Supreme Court 2, Word Magic 0
Yesterday, I wrote about businesses that try what I've dubbed the Rumpelstiltskin Gambit. The idea is that, through semantic wizardry, you can make an otherwise illegal business into legal gold, invoking the magic words that make the legal objections go "poof!" I pointed out that this strategy sometimes works, but it sometimes results in your business going "poof!" instead -- as happened to Aereo Inc. last night.
Today's U.S. Supreme Court rulings offer two examples of how the Rumpelstiltskin Gambit can also backfire on politicians. In two unanimous decisions, the court voided President Barack Obama's recess appointments to the National Labor Relations Board, then struck down a Massachusetts law that had forced protesters to stay 35 feet away from the entrance to an abortion clinic.
Both were clear efforts to get around constitutional restrictions -- on curtailing free speech, in the case of the Massachusetts law, and on the ability of the president to appoint government officials without the consent of the Senate in the other. Both involved resorts to creative definitions in order to get around these pretty clear limits on government power.
"We're not trying to curtail free speech," said Massachusetts. "We're just trying to keep the driveways and entrances clear."
"I'm not making illegal appointments," said President Obama. "I'm just exercising my constitutionally allowed power to make recess appointments while the Senate ducks out for brunch."
In some sense, both were relying on the Sorites Paradox. This sounds like a bit of dorm-room theorizing, but bear with me.
The classic formulation of the paradox involves a heap of sand. If I take one grain away, does it stop being a heap? No, of course not -- taking away one grain of sand does not transform a heap into a nonheap. But if we extend this logically, I can keep taking away grains one at a time until we have a "heap" consisting of a single grain of sand. That can't be right, either. So at what point does the heap become a nonheap?
Users of the Rumpelstiltskin Gambit generally end up arguing that as long as we have a single grain of sand between us and the law, we still have a heap, so leave me alone. Defenders tend to feel that as long as the limits are inherently arbitrary, they should be arbitrarily small.
But the Supreme Court is okay with arbitrary distinctions, because there is no book of law big enough to fully specify the complete working rules for a society of 300 million people. When asked to draw a line, they're comfortable with drawing it -- and the Rumpelstiltskin Gambit often ends up on the wrong side.
That's not to say that these decisions are necessarily correct. As it happen, I think that today's decisions were absolutely correct rebukes to government officials who clearly overstepped sound constitutional boundaries. On the Aereo case, I'm less sure; I could argue it either way.
But the next time you're tempted to invest a lot in the Rumpelstiltskin Gambit, remember: However earnestly you believe that a grain of sand is still a heap, it's the court's opinion that counts.
This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.
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