Will he strike down the individual mandate?

After decades of battles in the political system, and now in the courts, the fate of health care reform is likely to come down to the vote of one man: Justice Anthony Kennedy. As the swing vote on a Supreme Court closely divided between liberals and conservatives, he will almost certainly have the power to uphold or strike down the “individual mandate” that is a centerpiece of President Obama’s Affordable Care Act (ACA). Nobody seems able to predict what Kennedy will do, and even after years studying his jurisprudence, I am also unable to say with any certainty.

I can, however, explain the reason why Justice Kennedy’s ultimate view is so uncertain. The question of the individual mandate’s constitutionality is closely tied to two competing values that Kennedy believes in deeply: a judicial duty to enforce limits on the federal government, and acceptance of a practical post-New Deal conception of the federal power to regulate a national economy. His record contains repeated defenses of both commitments, and when confronted with cases that pit them against each other, he often tries to have it both ways. With the mandate, though, Kennedy will have to choose.

Early in his tenure, Kennedy served as a reliable vote to limit the scope of federal power. In the 1980s, while a judge on the Ninth Circuit, he gave speeches calling for a restoration of federalism as “an underlying essential, ethical, moral value.” On the Supreme Court, Kennedy has voted to limit the reach of federal power to preserve the sovereign immunity and “dignity” of the states, and joined majorities in U.S.v. Lopez (1995) and U.S. v. Morrison (2000) in striking down federal legislation as beyond Congress’s power to regulate commerce among the several states. Yet Kennedy’s concurring opinion in Lopez, which he described as a “necessary though limited holding,” evinced deep tension between his belief in federalism and his recognition of the need for expanded federal authority to regulate a growing economy.

In that case, Kennedy joined a 5-4 majority to invalidate the federal Gun Free School Zones Act, which made possession of a weapon with 1,000 feet of a school to be a federal crime. He conceded that Congress has a broad role in regulating a “single, national market.” His opinion explicitly mentioned the seminal New Deal decision in Wickard v. Filburn (1941)—which extended federal commerce power to cover local, noncommercial actions that are thought to have a “substantial effect” on interstate commerce—as well as later decisions upholding the 1964 Civil Rights Act’s prohibitions on discrimination in public accommodations as an exercise of the commerce power. At the same time, however, Kennedy stated that courts have “a duty to recognize meaningful limits on the commerce power of Congress.” He decided that the Gun Free School Zones Act was unconstitutional because it was not a regulation of commerce but a criminal law, “regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term.” To uphold federal legislation, Kennedy said he would require “stronger connection or identification with commercial concerns that are central to the Commerce Clause.”

More recently, though, Kennedy has voted to uphold exercises of federal power under the Commerce and the Necessary and Proper clauses. He voted with four liberal justices and Antonin Scalia, in Gonzales v. Raich (2005), to affirm the application of the federal Controlled Substances Act to the intrastate, noncommercial medical use of marijuana even as allowed by state law. In 2007, Kennedy wrote the majority opinion to uphold the federal ban on partial-birth abortion as an exercise of Congress’s power under the Commerce Clause to regulate the field of medicine. And just last year, in U.S. v. Comstock, Kennedy voted to uphold congressional authority to keep federal prisoners who are guilty of sex crimes in civil confinement after the conclusion of their sentences, if they are found to have “serious difficulty in refraining from sexually violent conduct or child molestation.” In a separate concurrence, Kennedy introduced a standard that seems to show how he would analyze the Affordable Care Act’s individual mandate: “When the inquiry is whether a federal law has sufficient links to an enumerated power to be within the scope of federal power,” he wrote, “the analysis depends not on the number of links in the congressional-power chain but on the strength of the chain.” With this statement, Kennedy signaled his openness to arguments supporting federal power—including the mandate—if they are justified in terms of enumerated congressional powers such as the regulation of interstate commerce and the power to tax.  Even here, however, Kennedy issued a “caution.” He warned “that the Constitution does require the invalidation of congressional attempts to extend federal powers in some instances” and “federal authority must be subject to some limitations.” The justification for federal authority, he wrote, must be “based on some empirical demonstration.”

Kennedy tends to adopt positions that straddle both values, and it’s likely that he’d prefer to do so in the case of the individual mandate as well. The past Commerce Clause decision that would most closely resemble this approach is Rapanos v. U.S. (2006). In Rapanos, the Court divided 4-1-4 to limit the enforcement of the Clean Water Act to isolated wetlands. Kennedy joined the four conservative justices in overturning the broad discretion of by the Army Corps of Engineers to define “navigable waters.” “The extension of regulatory authority to ‘remote and insubstantial’ wetlands,” he wrote, transcends “the requirement that the word ‘navigable’ in ‘navigable waters’ be given some importance.” “Where ‘wetlands’ effects on water quality are speculative or insubstantial,” he explained, the Corps has no authority to regulate. His opinion required the Corps to justify its jurisdiction with a clear standard applied to each wetland on a case-by-case basis. But it bears noting that Kennedy refused to join Scalia’s plurality opinion in Rapanos and make it a majority. Instead he wrote a separate concurring opinion that—even when limiting the Corps’ claim—explicitly allowed for a broader scope of federal power. Kennedy admitted that “the end result” under his standard “may be the same as that suggested by the dissent, namely, that the Corps’ assertion of jurisdiction is valid.” He again cited Wickard favorably, and wrote “there is evidence in the record suggesting the possible existence of a significant nexus” and ecological interdependence with navigable waters. In Rapanos, as in Comstock, Kennedy admitted a broad practical conception of federal power—and yet he nevertheless required the federal government to justify its authority based not on mere speculation but on empirical demonstration.

All of this points to a strategy that might convince Justice Kennedy to uphold the individual mandate. To persuade him, supporters of the mandate have to address three of his larger concerns. One strategy—taken by Walter Dellinger and Charles Fried in recent Senate hearings—is to connect the mandate to previous post-New Deal Commerce Clause legislation and to illustrate a clear connection between the mandate and enumerated powers to tax and to regulate commerce. Given Kennedy’s attachment to Wickard, supporters of the legislation would do well to stress the relevance of health care to the extension of the broad congressional commerce power that was allowed by the Court in the process of upholding the Agricultural Adjustment Act and the Civil Rights Act.

Second, defenders should aim to prove how closely connected the individual mandate is to the workings of the larger economy. This will help to counter the distinction—pivotal in the Virginia and Florida decisions that struck down the mandate—between ordinary commercial activity, which the government has a right to regulate, and “individual activity” such as the decision not to purchase health insurance, which mandate opponents say the government cannot regulate.

Third—and most importantly—to address Kennedy’s commitment to restraining federal powers, mandate defenders will have to formulate a plausible theory of congressional commerce authority that remains subject to meaningful, judicially enforceable limits. This is a line of argument that, to date, mandate defenders have been less successful in articulating. They cannot simply ridicule mandate opponents’ contention that the law would open the door to legislation requiring people to eat their broccoli: They must provide realistic examples to demonstrate that principled limits on federal power to regulate commerce among the several states remain meaningful and are not merely words on parchment. Were Kennedy to vote to strike the mandate, it will most likely be because its defenders could not present a principled, enforceable stopping point to federal power under the Commerce Clause.

If these efforts prove unsuccessful, Kennedy’s record in federalism cases—including Bush v. Gore—illustrates that he would not hesitate to provide a fifth vote to overturn a law on a controversial or partisan issue. But, because of his commitment to both opposing values, he would be unlikely to strike the ACA in its entirety, as Judge Vinson did in Florida this January. In Morrison, for example, the Court struck as unconstitutional Congress’s effort to establish a remedy in civil court for those who were victims of a “crime of violence based on gender.” But the Court did not invalidate the entire Violence Against Women Act or the omnibus Violent Crime Control and Law Enforcement Act of 1994 of which it was a part, even though the text of the larger bills do not say a word about the severability of unconstitutional provisions. Given his practical conception of the federal commerce power, it is more probable that, like Judge Hudson in Virginia, Kennedy would strike the individual mandate but not the rest of the Affordable Care Act.

Were he to strike the individual mandate but leave the rest of the ACA intact, Kennedy’s opinion might include conciliatory language inviting Congress to pass new legislation that more explicitly ties the mandate to the enumerated powers to regulate interstate commerce and to tax and spend. This is what he did in Lopez, writing that “Congress can revise its law to demonstrate its commercial character.” Within months of the Court’s decision in Lopez,Congress overwhelmingly voted that criminal prosecution required any weapon possessed in a school zone to have traveled in or otherwise affected interstate commerce. After Rapanos, the Army Corps of Engineers issued several memos adopting a version of Kennedy’s “substantial nexus” standard.

But in the aftermath of a Supreme Court decision to strike the individual mandate, revision by Congress to meet constitutional concerns would not be so easy. In practice, however, a Supreme Court decision striking the mandate but inviting a political fix would be fatal to the ACA. The initial debate in Congress over the Affordable Care Act was contentious enough; after Republican gains in the 2010 midterm elections, any attempt to restore the mandate by passing it as new tax legislation seems politically impossible.

So Justice Kennedy cannot split the difference. Throughout his career on the bench, Kennedy has tried to reconcile a judicial duty to enforce limits on Congress’s commerce power with the practical need to allow federal regulation of a growing and unified national economy. Now, the inevitable Supreme Court case testing the constitutionality of the individual mandate will leave him no practical way to protect both of these commitments. Kennedy will be forced to choose one over the other.

Frank J. Colucci is an associate professor of political science at Purdue University-Calumet and author of Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty.

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