This update from XPOSTFACTOID showed up in my inbox. If Roberts and Kavanaugh continue on the same path they have started out on initially, it appears the case brought about by Texas may fail. Briefly, here are some points made.
November 10, 2020 in oral argument; California v. Texas Roberts appears equally skeptical about this argument from intent. In oral argument yesterday, Kyle Hawkins, arguing for Texas, made the case:
“I think it’s critical that, in 2017, Congress could have excised the legislative findings in 18091 [the assertion of severability], but it chose not to do so. It could have excised —
Well, but I mean — I — I certainly agree with you about our job in interpreting the statute, but, under the severability question, where — we ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed. And, here, Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question.
In Roberts’ King v. Burwell decision: Congress repealed the individual mandate penalty, not the entire law.
Erwin Chemerinsky Explains Severability