Via Aaron Carroll at The Incidental Economist: The Obama administration is arguing that if the individual mandate falls, the ACA’s community rating & guaranteed issue provisions have to go, too. That seems to support my strategic behavior hypothesis on why they didn’t include a severability clause on the individual mandate in the first place: If the Court feels like they can’t just strike down the (unpopular) individual mandate, and that other, more popular parts of the law have to go with it, the choice to rule the mandate unconstitutional gets a lot harder. If you think that the members of the Court pay attention to political factors and the public perception of the Court when making decisions (which I do), it’s risky but rational for the Obama administration to make striking the mandate politically difficult.
After all, if the mandate falls, it’s not significantly worse for community rating and guaranteed issue to go with it–in fact, losing those pieces of the law might make it easier to get something through Congress, since people will understand that we need to re-fix the insurance system.
Finally, my official pre-oral argument prediction for the vote: 7-2 to uphold, opinion by Roberts w/Scalia, Kennedy, and liberals, concurrence by the four liberals, Thomas and Alito dissenting. Here’s the logic: I think the voting starts 5-4, Kennedy voting with the liberals to uphold under the Commerce Clause, on relatively expansive logic.
In that case, if I’m Chief Justice Roberts, I see an opportunity to join the majority and write a much narrower opinion that doesn’t reach the question of whether Congress can regulate commerce-affecting “inaction,” but simply finds that in health care, there is no inactive option: everyone will at some point participate in the medical system, so you can insure through another entity, or self-insure, but either way you have to have some plan (at least implicitly) to pay for medical care. The liberals write a concurrence arguing for the broader commerce-clause justification, but Kennedy doesn’t join to make it the majority opinion. The mandate and the rest of the law stands, Congressional power stays limited under the Commerce Clause to areas where actions affect interstate commerce, and the inaction question is left unresolved.
Oh, and they don’t chuck the Medicaid expansion. That would be insane.