The lower court in the other case upheld the mandate, and therefore didn’t have to decide whether that provision can be struck down without invalidating the entire law. The NFIB said it’s important for the court to consider that issue as well as the underlying question of whether the coverage mandate is constitutional.
The NFIB brief reiterates its argument that Congress doesn’t have the authority to make people buy a product simply because they are citizens. It says upholding the mandate would open the floodgates for a new level of congressional power.
“Indeed, if the Rubicon were crossed to sustain this health-insurance mandate, well-established precedent holds that there would be no judicially cognizable limit on what purchases Congress could compel,” the brief states.
The Justice Department and supporters of the mandate argue that the healthcare market is unique because the costs of caring for uninsured people are passed on to the government and people who have insurance. Because no other product or service has the same type of cost-shifting, they say, the mandate isn’t a slippery slope to greater government intervention outside the healthcare arena.