I have just finished a first read of the brief filed by the government today in Florida v. HHS. There are several interesting points, but here I just want to highlight perhaps the most significant: the United States is now conceding that the ACA's community-rating and guaranteed-issue provisions are not severable from the minimum coverage provision. The government had essentially conceded as much in a hearing before the district court, but I think this may be the first time it has done so in a brief.
There is a fair amount of strategic sense to this. First, making such a concession only bolsters the government's argument that the minimum coverage provision is essential to the ACA's broader regulation of the health insurance or health care services markets. Second, it makes the government seem more reasonable. Third, it essentially forces the Supreme Court's hand a bit when the case ultimately gets there: if the justices want to take down the mandate (which might be politically popular), they will also have to bring down the ACA provisions that overwhelming majorities of Americans support. And that would not be so popular.
UPDATE: As astute reader Mark Regan points out, the United States had, in fact, conceded the non-severability of these provisions in its motion for summary judgment: "[S]ome limited set of provisions of the Act cannot survive if the minimum coverage provision is stricken. As defendants repeatedly have made clear—in passages that plaintiffs inflate beyond their obvious meaning—the guaranteed issue and community rating insurance industry reforms in Section 1201 will stand or fall with the minimum coverage provision." But I think the government has been much cagier about the point in its appellate briefing until now. In all events, its position is now clear.
