[djf]

Clement made a brilliant argument that if Congress passes a bill as a general guideline and INCLUDES a severability clause, then what they are saying is “We want most if not all of this, but we’re ok if a piece doesn’t work and we get the rest”

But if Congress passes a bill with NO severability clause, then they are basically saying “That’s it, Jack. Take it or leave it! All or nothing!”

[ctdonath2]

Quite. Bills are package deals, detailing interactions among various components and compromises. To take out some parts means others won't work. To take out other parts is to eliminate that which garnered a winning vote count. The vote is upon the whole package, which very well may not have passed without one or another component - and it's not up to the court to understand whether it would pass or function without the component in question.

Yes, severability clauses are a normal well-understood legislative practice, presence or absence thereof indicating "keep what we can" vs "all or nothing".

[Ron C.]

Clement was fabulous today. His closing statement was quite formidable:

"I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.

And it’s a very strange conception of federalism that says that we can simply give the States an offer that they can’t refuse, and through the spending power which is premised on the notion that Congress can do more because it’s voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism."