Today's decision by George W. Bush appointee Henry H. Hudson finding that the individual mandate provision of the Affordable Care Act is unconstitutional has attracted a great deal of attention. Hudson didn't issue an injunction preventing the act from being enforced, so the decision is meaningful only in terms of what the Supreme Court might do. The key word there, as Ezra Klein points out, is "provision." Hudson held that the individual mandate (which he ruled to be unconstitutional) can be legally "severed" from the rest of the ACA. That is, he found the individual mandate to be unconstitutional, and even if higher courts agree, the rest of the bill would be upheld -- even most opponents of the ACA concede that the rest of the bill is constitutional.
As long as the individual mandate can be severed from the act, it sets up a situation where (to paraphrase Joey LaMotta) if liberals win they win, and if they lose, they still win. Given that repealing the popular requirement that insurance companies not deny people based on pre-existing conditions is a near impossibility politically, if the Supreme Court adopted Hudson's reasoning, the result would probably be the death of private insurance rather than a return to the pre-ACA status quo. Like most liberals, I would actually regard this as an improvement. This is perhaps the key reason I've never thought that the Supreme Court will strike down the individual mandate. And while it's theoretically possible that a Supreme Court majority could simply avoid this problem by striking down the whole bill, if a conservative Bush appointee wouldn't do it even in a case where the ruling would be immediately enforced, it's hard to imagine Anthony Kennedy doing so.
-- Scott Lemieux
