Can 'Obamacare' Survive without Health Mandate?

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WASHINGTON -- In a second day of hearings Tuesday, the U.S. Supreme Court is confronting one of the biggest constitutional questions it's ever considered: Can the federal government require Americans to buy health care coverage?

Legal scholars like Harvard Law professor Walter Dellinger say that the individual mandate is no unconstitutional burden because in the end, everyone needs and most want health insurance.

"People are participating in the financing of their health care," he explained. "Insurance is the standard method of doing it. Would everybody who doesn't have health insurance raise their hand?"

But constitutional lawyer Kevin Marshall said by that logic, you could force almost any purchase.

"Most people will eventually buy a house.  Why wait until they buy the house to require them to get mortgage insurance? Make them do it now," he said.

Severing the Mandate

A major issue the justices must consider is that of "severability." If the justices rule the individual mandate is unconstitutional, they then must decide if the rest of President Obama's health care law can survive once the mandate has been severed.

"The Court has to decide what Congress' intent would be. Would Congress want the rest of the act to survive?" Todd Gaziano, with the Heritage Foundation's Center for Legal and Judicial Studies, told CBN News.

Deciding whether wiping out one part of a law means the entire law should be killed is often a close call.

But in the case of "Obamacare," opponents like the Heritage Foundation's Nina Owcharenko say the individual mandate is so key to the whole thing, that all of the law must fall if the mandate is found to be unconstitutional.

"Well, the whole health care law is kind of like a hard-wired machine," she explained. "And every wire and every switch is well-connected in this health care law that was enacted."

"And so, any kind of disruption in that major machinery I think sets the whole thing on fire," she said.

At the time Congress passed "Obamacare," the president insisted the individual mandate was crucial -- every American had to chip in or the health care reform wouldn't have enough money to work.

"The whole idea is, 'We've got to cage everyone in in order to keep the health care costs down," Owcharenko said.

Gaziano said the health care law is so expensive and so unpopular, a president up for re-election should be grateful if the high court strikes it down.

"It's such an unpopular statute, it's bound to be an anvil around the neck of Obama," Gaziano told CBN News. "He is better off with saying, 'Oh, that darn Supreme Court struck down my law.'"

Bleeding States Dry

The court is also considering another matter: Is it coercion if the federal government withholds massive amounts of money from states refusing to go along with expensive "Obamacare" plans?
Currently, the federal government alone can't pay for health insurance for those who don't have it. Consequently, many of those uninsured will need to rely on Medicaid.

That would give the states, which for the most part pay for Medicaid, a whole new expense at a time when many of them are already in financial trouble.

"It could be up to 20 million new Americans who will be put on the Medicaid program," Owcharenko said.

Owcharenko said this is happening as Medicaid is already bleeding the states financially.

"We know that the Medicaid program is really hemorrhaging state budgets. It's crowding out things like education, transportation, criminal justice issues," she said.

But if the states won't go along, the president and his allies are threatening to withhold huge amounts of federal dollars. Critics argue that's essentially forcing the states to accept the health care law.

"I think it's a very serious issue," Georgetown law professor Randy Barnett. "If this imposition on states is not coercive, it's not clear that anything is coercive."

The court is likely rule on the case early this summer.

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Paul  Strand

Paul Strand

CBN News Washington Sr. Correspondent

As senior correspondent in CBN's Washington, D.C., bureau, Paul Strand has covered a variety of political and social issues, with an emphasis on defense, justice, and Congress.  Follow Paul on Twitter @PaulStrandCBN and "like" him at