I think it probably is. I wrote this last spring:
The individual mandate is a fundamental element in the flawed architecture of this HCR bill, and the best thing about it is its not going into effect for another four years. I think there's a good chance that by the time 2014 rolls around it won't be part of the new HCR system. Already people are talking about court challenges to it, and I'd be surprised if it survives.
I don't care what the wonks say about it, the idea of the government forcing Americans to buy health insurance from hated, profit-driven companies is bad politics, and it's tossing a lazy softball to the political right to hit out of the park, and I, for one, will not come to the administration's defense.
It will go to the supremes now, and what do you think its chances will be in the Robert's court? This was ill-conceived from the beginning. It's typical of obtuse, wonkish, top-down thinking. It's anathema to what I've described as the structural Progressive approach. The Medicare buy in would have been so much simpler and easier to sell, but it was never about what's best for the country or the American people; it was about what was best for the insurance industry.
UPDATE: Klein talks about the impacts on HCR if the individual mandate is ultimately ruled unconstitutional:
-Repeal of the requirement to buy insurance would mean more people would wait until they get sick to buy insurance in the new nongroup exchanges, which would increase the average premium by 27 percent in 2019.
-Retaining the law’s insurance reforms, but repealing the subsidies as well as the requirement to purchase insurance, would further discourage people from buying insurance when they’re healthy. Premiums in 2019 would cost twice as much as projected under the law as a result.
-Retaining the law but repealing the mandate would newly cover fewer than 7 million people in 2019 rather than the 32 million projected to be newly covered by the law. Federal spending, however, would decline by only about a quarter under this scenario since the sickest and most costly uninsured are the ones most likely to gain coverage.
I have not doubt all this is true, but that's why it was so ill-conceived. Is there any hope that this might force reconsideration of a public option? Probably not likely with the new congress, but if the supremes kill the individual mandate, it would appear that whole thing will fail to deliver what were its promised ameliorative effects, namely reducing premiums and reducing the numbers of uninsured.
I have to say that I'm ambivalent. I have from the beginning rejected the fundamental architecture of this deal, but accepted that it was better for the people to have some crumbs rather than nothing. So preserving the individual mandate is the only way to preserve the delivery of those crumbs, it would appear. So maybe it would be better to scrap the whole thing rather than let it become the entrenched HC system.