The "Limiting Principle"

I have been vastly amused and entertained by the horde of pundits and scribes who have declaimed at length on the “health care reform” discussion in the Supreme Court this past week and have described at length how much better educated on matters of the law they are than the sitting justices of the Supreme Court.

I do not presume to know how the Court should rule on this thing, but even I know that some of the instructions that some of these pundits have issued to the court, telling the Supremes how they should rule, are ridiculous on the face of them. I do understand, for instance, what the justices meant when they asked for the “limiting principle.”

I can’t count how many people I have read who tried to refute Scalia’s “broccoli comparison,” his limiting principle request, and I have yet to see one get it right. Paul Krugman didn’t even really try, merely saying that “broccoli is different than health care.” Well, of course it is, which was Scalia’s point, but in what manner is it different? The court needs that definition, and no one seems able to provide it. At issue is the answer to the principle of precedent; “how can we uphold this law without it becoming a precedent for future laws?”

In layman’s terms, the court needs to be able to be sure that at no point in the future can someone come back and say, “Well you allowed the purchase of health insurance to be mandated, so you must also allow the purchase of this to be mandated.” They need to be able to put into their ruling some language that prevents that eventuality by saying that insurance is a special case because… And no one is giving them that “because.”

Quite a few people have said in effect that, sure, there are lots of things that could be mandated but that Congress is simply not stupid enough to mandate them. Aside from the fact that Congress has clearly illustrated that it is stupid enough to do pretty much anything, the Supreme Court cannot rely on the restraint of Congress. If it could, we would not need the Supreme Court, would we?

In 2000 the Supreme Court ruled on an election in Florida and simply said in the ruling that they were not setting a precedent, without giving in that ruling any rationale as to why that was the case, and in doing that they rather seriously damaged their credibility. Maybe they can simply do the same thing again; saying, in effect that health insurance is special but that we don’t know why? I kind of suspect that they don’t want to do that.