Administration: Health law can survive without individual mandate

By Julian Pecquet

Obama administration officials this week told a federal judge that even if the healthcare reform law's individual mandate is ruled unconstitutional, other parts of the law should be allowed to stand.

That argument, known as severability, is crucial to the law's survival should a judge rule that the mandate is unconstitutional. The administration made the argument Tuesday in a filing in Florida's multi-state lawsuit. The individual mandate is also being challenged in Virginia and Ohio.

"Some limited set of provisions of the [healthcare reform] Act cannot survive" if the mandate is stricken, the administration argues. "Other parts of the statute, however, are plainly severable from ... the minimum coverage provision."

Democrats, policy experts and the health insurance industry have long argued that the controversial mandate to buy insurance is vital to making the law's reforms work. Without it, they argue, people could wait until they're sick before buying coverage that can't be denied to them.

Republicans have argued that the whole law will fall aprt if the mandate is stripped out.

"If the individual mandate is found to be unconstitutional, as Virginia says it is, the whole bill falls," Virginia Attorney General Ken Cuccinelli told Fox News in August. "The whole thing."

The administration acknowledged Tuesday that major parts of the law — including the prohibition against rejecting people with pre-existing conditions and the requirement that everyone be offered the same rates regardless of their medical condition — "cannot be severed" from the mandate.

But the court filing goes on to argue that "plaintiffs inflate beyond their obvious meaning" the arguments in favor of the individual mandate and adds that "countless ... provisions of the Act are entirely capable of being applied even if" the mandate is struck down.