One of TPM's readers wrote in today with a comment about the arguments in the Supreme Court healthcare case. It happens to be about something that's been bouncing around in the back of my head for several days, so here it is:
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.
This is related to the "broccoli question." If Congress can force you to buy health insurance, can they force you to buy broccoli too? In fact, if they can force you to buy health insurance, are there any limits at all on what Congress can do? Lots of smart observers think the conservative justices simply won't accept the idea that Congress can essentially do anything, which means that if they're going to uphold the individual mandate they'll need some kind of "limiting principle" that explains why the mandate is OK but, say, broccoli isn't.
But it strikes me that the government's job isn't to craft such a principle. The government's job is to argue that the mandate is already within existing limits on Congress's power. And given how extraordinarily broad Wickard is, that never seemed very hard to me. If Congress can stop you from growing wheat for private consumption, something that has only the most tenuous connection to interstate commerce, mandating the purchase of health insurance seems like a no-brainer.
But even if it's not, it's still not the government's job to articulate a limiting principle. It's the court's job. That's what they do. They write opinions that — in theory, anyway — provide guidance to lower courts about how to apply the law. Supreme Court opinions are chockablock with three-prong tests, significant nexus tests, balancing tests, and a million other kinds of tests. As long as Kennedy or Roberts or Breyer or Kagan or any of the others can come up with something that gets five votes, then we have our limiting principle. There's no reason it has to come from the Obama administration. In fact, all things considered, it's probably best if it doesn't. The justices will all feel a whole lot smarter and a whole lot more decisive if they do it themselves.