Paul Clement is so good that he started his argument today with a devastating rebuttal of his own argument that the mandate is unconstitutional:
If the individual mandate is unconstitutional, then the rest of the Act cannot stand. As Congress found and the Federal Government concedes, the community-rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate. Congress found that the individual mandate was essential to their operation.
And not only can guaranteed-issue and community-rating not stand, not operate in the manner that Congress intended, they would actually counteract Congress’s basic goal of providing patient protection but also affordable care.
Absolutely correct! In other words, the mandate is a necessary and proper part of a regulatory framework all parties concede is constitutional, and hence should be upheld. I’m glad we’ve reached a consensus here.