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.

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