts Court”, may take a different role in history. I think be called it like he saw it. He gutted the Obama administrations interpretation of the commerce clause, but thought it reasonable that it be a tax.
Typically the Anti-Injuncion Act would say this is not a tax. Something is what you say it is. But for constitutional purposes the AIA is not applicable. (Still not clear on this one.) But this
The question still remains, even if this is a tax, is it a constitutional tax? Poll tax? Income tax was initially was considered constitutional because it was a direct tax.
He Read the ruling for yourself before drowning yourself in a sea of political punditry from all sides. From the Majority, by Justice Roberts, (this is 3 pages of meat to chew on from the 193 pages in total… emphasis mine)
“(Begin page 31)
That is not the end of the matter. Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s
enumerated power to “lay and collect Taxes.” Art. I, §8,
cl. 1 The Government’s tax power argument asks us to view the statute differently than we did in considering its commerce power theory. In making its Commerce Clause argument, the Government defended the mandate as a regulation requiring individuals to purchase health insurance.
The Government does not claim that the taxing power allows Congress to issue such a command. Instead, the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.”
The text of a statute can sometimes have more than one
possible meaning. To take a familiar example, a law that
reads “no vehicles in the park” might, or might not, ban
bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. Justice Story said that 180 years ago: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.” Parsons v. Bedford, 3 Pet. 433, 448–449 (1830). Justice Holmes made the same point a century later: “[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion).
The most straightforward reading of the mandate is that it commands individuals to purchase insurance.
(Begin page 32)
After all, it states that individuals “shall” maintain health insurance. 26 U. S. C. §5000A(a). Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. But, for the reasons explained above, the commerce Clause does not give Congress that power.
Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one. Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b).
That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax. The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v. Benson, 285 U. S. 22, 62 (1932). As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for
the reasons set forth below.
(Begin page 33)
The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The “[s]hared responsibility payment,” as the statute entitles it, is paid into the Treasury by “taxpayer[s]” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4).
The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.” Supra, at 13–14. This process yields the essential feature of any tax: it produces at least some revenue for the Government. United States v. Kahriger, 345 U. S. 22, 28, n. 4 (1953). Indeed, the payment is expected to raise about $4 billion per year by 2017. Congressional Budget Office, Payments of Penalties for Being Uninsured Under the Patient Protection and Affordable Care Act (Apr. 30, 2010), in Selected CBO Publications Related to Health Care Legislation, 2009–2010, p. 71 (rev. 2010).
It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress’s choice of label on that question. That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.”
(Skip down to page 39)
The joint dissenters argue that we cannot uphold
§5000A as a tax because Congress did not “frame” it as such. Post, at 17. In effect, they contend that even if
the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels.
4) The irony …
Back in 2009 President Obama Insisted that the Mandate is not a tax.
“No, but — but, George, you — you can’t just make up that language and decide that that’s called a tax increase.“
Today, the Supreme court ruling says otherwise.
The text below picks up at the 3 minute mark in the above video. (Text from the abc news page, emphasis mine)
STEPHANOPOULOS: You were against the individual mandate…
STEPHANOPOULOS: …during the campaign. Under this mandate, the government is forcing people to spend money, fining you if you don’t. How is that not a tax?
OBAMA: Well, hold on a second, George. Here — here’s what’s happening. You and I are both paying $900, on average — our families — in higher premiums because of uncompensated care. Now what I’ve said is that if you can’t afford health insurance, you certainly shouldn’t be punished for that. That’s just piling on. If, on the other hand, we’re giving tax credits, we’ve set up an exchange, you are now part of a big pool, we’ve driven down the costs, we’ve done everything we can and you actually can afford health insurance, but you’ve just decided, you know what, I want to take my chances. And then you get hit by a bus and you and I have to pay for the emergency room care, that’s…
STEPHANOPOULOS: That may be, but it’s still a tax increase.
OBAMA: No. That’s not true, George. The — for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. What it’s saying is, is that we’re not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I’m not covering all the costs.
STEPHANOPOULOS: But it may be fair, it may be good public policy…
OBAMA: No, but — but, George, you — you can’t just make up that language and decide that that’s called a tax increase. Any…
STEPHANOPOULOS: Here’s the…
OBAMA: What — what — if I — if I say that right now your premiums are going to be going up by 5 or 8 or 10 percent next year and you say well, that’s not a tax increase; but, on the other hand, if I say that I don’t want to have to pay for you not carrying coverage even after I give you tax credits that make it affordable, then…
STEPHANOPOULOS: I — I don’t think I’m making it up. Merriam Webster’s Dictionary: Tax — “a charge, usually of money, imposed by authority on persons or property for public purposes.”
OBAMA: George, the fact that you looked up Merriam’s Dictionary, the definition of tax increase, indicates to me that you’re stretching a little bit right now. Otherwise, you wouldn’t have gone to the dictionary to check on the definition. I mean what…
STEPHANOPOULOS: Well, no, but…
OBAMA: …what you’re saying is…
STEPHANOPOULOS: I wanted to check for myself. But your critics say it is a tax increase.
OBAMA: My critics say everything is a tax increase. My critics say that I’m taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we’re going to have an individual mandate or not, but…
STEPHANOPOULOS: But you reject that it’s a tax increase?
OBAMA: I absolutely reject that notion.
It seems that the president is adamant about this not being a tax hike, while SCOTUS (The Supreme Court of the United States) says that this is the condition upon which the ACA can be declared as constitutional. The things the president says are legitimate to debate over were all declared unconstitutional by SCOTUS. The one thing he “absolutely rejects” (his words) was the condition upon which it stands.
A few more… from 2008 and 2010.
2008 Obama: Health Care Should “Never Be Purchased With Tax Increases On Middle Class Families.” – Source
Gibbs 2010: ObamaCare is Not a Tax – Source
http://www.youtube.com/watch?v=S8jdyHSv50U&feature=player_detailpage#t=3171s – Here Roberts goes straight to it on day two of the ACA hearing – the gov. thought it wouldn’t fly with the public as a tax so they didn’t call it such.
5) The Bishops Response this morning (emphasis mine):
For nearly a century, the Catholic bishops of the United States have been and continue to be consistent advocates for comprehensive health care reform to ensure access to life-affirming health care for all, especially the poorest and the most vulnerable. Although the United States Conference of Catholic Bishops (USCCB) did not participate in these cases and took no position on the specific questions presented to the Court, USCCB’s position on health care reform generally and on ACA particularly is a matter of public record.The bishops ultimately opposed final passage of ACA for several reasons…
First, ACA allows use of federal funds to pay for elective abortions and for plans that cover such abortions, contradicting longstanding federal policy…
Second, the Act fails to include necessary language to provide essential conscience protection, both within and beyond the abortion context.We have provided extensive analyses of ACA’s defects with respect to both abortion and conscience…
Third, ACA fails to treat immigrant workers and their families fairly…
6) Roberts rebuttal of interstate commerce defense, briefly mentioned earlier in the post…
This is interesting… Read on the original pdf from the introduction up to page 30 for the whole thing on Interstate Commerce. At page 31 Roberts moves into the Tax argument. (emphasis in the quotes are mine)…
“(Begin page 2)
2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.(a) The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce
(Begin page 3)
power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing product, on the ground that their failure to do so affects
Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and
enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16–27. (b) Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. E.g., United States v. Comstock, 560
U. S. ___. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective. Pp. 27–30. 3. CHIEF JUSTICE ROBERTS concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.
(Skip down to page 5, emphasis mine)
Congress may also “lay and collect Taxes, Duties, Imposts and Excises, 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. Put simply, Congress may tax and spend. This grant gives the Federal
Government considerable influence even in areas where it cannot directly regulate. The Federal Government may enact a tax on an activity that it cannot authorize, forbid,or otherwise control.”
(skip down to page 18)
Given its expansive scope, it is no surprise that Congress has employed the commerce power in a wide variety
of ways to address the pressing needs of the time. But
Congress has never attempted to rely on that power tocompel individuals not engaged in commerce to purchasean unwanted product.3…
The Constitution grants Congress the power to “regulate
Commerce.” Art. I, §8, cl. 3 (emphasis added). The power
to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous.
For example, the Constitution gives Congress the power to “coin Money,” in addition to the power to “regulate the Value thereof.” Id., cl. 5. And it gives Congress the power to “raise and support Armies” and to “provide and maintain a Navy,” in addition to the power to “make Rules for the Government and Regulation of the land and naval Forces.” Id., cls. 12–14. If the power to regulate the armed forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unnecessary.
The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated. See Gibbons, 9 Wheat., at 188 (“[T]he enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said”).4 Our precedent also reflects this understanding.
(Skip down to page 20)
The individual mandate, however, does not regulate
existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.
(Skip to page 22)
Indeed, the Government’s logic would justify a mandatory purchase to solve almost any problem. See Seven-Sky, 661 F. 3d, at 14–15 (noting the Government’s inability to “identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional” under its theory of the commerce power). To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. See, e.g., Dept. of Agriculture and Dept. of Health and Human Services, Dietary Guidelines for Americans 1 (2010). The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. See, e.g., Finkelstein, Trogdon, Cohen, & Dietz, Annual Medical Spending Attributable to Obesity: Payer- and Service-Specific Estimates, 28 Health Affairs w822 (2009) (detailing the “undeniable link between rising rates of obesity and rising medical spending,” and estimating that “the annual medical burden of obesity has risen to almost 10 percent of all medical spending and could amount to $147 billion per year in 2008”). Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. See Center for Applied Ethics, Voluntary Health Risks: Who Should Pay?, 6 Issues in Ethics 6 (1993) (noting “overwhelming evidence that individuals with unhealthy habits pay only a fraction of the costs associated
(begin page 23)
with their behaviors; most of the expense is borne by the rest of society in the form of higher insurance premiums,government expenditures for health care, and disability benefits”). Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables. See Dietary Guidelines, supra, at 19 (“Improved nutrition, ppropriateeating behaviors, and increased physical activity have tremendous potential to . . . reduce health care costs”).
(Skip to page 25)
The Government repeats the phrase “active in the market for health care” throughout its brief, see id., at 7, 18,
34, 50, but that concept has no constitutional significance. An individual who bought a car two years ago and may buy another in the future is not “active in the car market” in any pertinent sense.