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March 29, 2012

That Demmed, Elusive Limiting Principle

They seek it here
They seek it there
Verilli seeks it everywhere...

*Bonus points for correctly identifying the obscure reference

David Kopel comments on the increasingly desperate search for a limiting principle that would constrain the power Congress seems determined to arrogate to itself:

Under modern doctrine, Congress has the authority to regulate almost every market. If Congress enacts regulations that are extremely harmful to that market, such as imposing price controls (a/k/a “community rating”) or requiring sellers to sell products at far below cost to some customers (e.g., “guaranteed issue”) then the market will probably “unravel” (that is, the companies will lose so much money that they go out of business). So to prevent the companies from being destroyed, Congress forces other consumers to buy products from those companies at vastly excessive prices (e.g., $5,000 for an individual policy for a health 35-year-old whose actuarial expenditures for health care of all sorts during a year is $845).

So Siegel’s argument is really an anti-limiting principle: if Congress imposes ruinous price controls on a market, to help favored consumers, then Congress can try to save the market’s producers by mandating that disfavored consumers buy overpriced products from those producers.

As much as I enjoyed reading Atlas Shrugged as a young woman, I still remember thinking to myself that parts of the story line were ludicrous exaggerations - a literary convention meant to cast real problems with human nature into sharper relief. Which makes it all the more surreal to see Rand's nightmare scenarios playing out on the evening news.

Go read the whole thing. It's quite good.

Posted by Cassandra at March 29, 2012 07:42 AM

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The Scarlet Pimpernel, of course! ;)

Posted by: FbL at March 29, 2012 09:04 AM

Fbl was too quick....

The Scarlet Pimpernel by Baroness Emmuska Orczy

Posted by: David M at March 29, 2012 09:30 AM

I loved those books when I was a child.

Posted by: Cassandra at March 29, 2012 09:31 AM

I read The Scarlet Pimpernel - 45years ago. I don't remember a thing about it. Should I re-read it?

The only grade school book I remember well is Mutiny on the Bounty, which I liked enough that I read Men Against the Sea and Pitcairn Island on my own.

Posted by: tomg51 at March 29, 2012 09:48 AM

OK, I remember Lord of the Flies, Adventures of Huckleberry Finn, Fahrenheit 451, 1984, Animal House, To Kill a Mockingbird and Catcher in the Rye. You got me thinking...

Posted by: tomg51 at March 29, 2012 10:06 AM

The Principle of Limits, as applied from the Progressives' doctrine, is easily found. It is, quite simply, that limits are what our Betters say they are.

Herb Croly:

To be sure, any increase in centralized power and responsibility, expedient or inexpedient, is injurious to certain aspects of traditional American democracy. But the fault in that case lies with the democratic tradition; and the erroneous and misleading tradition must yield before the march of constructive national democracy.

The disaster that is Obamacare, with all of Kopel's arguments against, is straight out of that playbook.

Moreover, the entire argument elides the fact that Obamacare has nothing to do with insurance and everything to do with privately funded, government mandated welfare. But that was not among the questions in controversy before the Supremes.

Eric Hines

Posted by: E Hines at March 29, 2012 11:15 AM

Lord of the Flies was another of those life-changing books for me. I made both my boys read it. We also had it on tape and listened to it during long car trips.

I've done a lot of threads on books. Trying to find one of my favorites from long ago.

Posted by: Cassandra at March 29, 2012 11:51 AM

The Man Who Would be King by Rudyard Kipling. That book has stuck with me since I first read it lo those many moons ago.

Posted by: Allen at March 29, 2012 11:57 AM

Saw the musical version just a week or two back - had a song or two worth remembering, for sure.

Posted by: Joseph W. at March 29, 2012 12:06 PM

....the march of constructive national democracy.- Herbert CrolyD

That sounds a lot like National Socialism. How did that work out in Olde Germany?

Posted by: Don Brouhaha at March 29, 2012 12:09 PM

Oh, and BTW, I thought that quote was by Dr. Suess in Green Eggs and Ham.

... Verilli seeks it everywhere, Sam I am. :)

Posted by: Allen at March 29, 2012 12:42 PM

Limits!? We don't need no stinkin' limits

"I still remember thinking to myself that parts of the story line were ludicrous exaggerations"

Just what I used to think while enjoying Rod Serling's Twilight Zone program... Yet, here we are, in a dimension where matter doesn't.

If the Villains have not done so, they might wish to read the transcripts of the hearings. If one does, I would recommend all liquor and firearms be locked away prior to reading the transcripts.

I'm particularly fond of the exchange that begins about here:

JUSTICE KENNEDY: Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?

GENERAL VERRILLI: Yes. The -- the rationale purely under the Commerce Clause that we're advocating here would not justify forced purchases of commodities for the purpose of stimulating demand. We -- the -- it would not justify purchases of insurance for the purposes -- in situations in which insurance doesn't serve as the method of payment for service -

JUSTICE KENNEDY: But why not? If Congress -- if Congress says that the interstate 16
commerce is affected, isn't, according to your view, that the end of the analysis.

GENERAL VERRILLI: No. The, the -- we think that in a -- when -- the difference between those situations and this situation is that in those situations, Your Honor, Congress would be moving to create commerce. Here Congress is regulating existing commerce, economic activity that is already going on, people's participation in the health care market, and is regulating to deal with existing effects of existing commerce.

CHIEF JUSTICE ROBERTS: That -- that it seems to me, it's a -- it's a passage in your reply brief that I didn't quite grasp. It's the same point. You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks. Well, a car or broccoli aren't purchased for their own sake, either. They are purchased for the sake of transportation or in broccoli, covering the need for food. I -- I don't understand that distinction.

GENERAL VERRILLI: The difference, Mr. Chief Justice, is that health insurance is the means of payment for health care and broccoli is -

CHIEF JUSTICE ROBERTS: Well, now that's a 17
significant -- I'm sorry.

GENERAL VERRILLI: And -- and broccoli is not the means of payment for anything else. And an automobile is not -

CHIEF JUSTICE ROBERTS: It's the means of satisfying a basic human need, just as your insurance is a means of satisfying -

GENERAL VERRILLI: But I do think that's the difference between existing commerce activity in the market already occurring -- the people in the health care market purchasing, obtaining health care services -- and the creation of commerce. And the principle that we are advocating here under the Commerce Clause does not take the step of justifying the creation of commerce. It's a regulation of the existing commerce.

Queue up the deus ex machina:

JUSTICE GINSBURG: General Verrilli, can we
-can we go back to, Justice Breyer asked a question, and it kind of interrupted your answer to my question. And tell me if I'm wrong about this, but I thought a major, major point of your argument was that the people who don't participate in this market are making it much more expensive for the people who do; that is, they -they will get, a good number of them will get services that they can't afford at the point where they need 18
them, and the result is that everybody else's premiums get raised. So you're not -- it's not your -- your free choice just to do something for yourself. What you do is going to affect others, affect them in -- in a major way.

As is said, read the whole thing, if you dare.

Posted by: Mr. Barnard at March 29, 2012 02:47 PM

Unlinked link linked HERE.

Is too...

Posted by: Mr. Barnard at March 29, 2012 02:49 PM

Having already read the transcripts a while ago, I couldn't help but be reminded of epic chokes in the sports world. The first that comes to mind are the 90's Buffalo Bills, Portland Trailblazers and Atlanta Braves.
This guy had how many years to perfect his opening, rebuttals, answers, yada yada yada. By now he should have a bruise from all the times his wife has had to nudge him to get him to stop talking in his sleep. And this is how he performs when he gets to the "Big Game"!?
Course, it helps when you've got three Justices putting words into your mouth for you....
*shaking head*

Posted by: DL Sly at March 29, 2012 03:57 PM

I have been listening to the arguments on CSPAN during the commute in to work and couldn't agree with DL Sly more.

I now understand why Justice Thomas doesn't like to ask questions.

It was like listening to the McLaughlin Group on TV (an experience I do not recommend if you value your sanity and do not want to end up throwing the family pet at the television screen).

I don't see how anyone can make a coherent argument with the constant interruptions. They really need to come up with a better format...at least if they truly care about the quality of the debate.

Posted by: Cassandra at March 29, 2012 04:26 PM

..."and Atlanta Braves."

*thinks to self, at least Sly omitted the perpetually choked Atlanta Falcons... Been breaking my heart since 1966*

"Course, it helps when you've got three Justices putting words into your mouth for you..."

I don't think we, the peasantry, are suppose to notice that coaching feature, er, make that, bug, nope, nope, feature.

Posted by: bthun at March 29, 2012 05:07 PM

"...at least Sly omitted the perpetually choked Atlanta Falcons..."

To be honest, they did come to mind but I couldn't remember if the kicker that blew the chip shot field goal for the NFC Championship in Minnesota's dome was Mortensen, Anderson or one of the Grammatica's....other than that, as a Dolphin fan, I don't really pay attention to more than the scores for the NFC until the playoffs. (*snicker* she said playoffs and Dolphins in the same sentence *snort snort*)

Posted by: DL Sly at March 29, 2012 05:33 PM

"...at least if they truly care about the quality of the debate."

That's as good as Dolphins and playoffs in the same sentence!

Posted by: DL Sly at March 29, 2012 05:41 PM


"I don't see how anyone can make a coherent argument with the constant interruptions. They really need to come up with a better format...at least if they truly care about the quality of the debate."

The real arguments are in the written briefs. The oral arguments serve to let the justices think of odd ways the petitioner's and respondent's arguments would affect the state of the law. Hence the difference between trial advocacy and appellate advocacy. Trial advocacy is directed towards determining the facts in one particular case, while appellate advocacy is directed towards determining the law which will affect an unlimited number of cases.

Plus I think the oral arguments are simply a means for the justices enjoy themselves and stretch their minds in a way that reading and analyzing briefs doesn't.

Posted by: Rex at March 30, 2012 11:07 AM

BTW, when did The Scarlet Pimpernel become an obscure reference? It's a great read and has been made into at least two movies.

Posted by: Rex at March 30, 2012 11:10 AM

The real arguments are in the written briefs.

After paying attention to a couple of recent cases, this strikes me as true. I mean, you get 10,000 pages of written arguments from tens if not hundres of sources, but only 30 minutes per side of Oral arguments. The Oral part really only seems to be there so the justices can ask questions for stuff where they think you've palmed a card or skipped a step.

The lawyers have already had a chance to make *their* case. Now it's the Justice's turn.

Posted by: Yu-Ain Gonnano at March 30, 2012 12:32 PM

Yu-Ain! We missed you.

Rex's point makes sense to me. I think what bothered me most was the times a justice would ask a question and the poor guy (and this refers to both of them) would start to answer and get cut off repeatedly.

If you ask a question, shut up and let the other person respond. Otherwise, it starts to sound like what a used to call an essay question (IOW, a statement worded as a question where the speaker isn't really interested in the response).

Posted by: Cassandra at March 30, 2012 03:53 PM

BTW, when did The Scarlet Pimpernel become an obscure reference? It's a great read and has been made into at least two movies.

I didn't realize there were movies, but then I'm notoriously out of touch on that score. I do have an A&E series that is quite good. I'll have to look for the movies.

Posted by: Cassandra at March 31, 2012 10:26 AM

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