Five key questions for the Supreme Court to consider in a healthcare decision: Page 4 of 6

What constitutes an “activist” approach?

If the court finds the mandate unconstitutional, it will then have to decide whether to strike down the entire healthcare law. Some legal experts see that part of the decision as a way to mitigate the inevitable cries of an “activist” ruling. But the justices disagreed over which approach would expand the court’s power and which would constrain it.

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“It's a choice between a wrecking operation, which is what you are requesting, or a salvage job,” Justice Ruth Bader Ginsburg said to Clement. “And the more conservative approach would be salvage rather than throwing out everything.”

Kennedy, siding with the court’s conservatives, took the opposite view.

“We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended,” Kennedy said.

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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