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Bench Memos

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Severability and Obamacare: A Conservative Temptation?



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Hadley Arkes writes:

The conservative justices may be inclined then, in prudence, to back into Burke’s dictum that “refined policy is ever the parent of confusion”: it may be better, in a clean stroke, to sweep away the entire statute. And yet there are real temptations here, marked by H.L. Mencken’s line: that democracy is a system in which people should be given what they want—”good and hard.” Is it severability that the liberals really crave? Some of us can be forgiven for being half-ready to give them what they want. And scaring them with the possibility of giving them what they want may be the surest way of delivering them from their appetite, to cling to the wreckage that remains.



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