Severable Scrape (or: What to Do if the Individual Mandate is Ruled Unconstitutional…)

March 27th, 2012

I believe that the individual mandate is Constitutional, both on Commerce Clause grounds, and even more clearly based on Congress’s taxing authority. But in view of today’s common wisdom that things don’t look good for the individual mandate and the topic for tomorrow’s oral arguments (severability), here are my suggestions about how to address the individual mandate’s possible elimination consistent with the principles of narrow holding and deference.


Dear Supreme Court:

If it turns out that you to the mandate are Constitutionally opposed,

Please read below what I’ve proposed.


And Congress:

If you’re forced by the Court to correct that supposed Constitutional flaw,

Here are my suggestions on how to rewrite that part of the law.


Supreme Court Justices:

If you do rule the independent mandate unconstitutional, please remember that you don’t need to throw out the whole law. In the interest of limiting the decision to the narrowest possible one and reducing the Court’s intrusion into policy-making, the Court should rule that the mandate is severable from the rest of the law from a Constitutional perspective. That then returns to Congress the power to determine whether the individual mandate is severable from a policy perspective, or whether an alternative to the mandate can be developed. The Court could if it so chooses sketch out the constitutional confines of that alternative. That alternative can then also be challenged if anyone believes it is unconstitutional.


And Congress:

What are the options for rewriting the individual mandate, if it becomes necessary to do so?

1) Allow and promote an HSA/bond option for people without health insurance (read Don’t Hate the Mandate for more about that).

2) Make federal funding available thru states and contingent either on adoption of state mandates, or a targeted percentage of insurance coverage which demonstrates that a mandate isn’t necessary.

3) Replace the mandate with a revenue-raising tax more closely linked in the legislative history with the costs which the federal government incurs due to uncompensated care.

4) Allow the current system to continue whereby hospitals must provide uncompensated care, and insurance companies (and hence the rest of us through higher premiums) must subsidize the uninsured.

5) Change the mandate requirement altogether as suggested by one of the Justices today to require that an uninsured person obtain insurance coverage in the Emergency Room (or assumedly pay for the care directly). The individual could then be required to sign a minimum-term contract (e.g., at least a one-year) and possibly even pay for missing past coverage retroactively (possibly in the form of a 50% late payment penalty), which would in full or part eliminate the adverse selection issue.

6) Finally (and my favorite), reconstitute the Public Option/Medicare for All (the latter would be preferable), and instead of an individual mandate to purchase a private sector insurance policy, levy a tax that covers that individual’s Medicare policy. That is unquestionably constitutional, just as the Medicare tax is. As opposed to the individual mandate, it would not require purchase of a product, and would provide the recipient with the additional benefit pf receiving coverage for his or her tax penalty. This would also benefit the Medicare program by bringing in a pool or new younger members to spread and reduce costs, and would benefit the healthcare system as a whole by providing a price floor that would incentvize private insurance companies to keep costs down.


Leave a comment below, email, or Tweetme to let me know what you think.  

And here’s a montage of the inspiration for our title, Professor Severus Snape.


“There will be no foolish sign-waving or silly incantations in this Court. As such, I don’t expect many of you to appreciate the subtle science and exact art that is oral argument.” – Justice Severus Snape (paraphrased)


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