Obamacare and Severability

This morning, the Supreme Court heard arguments on what remedy to provide if the court were to hold the individual mandate unconstitutional. Many of those in the media who have written about the argument do not have the slightest idea what they are talking about. Nothing said this morning indicates that the individual mandate will be declared unconstitutional. That was yesterday's argument. Today, the court started from the premise that the mandate has been declared unconstitutional and it now must decide whether to strike down the entirety of Obamacare or just some portion of it.

That being said, the argument this morning was extremely arcane. It did seem that at least four of the justices were leaning towards striking down the entire statute if the mandate is unconstitutional, but that was far from clear for all four. If one adds Justice Thomas to that group, there would be a majority of 5 that would support striking down all of Obamacare.

Even the government admitted that were the mandate to be struck down there were other provisions that would have to fall as well. The government, however, could not offer any clear dividing line as to which provisions had to go and which could still stand. This lack of clarity was a weakness in the government position which may well come back to haunt the Obama administration if the mandate falls.