If the SCOTUS rules Obamacare unconstitutional...

[TheGlobalizer]

This is on severability, not the mandate.

ok, but the severability is a pretty open and shut case - the mandate is just too central and too big of a part of the bill to cleave out.  Even many Dems have said so over the last 2 years.

As a lawyer for a health insurer, no, it's not open and shut.

Health insurers will argue that it's the most important part of the law, but that's self-serving.  The question really becomes whether the individual mandate was necessary to make the entire program fiscally viable (probably not) or just to make certain portions of the program viable (most specifically, guaranteed issue / pre-ex; for them, probably yes).

I'm not surprised they're looking at ruling the individual mandate unconstitutional, but I am surprised that they're seriously looking at severability.  Based on what I'm seeing/hearing, the court has a very real chance of invalidating more than just the individual mandate, which I considered a longshot before this week.  I don't think they'll throw out the whole law, but guaranteed issue and pre-ex are probably the first to go down with the individual mandate, and wouldn't be surprised to see the benefit mandates fail as well, under the theory that all programmatic "enhancements" (more coverage) were predicated on the revenue from young, healthy people forced to buy in.  What's most interesting is that Kennedy and Roberts are indicating that they don't want to get into the weeds, which means that we're probably looking at a hatchet rather than a scalpel.

As for the political component here, I think it makes Obama look rebuked by the courts to the folks in the political center.  The wings will get riled up no matter what happens and that all nets out to zero, more or less.

[TheGlobalizer]

Can the justices rule separately on the mandate and on severability?  So, could we have a 5-4 "party line" decision against the mandate, but then Roberts joins the liberals to strike down just a few other parts of the law?

Justices can concur, dissent, or concur in part, in whatever manner they choose.  I think it's likely that you see 3-4 opinions on this case - a left-wing view (Ginsburg, Breyer), a right-wing view (Scalia, Thomas, Alito), and center-right view (Roberts, Kennedy), with potentially a nuanced center-left opinion (Sotomayor and/or Kagan).

I think it nets out to a 5-4 opinion that narrowly strikes down the individual mandate and a small handful of closely related provisions.

[TheGlobalizer]

http://www.scotusblog.com/2012/03/argument-recap-a-lift-for-the-mandate/

"A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself."

that logic does not make sense...if they understandably don't want to go through the 2700 pages to find what can be severed from the madate, they are likely to throw out the whole thing, rather than uphold the mandate.

in other words, they're not going to spare the mandate just to keep from throwing out the entire law

I agree with this.  Constitutionality is not a relative determination, so if the individual mandate isn't constitutional, they'll have to either throw the whole thing out or throw out the parts that are inextricably tied to the mandate.

The more I see on this, the more I think that the court will want to toss the whole damn thing and tell Congress to start over.  I think they might actually reach a 5-4 consensus on striking down the entire law or most of it, which I thought was impossible a week ago.  Roberts actually appears to be the wildcard here moreso than Kennedy.

The "striking down the whole law is less judicial activism than striking down part" line of political argument is novel and I think it fits well within SCOTUS jurisprudence and historical practice.  The court will strike down as much of the law as is necessary to reconcile constitutionality without creating a broken/dysfunctional version of the law.

[TheGlobalizer]

When's the verdict out?

IIRC, June.

Single payor would survive a constitutional challenge, at least under post-New Deal jurisprudence.  The right would call it socialism (this time, they'd be right) and the downstream effects in reducing access and quality would be significant, but it wouldn't be unconstitutional.  A tax-funded program is different than a mandate to purchase something.

Anyone who thinks the government could do a better job of managing the cost of health care while maintaining quality and access is simply not aware of the realities insurers operate under.  I've been in the industry for over a decade and it's a fcking miracle that insurers even make the little money that they do.  Look at Medicaid network access and the VA system if you want to see what single payor looks like.

[TheGlobalizer]

The truth is that nobody knows what impact it might have. The only other remotely similar situation was in 1936 when the conservatives in SCOTUS had struck down a number of FDR's New Deal laws.

Everything depends on who wins the message war. At another time, running against SCOTUS would have been political suicide. But nowadays, after Bush v. Gore, Citizens United, etc., 75% of Americans believe that the Justices decide more on partisan basis rather than legal one (http://www.bloomberg.com/news/2012-03-15/supreme-court-seen-influenced-by-politics-in-health-care-ruling.html). So there is fertile ground there for Obama and the Democrats to run against a Supreme Court that has essentially become an unofficial branch of the Republican party.    

They can run on it but who are they going to win?  With a roughly 35-25-40 split in this country, politically (left-center-right), I don't see how running against a conservative court wins elections.  I think folks on the left continually overestimate the power of the left's message.  Without translating it into something meaningful, it's just politics and most people tune that sht out.  I think a lot of people will be thanking SCOTUS for striking it down.

[TheGlobalizer]

The truth is that nobody knows what impact it might have. The only other remotely similar situation was in 1936 when the conservatives in SCOTUS had struck down a number of FDR's New Deal laws.

Everything depends on who wins the message war. At another time, running against SCOTUS would have been political suicide. But nowadays, after Bush v. Gore, Citizens United, etc., 75% of Americans believe that the Justices decide more on partisan basis rather than legal one (http://www.bloomberg.com/news/2012-03-15/supreme-court-seen-influenced-by-politics-in-health-care-ruling.html). So there is fertile ground there for Obama and the Democrats to run against a Supreme Court that has essentially become an unofficial branch of the Republican party.    

They can run on it but who are they going to win?  With a roughly 35-25-40 split in this country, politically (left-center-right), I don't see how running against a conservative court wins elections.  I think folks on the left continually overestimate the power of the left's message.  Without translating it into something meaningful, it's just politics and most people tune that sht out.  I think a lot of people will be thanking SCOTUS for striking it down.

Independents hold in even lower regard SCOTUS than Democrats in the poll I linked.

And I don't think that the parents who will see their kids kicked out of their insurance or the seniors who will fall again in the donut hole will be especially thankful towards the court, regardless the ideology.

Kids won't be kicked off of insurance.  The age 26 thing is actually a net win for insurers, as those are healthy bodies.

Independents hold government in general in low regard, and are even in their distribution of the blame.  Just because a few court followers consider SCOTUS to be a 5-4 conservative court right now (a fair but overly simple analysis) doesn't mean that all independents who think SCOTUS is too political are blaming Republicans for it, and it doesn't mean that it's an important issue for them, either.