National Federation of Independent Business v Sebelius

The Court, by 5 votes to 4, upheld most of the provisions on the Affordable Care Act, with Chief Justice Roberts joining the Court’s four liberal justices.— justices Ginsburg, Breyer, Sotomayor and Kagan. While the case upheld the ACA it was the reasoning of the Chief Justice in writing the majority opinion which seemed most surprising. Democrats in Congress and the Obama administration had consistently argued that the provisions of the Act were constitutional because of the powers granted to Congress by the commerce clause. Which they claimed allowed congress to require all American to have health insurance in the same manner as car insurance is required in the UK, or pay a ‘penalty’.

Roberts stated that the case was really about the power of congress:

'In our federal system, the National Government possesses only limited powers: the States and the people retain the remainder. Nearly two centuries ago, Chief Justice Marshall observed that ‘the question respecting the extent of the powers actually granted’ to the Federal Government ‘is perpetually arising, and will probably continue to arise, as long as our system shall exist’. In this case we must again determine whether the Constitution grants Congress powers it now asserts, but which many States and individuals believe it does not possess.'

Roberts argued, if the Court allowed Congress to claim the commerce clause power to force people to buy health insurance, Congress might also think that the clause gave it the power to force people to buy cars or broccoli. But rather than declare the individual mandate unconstitutional, the Chief Justice then went on to say that it was constitutional because it was not a ‘penalty’ but a ‘tax’ and therefore allowable by the constitutional power granted to Congress in Article I, Section 8, to ‘lay and collect taxes’.

Conservatives accused Roberts of dodging the question.