Today's severability argument

March 28, 2012 | By TIMOTHY SANDEFUR

Today’s arguments found the justices caught between two incompatible, but intuitively obvious positions: on one hand, it’s obvious that the Individual Mandate is the centerpiece of Obamacare, and the key to its other provisions–but on the other hand, other parts of the 2,700 page law clearly aren’t involved in this constitutional controversy and it makes little sense to strike them down here: like the reauthorization of the Black Lung Disease program and stuff. In the end, it’s a question of democracy: would the Court be rewriting the statute to just strike down one part of it? Wouldn’t it be best to send the whole thing back to Congress for a do-over? That’s clearly Scalia’s and Kennedy’s view. And it seems fair that if Congress passes a huge omnibus bill, it should bear the blame when something in it makes that bill fail. It’s hard to read Chief Justice Roberts and some of the others, but my impression is that the Court, not having any real standard by which to decide when to carve out pieces of a law–Scalia emphasized that this is a case of first impression on whether the Court can strike out the heart of a law and leave the rest standing–will uphold or strike the whole thing as a unit.