What Does The Court Think About Killing The Mandate?

Scott Lemieux considers the Supreme Court's choices:

If the Court strikes down the legislation, the political impact will depend on how the Court does it. The Court has allocated 90 minutes just to the question of whether the individual mandate can be “severed” from the rest of the bill—that is, whether the mandate can be ruled unconstitutional while the rest is kept in place. Ruling that the mandate can be severed from the rest of the ACA would appeal to Kennedy and Roberts for two reasons: They like “minimalist” opinions that don’t go beyond what is necessary, and striking down the relatively unpopular individual mandate would probably not attract a great deal of public opposition. On the other hand, from a Republican perspective, striking down the mandate would have unpredictable consequences. Without it, the ban on discriminating against people with pre-existing conditions in the ACA would potentially destroy the private insurance industry while creating a disastrous insurance price spiral. This could lead to a near-complete repeal of the bill—but it could also lead to a public insurance system. Kennedy must be worried about this possibility.

Yuval Levin wants conservatives to make the case against the whole law on policy rather than constitutional grounds.