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March 28, 2012

A little talk about Booker remedy when debating ACA severability

I am listening to the oral arguments of this morning's health care litigation (available at this link), in which the question on tap concerns whether and how SCOTUS ought to strike down other parts of the Affordable Care Act if it strikes down the individual mandate as unconstitutional.  In two parts of that argument, the remedy adopted in Booker gets mentioned.  Not surprisingly, the Justices and the advocates seem to give different spins to what the Court did in the remedy portion of Booker and what that means for severability doctrines.

March 28, 2012 at 02:27 PM | Permalink


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Doug, you may want to read my take on severability, which features a discussion of Booker. You can find it on SSRN, "Sense and Severability".

I'm a former legislative counsel at the House and am now the special counsel at the Commission, though the views in the article are mine alone.

Posted by: Toby | Apr 11, 2012 8:30:51 AM

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