Justice Kennedy: Individual Mandate Would Fundamentally Alter Citizen-Government Relationship

Published March 27, 2012

Justice Anthony Kennedy, considered the likely key player in the Supreme Court case over President Obama’s health care law, asked a series of questions in today’s hearings that has everyone in Washington buzzing. Here is every question Justice Kennedy asked today.

PP 4-5: “Can you create commerce in order to regulate it?”

PP 11-12:  “Could you help – help me with this. Assume for the moment – you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do younot have a heavy burden of justification to show authorization under the Constitution?”

P 16: “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?”

PP 16-17: “But why not? If Congress – if Congress says that the interstate commerce is affected, isn’t, according to your view, that the end of the analysis?”

P 24: “I’m not sure which way it cuts. If the Congress has alternate means, let’s assume it can use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power. On the other hand, it means that since the Court can do it anyway – Congress can do it anyway, we give a certain amount of latitude. I’m not sure which the way the argument goes.”

P 30: “But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.”

PP 55-56: “Was the government’s argument this – and maybe I won’t state it accurately – it is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health insurance companies figure risks? That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument?”

P 69: “But they are in the market in the sense that they are creating a risk that the market must account for.”

P 103: “I agree – I agree that that’s what’s happening here.” (This one, he’s agreeing with Carvin’s statement that “They used the 20 percent or whoever among the uninsured as a leverage to regulate the 100 percent of the uninsured.”)

P 103: “And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets – stipulate two markets – the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.”

That “fundamental way” comment in particular has supporters of the health care law very concerned, to say the least. I’ll be liveblogging today’s events once again. Please join in below.