Do NOT rely on Toobin he is an idiot. This argument is only about severability. It makes sense to frame questions as if the mandate will be struck down.
It’s possible for Kennedy to preserve the mandate because he knows otherwise he must strike the whole law.
Just saying. You have to wonder what a fool like Toobin thought conservative justices would ask during quetioning.
Nevertheless if you listen to what Libsburg is saying vs. Kennedy vs. Scalia, there seems to be an identifiable difference in perspective.
Maybe that will wake him to the fact that if the whole thing must be struck because by lacking the severability clause the only alternative is minute analysis of TWO THOUSAND SEVEN HUNDRED PAGES, that means that to preserve the mandate means likewise minute analysis of TWO THOUSAND SEVEN HUNDRED PAGES to ensure the mandate as implemented is, in fact, constitutional.
Would make for an amusing concurring dissent: "I would like to preserve the law as written, but it is so friggin' huge that no sane court could possibly tell if it adheres to superior law and precedent. Obamacare is overturned for reason of sheer incomprehensibility."