A ruling that the mandate is unconstitutional could make it nearly impossible to implement other parts of the healthcare law — which is exactly the point the Department of Justice is highlighting in its most recent briefs.Uh, wait. Wasn't that exactly the point made by the Florida judge who found the entire health care law unconstitutional?
I'm surprised I haven't seen this point emphasized so far in analyzing the report about the DoJ's new strategy. It seems to represent a risky approach using an all-or-nothing legal strategy.
Perhaps the DoJ is hoping the Supreme Court will adopt its traditional deference to the federal government.
If the Court would ever draw a line checking the federal claim to power, this may be the case.