About That ‘Limiting Principle’

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March 28, 2012 7:10 a.m.

TPM Reader PM checks in with a smart take on the HCR oral arguments:

I’m sure you’re getting a ton of comments from lawyers, and I don’t want to add to that deluge except for two short points:

1. You’re right to point out that the argument sounded like a Federalist Society meeting. Of two hours of argument, less than 10 minutes was spent on controlling precedent. And well over 90 minutes was spent on the parade of horribles that Congress might be able to legislate if it can impose a health care mandate. But, ultimately, I think that is unlikely to lead to the law’s demise, because:

2. The only problem that Chief Justice Roberts and Justice Kennedy expressed with the mandate is the lack of limiting principle on Congress’s ability to mandate the purchase of privately-made/issued products. If that’s really the concern of each Justice, and it sure seemed that it was, neither man is lacking in the self-regard and intellect necessary to craft such a limiting principle. And that’s where my money remains. The Government didn’t make their jobs easier, but it’s one thing to fault the Government for failing to articulate a limiting principle and quite another to overturn momentous legislation on that basis. Because to do the latter is to say that the Justices can’t craft such a principle either. Here’s betting both can, and Roberts will.

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