Justice Kennedy will probably be the swing vote on a case
concerning the individual mandate. Here is what he may well say
against this linchpin of the Obama health-care law.
The most targeted piece of President Obama's health-care law is
this mandate: Beginning in 2014, every American must purchase health
insurance - under penalty of law. Except for the poor, elderly, and
a few others, anyone who has not purchased insurance will face a
hefty fine - 2.5 percent of one's income.
Never before has the federal government tried to punish citizens
for not engaging in a private activity. This "individual mandate" is
a legal innovation, one now being challenged in several courts. On
Monday, US District Judge Henry E. Hudson ruled that the mandate
"exceeds the Commerce Clause powers vested in Congress under Article
I [of the Constitution]." Two other federal judges, however,
recently ruled in favor of the mandate's constitutionality.
At least one of these cases will probably reach the Supreme Court
by 2012. As in many of its decisions, the high court may be split in
a 5-to-4 vote. And Justice Anthony Kennedy, as often happens, could
be the swing vote and write the majority opinion.
Here is what he may well say - in a layman's version of arguments
- against the mandate:
This court is often asked to balance the right to individual
liberty against Congress's power to regulate national markets. The
law under question, however, actually forces individuals to
participate in a market - health-care insurance. If this mandate
were to stand, it would erode the Bill of Rights' Ninth Amendment,
in which the listing of rights in the Constitution does not deny
other rights "retained by the people."
Congress justifies this law's coercion of individuals into making
a private purchase as necessary to pay for extending coverage to the
uninsured. While the goal of health-care reform is noble, the means
cannot come at a high cost to personal freedom and require an
interpretation of the Commerce Clause that would lead to unlimited
This court has never allowed the federal government to regulate
economic inaction. The Constitution does grant broad - but not
unlimited - powers to Congress to regulate interstate commerce. As I
stated in past opinions, this power should rarely be restricted.
This mandate is one of these rare occurrences.
Regulation of any economic activity by definition requires
individuals to act. My opinion in a 2005 case upholding federal
regulation of marijuana grown at home and never sold suggests that
individual, noncommercial activity can be regulated. …