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

By Somin, Ilya | Law and Contemporary Problems, Summer 2012 | Go to article overview

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


Somin, Ilya, Law and Contemporary Problems


I

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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.