Why the Supreme Court will strike down all of ObamaCare

Once the Court finds the individual mandate unconstitutional on these grounds, as it will, the question becomes whether the whole Obamacare Act must be struck down as unconstitutional as a result. The law does not include a traditional severability clause providing that if one of provision of the Act is found unconstitutional, the rest of the law should stand.

Consequently, the question becomes whether the remaining parts of the Obamacare law can still remain fully operative and function as Congress intended, and whether Congress would have passed the Act without the individual mandate. The answer in both cases is indisputably no.

Obama’s lawyers themselves have repeatedly argued in courts all over the country that the Obamacare law cannot function without the individual mandate. That is because of the Act’s regulatory requirements for guaranteed issue and community rating. The Act requires all insurers to cover all pre-existing conditions and issue health insurance to everyone that applies, no matter how sick they are when they first apply or how costly they may be to cover. Moreover, the insurers can only charge them the same, standard, market rates as everyone else.

Under these regulatory requirements, younger and healthier people delay buying insurance, knowing they are guaranteed coverage at standard rates after they become sick. Sick people show up applying for an insurer’s health coverage for the first time with very costly illnesses such as cancer and heart disease, which the insurer must then cover and pay for, out of the same standard premiums as everyone else pays. This means the insurer’s covered risk pool includes more costly sick people and fewer less costly healthy people, so the costs per person covered soar. The insurer then has to raise rates sharply for everyone just to be sure to have enough money to pay all of the policy’s benefits.