[A] closer read of his analysis reveals something peculiar. In fact, as Vinson himself admits in Footnote 27 (on pg. 65), he arrived at this conclusion by “borrow[ing] heavily from one of the amicus briefs filed in the case for it quite cogently and effectively sets forth the applicable standard and governing analysis of severability (doc. 123).” That brief was filed by the Family Research Council, which has been branded as a hate group by the Southern Poverty Law Center (SPLC).
“The Family Research Council (FRC) bills itself as ‘the leading voice for the family in our nation’s halls of power,’ but its real specialty is defaming gays and lesbians,” SPLC says. …
Here is how Vinson lifts FRC’s argument:
Severability is a doctrine of judicial restraint, and the Supreme Court has applied and reaffirmed that doctrine just this past year: “‘Generally speaking, when confronting a constitutional flaw in a statute, [courts] try to limit the solution to the problem,’ severing any ‘problematic portions while leaving the remainder intact.’” […]
The question of severability ultimately turns on the nature of the statute at issue. For example, if Congress intended a given statute to be viewed as a bundle of separate legislative enactment or a series of short laws, which for purposes of convenience and efficiency were arranged together in a single legislative scheme, it is presumed that any provision declared unconstitutional can be struck and severed without affecting the remainder of the statute. If, however, the statute is viewed as a carefully-balanced and clockwork-like statutory arrangement comprised of pieces that all work toward one primary legislative goal, and if that goal would be undermined if a central part of the legislation is found to be unconstitutional, then severability is not appropriate. As will be seen, the facts of this case lean heavily toward a finding that the Act is properly viewed as the latter, and not the former.
Severability is fundamentally a doctrine of judicial restraint. “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.” […]
The question of severability is a judicial inquiry of two alternatives regarding the nature of a statute. One possibility is that Congress intended a given statute as a bundle of separate legislative embodiments, which for the sake of convenience, avoiding redundancy, and contextual application, are bundled together in a single legislative enactment. This makes a statute a series of short laws, every one of which is designed to stand alone, if needs be. The second possibility is that a given statute embodies a carefully-balanced legislative deal, in which Congress weighs competing policy priorities, and through negotiations and deliberation crafts a package codifying this delicate balance. Congress is thus not voting for separate and discrete provisions. Instead, Congress is voting on a package as a whole, any modification of which could result in the bill failing to achieve passage in Congress. As both Plaintiffs? briefs and the following argument shows, the Individual Mandate falls within the latter category, not the former.