A Mandate for Mandates: Is the Individual Health Insurance Case a Slippery Slope?

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INTRODUCTION

The 2010 Patient Protection and Affordable Care Act's (1) individual mandate has given rise to one of the most important constitutional disputes in recent decades. It requires that most Americans purchase health insurance by 2014. (2) Twenty-eight states, the National Federation of Independent Business, and numerous private parties have filed lawsuits arguing that the mandate exceeds Congress's powers under the Constitution. (3) As this article goes to press, the Supreme Court has granted certiorari and will likely issue a decision in the summer of 2012. No matter who wins, the decision is likely to set an important precedent.

Both sides in the mandate litigation have argued that we will be sliding down a dangerous slippery slope if their opponents prevail. Opponents of the mandate argue that a decision upholding it would give Congress unlimited power to impose mandates of any kind. (4) That includes the much-discussed broccoli purchase mandate postulated by Federal District Judge Roger Vinson, the author of one of the three district court opinions striking down the mandate. If the mandate were upheld, he explains, "Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and ... put less of a strain on the health care system." (5) Such slippery slope concerns have been prominently emphasized in three of the four federal court decisions striking down the law. (6)

For their part, defenders of the mandate have advanced their own slippery slope scenarios, claiming that a decision striking down the mandate would imperil major Supreme Court federalism precedents, restore the much-reviled Lochner v. New York, (7) and prevent Congress from enacting potentially vital regulatory legislation in the future. (8)

Despite the prominent role of slippery slope arguments on both sides of the case, the extensive academic commentary on the mandate litigation does not yet include anything approaching a comprehensive analysis of this aspect of the dispute. This article seeks to fill the gap in the literature. It examines both sides' slippery slope arguments in detail, assessing their coherence and plausibility.

A legal slippery slope argument has two distinct components: logical and empirical. (9) A logical slippery slope occurs if judges cannot coherently distinguish A from B--for example, a health insurance purchase mandate from any other mandate that Congress might enact. It should be noted that a logical slippery slope argument need not concede that A is justifiable in and of itself and is only constitutionally suspect because it leads to B. Rather, the constitutionality of A is dependent on the quality of the reasoning justifying it. If the only available argument in its favor is defective because it inevitably also justifies something clearly unconstitutional, such as B, then A is impermissible in its own right for lack of a sound argument in its favor.

In addition, a logical slippery slope can exist even in a situation where the reasoning justifying A in and of itself justifies B without the need for further extensions of the argument in later decisions. If, for example, the individual mandate is upheld in a decision that explicitly states that Congress can enact any mandate of any kind, it is still coherent to refer to this as a slippery slope, since upholding A (the individual mandate) has still led to a justification of B (all other mandates). Obviously, the slope in this scenario is slipperier and steeper than in a situation in which the permissibility of B is not fully clear until after one or more additional cases have been decided.

Many slippery slope arguments proceed on the assumption that the lack of a logical distinction between A and B is enough to prove that a serious danger exists. …