Five key questions for the Supreme Court to consider in a healthcare decision: Page 2 of 6

Is this about healthcare or health insurance?

The 26 states that filed the healthcare suit say the mandate forces people into the market for insurance. The Justice Department says it’s really about the market for healthcare — which everyone is already part of.

“I mean, health insurance exists only for the purpose of financing healthcare,” Justice Elena Kagan said. “The two are inextricably interlinked. We don't get insurance so that we can stare at our insurance certificate. We get it so that we can go and access healthcare.”

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The distinction between healthcare and health insurance goes to the heart of the legal challenge. But where earlier arguments focused on the legal differences between economic activity and inactivity, the Supreme Court put the debate in its real-world context.

“It was teased out more,” said Ilya Shapiro, a legal expert at the libertarian Cato Institute. “That has been in the briefing, but it wasn’t emphasized. … It did come out more clearly in the oral arguments.”

The more practical distinction was also clearly an issue for Justice Anthony Kennedy, the court’s traditional swing vote. Kennedy initially seemed to be siding with his conservative colleagues, asking Solicitor General Donald Verrilli Jr., “Can you create commerce in order to regulate it?”

But as Tuesday’s debate went on, Kennedy seemed to at least be considering whether insurance can truly be separated from healthcare. The uninsured “are in the market in the sense that they are creating a risk that the market must account for,” he said during an exchange with former Solicitor General Paul Clement, who represented the challenging states.

Five questions that could shape the court’s ruling:

  1. Is this about healthcare or health insurance?
  2. Where do the mandates stop?
  3. What constitutes an “activist” approach?
  4. What happened to the Necessary and Proper Clause?
  5. Why does the mandate exist?

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