An Achilles heel in health reform’s legal defense

(Andrew Harrer - BLOOMBERG) The Supreme Court won’t hear oral arguments on health reform until the end of March, but the action on the case actually starts tomorrow. That’s when the Obama administration must file its defense of the health-reform law’s mandated purchase of health insurance. With over 18 months of litigation so far, we have a pretty decent sense of what they’ll argue: That not purchasing health insurance is an economic activity, impacting the cost of health insurance for other Americans. Therefore, Congress can regulate it under the Commerce Clause as a form of interstate commerce.

The Hill’s Sam Baker takes the opportunity to review the biggest weak spot in the administration’s argument:

The Obama administration has a winning record on that point in federal appeals courts. But even in the cases it has won, the administration has failed to answer a key question: If Congress has the power to enforce the insurance mandate, where does that power stop?

It’s known in legal jargon as a “limiting principle.” When courts evaluate a new application of Congress’s constitutional authority, they have historically wanted to see clear limits to those powers.

“The DOJ has to do a better job of answering, ‘What goes beyond your theory of federal power?’ ” said Ilya Shapiro, a legal scholar at the libertarian Cato Institute who opposes the insurance mandate. “They’ve been asked this in every court and they’ve never satisfied the court, even in the cases they’ve won.”

This issue won’t be unfamiliar to the White House; it’s one that appeals court judges, even those who ultimately ruled in the law’s favor, have pushed hard on. “Let’s go right to what is your most difficult problem,” Judge Laurence H. Silberman, an appeals judge in Washington, D.C., who ultimately upheld health reform’s constitutionality, said during oral arguments in September. “What limiting principle do you articulate?”

The Obama administration has tended to argue that their limiting principle has to do with economic activity: Congress can only regulate activities that have an impact on interstate commerce. Whether that holds sway in front of the nation’s highest court remains to be seen.