Five key questions for the Supreme Court to consider in a healthcare decision: Page 5 of 6

What happened to the Necessary and Proper Clause?

The Constitution gives the federal government certain powers, and it also says Congress can pass laws that are “necessary and proper” to exercise those powers. That clause has become an increasingly big part of the Justice Department’s defense. 

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The Justice Department said in its written briefs that the point of the healthcare law is to impose new regulations on insurance companies and expand access to affordable coverage — and that the mandate is a way to make those regulations work. Verrilli barely mentioned that part of his case during the oral arguments.

“I didn’t think that got nearly enough attention,” said Tim Jost, a Washington & Lee University law professor who supports the mandate. “They didn’t make that argument nearly as strongly as they could have.”

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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