Friday, June 8, 2018
Among other things, they show why the government's severability argument doesn't hold up:
The premise of DOJ's argument . . . is that Congress repealed the mandate as it was enacted (by repealing the tax penalty for not complying with it). Yet its premise in part (B) is that the mandate is not severable from other provisions; in other words, that without the mandate, Congress would not have wanted the guarantee issue and community rating provisions. But we know the opposite is true: Congress repealed the mandate, but kept the guarantee issue and community rating provisions. There is no need to speculate what Congress might have wanted.