SCOTUS and ObamaCare: So how is Justice Kennedy feeling about this? [Update]
One of the jokes that has gone around for some time concerning ObamaCare’s eventual hearing in the Supreme Court is it will likely revolve around what Justice Kennedy had for breakfast. The obvious point being most SCOTUS observers can pretty much predict how the other 8 Justices might rule, but Kennedy is sort of the wild card and swing vote.
So, as you might imagine, many eyes are on him.
Today was the 2nd day of oral arguments in the case. This question from Justice Kennedy may give an indication of how he’s leaning in the case:
JUSTICE KENNEDY: “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 you not have a heavy burden of justification to show authorization under the Constitution?”
My answer to his question is “you bet”. How did the Solicitor General answer?
GENERAL VERRILLI: So two things about that, Justice Kennedy. First, we think this is regulation of people’s participation in the health care market, and all — all this minimum coverage provision does is say that, instead of requiring insurance at the point of sale, that Congress has the authority under the commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market, because this is a market in which — in which you — although most of the population is in the market most of the time — 83 percent visit a physician every year; 96 percent over a five-year period — so virtually everybody in society is in this market, and you’ve got to pay for the health care you get, the predominant way in which it’s — in which it’s paid for is insurance, and — and the Respondents agree that Congress could
require that you have insurance in order to get health care or forbid health care from being provided.
Uh, I don’t know about you, but it seems to me that the Solicitor General sidestepped the question and erected a giant strawman.
If you want to read the transcript of today’s oral arguments they’re here and they’re very interesting. If I had to guess, I’d say the law is in trouble. I found the arguments for to be fairly weak and I got the indication that most of the Justices (well, at least a majority of the Justices) may have as well.
Bottom line, Kennedy’s question is still laying out there unanswered.
UPDATE: More Justice Kennedy:
JUSTICE KENNEDY: 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.
Indeed, it does.