Will John Roberts get a do-over?
…it is significant that both Ilya and Josh agree that the insurance “requirement” is now clearly unconstitutional under Chief Justice Roberts’ “saving construction” approach. If a court so holds, the entire statute would then be in the same posture as it would have been if he had sided with the dissenting justices in the first place. In that eventuality, four justices thought the whole law was inseverable, and the Obama administration conceded the mandate would be inseverable from at least two key provisions of the Act. So the key issue in the new litigation is likely to be whether the fact that Congress zeroed out the penalty somehow changed this analysis such that the mandate is now severable from the rest of the ACA when it was not before. I look forward to reading much more on this question.
This would be great, if this legislative atrocity can finally be struck down via this method, considering all of the legislative legerdemain and chicanery the Democrats had to use to pass it in the first place.