By now, every American who pays any attention to the news is aware that the Supreme Court of the United States has upheld essentially all of the Obama administration's Affordable Care Act ("ACA"). We have posted a copy of the lengthy opinion, concurrence, and dissent on our website. For now, we should be focusing on what the case of National Federation of Independent Business v. Sebelius actually will cause to occur.

For those who haven't yet dissected the opinions, the Court's controlling decision does two things. First, by a 5-4 majority led by the Chief Justice, the Court upheld the individual mandate, the single most controversial and essential provision of the ACA, not under the Commerce Clause, as its proponents primarily urged, but under the tax power — not as a requirement to buy health insurance, but as a tax if individuals don't. The four "liberal" Justices, concurring, would have upheld the mandate under the Commerce Clause. The net of this is that the Chief Justice surprised many people by creating a majority to uphold the law, but he also stood as a bulwark against the expansion of the Commerce Clause to cover inactivity. In other words, you can't be forced to eat broccoli, but you might be subject to a tax or fine if the consumption of broccoli is found by Congress to be an important national interest and you refuse to eat it.