Can ObamaCare Survive Without a Mandate?

One additional note on the health industry Supreme Court brief I mentioned this morning: It's certainly telling that the industry seems willing to accept the law as long as the mandate holds. But on the other side of the issue, they're right. If the Supreme Court rules that the mandate is unconstitutional, then it ought to strike down the rest of the law in its entirety.

Because the law was written without a severability clause, judges are expected to determine whether Congress would have passed the rest of in the absence of any provision deemed unconsistitutional. Counterfactuals are of course unprovable, but it's tough to make a case that Congress believed the law would work without the mandate. The brief by America's Health Insurance Plans correcty points out that Congress was made well aware not only of the risks of passing the law's new insurance regulations without the mandate but also the failure of several state-level attempts to do require insurers to sell policies to all comers at rates that do not reflect an individual's health history. And given how badly the mandate polls (it's consistently the least popular provision in the law), it's hard to believe that members of Congress would have voted to pass the legislation if they thought it would work without the mandate. They wanted the law, though, and the mandate was the price.

Indeed, the administration, in arguing its case for the mandate, has confirmed its importance to the larger scheme. As Judge Roger Vinson noted in his decision to invalidate the entire law, the administration referred to the mandate as "essential" 14 times in its motion to dismiss.