• So what if the mandate is unconstitutional?

    A number of you have emailed me or commented that the whole debate over the three-legged stool is irrelevant because when the mandate is found unconstitutional, the whole stool is going away.  That is nowhere near assured.  Here’s why, per Avik Roy:

    Today [June 28], in Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court invalidated a provision of the Sarbanes-Oxley Act without voiding the entire law.

    This matters for the legal fight against Obamacare, as Sarbox did not have a “severability clause”—standard language that would ensure that, if one part of Sarbox was ruled unconstitutional, that part could be “severed” from the rest of the law, which would remain standing.

    The Patient Protection and Affordable Care Act also lacks a severability clause. Some have therefore hoped that, if PPACA’s individual mandate is eventually ruled unconstitutional, the entire law would necessarily be voided along with it.

    Today’s [June 28] ruling by the Court, however, suggests that a severability clause is not needed in order to strike down one provision of a larger law…

    Most of the effort to claim the PPACA is unconstitutional focuses on the individual mandate.  Regulation isn’t unconstitutional.  Tax subsidies (and taxes) aren’t unconstitutional.  The exchanges aren’t unconstitutional.  It’s the (unpopular) mandate.

    The thinking is that if the mandate is invalidated, then the whole law must be scrapped; that is theoretically because because there is no “severability clause” in the PPACA.  But the ruling in Avik’s post appears to say that individual parts of laws can be struck down leaving the rest of the law standing.  That’s bad news to those attacking the individual mandate.

    I still don’t think the mandate will be found unconstitutional.  But even if it is, that doesn’t mean it will destroy the PPACA.  Sure, it will make it more expensive and hurt insurance companies.  I’m not convinced that will stop many people from taking the PPACA to court.  But if insurance companies (or their executives) think that supporting such cases is to their benefit, I sure don’t understand why.

    • There is still a higher likelihood that all of PPACA will be deemed unconstitutional because of this section of the ruling you just mentioned:

      ” Because “[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its (SOX) re-maining provisions,” Page 5

      Now, as the Michigan Judge, the Obama Administration, and you have pointed out the individual mandate is an essential element for PPACA. So, in reality, all of this support for the mandate might work against the Justice Dept when they face the Supreme Court.

    • Aaron, I’m not a legal expert, but the majority of the law is predicated on the individual mandate. How can you eliminate pre-existing conditions, lifetime caps or many of the other parts of the law if you don’t require participation? It seems to me that overturning the mandate is in fact scrapping the whole law.

    • Thanks. I see this coming court decision being monumental in the history of our country.

      If the law is upheld that not buying insurance is controlled as an economic activity (under the commerce clause), then it would seem every single activity a citizen does is subject to the government’s control, where we work, what we eat, where we live . . . it will never stop and the only rights we have are what the government allows. Forget those “Inalienable Rights.”

      I believe that this last election shows that citizens are waking up and paying attention. If the law is upheld and the general population comes to understand what this really means, the current political landscape will seem tame to what will come.

    • There is another suit in Texas challenging the law’s severe strictures on doctor owned hospitals. These tend to have the best financial performance and medical outcomes. Perhaps the former is because most aren’t unionized. A further “perhaps” is this is why Obamacare is trying to drive them, rather inefficient unionized facilities, out of business.
      Remember using the UK NHS as a model, an American single-payer plan would mean upwards of 6 million new unionized Federal employees [read: Democrat voters] Get it?

    • If the mandate is not found unconstitutional, then all freedom is lost.
      This would give congress the power to regulate any behavior or purchase is deemed connected to health care costs.
      Those “loyalty cards” we have for the supermarket can become “calorie ration” cards that block all food purchases once one hits the government approved calorie limit per household.
      Mandatory government monitored exercise. Mandatory gym membership. Eventually, every food deemed not nutritionally necessary will be banned. Salt and transfats are just the start.
      Don’t believe this is the end. This mandate is just the beginning.

    • How is this any different than the state of Illinois “mandating” that all drivers must have valid auto insurance? How can the government force citizens to have insurance in one situation and not the other? Were are all the cries that “freedom is lost” because you have to carry liability insurance?

      Is it OK to deny any health related services to individuals who elect not to get some form of insurance then? I want to hear a valid proposal from health care opponents rather than this psychotic babble that the government is secretly planning to give everyone lobotomies.

    • @MuffinMan

      The difference is

      1) federal vs. state.regulation
      2) auto insurance mandate only applies to those who drive on public streets/highways
      3) auto insurance mandate is more concerned with the harm you cause to others than the damage you cause to your own vehicle.

      There are workarounds, such as:
      1) vouchers
      2) withhold federal funding for Medicaid, etc. from states that do not enact state-level individual mandates

    • If the mandate is ruled unconstitutional, conservatives will gloat momentarily, then realize the mess they will have created for themselves. For if the law has no mandate, then the ACA’s requirement that insurance companies must provide insurance to people with pre-existing conditions becomes financially workable. The anti-mandate people will have three options:

      (1) Find another way to fund the ACA’s requirement that people with pre-existing conditions cannot be denied insurance;

      (2) Repeal laws requiring insurance companies to cover pre-existing conditions and do nothing; or

      (3) Repeal laws requiring insurance companies to cover pre-existing conditions and support a public option for people now left uninsured because of pre-existing conditions.

      This ought to be fun…

    • @ JohnC

      In case you have not taken a look yet, PPACA already is a mess. Why is the HHS missing one third of their deadlines? Have seen the map of all of the new agencies or departments created with PPACA? It is ridiculous. Simplicity is not what the government is good at.

    • @ Aaron G

      I’m not a big fan of the ACA, but going back to the wild west patchwork quilt of private insurers picking who they want to insure and leaving the others to fend for themselves at the emergency room (on everyone else’s dime) is a total non-starter.

      The mandate, as unpopular as it is, was proposed by the Heritage Foundation and other conservatives in the late 1980s precisely because it was properly viewed as the only feasible way to preserve the role of private insurance under a universal health care system. Without the mandate, many popular policies – such as the prohibition on excluding persons with pre-existing conditions – are completely unfeasible. The existing pool of premiums can’t support it. What’s more, providing optional coverage for pre-existing conditions means people have an incentive not to buy insurance and pay premiums into the system UNTIL they actually get sick, thereby making a bad problem all that much worse.

      Mark my words – if the mandate goes, and the choice becomes that between the previous “system” and single-payer, the public will go with single-payer.