What Happens If the Individual Mandate Is Struck Down

It's not a prospect many legal observers took seriously until earlier today, but now that swing-vote Justice Anthony Kennedy has shown some of his true colors, everyone's wondering what will become of Obamacare if the court strikes down the individual mandate.

It's not a prospect many legal observers took seriously until earlier today, but now that swing-vote Justice Anthony Kennedy has shown some of his true colors, everyone's wondering what will become of Obamacare if the court strikes down the individual mandate. The mandate, of course, requires everyone to buy insurance and was pitched as the big money-saving feature of the Affordable Care Act. But if it were wiped away, the president's signature legislative achievement would get very, very messy. Here are the possible outcomes.

Court strikes it down, everything falls apart This is the view posited by Rick Newman at U.S. News and World Report. "If the Supreme Court strikes down the individual mandate... it could be the loose thread that unravels the whole ball of string," he writes. "Since the mandate is meant to expand the pool of people covered by health insurance, it makes other parts of the law possible, such as subsidies for those who can't afford insurance and a ban on denying coverage because of pre-existing conditions. Without the mandate, those provisions might be unsustainable and the whole law could effectively become moot." Others think parts of the bill could be salvaged.

Court strikes it down, some of it falls apart Strangely enough, this would be the preference of the Obama administration, notes CBS News' Stephanie Condon. "The administration is arguing that without the mandate, more popular provisions like 'guaranteed issue' and 'community rating' won't work," she writes. "Guaranteed issue, which is nearly twice as popular among the public than the individual mandate, requires health insurers to cover everyone who applies, regardless of pre-existing conditions. Community rating requires insurers to offer plans within the same price range to all customers, regardless of factors like age. Should the Supreme Court strike down the mandate, the Obama administration has asked the court to kill those two provisions as well." Still, the court doesn't have to listen to the Obama administration's lawyers.

Court strikes it down, everything else stays besides the mandate  "Neither the conservative challengers to the law nor the Obama administration would be particularly happy with this outcome," writes Adam Serwer at Mother Jones. "It would leave the current law mostly intact. But it would also, administration officials fear, bankrupt the insurance companies still forced to provide coverage without the necessary financial resources to do so. (Without a mandate, the insurance industry will have fewer customers and less resources to handle an influx of those people with preexisting conditions.)" Even though no parties want this outcome, it could still happen. The court has scheduled five and a half hours for H. Barton Farr III to argue the position that only the mandate should be struck down and nothing else.

Court strikes it down, Congress fills the void with something else The unlikely thing about this outcome is that it involves Congress actually doing something, which we all know is a rarity. Still, if some Congress, maybe not this one, maybe not the next one, wants to retool Obamacare, Politico's Brett Norman points to a way it could happen. "The backup plan could be automatic enrollment in your employer’s health insurance, a lot like the way you get signed up for the 401(k) plan," she writes. "An auto-enrollment requirement is the option that’s getting the most attention from health policy experts. It’s a more low-key way to reach at least some of the uninsured people who would be covered by the individual mandate." It's also not something Republicans are completely allergic too. In fact, Republican Paul Ryan's 2009 health reform alternative contained it. "Aggressive auto-enrollment like what was talked about in 2009 could work pretty well,” said Duke University health professor Don Taylor. “In policy terms, there are things that can be done. Of course, politically, it’s a very different story.”