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The Limiting Principle


Some thoughts about day 2.

The key to Kennedy’s vote, evidently, is whether he can be convinced that there’s a limiting principle. Kennedy, unlike the other conservatives, does seem to understand that the health care market is different:

But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.

That’s my concern in the case.

But despite this, it’s clear elsewhere that he also feels the pull of the broccoli mandate crap. It’s hard to say which way he’ll go.

I also agree with Adam that if this was debate judging the ACA would be utterly doomed; despite starting with the stronger hand Verrilli was completely overmatched. He was puzzlingly weak even facing predictable questions with obviously better answers. Carvin wasn’t terribly good either, but Clement was about as good as you can be given the arguments he had to work with. Fortunately, it’s not a debate and oral argument will matter only modestly if at all, but Verrilli sure didn’t help.

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  • Richard

    Totally agree. Kennedy will vote to uphold if he finds there is a limiting principal even if it is one he comes up with that has not been advanced by the parties. I’m beginning to feel that this is what will happen

    And I agree with you about Verilli. I thought his whole approach should have been to advance several limiting principals and answer the broccoli question but he didn’t do either very well

  • Ben

    My lady, she went downtown
    She bought some . . . broc-coh-leeeeeee

    Sometimes the most appropriate answer to a constitutional argument advanced in the nation’s highest court is a silly song.

  • L.M.

    Did the right-wing justices even bring case law into the discussion at all? I haven’t read the whole transcript yet, but what I’ve read seems like pretty crass political grandstanding, even by their usual standards.

    • Richard

      I don’t think there was discussion of precedential case law by any of the justices

      • CashandCable

        It’s like the practice of law comes full circle – you walk in the first day of law school with no references to caselaw and your head full of policy preferences, then 40 years later when you get to SCOTUS you can pretend that four decades of education and practice with the law never happened.

        • Murc

          The SCOTUS is an explicitly political body. It makes law based on the policy preferences of its justices as filtered through their various legal rubrics. Some justices have had well-developed and nuanced rubrics that they’ve stuck to even when they hated the result (I believe that at least some of the votes in Brown v. Board came from justices who didn’t really think black people deserved equal protection under the law but voted in favor anyway because they wouldn’t have been able to think of themselves as honorable jurists otherwise) and some of them have had naked policy objectives to which they would construct whatever specious frameworks they needed on a case-by-case basis.

          That’s how it works in a system in which you don’t have legislative supremacy. And you CAN’T have legislative supremacy in a system where there’s a body of law that legislators can’t change.

          In an ideal world, the Senate would exercise more oversight over the court. For the past twenty years it has been okay with confirming nominees who either lie during their confirmation hearings or refuse to answer questions (usually both) and it hasn’t ever seemed to realize that it has the power to shitcan a justice whenever it wants to. It would also be nice if Presidents would start nominating well-qualified non-judges again, which used to be a fairly common practice.

          Basically, being a SCOTUS justice is different from being a justice in any other court. Those courts APPLY the law. The SCOTUS makes law.

      • howard

        scalia most obviously but all 4 of the right-wing justices have very little interest in precedent and a great deal of interest in their own opinions.

  • Is Verilli always this awful? Or did he just pick the worst time to have a bad day?

    • Anderson

      The latter, it appears.

      • Ed

        He did improve as time went on but he got off to a bad start, no question.

  • CashandCable

    Paul Clement scares the hell outta me every time I hear he’s arguing against the position I favor. I just have to constantly remind myself that John W. Davis was a legendary SCOTUS advocate, too, but he still lost Brown v. Board of Education**

    ** I offer this comparison solely for the proposition that great advocates still lose important cases, nothing more.

  • dan

    First of all, apologies for the length of this comment. Not sure where I can direct this rant, so you all have to suffer. . . .

    For those people complaining about the performance of the Solicitor General, it’s important to understand that what happened in the Supreme Court today was a policy debate, not a legal argument. From what I understand, he didn’t have any problems explaining or distinguishing unfavorable precedents — largely because there aren’t any — and didn’t forget or fail to emphasize favorable precedents, of which there are many. What he had problems with, according to the excerpts I’ve read, is responding to policy arguments phrased in the form of hypotheticals. And the reason why he had a problem responding to these policy arguments is that there are five votes on the Supreme Court that are openly hostile to the policy objectives of the PPACA. The argument “it’s necessary to cover millions of people who don’t have insurance, many of whom will die for a lack of proper coverage” isn’t persuasive to people who don’t think large numbers of people dying from a lack of affordable care is worse than some rich person having to pay what is actually a very small tax if they didn’t buy insurance that, in reality, that rich person wouldn’t dream of not buying.

    Look, this is not a legal proceeding. There is, in reality, no case, no plaintiffs, no argument over what the controlling law is. If this were a case, there would be a plaintiff who could be deposed and asked pointed questions like “do you have insurance?” “would you buy insurance if a subsidy made it affordable?” and “if not, how do you plan to pay for your health care in the future?”, and several other questions that would instantly render the debate moot, because in real life there are no people who, when taken to the hospital, say “don’t give me any treatment I can’t pay for out of my own pocket! Just let me die if I can’t afford it!”, which means that there are no people not participating in the healthcare market. The court can’t afford to have the challenge come to it through actual litigation because the litigation would necessarily include all the evidence needed to defeat the arguments the court is going to rely on in striking down the law.

    The idea of a mandate has been around for a long time, and nobody — nobody — thought there was anything remotely questionable about it until it became apparent that this law could pass and the mandate was pretty much the only unpopular thing about it. The arguments against it aren’t legal arguments; they are arguments that assume that there is no prior interpretation of the Commerce Clause, and instead go something along the lines of “assume there are no cases interpreting the Commerce Clause. Now explain how this law can be reconciled with a definition of ‘commerce’ that is incompatible with this law, and also can’t be reconciled with lots of other existing statutes, but which we’ll assume are exceptions to our new interpretation, but exceptions that don’t apply in this case.”

    My prediction — and it was my prediction before today’s events — is that the court is going to rule against HCR. I graduated from law school in 1996. If someone had told me then that a president could be impeached for getting a blow job from an intern, I would have laughed. If someone had told me in September of 2000 that the Supreme Court would stop a hand recount of ballots cast using different methods with different error rates on equal protection grounds, I wouldn’t have believed that. If, in August of 2001, you had told me that a President would order an American citizen taken off the streets of an American city and held in a military prison without any trial or access to a lawyer, I would have scoffed. In 2008, I wouldn’t have believed that the Supreme Court would hold that the First Amendment prevented Congress from putting restrictions on the expenditures unlimited corporate funds to be spent on elections with barely pro forma efforts at non-coordination. In 2009, I wouldn’t have believed that the Supreme Court would have bothered listening to such a silly argument as whether persons deferring their healthcare costs on to third parties were engaged in interstate commerce. Well, as the old saying goes, “fool me five times, shame on you, fool me six times — you can’t fool me again.” The court will strike down the mandate 5-4, and will find that the ban on excluding preexisting conditions can’t be severed from the mandate. (And yes, I know that finding the provisions inseparable when you’ve found the mandate doesn’t involve commerce makes no logical sense). The rest of the law will probably survive, 5-4 or 6-3.

    • Jeffrey Kramer

      I’ll second that prediction. By overturning the act, the Republican justices score a big, big win for the Republican Party, and lose absolutely nothing. They’ll do it.

      Even if they cared a damn for their reputation, they know they’ll be getting all the cover they could ask for in the form of editorials in all the usual eventheliberal publications, saying “perhaps the justices did overreach, but the blame must also be shared by the Obama administration for its unseemly partisanship.”

      • John

        They once again show everyone that they’re political hacks. That’s a loss for several of them, who want to be thought of as discriminating jurists, and not just by the Federalist Society.

        I still tend to think the mandate will be upheld 6-3, and that Roberts will write a tortuous opinion to do so.

        • Jeffrey Kramer

          I will scale back my cynicism 20% if you are right.

        • Bush v. Gore makes it hard to believe that they care much about their reputation…

          • Murc

            This is another example of what I call the enormous freedom, and power, of not caring.

            Once upon a time justices cared about the opprobrium of society and history in general. I firmly believe that a big part of the reason Brown was a unanimous 9-0 isn’t because it was a slam dunk, and isn’t because the justices who were talked around believed in preserving the integrity and standing of the court, but because part of them was whispering “You see the way the wind is blowing on this. Remember Robert Taney? You really want to go in the history books as one of his fellow-travelers?”

            I don’t think a number of the current conservative justices actually care. They care about a tiny slice of ideological compatriots and their associated institutions, and anyone outside of that circle can go right to hell. Just as I would regard being thought of as a dangerous loon by, say, Mark Steyn, or Michael Ledeen, as a badge of honor, I don’t think (to pick one at random) Sam Alito cares what history in general thinks of him as long as the Federalist Society and a few other institutions and historians think he was great.

            • Hogan

              Remember Robert Taney?

              We don’t even remember his first name any more.

              • Bill Murray

                There is a Robert Taney in Pepperell MA, but nobody remembers him either

            • Karate Bearfighter

              I think they care, they just believe they will be vindicated by history. That’s the main thrust of that infamous “reality based community” quote given to Suskind. People in the Federalist Society and at Heritage honestly believe we will all look back someday from the safety of our unregulated, plutocratic, Atwoodian future and say, “good thing conservatives won those culture wars!”

              • Murc

                I think they care, they just believe they will be vindicated by history.

                This is true, but if time-travelers from the 22nd century came back and said ‘Oh man, you people are thought of as complete nitwits’ I don’t think that would alter their behavior one whit, because the purity of their cause demands they stick to it even against the opprobrium of history.

                To be fair, I can respect that to a degree, but if people from the 22nd century came back and told me “Oh yeah, we implemented Libertopia and it turns out it works perfectly, there’s no crime, high social mobility, poverty is nearly nonexistent, and we’re pretty close to cracking that immortality serum” I like to think I’d alter something about my behavior.

                • CJColucci

                  I predict that, ultimately, Kennedy won’t want to go down as the Justice who was responsible for holding that most of the 20th century was unconstitutional. He’ll come up with an incomprehensible opinion that will spawn lots of litigation down the road when litigants argue that the fifth vote came because of broccolli and now we’re talking about carrots.

          • John

            Well, Roberts, at least, wasn’t there for that. As for Kennedy, he obviously seemed to think that all that specious equal protection garbage would protect him from the inference that he was making a purely political decision. It’s at least possible that the experience of being called a hack by lots of people because of that decision has chastened him and he doesn’t want to do the same thing again.

          • L2P

            Having heard Kennedy speak a number of times about Equal Protection before Bush v. Gore, I can I’ve never heard any evidence that he understands equal protection AT ALL. Out of the 5 Bush v. Gore justices, I can see Kennedy honestly believing that he was correctly applying equal protection to voting rights.

  • Incontinentia Buttocks

    The idea of a mandate has been around for a long time, and nobody — nobody — thought there was anything remotely questionable about it until it became apparent that this law could pass in a Democratic-controlled Congress and with a Democrat in the White House and the mandate was pretty much the only unpopular thing about it.


    (Also, the Death Panels and forced broccoli consumption are also unpopular aspects of ths law.)

    • Richard

      There were a few law professors, Randy Barnett and Ilya among them, who have always contended that a mandate to purchase Insurance was outside the scope of Congress’ power although I grant you that politicians didn’t take up the cause until it looked like the Dems would pass a bill

      • Did they argue this during the Social Security debate?

        • Murc

          During the Social Security debate Randy and Ilya were firmly in favor of whatever pension system we ended up with being entirely optional.

          So (kind of) yes.

      • Richard

        Meant to say Ilya Somin. Let me state that I totally disagree with Barnett and Somin but, to their credit, they have been consistent in trying to read libertarian principles into the commerce clause and much of the rest of the Constitution. The same can’t be said of the Attorney Generals of the several states that brough the suit now before the court

        • Bill Murray

          that makes more sense than Ilya Kuryakin

        • Murc

          Warning: pedantry incoming.

          Attorneys General, not Attorney Generals. Like Surgeons General, or Courts-Martial.

      • L2P

        Yeah, but I can’t figure out what part of the New Deal Ilya’s arguments leave as constitutional. It’s kind of like saying that the neo-confederates have ALWAYS said that the Feds can’t regulate health care. Yes. Yes, they do.

  • John

    What is all this “limiting principle” garbage? Is there any precedent for demanding such a thing in commerce cases? Everyone’s arguing about how the health care market is different from other markets, but who cares? Congress has the power to regulate interstate commerce, the health care market is part of interstate commerce, and the mandate is necessary and proper to achieving the goal of regulating interstate commerce. Where does a “limiting principle” come into it? The “limiting principle”, if you must have one, is that congress can’t regulate things that don’t have to do with interstate commerce (as per Lopez) and that congress is limited to regulations of commerce that comply with the bill of rights and the fourteenth amendment.

    What the hell?

    • Njorl

      The limiting principle is necessary. If it isn’t necessary, congress can mandate the purchase of anything. Without it, a narrow majority could mandate the purchase of “Ruling Majority Fun-Fund Bonds” with a 10,000 year maturity.

      • catclub

        so what. Just because it might be outrageous does not ipso facto make it unconstitutional.

        The real limiting principle is that if enough people hate it they will vote em out and repeal it. Democracy – how does it work?

        • timb

          What? Congress acts a representatives of the people and they are answerable to them? It’s like you read the Federalist papers or something.

          I wonder if Scalia knows about this elections thing

          • Hogan

            Judging from Bush v. Gore, I’d say no.

      • John

        Given that the government could clearly, and very constitutionally, tax people and then appropriate that money to the ruling party on some dubious grounds, I’m not sure why this is supposed to be uniquely terrifying.

        • Njorl

          Good point. There are Constitutional means to achieve the same abuse.

    • catclub


      Is it commerce? Then they can regulate it. Is the mandate a regulation? seems so to me.

    • Tcaalaw

      What is all this “limiting principle” garbage? Is there any precedent for demanding such a thing in commerce cases?

      Maybe you should take, I don’t know, thirty seconds or so to learn some extremely elementary commerce clause jurisprudence.

      Congress’s power “to regulate commerce . . . among the several states . . .” is, like all enumerated powers, subject to outer limits. See United States v. Lopez, 514 U.S. 549, 556-57 (1995); Solid Waste Agency v. United States Army Corps of Eng’rs, 531 U.S. 159, 173 (2001) (reiterating that “the grant of authority to Congress under the commerce clause, though broad, is not unlimited”). The commerce clause “may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” NLRB v. Jones and Laughlin Steel, 301 U.S. 1, 37, (1937).

      GDF Realty Invs., Ltd. v. Norton, 362 F.3d 286, 287 (5th Cir. 2004 (Jones, J. dissenting).

      A search for “limiting principle” within the same paragraph as “commerce clause”

      • John

        IANAL, obviously, but that seems to be what I said – the “limiting principle” is that it has to deal with interstate commerce, as per Lopez. The idea that we need to find some novel limiting principle for health care beyond that is what is ridiculous.

        • Njorl

          You can not define interstate commerce in such a way that all commerce is regulatable by congress. The Constitution implicitly states that there is commerce which is neither international nor interstate. Whatever justification you use to declare something to be “commerce between the several states” can not be able to render all commerce to be interstate.

          You could not use as justification that all transactions denominated in Federal Reserve notes are interstate commerce.

          • timb

            Are you assuming that’s incorrect?

            Here’s the deal, Congress is the representative of the people and it has enormous power. The fact that it does not choose to wield that power; the fact that it has turned over legislation to the Executive branch’s administrative agencies; and, the fact that the media and talk radio treat the President like a temporary king does not change the fact that Congress should be the most important branch of the Federal government.

            There’s a reason Article One deals with the legislative branch and not the Executive and it ain’t cause Madison was saving the good stuff for later.

            Geez, njorl, wait til you realize the power the VRA gives the Federal government. Preclearance is gonna give you fits

            • Njorl

              Are you assuming that’s incorrect?

              What is “that”?

              • timb

                that =

                all transactions denominated in Federal Reserve notes are interstate commerce.

          • Paulk

            This is silly. No one is questioning whether the government has the right to regulate the health care industry. By making this your standing ground, you have abstracted past the point that is already settled law.

            Lopez is absolutely the clear lines that have been established and the mandate falls clearly within them. The government has the right to regulate this form of commerce, which is clearly not “local” and has a long history of federal regulation. It has decided to regulate it in a way to ensure that people cannot be denied care for pre-existing conditions, which is a broad problem.

            This is the first question, and the courts have absolutely no ground to stand on questioning how Congress chooses to regulate those things within their purview.

            In order to prevent people from free-riding on the system, Congress is requiring either that people demonstrate that they have insurance (which cannot now be capped, another regulation) or pay a fee. If people could be reasonably expected to 1) never access the health care market and 2) guarantee that they will be able to pay any and all costs, then there would be a good argument against the mandate.

            But no one can.

            And as Mcculloch v Maryland lays out, if an act is necessary and proper to the enactment of the law. It matters not at all whether those negative consequences are brought into being by the enactment of the law or it would be, as some have pointed out, unconstitutional to make theft of the mail illegal because of the creation of the Post Office.

            • Njorl

              I think you’re misunderstanding me. I agree that the government has the right to regulate health care. It is because they can justify regulating health care in such a way that it does not justify the regulation of all commerce.

              There is a limiting principle.

          • John

            Well, one might argue that, because of changes in the world since 1787, all commerce is now effectively interstate commerce, that the category of “intra-state commerce” which existed in 1787 no longer really exists because of the increasing interconnection of the national and global econom. But that’s not what I said. I said that there’s already a limiting principle which is that what congress is regulating needs to involve interstate commerce. Has anyone argued that the health care market does not constitute interstate commerce?

            • Njorl

              I think that argument should have been made in 1788. It wasn’t (or it failed). I don’t think you can say that there are no situations in commerce which replicate the form of intrastate commerce in 1787. That’s proving a negative with the burden of proof on you. If the burden of proof went the other way – all commerce is assumed to be interstate unless proven otherwise – that would be a more reasonable situation, but I think that isn’t consistant with current understanding of the Constitution.

              The whole facade of “sovereign states” has been nothing but trouble. It’s good policy to allow localities to do as much of their administration and governance as possible, but the idea of one sovereign entity being part of another is nuts.

              • John

                It seems to work well enough in, say, Canada or Germany. But their federalisms are quite different from ours.

                • Canada has a large piece of it that periodically wants to leave, so I don’t know that provincial autonomy has been all to the good.

                • Well, it says it wants to leave. You know, the way Scalia says single-payer is constitutional.

          • catclub

            The text is actually ‘among the several states’. I am iritated when this is uniformly converted to _interstate_ commerce.

            Wasn’t one of the key points of Wickard that even though the guy was only growing wheat for himself – and whatever commerce took place was only within a single state, it affected commerce.

          • L2P

            “Whatever justification you use to declare something to be “commerce between the several states” can not be able to render all commerce to be interstate.”

            That is contrary to EVERY CASE THAT INTERPRETS THE COMMERCE CLAUSE. There is exactly ONE case in the last 50 years – dealing with taxes on trucks – that makes a local/non-local distinction, and it’s been overruled through non-citation.

            But your interpretation would be EXTREMELY helpful to me in my caseload. Can I quote you as an authority?

            • Njorl

              Go right ahead. I’m not a judge, or even a lawyer, or even using my real name …

            • Njorl

              Wait, so you’re saying that there are cases in which the federal government has demonstrated that all commerce is interstate commerce?

              • L2P

                Yes. All commerce is interstate commerce. Ollie’s BBQ, for instance.

                Once something is “in commerce,” it is in “interstate commerce.” If you sell your BBQ ribs only to your cousin, that’s still one less set of BBQ your cousin will buy from Tony Roma’s. Therefore, your “local” business is still part of interstate commerce.

                That’s the law. It’s been that way since the New Deal.

      • mpowell

        All this is saying is that interstate commerce really has to be interstate commerce. It sounds like Kennedy is asking for some limiting principle as to why Congress cannot mandate that all Americans purchase a certain amount of broccoli. Which is transparent bullsh*t. There is no such thing as a limiting principle in this case, in my opinion. A nation wide mandate on broccoli purchases would certainly have the necessary impact on interstate commerce to be justified. The problem is that it’s insane policy. But plenty of things that are insane are also constitutional. Perhaps the most ridiculous thing about the broccoli example is that we already have examples of federal programs to purchase agricultural commodities. The money is coming from the tax payers! Nobody is arguing that these are unconstitutional.

        • Joe

          It’s b.s. and Sotomayor (again, thanks Obama) & Breyer pointed it out that there is some “limiting principle” to enumerated powers other that (1) the powers (2) the text (3) the spirit of the Constitution and (4) politics.

          Kennedy wants another one.

    • timb

      This times a million

    • John

      Along the same lines, there’s this, provided by former Reagan Solicitor-General Charles Fried.

      Makes you rather wish Fried had been the one arguing this, rather than Verilli.

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