Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Given all of the focus on severability in Texas v. California, it's worth bearing in mind how much the Supreme Court would have to get wrong in order to reach the issue of severability.
1. Standing is a real stretch. If people have it because they feel coerced even though they aren't, then standing is not the important constitutional principle that we thought it was, as Jonathan Adler ably explains.
2. Even if there is standing, Congress does not require an enumerated power to force no one to do anything, as Marty Lederman and I have separately explained.
3. Even if (1) there is standing and (2) Congress does require an enumerated power to force no one to do anything, the "mandate" remains better understood as a condition attached to a tax for purposes of Congress's taxing power. As explained in my analysis with Robert Cooter of the Taxing Clause -- which the Chief Justice's opinion in NFIB v. Sebelius tracks almost entirely -- exactions fall within the scope of Congress's taxing authority if but only if they are non-coercive, meaning that individuals subject to the exaction have a reasonable financial choice to reject what the government wants them to do and to pay the exaction instead. Reducing the payment for going without health insurance from around $700 (in NFIB) to $0 (now) makes it less coercive and therefore still a tax. In other words, what matters most for purposes of the Taxing Clause is whether an exaction is coercive, not whether it raises revenue. With non-$0 exactions, taxes raise revenue just because they are non-coercive. The two run together. With $0 exactions, taxes do not raise revenue even though they are not coercive. But the reason such exactions do not raise revenue is that they are $0, not that they are coercive and therefore outside the scope of the taxing power.
4. Even if (1) there is standing and (2) Congress does require an enumerated power to force no one to do anything and (3) the taxing power no longer supports the "mandate," the rest of the statute is severable --and obviously so -- for the reasons explained by many others.