Five key questions for the Supreme Court to consider in a healthcare decision: Page 3 of 6

Where do the mandates stop?

Probably the biggest weakness in the government’s case is its failure to define a “limiting principle.” If the Commerce Clause allows Congress to mandate the purchase of health insurance, judges wanted to know, what can’t it mandate?

The issue has dogged the government at every level, even in cases it ultimately won, and was — predictably — on the justices’ minds. Multiple justices asked Verrilli multiple times, point blank, to name a limiting principle. He did not clearly articulate one.

ADVERTISEMENT
“That was the strangest part” of Tuesday’s arguments, Shapiro said.

In the past, the Justice Department has argued that it doesn’t need to define a limiting principle because healthcare is unique. Upholding the insurance mandate wouldn’t open the door to other mandates because other markets don’t have the same kind of cost-shifting as healthcare, the government argues.

Kennedy seemed to be entertaining that argument, which is closely tied to the difference — or lack thereof — between healthcare and insurance.

“The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries,” he said. “That's my concern in the case.”

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?

Pages