Sorry to keep reiterating this point, but I’ve contended since December 2010 that if the pro-ACA side is unable to articulate a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority simply will not accept a doctrine that suggests that federal power is not one of limited and enumerated powers.
Unfortunately for the law’s defenders, the SG today lapsed into incoherence when Justices Alito, Kennedy, and Scalia asked him to identify a limiting principle (check out various liberal blogs for apoplectic reactions to SG Verrilli’s performance). Justice Breyer later tried to step in and articulate three such principles:
First, the Solicitor General came up with a couple joined, very narrow ones. You’ve seen in Lopez this Court say that we cannot, Congress cannot get into purely local affairs, particularly where they are noncommercial. And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law.
So (1) even Breyer was unable to articulate exactly (or even approximately) what limiting principle the SG had come up with; (2) everyone knows that defeating Lopez’s limitations on the commerce power has largely become a statutory drafting game to find a federal jurisdictional hook, however remote, and an unsuccessful ACA challenge would make it that much more difficult to find any examples regarding which such a hook couldn’t be found. Moreover, reliance on Lopez is a bit rich coming from Breyer, who dissented in Lopez and would undoubtedly vote to overturn it tomorrow if he could; and (3) this is not a limit, it’s judicial abdication, though it’s what Breyer really believes. Even though he knew–and said!–that his colleagues aren’t going to be persuaded by this, he apparently couldn’t resist throwing it in anyway, as the “greatest limiting principle.” Ego over effectiveness, I suspect.
So far, we seem to be left with the “health care is special” argument, which is not a limiting principle, but could persuade a conservative justice or two to join a limited holding. Yet Justice Kennedy suggested today that if the ACA is upheld, the government will soon be back arguing that some other sector of the economy is “special.” Not a good day for limiting principles.