This is the heart of the severability question argued before the Supreme Court this morning. If the individual mandate is deemed unconstitutional, how much of the rest of the ACA goes down with it?
JUSTICE SOTOMAYOR: I want a bottom line is why don’t we let Congress fix it?
MR. CLEMENT: Well, let me answer the bottom line question, which is, no matter what you do in this case, at some point there’s going to be — if you strike down the mandate, there is going to be something for Congress to do. The question is really, what task do you want to give Congress. Do you want to give Congress the task of fixing the statute after something has been taken out, especially a provision at the heart, or do you want to give Congress the task of fixing health care?…
JUSTICE SCALIA: Well, there is such a thing as legislative inertia, isn’t there?
MR. CLEMENT: That’s exactly what I was going to say, Justice Scalia, which is, I think the question for this Court is, we all recognize there is legislative inertia. And then the question is: What is the best result in light of that reality?
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