The Hill tells us that the Obama Administration is shifting its argument justifying the legislation from the Commerce Clause to the Necessary and Proper Clause:
A ruling that the mandate is unconstitutional could make it nearly impossible to implement other parts of the healthcare law — which is exactly the point the Department of Justice is highlighting in its most recent briefs.
Justice has aggressively defended the mandate as its own regulation of economic activity, but is now stepping up a separate argument emphasizing that the mandate is part of a broader regulatory scheme.
The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers.
The briefs give a long history of failed efforts to expand healthcare coverage and say the new law’s purpose was to reform the overall system.
“The minimum coverage provision is … necessary to achieve Congress’s concededly valid objective of reforming the interstate market in health insurance,” the Justice Department said in its first Supreme Court brief on the merits of the mandate.
The Hill also point out that the Supreme Court has ruled out videotaping the arguments coming up soon, that Republicans are weighing how aggressively to pursue a repeal prior to the November election, and the Senate is set to consider its version of the recently passed House bill terminating the Independent Payment Advisory Board.
