A severability clause ALLOWS the mandate part to be detached from the rest, according to stated Congressional intent.
Since one wasn’t included in the bill, the Court has no need to consider legislative intent on that issue and is unincumbered in it’s decision to ax it as a whole, uphold it as a whole, or take a scalpel to it and hack away at parts while leaving others (which idea Scalia ridiculed during oral argument).
It seems true that Reid wanted the mandate to be indistinguishable from the rest. Apparently believing that the Court would be less likely to ax the mandate or the whole, if it was indistiguishable.
I also read that the House wouldn’t have passed it if severability was included, but I don’t know if that’s true.
Seems he wanted to box in the Court, politically, by making their ruling most difficult.
But if the Court ignores politics, and follows law and precedent and the Constitution and common sense, the Court will strike down the entire law.
“But if the Court ignores politics, and follows law and precedent and the Constitution and common sense, the Court will strike down the entire law.”
I wholeheartedly agree with you and appreciate your clarification on the severability clause.