In their “Letter to University Presidents and Student Associations Regarding Health Insurance for Young Adults,” issued May 18, Department of Education secretary Arne Duncan and Health and Human Services secretary Kathleen Sibelius encouraged campus leaders to remind graduating seniors about the options now available under the Patient Protection and Affordable Care Act.  But they are doing more than simply raising awareness:

Before the new health care law, the Affordable Care Act, was passed in 2010, graduation day was the day when millions of young adults lost their health insurance, making them one of the most vulnerable groups of Americans. Many young adults were forced to go without coverage, making them just one accident or serious medical illness away from unmanageable medical bills that could make them go broke trying to pay for the care they needed….

Millions of young adults do not have to worry about this anymore.  The new health care law makes it possible for young adults under age 26 to remain on their parents’ health care plan if the policy covers dependent children.  This is true whether they are unemployed, looking for a job, married, in school, living at home, or even if they are employed but their employer does not offer coverage…. Now, graduating students are free to make career choices based on what they want to do, not where they can get health insurance.

The letter also includes a variety of ways to participate in the campaign: downloadable website “badges” by which schools can link directly to Obamacare information; a series of flyers and brochures to hand out, with a distinct brochure for each minority group; and a link to the “Young Adult Coverage” Facebook page, which features feel-good stories about youngsters already benefiting from the PPACA.

But this message is not just for collegians.  An HHS press release issued Monday, May 21, states that the secretaries “are reaching out to campus leaders to remind graduating high school, college and university seniors about their new health insurance options…” (emphasis added)  Ben Shapiro, at Breitbart.com, explains why the administration is also targeting the pre-college crowd:

This is obvious propagandizing; under the old health care law, most insurance programs allowed dependent care coverage for people under the age of 21.  So why would Sebelius and company be reaching out to high schoolers?  The answer: those high schoolers are turning 18, and can therefore vote.

Full piece here. 

Tuesday’s Supreme Court arguments on the individual mandate were certainly the main event from the constitutional-law perspective. But from the health-policy perspective, Wednesday’s arguments over severability were the top draw.

Even with the individual mandate in place, Obamacare is an unstable and unworkable mess. Should the Court strike only the mandate, the practical result would be to merely accelerate Obamacare’s inevitable, functional collapse.

Thus, from the perspective of health policy the more interesting question before the Court is that of severability — or, how the Court deals with the rest of Obamacare if it strikes the mandate as unconstitutional.

As Robert Alt and I noted recently, the Court has three options on severability — none of which is attractive from the Justices’ perspective:

1) Strike only the mandate, and leave the rest of the statute. That would be the equivalent of pulling the pin before tossing the hand grenade back to Congress.

2) Map the complex interrelationships between the mandate and numerous other provisions, and then try to divine a rationale for discarding (along with the mandate) some provisions, but not others.

3) Conclude that the first option is irresponsible and that the second is impossible, and therefore follow their own stated legal standard to strike the whole law — despite that being an uncomfortable practical position for most judges.

Thus, Wednesday’s oral argument on severability was essentially an exercise in the Justices trying to determine which option, from their perspective, was “least ugly.”

As the questioning unfolded it seemed that the Justices (including the Court’s liberals) grasped that discarding only the mandate and hoping for the best would be irresponsible. At least the more conservative ones also seemed to struggle with how they might find some number of other provisions to be non-severable (including even the few offered by the government) without severability devolving into an illogical and impossible exercise.

Indeed, in the questioning it became apparent that even adopting the government’s limited position of striking only a few provisions as “non-severable” from the mandate was internally inconsistent and no more logical than any other potential rationale for partial severability — points that Robert and I made in our paper. That conclusion also seemed to be reinforced (albeit, unintentionally) in the questioning of the Court-Appointed Amicus Curiae tasked with advocating for striking only the mandate — which was the decision of the Eleventh Circuit, but a position that neither the plaintiffs nor the government supported.

My overall impression was that the Justices appeared to be gravitating, reluctantly but inexorably, toward the solution that they were initially least inclined to embrace — that of striking down the whole law.

Given that context, what particularly intrigued me was that the plaintiffs’ attorney, Paul Clement, was clearly “swinging for the fences” on severability. Prior to oral arguments, there was an assumption, even among conservatives, that the plaintiffs’ argument for striking the whole law was a kind of “ask for the whole loaf to increase your chances of getting half a loaf” strategy. But Clement’s references to Buckley v. Valeo — not once, but three times, including making it the final point in his rebuttal argument — showed that he really was going for the home run.

Put in unvarnished terms, Clement was essentially saying to the Justices: “In Buckley v. Valeo, the Court struck some provisions but left standing others (including some constitutionally dubious ones), out of deference to Congress. Look at what that got you. Forty years of an unworkable statute and yet more constitutional challenges to it brought before you. The latest of those, Citizens United v. FEC, resulted in an unprecedented (and both institutionally and personally insulting) attack on you, to your face, by the president in his State of the Union Speech. That is the thanks you got for trying to be deferential to the political branches while legitimately exercising your duty to defend the First Amendment. Do yourselves, and everybody else, a big favor by not repeating that mistake in this case. Strike the whole law, and send the Congress and the president a message that they should think carefully about the Constitution before legislating. Sure, some of them are going to scream. But if you strike the whole thing, they only get to scream once.”

Of course, Clement didn’t need to spell it out quite so crassly. He knew that the Justices would read those unspoken inferences into his concluding statement — which, by the way, was also the last word in the entire argument over severability:

And that takes me to my last point, which is simply this court in Buckley created a halfway house and it took Congress 40 years to try to deal with the situation, when contrary to any time of their intent, they had to try to figure out what are we going to do when we are stuck with this ban on contributions, but we can’t get at expenditures because the Court told us we couldn’t? And for 40 years they worked in that halfway house. Why make them do that in health care? The choice is to give Congress the task of fixing this statute, the residuum of this statute after some of it is struck down, or giving them the task of simply fixing the problem on a clean slate. I don’t think that is a close choice. If the individual mandate is unconstitutional, the rest of the Act should fall.

I came away from the severability arguments thinking, for the first time, that the Court might actually strike down the entire law.

Of course that would be an excellent outcome for both the Constitution and the health system, but it would still not be the end of the matter. The Left would immediately begin bleating about the loss of Obamcare’s supposed “benefits” and attack the right for not having solutions to health-care problems. 

We on the right must be prepared to vigorously counter both lines of attack. Conservative health-policy experts at Heritage and elsewhere are already fact-checking the Left’s claimed “benefits” of Obamacare. Conservatives have also long advocated an alternative vision of a patient-driven, market-based health system, most recently summarized in Heritage’s Saving the American Dream proposal. While awaiting the Supreme Court’s decision, my colleagues and I will continue to advance in detail the benefits of conservative health reforms while also continuing to critique the flaws and failings of Obamacare.

— Ed Haislmaier is senior research fellow in health-policy studies at the Heritage Foundation.

Sally C. Pipes is president of the Pacific Research Institute and author of The Pipes Plan: The Top Ten Ways to Dismantle Obamacare. She reviews this week’s Supreme Court oral arguments and the state of health care in America, politics and all.  

KATHRYN JEAN LOPEZ: What’s your greatest hope and greatest fear about the Supreme Court and this individual-mandate case?

SALLY C. PIPES: On the Supreme Court hearings and the individual mandate, my greatest hope is that a majority of the justices decide that the mandate is unconstitutional. My greatest fear is that they decide it is constitutional and then the power of the federal government to force us to purchase things in the private market will have no bounds — health insurance first and then Prius cars, burial insurance, a ban on red meat.

LOPEZ: Could we live with an individual mandate? 

PIPES: I believe it would be very bad for us if the individual mandate remains part of Obamacare. The cost of insurance will increase and it will not reduce the number of uninsured. In our amicus brief to the court, we were able to show that the cost shift from the uninsured to the insured for uncompensated care will increase by $3–$5 billion because of the individual mandate. This is diametrically opposite to the administration’s claim.

LOPEZ: Could Republicans ironically lose a clarifying issue in the election this fall if the Court strikes down the mandate? 

PIPES: Should the Court strike down the individual mandate, I think it will be a positive development for Republicans seeking office. Two years after signing the law, 56 percent of Americans support repeal of the Affordable Care Act. On the individual mandate, 72 percent favor repeal. In the 2010 congressional elections, one of the main reasons Republicans took back the House and made gains in the Senate was because of their disdain over government’s takeover of the health-care system. #more#

LOPEZ: Does anyone really know what the implications for the entire law would be if they did strike it down? 

PIPES: If the entire law is struck down by the Court, I think it will be very positive for Congress to prepare a health-care bill that will lead to affordable, accessible, quality care for all Americans. Obamacare will not lead to universal coverage and will not bend the cost curve down. The CBO recently estimated that the cost of Obamacare will almost be $1.76 trillion from 2012 to 2022. It is a far cry from the president’s desire for a plan that cost $900 billion over ten years. The real cost will probably exceed $2.6 trillion over the decade 2014 to 2024.

LOPEZ: Is Romneycare ultimately a help or a hindrance to Mitt Romney as a general-election candidate? As a prospective conservative problem-solving president?

PIPES: I think that the president will try to use Romneycare as a tool against Mitt Romney should he be the Republican candidate. Romney will have to emphasize over and over again that if elected president his first order of business would be to get Congress to repeal Obamacare and that he would sign the bill. Such a move would help him with conservative voters who are skeptical of Romneycare and who see the similarities between Romneycare and Obamacare.

LOPEZ: Has anything surprised you this week? 

PIPES: Prior to the three days of Supreme Court hearings, I was very nervous about how the justices would deal with the Anti-Injunction Act and whether the mandate is a tax or a penalty. On the constitutionality of the individual mandate, I was worried about the positions of Justices Kennedy and Scalia. Following the hearings, I felt encouraged. However, it is not possible to predict the votes and we will have to wait for their decisions on the mandate, and if it is struck down, whether the law can survive and whether the federal government has the power to coerce the states to expand their Medicaid programs for low-income Americans.

LOPEZ: How is Obamacare already harming innovation? 

PIPES: Obamacare is harmful to innovation in the pharmaceutical and medical-device industries. Investment in research and development is already down because of Obamacare. Excise taxes on drug-company sales are already in effect. In 2013, there will be a new 2.3 percent excise tax on medical-device companies. We have already seen firms such as Stryker announce they are going to cut their workforce. These industries are job creators and will no longer be unless the Affordable Care Act is repealed and replaced.

LOPEZ: What do you make of the Department of Health and Human Services contraception/abortion/sterilization mandate debate? 

PIPES: On the HHS mandate that would force insurance companies to provide free pills for contraception, etc., I feel it is wrong and an invasion of people’s personal liberty. On a broader level, it is part of the president and the administration’s goal to increase the mandates on insurance companies, which increase costs of coverage.

LOPEZ: You write that “if the Supremes let the law stand, then the federal government’s power will effectively know no bounds.” Isn’t that just a right-wing talking point? A wee bit of an exaggeration?

PIPES: If the Supremes let the law stand, it is absolutely true that the federal government’s power will know no bounds. This was definitely evident in the hearing on Tuesday which focused on the constitutionality of the individual mandate. As Justice Kennedy, the likely swing vote on the Court, said “the ACA would change the relationship between the individual and the federal government.” He also asked Solicitor General Donald Verrilli “what constitutional power the government has to force all Americans to buy health insurance?”

LOPEZ: Where do you stand on calling it Obamacare?

PIPES: I have written two books with Obamacare in the title: The Truth About Obamacare (Regnery 2010) and The Pipes Plan: The Top Ten Ways to Dismantle Obamacare (Regnery 2012). It was the president’s goal to be the first president in 75 years to achieve health-care reform. Hence, he owns it and the American people don’t endorse it.

LOPEZ: What happens if the individual mandate stands in court and Barack Obama is reelected? If it goes down and Barack Obama is reelected?

PIPES: If President Barack Obama is reelected and the mandate stands, it will be very difficult to repeal and replace Obamacare because he will veto any repeal bill. I think because the main cost drivers come into effect in 2014 — Medicaid expansion, employer and individual mandates, federal subsidies, ending of caps on insurance companies, and no price differential on policies for those with preexisting conditions —  it will be difficult in 2016 under a new president to reverse the law.

If the mandate is struck down and the president is reelected, I think Obama and the administration will try to move forward with the parts mentioned above, with the exception of the guaranteed-issue and community-rating provisions.

LOPEZ: “Our congressional leaders can repeal Obamacare and replace it with market based reforms that actually expand access to coverage, provide quality care, and reduce the cost of health care.” Is repeal really for real? And why are you so confident that something — never mind something market-based” would really come after it?

PIPES: The American people fear that if the legislation is not repealed, private insurers will be crowded out and we will all be left in a Canadian-style “Medicare for All” system with long waits for treatment and rationed care.

Strong leaders in Congress and a GOP president with backbone can repeal of Obamacare and introduce a new bill with market-based reforms that empower doctors and patients.

LOPEZ: Do you like anything you’re hearing from any elected official or anyone who wants to be one? 

PIPES: I think several elected officials are on board with repeal and replace, and more are joining the movement. They include Dr. Tom Price (R., Ga.), Senator Tom Coburn (R., Okla.), and Paul Ryan (R., Wisc.) to name a few.

LOPEZ: What’s so special about “The Pipes Plan”? 

PIPES: The Pipes Plan was written in an easy-to-read format so that politicians and candidates can articulate a ten-point plan to really bring about health-care reform that empowers doctors and patients. Understanding health-care reform is similar to unraveling an onion — many layers and many tearful moments. I wanted to make a reform agenda that works for all.

No one knows how the Supreme Court will rule on Obamacare. But let’s assume that the Court does end up striking down the individual mandate when it releases its opinion this summer, and perhaps along with it Obamacare’s “guaranteed issue” and “community rating” provisions (which together say that insurers can’t avoid offering policies to those with expensive preexisting conditions and cannot charge them any more for those conditions). And let’s assume that the Court leaves the rest of the 2,700-page monstrosity intact. This is certainly a realistic scenario.

In that event, Obamacare would still increase federal spending by about as much as (and quite possibly much more than) it would now. According to the Congressional Budget Office, Obamacare’s “coverage provisions” alone, mostly in the form of its taxpayer-subsidized “exchanges” and its massive and underreported expansion of Medicaid, would cost a colossal $2 trillion (and change) in Obamacare’s real first decade — 2014 to 2023 ($1.753 trillion from 2014 to 2022, plus more than $265 billion in 2023). These coverage provisions wouldn’t get much cheaper, and could get a lot more expensive, without the individual mandate.

Given that Mitt Romney’s own health-care overhaul in Massachusetts also offers huge taxpayer-funded exchange subsidies and also expanded Medicaid coverage in the Bay State, if Romney is then the Republican nominee, would he be committed to repealing such provisions in Obamacare? Romney said just last week that we need “to abolish” Obamacare, “root and branch.” But if the Court snips away the most visible part of Obamacare and removes it from public view, would Romney still be determined to pull out the rest, and would he make it a centerpiece of his general-election campaign?

Since Romney has said very little about Obamacare’s massive exchange subsidies and Medicaid expansion, and not a ton about Obamacare generally, these would seem to be fair questions for GOP voters to ask.

Must-buy as a slippery slope.

Today, the Supreme Court will hear two sets of oral arguments: At 10 a.m. EST, they’ll discuss whether the individual mandate is “severable” from the rest of the Affordable Care Act, and whether the rest of the law — or part of it — should go down alongside. At 1 p.m. EST, the Court will hear arguments on whether Obamacare’s dramatic expansion of Medicaid is excessively coercive to the states, given that states are forced to go along or lose all of their Medicaid funding.

We had nearly 6,000 readers for Tuesday’s live blog on the individual mandate, so we’ll be back again, starting at 10:00 a.m., and going on until the end of the day. (The transcript of Monday’s live blog is here.) We’ll be joined, as usual, by leading conservative health-care journalists and policy experts. Please join us, and bring your comments and questions!

— Avik Roy is a senior fellow at the Manhattan Institute and the author of The Apothecary, the Forbes blog on health-care and entitlement reform. You can follow him on Twitter at @aviksaroy.