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Looking Bad for the Mandate

It looks like the Supreme Court may well declare unconstitutional at least the "mandate" part of "Obamacare."  This astute observer explains why Justice Kennedy's understanding of the relevant issue makes it pretty clear how his vote will swing:

Many pundits had expected that Justice Kennedy, the “super median” of the nine-member panel would side with the liberals, and agree with the government’s argument that the law did nothing more than regulate a pre-existing market, as it already does with, say, telecoms or wheat prices.

But Justice Kennedy appeared to dissent strongly from that view, and here’s the key quote that has made the pundits think that, unless he can find some ‘limiting principle’ to the scope of the Affordable Care Act, he is not inclined to rule it constitutional.

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.

Some libertarians, such as the resolute opponent of the constitutionality of the mandate Randy Barnett, have criticized Kennedy in the past for inconsistency.  In Lawrence v Texas (the Texas sodomy case), Kennedy made it pretty clear that the Court should decide on the constitutionality of all laws with the presumption of liberty in mind.  Strong reasons, at least, must be given for any law that limits liberty or autonomy.  Kennedy even said that the word "liberty" in the due process clauses was meant by the Framers to be a weapon to expand the domain of liberty for every generation of Americans.  If there's going to be a change in the relationship between the Federal Government [or state governments] and the individual, it should be in the direction of more liberty.

But Kennedy, Barnett complains, has been inconsistent in applying that presumption principle when it comes to laws having to do with property rights, economic regulation, and so forth.

Yesterday Kennedy made it clear that, in his view, we have a government of rights, not duties.  I personally, under our law, owe nothing to the blind man beyond not violating his rights myself.  Government can't compel me, without better reasons than the government has given on health care, to act in a way that I do not judge to be in my self-interest.  My inaction is presumed to be legal.  There are, of course, "severe moral criticisms" of that limited a conception of personal responsibility, but constitutional liberty commands that those criticisms can't be embodied in legal coercion.

Is the Court moving toward a more consistent libertarian activism?  Does the logic that might produce a constitutional right to same-sex marriage or has produced the right to choose on abortion also strike against the health-care mandate?  Or not?

A big problem, the commentator observes, is that the Obama administration has not been so good in persuading either Americans in general or the legal community in particular that the mandate isn't an offense against individual rights.

So a big question is whether the president's campaign for reelection might actually be helped by the Court freeing him from the burden of having to defend the unpopular mandate.

Romney might also be helped by being freed of the burden of the inconvenient truth that there's plenty of evidence that he's never, in the past, questioned the constitutionality of such mandates.  Now that the Court has spoken, he can say, I admit that I was wrong about what the Constitution really means.

As a pretty firm defender of judicial restraint (vs. judicial activism), I must confess to a lingering doubt about this political issue being resolved by the Court by a 5-4 vote. They're saying that this is the biggest case since Bush v. Gore or Roe v. Wade.  In those two cases, the activism of the Court was very questionable or much worse.

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