ALSBTALK:

To declare a portion of congressional enactment is within the prevue of judicial review (although I am sure some might disagree with the author of the Supremacy Clause).  

That said, let's accept for the sake of argument that an individual mandate [1] does not have a close and substantial causal relationship with trade moving between two States that is sufficient to push aside the burdened persons' constitutional rights; as well as [2] does not even have the far weaker relationship with foreign commerce to support this national policy (i.e., "with" grants more power than "among").  OK, so we assume the individual mandate is unconstitutional by those lights.  

Regardless of how weak is the causal link perceived by the USSC during its discharge of its substantive due process duties, the question of materiality comes into play.  An unconstitutional part can not be severed unless that part is less than material to the whole.  

At the time of adoption of the statute was the inclusion of an individual mandate material to the affirmative vote of enough "Yes." votes that the bill would not have passed but for its inclusion?  Given the narrow margin of passage in the House, and given the many members who publicly conditioned their "Yes." vote on inclusion of an individual mandates:  the individual mandate is material to the whole and thus is not severable.  That is one metric of material.  More telling is another metric of material:  can the statute be enforced without the severed provision?  All who know anything of insurance know that adverse selection and moral hazard can prevent and can defeat financial solvency of an insurer.  The worst form of adverse selection and the worst form of moral hazard would exist in the absence of an individual mandate and in the presence of a surviving duty of universal sale.  Between the 2008 election and the start of the 2009 legislative session the lobbying group for all health insurers publicly announced its support for universal sale only upon the condition of an individual mandate since without the mandate the duty of universal sale was not financially viable.  The individual mandate is a linchpin that holds together all of the financial relationships.  It can not be severed.  If it goes, so too does then insurance of children up to the age of 26.

Clearly, a government may not do indirectly that which it may not do directly.  However, a governmental action that is permitted, at it outermost reaches, is permitted to generate an indirect consequence even if that consequence is expressly prohibited via direct action.

May the USA federal government condition the privilege of receiving a license to sell health insurance upon the person so licensed bearing the duty to sell at an average price to all requesting to purchase?  If so, and if an individual mandate is financially necessary for that universal sale duty to be effective, is the individual mandate unconstitutional?
 
Michael

Professor Michael J. O'Hara, J.D., Ph.D.
Finance, Banking, & Law Department
College of Business Administration
Mammel Hall 228 
University of Nebraska at Omaha
6708 Pine Street 
Omaha  NE  68182-0048
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(402) 554 - 2823 voice  fax (402) 554 - 2680
http://cba.unomaha.edu/faculty/mohara/web/ohara.htm