Will the Supreme Court Create Zombie Obamacare?

| Wed Mar. 28, 2012 6:45 PM EDT

The first question before the Supreme Court on Wednesday, the last of three days of oral argument about the constitutionality of President Barack Obama's health care law, was whether the individual mandate—the requirement that certain uncovered Americans purchase health insurance or pay a fine—was the "heart" of Obamacare. In other words, if that beating heart is ripped out by a majority of the nine black-robed justices, should the Affordable Care Act be allowed to stumble along or be put down with a double-barrel shot to the head?

Former Solicitor General Paul Clement, representing 26 states challenging the law, said that without the individual mandate the rest of the bill would not work and Zobamacare should not be allowed to rise from the remains.

"What you end up with at the end of that process is just sort of a hollow shell," Clement said. "You can't possibly think that Congress would have passed that hollow shell without the heart of the Act." Justice Antonin Scalia later asked Deputy Solicitor General Edwin Kneedler that particular question: "Can you take out the heart of the act and leave everything else in place?"

Kneedler had a tough position to defend. The Obama administration's stance is that if the individual mandate is struck down, popular provisions like the ban on insurance companies discriminating due to preexisting conditions must also go. Kneedler was telling the court that if a majority chooses to rip out the heart of the bill, they will have to tear out the entire circulatory system, too. The reason: Without the individual mandate to push healthy individuals to buy insurance, the insurance industry would go bankrupt trying to cover those with serious, expensive health problems. Yet Kneedler also argued that the Affordable Care Act created a "sharp dividing line" between those popular reforms and the rest of the law. The legal concept in play here is "severability": whether or not the law can remain if one piece is stricken.

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