Mandate in Jeopardy?

About 20 states have filed suits of various kinds against the requirement for individuals to get health insurance that was approved in the health reform bill passed early this year. Even though the requirement does not come into effect for years, Republican state Attorney Generals are looking to block the requirement at the roots as part of their resistance of the "Federal takeover" of healthcare (a phrase recently, and correctly, named "the Lie of the Year" by PolitiFact, an organization that researches bogus claims in the political arena).

The claim from these state AG's is that the Federal government has never previously required citizens to buy a specific product in the marketplace, so that this would be a new power being taken on without precedent. (Auto insurance, for example, can be required of people who drive autos, but one can walk or take the train.) It seems clear that one or more states will find sympathetic judges, so that this one will eventually go to the Supreme Court. There, I would expect the four hardcore right-wingers to oppose the mandate (or anything else coming out of this Administration), so that the decision will fall, as usual, on the unpredictable whim of Justice Anthony Kennedy. The time to start influencing him on this--if anyone can figure out how to do that (perhaps get to his staffers? a prostitute seducing him?)--is now.

If the mandate falls, the whole edifice of the reform will be shaky: without coverage requirements, the number of people not covered will be reduced very little (we are talking about easy money for the insurance companies for the majority of those people, who are currently healthy and think themselves invulnerable, or are just unwilling to pay the insurers). That will mean those who have pre-existing conditions will be priced out of the market, and that public hospitals will continue to be flooded with emergency room costs for people with no insurance. We'll be back to where we started, only having lost years and any semblance of cost controls.

I wonder if the mandate would be judged more constitutional if there WERE a public option? I also wonder what the backup plan would be--a Constitutional amendment? a relaxation of the (already pretty minimal) fines eventually contemplated for those who refused to buy? Perhaps best would be an expansion of the "entitlement" of Medicare/Medicaid to cover catastrophic health problems for all, and scale back other publicly-subsidized coverage.