Wednesday’s Supreme Court arguments on the Affordable Care Act involved complex technical issues of “severability” and “conditional federal spending,” so let’s get right to the core issue. The judges are being asked to take away health insurance from millions of people. And judging from what they said, they just might do it. Constitutional arguments that were clear howlers a few days ago now have a chance at becoming the law of the land.
The severability issue presupposes that the Court is going to accept the stupid arguments against the mandate. If it does, the Court must decide how much of the rest of the statute has to be struck down as well? The answer depends on how much of it Congress would have passed had it known it could not enact the mandate. The Obama administration claims that if the Court strikes down the mandate that individuals purchase insurance, it must also invalidate the prohibition against insurers discriminating against people with preexisting conditions, and the law’s limitations on how insurers can set rates. Its opponents want to throw out the whole thing. The Court had to appoint a lawyer itself in order to hear arguments that the rest of the law could work without the mandate, because there are other mechanisms, such as subsidies, to encourage young, healthy people to buy insurance.