[gatlin]

IANAL and I have not read the complete unabridged text of the bill but so far as I can tell the only piece that is likely unconstitutional is the individual mandate, correct? The commerce clause can be very powerful provided commerce is already taking place but I am not aware of precedent allowing it to coerce one into commerce in the first place.

Is there such a precedent? Would the existence of such a precedent be a good thing in the long term? I'm inclined to support this bill 100% but I just don't know what kind of effect this could have on businesses in the future.

[Lazare]

That's an open question. The legal term is "severability". Sometimes an entire law (or contract) will be struck down if one part is found to be illegal or invalid. Other times just the invalid part will be cut out, and the rest will still be enforced. It can go either way, depending on very specific details of the law (or contract), drafting history, previous precedents, etc.

Often, a law (or contract) will contain a severability clause specifically saying what will happen. (Contracts almost always say that the contract should stand if any clause is found invalid.) The problem here is that the ACA's drafters (perhaps foolishly) did not consider the possibility of a constitutional challenge, and did not include a severability clause into the law.

If the mandate is found unconstitutional, the court will also need to rule on the severability question; it's very uncertain at this point which way they'll rule (if they have to rule at all).

(Bonus question: Do we want the ACA struck down if the mandate is struck down or not? The law does a lot of things, some of which are quite good, and would still work just fine without the mandate clause. On the other hand, guaranteed issue and community ratings without a mandate might completely destroy the health insurance market, without replacing it with anything else, which would be a disaster. The Court is highly unlikely to rule that it's partially severable, so we'll probably see the whole ACA struck down, or only the mandate. In theory, Congress could fix it either way the next day...but in practice it's likely to be terrible deadlocked. Messy.)

[bunderbunder]

I rather hope the bill stands or falls as a whole. The individual mandate is one of the lynchpins of the bill. Without it, the bans on annual limits and discrimination against people with pre-existing conditions that are coming in 2014 will probably force premiums to increase considerably. Admittedly there's plenty of good stuff in the act beside all that, but I fear it's still better to lose everything in the bill than it is to lose the individual mandate but not the things that need the individual mandate to be feasible.

[halostatue]

There are such precedents. Right wing lawyers and bloggers tend to deny that such precedents exist, and left wing lawyers and bloggers tend to say that they have more meaning than they probably do—but there are precedents.

Probably the best example in Linda Greenhouse's essay for the NYT (http://opinionator.blogs.nytimes.com/2012/03/21/never-before...) is the Emergency Medical Treatment and Labor Act (it prevents hospitals from refusing care to uninsured patients; this coerces hospitals into commerce. (That a law had to be passed to make this the standard is IMO disgusting. Obviously the Hippocratic oath applies only to doctors and not to hospital bean counters.)

It's worth noting (a few paragraphs later) that EMTLA has a knock-on effect, too: you or your employer pays for all of this uninsured/underinsured treatment through higher premiums. Greenhouse: "The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not." This 1986 law actually makes your insurance more expensive, forcing you into commerce that you may not be interested in.

The flaw with Obamacare—and the only way it could have been passed because of the complete and total insanity of American politics today—is that it doesn't actually establish universal healthcare. If the individual mandate had been instead cast as a tax which is then used by the individual to select their insurer (IIRC a key feature of the Clinton healthcare plan that was scuttled), then it would have been no different than Social Security (which has whiners saying "but I will have a better retirement plan, so why should I be paying this?"—tell that to the people living large on their Enron 401(k)) or school taxes (which has childless and empty-nest whiners saying that they don't get benefit from schools) or anything else where there's a mandate that you pay something for a benefit that you may or may not use in a particular year.

Better yet, look at the houses that burned uncontrolled in the Tennessee county for want of a $75 annual fee (http://streeteasy.com/nyc/talk/discussion/22973-free-market-...).

Sorry. I'm completely baffled by what's happened to American politics in the last decade. I was disgusted enough with what was going on during the Clinton years that it was an easy choice for me to emigrate to Canada (not perfect, and some of our politicians are emulating American belligerence a little too much, especially the local moronic mayor), but now I don't even recognize the country in which I was born. It saddens me.