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.

NEXT: Reason-Rupe: 58 Percent of Americans Satisfied with Their Health Care; 23 Percent Dissatisfied

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  1. oh so the individual mandate is just peachy at state level hummmmmmmmm?

    1. peachy babiee just like the free money peach trees in every ER to feed n pay for teh uninsured! >who needs soylent green anywho

      1. Doesn’t know how to spell.

    2. Constitutionally, yes.

      1. That sucks. States should not be able to force people to buy stuff either (even though they appear to be able to).

        1. another libtoidz conundrum…wrapped in feral bacon n served w under free-money peach trees to the uninsured in all our ER’s.

          1. Additional IQ points obviously do not come with additional oxygen atoms.

            1. nope – you & other libtoidz here are in denial that YOUR annual premium covers the additional costs for the uninsured since YOUR insurance co is charged MOAR for all services to offset the unreimbursed costs to the hospitals nationwide.
              >then again, a free-money tree in every ER would sol-ved it.

        2. Amend your state constitution to prohibit it.

    3. There might be practical economic and other concerns, but in terms of the federal Consitution, it’s fine.

    4. states have constitutions too, so it depends.

  2. 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.”

    As if some NYT hack can be taken seriously. Look at the picture topping his article, fer chrissakes.

    1. Keep politics out of my health care

      That is apparently why the government needs to control it, to keep politics out of it.

      1. Haha, exactly.

      2. politics out
        profits in

  3. Shouldn’t this vote be 9-0 against the mandate? What Constitution are the other guys reading?

    1. Clearly you have not graduated from law school…

      1. My constitution will hear about this as soon as it graduates from law school.

    2. The “living” one.

      1. Dyin’ ain’t much of a livin’.

    3. SCOTUS is a political body, like the other two branches.

      Except for maybe Thomas, they all play the same game as Congress except they have to die or quit to get voted out.

      My current assumption is that the ACA will survive in some form or another, regardless of the SCOTUS decision.

      1. SCOTUS is not so much a political body, as being comprised on individuals who were (knowingly) selected for their biases. Those biases are generally quite easy to see. What I do not see is indications that the justices ask ‘what party passed this law’ but rather ‘what is consistent with my own understanding of the Constitution’. The result may fall along political lines, but there is little indication that the decisions are motivated to support ‘team red’ or ‘team blue’.

  4. Just a thought, but what is one of the four liberal justices goes off the reservation and votes to kill this thing and the vote ends up 6-3? Would the media have a collective nervous breakdown?

    1. They’d just kick into the standard “what are we going to do about our health care problem,” full of all its standard assumptions, question-begging and romanticization of government as The Vehicle For Our Collective Action.

    2. Ha-ha. As if. A couple of them came to the rescue of the government’s solicitor yesterday when his case began to disintegrate in front of them. It was like the referees of this weekend’s Final Four games snatching the ball away from the losing team and playing the contest themselves, including making calls necessary to make sure the “right” team wins.

      1. You mean like their failed attempt to give the Sweet 16 game to Indiana.

        1. Or their successful attempt to keep UNC Ashville from beating Syracuse.

          1. The trick is to have enough people there to boo loud enough.

      2. I know I am dreaming. But it would be funny. And just remember, had John Sununu not had a fit over Doug Ginsburg smoking dope with his Harvard students and talked George Bush I into foisting the pile of shit that is David Suiter on the country, this case would be a slam dunk.

        1. Word.

    3. Demand court packing must be on their list.

    4. I’m hoping for a last-minute Ginsburg surprise. Doubt it will be happen, but would be really sweet.

      I’d also like to see Sotomayor against it, because I want to like her.

      1. She really would be a wise Latina. And she has made some decent decisions. The irony of an Obama appointed justice voting to kill it would be too much.

  5. My 7-2 dream is looking better and better.

  6. On the lighter side, Scalia invokes 8A when discussing reading 2700 page bill.

    “JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?


    And yet the idea of subjecting the little people to it is feasible…

  7. Call it a “dictate”, not an “edict”.
    It’s more accurate.

    Only in a dictatorship does the government get to simply order private citizens to do something with no recourse, or ability to avoid such mandates.

    We’re either a free country, or one where the government can issue economic dictates.

    1. It’s for our own good!!!! Why do you hate children???????????????

  8. Would someone be kind enough to explain what Wickard v Filburn is about, again? I really fucked that one up today.

  9. Britain Deserves Better

  10. To all those who think they have the final tally figured out: “it ain’t over till it’s over”.

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