As expected, the justice did not allow much oral argument before interrupting with questions. Kennedy was early out of the box with a question that many of us have been asking, “Are there any limits?” Here is a comment that should worry the Justice Department:
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JUSTICE KENNEDY: But the reason, 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.
Another key vote, Chief Justice John Roberts suggested that there are no such limits under the government’s approach and that the government might require Americans to buy cellphones to be ready for emergencies. Then the third justice that we have discussed, Antonin Scalia asked if the government might require Americans to buy broccoli or automobiles. Returning to the limits thing, Scalia asked “If the government can do this, what else can it … do?”
That is precisely the type of questions that one would ask if you believed that future of federalism itself was at issue — a concern that I have previously raised (here and here). Of course, it is dangerous to make assumptions from the import of such questions. I have seen plenty of cases come out diametrically opposed to the position taken in oral argument by judges or justices. Certainly, these few comments or questions are not enough to strongly indicate an inclination on affirmance or reversal. Yet, Kennedy clearly indicated that, regardless of how he will vote, he views this as a game changer, noting “That changes the relationship of the individual to the federal government.”
What the transcript would suggest is that Kennedy may be the only hope for the Administration. Scalia was silent for much of the debate but his early comments showed a pretty firm view. One passage stands out where Scalia adopts a key view from the briefs of those challenging the law — that this is a regulation of insurance not health care:
JUSTICE ANTONIN SCALIA: Oh, no, it’s not. They all involved commerce. There was no doubt that was what regulated was commerce. And here you’re regulating somebody who isn’t covered.
By the way, I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it and that’s — that’s difference from regulating in any manner commerce that already exists out there.
VERRILLI: Well, to the extent that we are looking at the comprehensive scheme, Justice Scalia, it is regulating commerce that already exists out there. And the means in which that regulation is made effective here, the minimum coverage provision, is a regulation of the way in which people participate, the method of their payment in the health care market. That is what it is.
And I do think, Justice Kennedy, getting back to the question you asked before, what — what matters here is whether Congress is choosing a tool that’s reasonably adapted to the problem that Congress is confronting. And that may mean that the tool is different from a tool that Congress has chosen to use in the past. That’s not something that counts against the provision in a Commerce Clause analysis.
JUSTICE SCALIA: Wait. That’s — that’s -it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper because it violated the sovereignty of the States, which was implicit in the constitutional structure.
The argument here is that this also is — may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what, what else can it not do?
If Kennedy were in a majority with the justices on the left, he could assign himself the opinion (assuming Roberts would be in the minority). His views however are likely more narrow than the view articulated by Justice Breyer. Thus, the Court could fracture on the rationale or scope of the decision. If he were to go with the justices on the right, Roberts could assign it to himself.
Source: LA Times