The Constitutionality of the Individual Mandate May Affect the Fate of the Entire Affordable Care Act


If the Supreme Court decides that the individual mandate is not constitutional, the next question the Justices will need to answer -- and the question the Justices grappled with in the morning of the third day of oral arguments -- is whether the rest of the Affordable Care Act can stand on its own without the individual mandate. The Justices heard arguments that the individual mandate should fall by itself, that it should fall along with a few provisions inextricably tied to it, and that it should take down the entire Act. The main points of discussion focused on the following three issues: (1) Is the individual mandate "essential" to the rest of the Act? (2) Would severing the individual mandate alone raise problems of "adverse selection?" and (3) Can the Affordable Care Act function financially without the individual mandate?

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