. . . .
In the Texas case, the plaintiff states’ theory is that now that there is no “tax” for failing to buy approved insurance, the entire mandate is unconstitutional, because the court has already concluded that the mandate could not be supported under the commerce clause. In itself, that makes no practical difference; the mandate is not being enforced. But the plaintiffs also argue that, following the severability analysis from the first go-round, which remains valid, the preexisting-conditions rule must be invalidated, because Congress would never have enacted that rule without also enacting a mandate. No mandate, no preexisting-conditions rule.
