What If Only the Mandate Gets Repealed?

While Republicans in Congress press ahead with attempts to repeal the new health care law, The New Republic's Jonathan Cohn examines the much more likely possibility that a court case will negate only part of the Democrats' 1,016-page overhaul--the part that requires everyone to buy insurance.

Cohn looks at the possible consequences:

Researchers at the nonpartisan Urban Institute, which has developed its own mathematical model of the health care market, have run simulations on how the Affordable Care Act would play out without the individual mandate. They found that an additional 18 million people would end up without insurance. Jonathan Gruber, an MIT economist and respected authority in his own right, determined that without a mandate, premiums for people buying coverage on their own would be 27 percent higher. Gruber has advised health care reformers, including the architects of the Affordable Care Act. But the nonpartisan Congressional Budget Office got similar results from its calculations. And while economic models can certainly be wrong, these results are consistent with real-world experience: In those states where laws already require insurers to sell to anybody but insurance enrollment is not compulsory, premiums have gone way up.

It's possible, as Cohn suggests, that Democrats will try to wriggle their way out of a Supreme Court ruling that destroys the individual mandate. But that would depend heavily on how the Court reads the law, and what specific problem it voices. Democrats could, conceivably, amend the Affordable Care Act's language to satisfy a Court opinion, while achieving the same end.

How likely is it that the court challenge will succeed?

Legal analysts have said the law will likely stand, and two constitutional law professors I talked to didn't think the individual mandate was too outlandish.

The legal question centers on the government's constitutional authority to regulate commerce. Since a person's decision not to buy insurance can lead to higher prices for everyone else, supporters of the Affordable Care Act say that the government is within its right to penalize those who don't buy it, for the purpose of regulating the insurance market.

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There are a few precedents for the government regulating economic inactivity, as it aims to do under the new law. In Wickard v. Filburn, the Supreme Court ruled that the government could penalize a farmer for growing his own wheat on his own property and not selling it, because he was influencing the wheat market. In Raich v. Gonzales, the Court ruled that the government had Commerce Clause authority to arrest people who grow marijuana for personal use, since that growth influences the (legal) market for medical marijuana in California and the illicit marijuana market across state lines.

But it's worth noting that the Roberts Court is conservative. Six of nine justices were nominated by Republicans. If the conservative side of the court -- comprised of Justices Roberts, Scalia, Alito, and Thomas -- balks at the (sort of) precedents of Wickard and Raich, and if those justices don't like the notion of regulating inactivity as if it were activity, then the individual mandate could conceivably go down in defeat.