When the Supreme Court takes up the Obama health-care law 'mandate'

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 RightsNinth 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 federal powers.

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. However, even in this case, the individual was taking action.

If now government is allowed to force anyone to participate in a private, commercial activity, such power could then be used under any purpose, such as commanding the purchase of life insurance, a clean-burning car, or healthy types of food.

The government has argued that it should have similar powers as the states now have in requiring drivers to buy auto insurance. But that power only resides if an individual first acts to buy a car.

Government also argues that all individuals can be expected to use the medical system someday, thus burdening the government and those who have paid for health insurance.

This presumption of future action would set a dangerous precedent. Congress could then penalize an individual for the mere potential for action, allowing the state to use any means to push any individual into any action – thus violating the Constitution’s prescribed limits on government authority.

Using a mandate against inaction would turn the Constitution on its head and lead to a people of the government, not a government of the people.

The Constitution lives to protect rights no one can touch; it will no longer live if those fundamental rights can be mandated away.

Government cannot be allowed to compel private action merely in anticipation of someone needing a government service. It can, and has, taxed individuals in anticipation of their using services such as Social Security or Medicare. The Constitution grants Congress the power to tax in order to fund these social needs.

In fact, Congress could avoid the mandate and still fund expansion of government-run health care simply by resorting to a general tax.

This mandate would also violate many of this court’s previous decisions, such as Roe v. Wade, that guard an adult’s privacy over his or her health except for a compelling state interest.

The 14th Amendment prevents the state from depriving individual liberty without due process of law. Given the other ways to pay for health care or control its costs, there is no compelling interest in law for this mandate or for an unbridled exercise of police powers and economic regulation.

Congress can regulate action but not a mere personal decision without action. Under this court’s precedents and the Constitution, one’s thoughts and intentions remain inviolate.

The right to individual liberty, as retained by the people, does not allow this mandate to stand.

So ordered.

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