Kennedy's Skepticism About the Insurance Mandate Reflects His Appreciation of Federalism As a Bulwark of Freedom

Supreme Court Justice Anthony Kennedy's skeptical questions about the Patient Protection and Affordable Care Act's individual insurance requirement, which gave hope to the mandate's opponents by suggesting there may be a fifth vote to overturn it, reminded me of his opinion in Bond v. United States, a 2011 ruling that allowed a defendant to challenge her prosecution on 10th Amendment grounds. The case involved Carol Ann Bond, a Pennsylvania microbiologist who was charged with violating the Chemical Weapons Convention Implementation Act by trying to poison an ex-friend who had an affair with Bond's husband. Bond argued that federalizing her offense, which resulted in a sentence substantially longer than she was likely to have received in a Pennsylvania court, unconstitutionally impinged on a power "reserved to the states" under the 10th Amendment. The issue for the Court was whether individuals, as opposed to state governments, can mount such a challenge. It unanimously decided that they can. In his opinion for the Court, Kennedy noted that "Bond seeks to vindicate her own constitutional interests," claiming "injury from governmental action taken in excess of the authority that federalism defines." He emphasized the connection between federalism and individual freedom:

The federal system rests on what might at first seem a counterintuitive insight, that "freedom is enhanced by the creation of two governments, not one."…The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.

Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.

But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. "State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.' "

This diffusion of power allows each state to decide for itself whether requiring people to buy health insurance is a good idea, and that decision is one of the many factors Americans can consider in deciding where to live. But the federal government, which is limited to explicitly authorized functions, cannot impose such a mandate nationwide without showing that it falls under a power "delegated to the United States by the Constitution" (as the 10th Amendment puts it). An act of Congress ordering Americans to buy officially approved medical coverage, Kennedy suggested during yesterday's oral argument, "changes the relationship of the federal government to the individual in a very fundamental way," which means the Obama administration has "a heavy burden of justification to show authorization under the Constitution."

Reporting on the oral argument in The New York Times, Adam Liptak says overturning the mandate would "revise the constitutional relationship between the federal government and the states." Not in the view of the mandate's opponents, who believe they are preserving (what is left of) the constitutional relationship between the federal government and the states. As Kennedy pointed out in Bond, that arrangement is no mere technicality, and it is not simply about "states' rights." It is a structure designed to protect liberty, as vividly illustrated by the edict at the center of the case the Court is now considering.