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ThePlumLIneGS whorunsgov plumline
Posted at 01:20 PM ET, 03/30/2012

What if the need for a `limiting principle’ is a fiction?

It’s been widely written that the government has failed to provide a satisfactory “limiting principle” in its justification for Obamacare’s constitutionality. That is, the law’s defenders have failed to explain why the individual mandate does not give Congress unlimited power over your patterns of consumption.

But Kevin Drum asks an interesting question — what if the administration’s failure to do this has nothing to do with whether the law is Constitutional or not? Kevin offers the following speculation about the Justices:

One possible outcome is that they’ll buy into the argument of the critics that Congress can regulate activity but not inactivity (i.e., it can’t penalize you for failing to buy health insurance), and therefore strike down some or all of the law as unconstitutional. This distinction between activity and inactivity would be an example of a “limiting principle” — that is, some rule that explains what Congress is allowed to do and what it’s not. Conservatives have long said that this is something the court will demand, since they aren’t willing to give Congress unfettered power to do anything it wants based solely on the interstate commerce clause of the Constitution. In oral arguments, the government never really articulated an alternative principle, but a few days ago I asked why that should be the government’s job in the first place. Isn’t that the court’s job?

The whole idea of a “limiting principle” as central to this case has arisen from the notion that the Justices will need to find one in order to uphold the law. But as far as I can tell, the administration’s success or failure in establishing such a principle should not be not relevant to whether the law is Constitutional or not. Charles Fried described the insistence on a limiting principle to me as a “red herring.”

I’m no lawyer, but it seems to me the adminstration’s job is to prove that the law as defined represents a legitimate exercise of Congressional power, not to argue the ways in which the law limits Congressional power. It’s up to the court to determine whether the exercise of Congressional power enshrined by the law falls within the powers the Constitution accords Congress.

With that in mind, here’s a greatly simplified version of the adminstration’s case, as I understand it.

* Congress has the power to regulate commerce among the states. It has the power to make any law that is “necessary and proper” to exercise that power to regulate interstate commerce.

* The health insurance and health care industries constitute interstate commerce. Therefore Congress has the power to regulate them, and to pass laws Congress deems necessary and proper to carry out that regulation.

* Banning discrimination against people with preexisting conditions constitutes regulation of interstate commerce. This is a Constitutional act.

* To carry out the above, Congress has deemed it necessary to create an incentive, via a penalty, for all Americans to have health insurance, because failing to do so, while carrying out the above, would do further damage to interstate commerce. Congress has the power to make any law it deems “necessary and proper” to carry out the regulation of the health insurance and health care industries.

* There is nothing in the Constitution that renders the passage of that law “improper.” The burden of proof is on the law’s opponents to explain what, specifically, in the Constitution renders it “improper.” The law is Constitutional.

Whether or not that argument holds up — and I’m not particularly confident that the mandate will survive — it seems like buying into the idea that the administration needs to establish a “limiting principle” or fail the Constitutional test is to cede much of the argument to opponents.

By  |  01:20 PM ET, 03/30/2012

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