how the Court should rule on the individual mandate: as narrowly as fucking possible

Joey Fishkin makes the case on Jack Balkin’s blog:

Those challenging the ACA argue that… the government is demanding, or mandating, that you choose (a), not (b). On this view, to put it in the more familiar terms of a speed limit statute, the law does not say, “it’s fine to drive 90 miles per hour, but you will have to pay a special toll of $100 if you do.” Rather, the law says, don’t do it! Don’t drive 90 miles per hour. And if you do, the penalty will be $100 (and suppose the law also says, there will be no possibility of arrest, points on your license, escalating penalties in the case of multiple violations, or any other negative consequences). In the cold light of cost-benefit analysis, the special toll and the speeding ticket look exactly the same. But they are not the same, because law has a normative dimension….

[So] why not go farther than Farr (the court-appointed lawyer arguing for greater severability), and hold that even if the mandate must be struck, it is severable from the tax provisions that enforce it? That is, why not strike, and sever, the mandatory exhortation: strike any suggestion that you “must have” insurance, any suggestion that the government in any way “mandates” that you do (a) rather than (b). Leave all functional tax code provisions as they are. Those who do not have insurance will pay $695-$2085. Choose (a) or (b), either is fine.

Brilliant. Somebody wake Chief Justice Roberts.

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