So in that spirit, this post offers a thinly theorized guess as to what a majority opinion upholding the minimum coverage provision might look like. Most speculate that, if the Court were to uphold the mandate, the majority would have to include Kennedy. And if the Chief did not join, then Kennedy would assign the opinion—and probably keep it for himself.
So, if all this comes to pass, what would be the rationale, given Kennedy’s prior opinions and questions at oral argument? Here is a stab at an outline:
* The minimum coverage provision does not regulate economic or commercial activity. It regulates Americans simply because they exist. Thus, it cannot be justified by the Commerce Clause alone, as a “direct” regulation of interstate commerce.
* Indeed, in effectively forcing individuals into a commercial market, the minimum coverage provision is truly “unprecedented.” It fundamentally alters the relationship between the federal government and the individual, in a manner no prior Supreme Court decision has sanctioned.
* Nonetheless, the Congress here has not invoked the power conveyed by the Commerce Clause alone, but in conjunction with the Necessary and Proper Clause. And when Congress enacts a regulatory scheme that, taken as a whole, unquestionably regulates interstate commerce, then it may also enact provisions that are “necessary and proper” to effectuating that regulatory scheme.
* Since McCulloch, this Court has articulated the standard of necessity for purposes of the Necessary and Proper Clause as being “conducive” or “appropriate.” This is correct as a general rule.
* But as the challenged provision drifts further from the direct regulation of interstate commerce—and where, as here, it fundamentally alters the relationship between the individual and the federal government, in a manner never attempted before—something more is required.
* “Necessary” in these circumstances requires a true need, a more rigorous showing that this unprecedented measure is truly important (rather than merely convenient or politically expedient) to meet the needs of the broader regulatory scheme (which scheme, to repeat, plainly regulates interstate commerce). Cf. United States v. Comstock (Kennedy, J., concurring).
* Here, the minimum coverage provision meets this heightened standard of necessity. The problem of the medically uninsured in the United States is startling, in both its social and economic dimensions. And although requiring all persons of adequate means to acquire health insurance is not absolutely necessary to addressing this public policy problem, it is one of very few options available to policymakers crafting a solution that preserves the existing private market in individual health coverage.
* This distinguishes the minimum coverage provision from the various hypotheticals that the challengers have posited, such as those to purchase broccoli or a GM car. Those might be “helpful” or “conducive” to stimulating the relevant industries (or reducing the cost of products in those markets). But they are not necessary in the same sense as the mandate at issue here. They are not critical to the proper functioning of the relevant market as a market.
* Thus, the “limiting principle” here is that the minimum coverage provision is necessary in ways these other, hypothesized mandates could not be.
* In short, because the minimum coverage provision is necessary and proper to Congress’s regulation of the health insurance market (and the health care services market) embodied in the ACA, it falls withion Congress’s enumerated powers, and is thus constitutional.
As I said, idle speculation. But if the Court upholds the individual mandate—and if Kennedy authors the majority opinion—this seems like a reasonable guess as to how it might look.