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!”
Yes, severability clauses are a normal well-understood legislative practice, presence or absence thereof indicating "keep what we can" vs "all or nothing".
"I would respectfully suggest that its a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.
And its a very strange conception of federalism that says that we can simply give the States an offer that they cant refuse, and through the spending power which is premised on the notion that Congress can do more because its voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism."