Poll Position: If Obamacare mandate falls, what goes with it?

During three days of oral arguments about Obamacare at the Supreme Court this week, legal analysts were at pains to predict which way each justice was leaning based on his or her line of questioning. For all but the most experienced court watchers, this seems like an exercise in futility: Justices may be just as likely to question an attorney’s point in the hopes of eliciting a stronger case for it as they are to seek to poke holes in it. I’ll just stick to the prediction I, like many others, made when the first legal challenges were filed: This case will come down to Justice Anthony Kennedy, the court’s most frequent swing vote, in what most likely will be a 5-4 decision.

If the mandate is struck down, how much of the rest of Obamacare should go with it?

  • All of it (232 Votes)
  • Nothing else (109 Votes)
  • Only those parts the administration argued for (e.g., community rating and pre-existing conditions) (28 Votes)

Total Voters: 369

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Much of the analysis during Wednesday’s arguments focused on the justices’ debate about “severability”: how much of the law ought to survive if the individual mandate is struck down. The 11th Circuit here in Atlanta decided to strike down only the mandate and keep all else intact. Attorneys for the states challenging the law argued none of the law can stand if the mandate falls, because it was the central component of the law: The other provisions don’t work without he mandate, and Congress wouldn’t have passed the law without it. The government’s attorneys argued that only a couple of other provisions — chiefly, the ones covering pre-existing conditions and “community rating,” which holds that insurers can’t charge different premiums based on certain behaviors — should fall in that case because they would severely distort the insurance market absent the mandate, while the rest should stand. (Neither side took the 11th Circuit’s position, so the Supreme Court had to assign another attorney to argue that position.)

Some analysts seemed to think the line of questioning itself, predicated on the dismissal of the mandate, indicated the mandate was in trouble. I don’t think that’s necessarily the case: The only way to argue about severability is to assume the mandate is struck down. If it’s not, the point is moot, but the justices had to hear arguments about what to do in the event they do strike it down.

An interesting argument centered on the idea of judicial restraint: Does it indicate more restraint to leave as much of the law intact as possible, as the liberal justices argued? Or would the court display more restraint to strike it down in total — thereby avoiding potentially changing Congress’ intent — and let Congress start over with a blank canvas, as the conservative justices argued?

That’s a philosophical point, and there are practical considerations here as well. Would Obamacare minus only the mandate be workable? Even if community rating and pre-existing conditions provisions also fall, would other elements of the law such as the exchanges and the Medicaid expansion still make sense? Is Congress more likely to act if it has to try to fix a broken law, or if it gets to start over?

So, here’s this week’s Poll Position: If the mandate is struck down, how much of the rest of Obamacare should the justices throw out with it? Note that I am not asking you to predict what the court will do, but rather what you think should be done.

See the choices and vote in the nearby poll and explain your thoughts in the comments thread.

– By Kyle Wingfield

171 comments Add your comment

Intown

March 30th, 2012
9:18 am

What a horrendous waste of political capital this will all be if struck down.

Junior Samples

March 30th, 2012
9:19 am

Since this is the same court that gave corporations personhood status, who knows what they’ll decide.

Since the lottery is so popular right now, what if we tied that into healthcare? Mega Medical Millions Mandate!

Wade Hampton

March 30th, 2012
9:30 am

Real Americans could care less what gown-wearing government lawyers “rule” or say.
.
Unfortunently, real Americans are outnumbered by subservient timid kick-shy dogs who flinch at every Washingtonian threat.
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But………………………………..thats okay.
.
The Patriots of the 18th century comprised the same percentage of the general population as the Ron Paul supporters of today.
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The spirit of Individual Liberty will ALWAYS prevail.
It is just that girly-men make it harder and more time-consuming to do so.

1961_Xer

March 30th, 2012
9:30 am

Obamacare without the mandate is clearly unworkable. Some parts that don’t require federal funding to enact could survive. However, I don’t thing the SCOTUS is going to parse 2700 pages to determine what survives and what doesn’t. So they are going to either strike it all down, or kick it back to Nancy Pelosi to read it (after all, you have to read it to find out whats in it) and determine what doesn’t require funding that they can still do.

Bobby Taylor

March 30th, 2012
9:39 am

The justices cannot throw out any other part of the law. They can only rule on the constitutionality of the mandate.

The problem is that the mandate was the compromise Obama accepted in hopes of getting the republicans and the heath insurance industry on board. Obama didn’t listen when liberals claimed the republicans were using the mandate as a poison pill.

The pre-existing conditions are eliminated and insurance companies must now spend 90% of all insurance dollars on the customers instead of the 60% they are spending now. The mandate was put forward to bring an additional 30 million new customers into the system at a lower profit margin for the insurance companies. In the end, they would make billions of dollars in profits, but with most of the extra money actually covering patients.

If the mandate falls, then the insurance companies will push back against the new regulations that will force them to cover all new customers. Or the insurance companies will jack up the rates. Or they will stop offering medical insurance since it will not be cost effective.

Then again, if that happens, medicare might be the only option available to cover the American people.

Regardless, if the mandate falls, the whole law falls by proxy.

Road Scholar

March 30th, 2012
9:41 am

We don’t need any health insurance. We do not need any regulations. We just need guns and an army that won’t get what they deserve in benefits to right their wounds. Trust the corporations. trust the 1% .They will let us know what we need to live on while we all pull on our bootstraps…that is if you already have them! All we need is a pandemic.

Joel Edge

March 30th, 2012
9:41 am

“or kick it back to Nancy Pelosi to read it ”
I like that.
But I don’t count my chickens before they’re hatched. There could be some arm twisting in the background. I don’t put anything past a Democrat. What would really tickle me is a SCOTUS solid front. 9-0 against. Kind of a ‘you want to make a few more remarks about us in a state of the union address’ kind of thing. I know, not happening.

bu2

March 30th, 2012
9:42 am

I thought it was amusing to hear the liberal justices talk about judicial restraint and respecting the intent of Congress, particularly Ginsburg and the Obama justices. Breyer usually is consistent, so even though I usually disagree, I respect his positions.

JF McNamara

March 30th, 2012
9:43 am

We need something to be done, and starting over with a blank slate is the worst case scenario. Kick back the parts that fail and make Congress (including Republicans) make it work.

Ironically, a complete rejection might be worse for Republicans. They will have forced the Democrats into fighting for a single payer system.

Road Scholar

March 30th, 2012
9:47 am

Jim Galloway: ” A couple of years ago they changed the name of the Georgia Ethics Commission to the Government Transparency Commission. Tonight the Senate passed a last-minute amendment that allows the “transparency” commission to seal the records in some cases against politicians and delay reporting some violations. Nothing like the 40th day – and night – of a session at the Georgia Capitol

Find the largesse in HB 875, a fishing license bill.”

Kyle, is this the transparency the conserves have been talking about? Is this bill…bait and switch? But we don’t need any government intervention in fishing licenses , do we? The fish don’t vote! Or need healthcare!

beancube

March 30th, 2012
9:57 am

It will trigger tougher questions about the potential threats of the high courts hijacking the Constitutions of the country just like what is happening in Libya. Should the court be allowed to interpret the Constitutions without any broader debate?

retired early

March 30th, 2012
9:57 am

The only way to go is an expansion of medicare to cover those unable to afford insurance and raise medicare “taxes” on payroll to pay for it.
This approach would allow a “gradual” inclusion of more and more people to a point where Insurance companies are a “non factor”. This would be “legal”, doable, cheaper and (with a GOP controlled House), impossible to become law.

carlosgvv

March 30th, 2012
10:02 am

I’m guessing it will 5 to 4 along party lines. Supreme Court justices can be pols too.

Don't Tread

March 30th, 2012
10:06 am

The whole thing needs to go. This thing was written and passed by one party with complete disregard for everyone else (and the Constitution, for that matter).

Someone please tell me where the Constitution permits the President to have his own army, answerable only to him. (aka “National Defense Force”) That had absolutely nothing to do with healthcare at all.

This is the kind of stuff that happens with one-party rule, as we had in 2009 – 2011.

Tea Party Meber

March 30th, 2012
10:06 am

Im tired of the govrement waisting my tax dollors on the poors. If U dont have health insurncae its UR fault. Dont expect me to pay 4 it. U dont pay 4 mine.

Jefferson

March 30th, 2012
10:10 am

Why speculate ?

Commonscents

March 30th, 2012
10:12 am

You are correct Bobby Taylor!!!

Tea Party Meber

March 30th, 2012
10:14 am

Its no mystry we R closser 2 socilism than ever and further a way form God than ever.

retired early

March 30th, 2012
10:14 am

Tea Party
“Don’t expect me to pay for yours…”

Think again…..do you not know that you are paying for the uninsured. It comes out of higher premiums on “everyone’s insurance”.
Get you head out of the sand and try to find a “real solution to the problem” that does not simply put more money in the pockets of the insurance companies.

Will

March 30th, 2012
10:18 am

As a republican newspaper writer, you should be feeling pretty confident about this vote. The four republican justices are a lock to vote yes, just as the four democrat justices are a lock to vote no. Justice Kennedy votes with the four republican justices more often than not.

Also, there is little doubt that the four republican justices will make certain this vote occurs as soon as possible so that republicans can benefit during this election cycle.

I only wish there could be a law that would force dead beat, “no guberment can force me to buy insurance” losers who don’t pay for health insurance to also waive their right to “free” health coverage that causes my health insurance premiums to rise in order to pay for this “free” coverage.

I am fairly certain that republicans will win the day on this one and will suceed in protecting the deadbeat losers from having to do the right thing by paying for health insurance for their families.

MarkV

March 30th, 2012
10:21 am

Kyle’ question is ambiguous in whether the word “should” (“how much of the rest of Obamacare should the justices throw out with it”) is meant in the legal sense, or in the sense of what is good for the country. For the viewpoint of the latter, letting the whole law fall would mean a continuation of having millions uninsured, those insured paying for the emergency services of the uninsured, insurance companies having a free reign of being between the patient and the doctor, etc. The chances of a sensible reform in a foreseeable future would be minimal. Prohibiting the mandate but letting much of the rest of Obamacare in place would force a solution, which might eventually be better than Obamacare.

Dusty

March 30th, 2012
10:23 am

When you have a “clunker” with most parts failing, you trade it in and get a new model.

I think this also applies to ObamaCare which is a “clunker”. A new model is needed.

Bob

March 30th, 2012
10:26 am

retired early, what changes under obamacre ? Many of the uninsured now will get coverage for free due to subsidys. The producers will still be paying for the non producers so why give gov more control ? Instead of accepting people walking away from medical bills lets force them to pay their bills so the rest of us don’t get screwed like we do with Social Security.

Bob

March 30th, 2012
10:29 am

Will, you seem to be venting against repubs but wonder why deadbeats get free care and cause your premiums to rise. Your democrats have given the deadbeats the ability to screw you, live with it !

retired early

March 30th, 2012
10:30 am

I have to laugh when you “Tea Partyers” complain about America becoming more “Socialist”.
Most Europeans have a far better standard of living than Americans. They don’t pay for college and they get free health care.
They do not have huge debts coming out of college and do not have to bankrupt from a medical emergency. Oh…thanks to “W”, Americans can’t include medical debt in a bankruptcy, nor can we include college loans.
These “poor socialist Europeans” have no desire to migrate to our “land of opportunity” any more.
They have it much better there, as recent surveys have shown.
Ironically, Europeans and much less “religious” by far than Americans.
Imagine that…

George

March 30th, 2012
10:31 am

It’s all my fault – George Dubya Bush!

Oblama

March 30th, 2012
10:33 am

Won’t miss Obamacare when it’s gone. Inept Fed couldn’t organize a panty raid.

George

March 30th, 2012
10:34 am

Last election the motto was “Hope and Change”

This year it will be wish in one and poop in the other and see which one fills up 1st! Go get em O’Bamer

ragnar danneskjold

March 30th, 2012
10:35 am

I thought early on the mandate would be booted, but that the court would try to throw an olive branch to the administration, keeping as much as possible. Then I learned that RomneyCare – supposed the basis for the administration’s 2700 page plan – was a mere 75 pages. That would mean excising RomneyCare from ObamaCare would leave 2600 of left wing social engineering. Suspect the court will find it too hard to parse the document.

Oblama

March 30th, 2012
10:35 am

Retired – If you love those socialists move on over to France – selah!

Dusty

March 30th, 2012
10:35 am

How about each state having its own health insurance. They know more about the requirements needed in each location better than any overall system. Then the taxpayers would pay for what they want in their state, not what a Federal bureauracy would decide for them.

For instance, I cannot believe that health needs for Idaho and Montana are the same as New York and Michigan. Let the state’s health needs be supplied by the state itself.

Mark

March 30th, 2012
10:37 am

The court’s appointee attorney argued before the Court that the mandate was merely a funding tool. So the bill, should the mandate be determined to be unconstitutional, will be sent back to Congress to find alternative funding, kill the bill, or amend it.

Oblama

March 30th, 2012
10:37 am

We less big gov-t socialism – not more. Cut the size of gov-t and you cut the national debt.

Oblama

March 30th, 2012
10:39 am

Send Retired to France and reduce the national debt.

retired early

March 30th, 2012
10:46 am

Dusty
Do you really believe the GOP controlled Georgia government would do “anything” to replace “Obamacare”.
BTW, the states that DO provide something meaningful will become the fastest growing to the detriment of those that don’t. It would reshape this country into the haves and the have nots.

Oblama

Typical response from one who has nothing meaningful to say regarding the topic being discussed.

ragnar danneskjold

March 30th, 2012
10:48 am

Dear Retired @ 10:46, good morning, I agree with friend Dusty. Perhaps healthcare is not the burning issue in Georgia that it is in New York and California. Certainly there is no rational argument for a one-size fits-all solution?

Tea Party Meber

March 30th, 2012
10:51 am

Now my posts are being sensored?

Tea Party Meber

March 30th, 2012
10:52 am

What ever happned 2 free speach?

gm

March 30th, 2012
10:55 am

Hey it make sense that the Justice would vote against this because they have federal insurance and its working for them, never mind the 40 million people mostly women and children dont have health care.

We had a President in office name W. Bush for 8 years did not tackle health care, he spent billions in Iraq but cared less about the American people health, did not offer any bills, or solutions, yet the right are now outraged over a President that have concerns about our kids health.

Our Catholic priest are outraged over abortions issues but silient on taking care of women and kids and health care, satans rep party of hypocrites continue to make him pride.

Linda Ellis

March 30th, 2012
10:56 am

I know what it is to have employer-sponsored health insurance plans, and I also know what it is to end up losing them after a lay-off.

I was uninsured after my COBRA ended and then after that for six months I was uninsured before I could enroll on to the Ohio High Risk Pool, THE ONLY AFFORDABLE legitimate health insurance program available to me after I was rejected in the private market for having pre-existing conditions; none of which were life threatening.

I know what it is to be turned away at the Cleveland Clinic to have my blood drawn because I was uninsured and had not seen a financial counselor first. After I saw the financial counselor for almost an hour, I had to pay ‘up front’ $262 before I could walk back down the hallway and go back in that lab and the tech agreed to draw my blood from a doctor order.

So, if you are uninsured, you are NOT treated the same way as when you can present your little insurance card in your hand.

All uninsured people do not qualify for Medicaid, nor even for much of a sliding scale discount on a provider bill.

Those who are trying to shut down the currently running federal high risk pools (which came about due to the ACA – “Obamacare”) and which offer more affordable monthly premiums compared to state run high risk pools, need to realize that those enrollees most likely will need to return to being uninsured through absolutely no choice of their own.

Log onto Ehealthinsurance.com for your state and go through the process of applying for health insurance. You’ll have to reveal your medical issues, medications you take, surgeries you’ve had, etc. going back in some categories up to 10 years of time.

Whatever you report for health conditions — literally from head to toe — will be taken from that application and used against you to obtain coverage. You will see those pre-existing conditions; which could be conditions like having sinusitis, consulting for a surgery you had not yet had, typed into as reasons for denying you coverage in your rejection for coverage letter.

Once you are rejected for coverage by one insurer, most likely you will be rejected by others. I was rejected by four of them.

My main point is that folks you can’t have it both ways!

Taking away perhaps the only possibility for someone to obtain and keep health insurance and then turn around and feel it is appropriate to scold them for becoming uninsured shows just how uninformed about the facts those who have been against “Obamacare” really are.

quick work break

March 30th, 2012
10:56 am

I think repeal of the rest of the law will produce a spectacular number of anecdotal examples of how people who were going to be helped are now facing bankruptcy or else denied care. Awesome.

gm

March 30th, 2012
11:00 am

Tea Party Meber

Whats amazing about you tea party hypocrites, you line up for your unemployment checks, medicaid, Va, SSI, when a disaster happens you have your had out for Fema and Obama to sign it.

Richard

March 30th, 2012
11:03 am

Republicans (note that I said “republicans”, not “conservatives”) passed abortion restrictions in Georgia because it will save 1500 lives a year.

In the words of a particular NFL athlete “child please.”

Let’s be clear that these are the same people suing Obamacare because it’s wrong for the government to come between the doctor and patient. All of you die hard republican supporters need to grow up and realize that your party wants power and control over your life just as much as Democrats. At some point, we as voters need to send a powerful message to these power hungry liars/scumbags.

Oh and Tea Party members…I didn’t catch the protest outside the capitol building over this intrusion into rights. Did I just get the address wrong?

Ray S.

March 30th, 2012
11:05 am

For me it’s very simple: Each member of congress only gets one vote for or against the law … they don’t get to pick and choose provisions to vote yes or no on … therefore each member of the supreme court should only get one vote, as to whether the law in it’s entirety is constitutional or unconstitutional. If constitutional, the entire law stands, if unconstitutional, the entire law doesn’t stand.

For EX: … members of congress often times will add a provision to a law, so there will be enough votes to pass … of course minus that added provision, there wouldn’t have been enough votes. If the bill passes under those circumstances, then the supreme court strikes down that provision, but leaves the rest in tact, then you have a bill that would have never passed congress in the first place.

The only logical answer, the entire law stays or goes, depending on the supreme court vote.

The matter of constitutionality is also obvious, there’s no clause in the constitution that gives the fed govt the right to force people to buy anything, no matter how beneficial it is to the person, or the entire country.

gm

March 30th, 2012
11:05 am

Oblama

There they go the hypocrites on the right, they want to pick and choice what gov program, that best fit them.

Amazing when Bush was spending and adding trillions to national debt, funding billions in Iraq you hypocrites never said a word, now when this President wants to spend money on Americans you are outraged, its really hard to tell who is the terrorist or the Americans.

retired early

March 30th, 2012
11:05 am

Ragar
“One size fits all…” Not acceptable ?
I remember why the Food Stamp Program came into being. It was because the Welfare program controlled by the states varied widely in benefit amounts even when taking into consideration the “cost of living in each state. States in the south, especially Texas, provided benefits too small to provide a viable existence. The Food Stamps were used to level the total assistance package.
That would certainly be the case with health care.
What’s the difference between a New Yorker and a Georgian when it comes to paying medical bills.
I see this as a National, not a State problem.

Ken

March 30th, 2012
11:07 am

If this is upheld what is next ? Gov’t ownes part of GM , will they require us to pay a GM products ? The process and the law was flawed from the start . This is what happens when the law has to be passed befofore you can read it , thanks to Nancy Pelosi and the Democrats.

In the broader sense the whole party system is flawed , all the way to the Supreme court. The Supreme court will probably vote along party lines just like the rest of the politicians . Sad state of affairs . Perhaps if we outlaw political parties maybe we could get something meaningful accomplished. We need some free thinkers , what is wrong with doing the right thing regardless of party .

By the way , those who favor the law , hope you have to deal with the IRS over the penalty . Try reading that portion .

Kyle Wingfield

March 30th, 2012
11:07 am

retired early: As someone who’s lived there and here, I’d strongly dispute your 10:30.

First, “Europeans” is a widely misused term in this context. The differences in laws and standards of living from Spain to France to Britain to Germany to Belgium (where I lived) are pretty large.

Second, to the degree that we can discuss them together, they don’t so much have a “better” standard of living as a different one. They get “free” health care — for which families firmly in the middle class often pay income tax rates well above 40 percent and even 50 percent. They get “free” college — for which they pay with higher unemployment rates for young people (immovable labor unions contribute heavily to this problem, too, which is why I’m always amused when French college students protest in “solidarity” with the union members who fight to keep their lifelong grip on their jobs, making it that much harder for the college students to enter the work force when they graduate). They may get more vacation days — although this is changing over here in many cases — but have less disposable income. And consumers there have far fewer choices than we do here.

So, it’s not as rosy a picture over there as you wish to paint.

Kyle Wingfield

March 30th, 2012
11:12 am

Tea Party Meber: When all you do is call other people “loosers” (sic), yes, I take those comments down.

Oh, and to everyone else: I wouldn’t consider “Tea Party Meber” to be an actual sympathizer of the tea party. At least, that’s not the tune “Tea Party Meber” sings when posting under other names…

Jefferson

March 30th, 2012
11:12 am

Kyle, you are lucky, don’t forget it.