Justice Kennedy’s “Heavy Burden of Justification”

This is a post on behalf of Professor Elizabeth Weeks at the University of Georgia Law School, whom I invited to join us but is having trouble getting her essay up here.


The Respondents’ hour of argument over the constitutionality of the individual mandate this morning was divided between Paul Clement, representing the twenty-six state plaintiffs, and Michael Carvin, representing the National Federation of Independent Businesses (NFIB) and four individual members of that organization.  Media attention rightly has focused on the remarkable occasion of a majority of states challenging the constitutionality of a federal law in the Supreme Court.  The individual and association plaintiffs have not made headlines, except for the irony of the lead individual plaintiff declaring personal bankruptcy, due to unpaid medical bills, during the pendency of the appeal.

At first blush, it is not immediately apparent what interest states have in the individual mandate.   The mandate is enacted under federal law, carries a federal tax penalty for noncompliance, and will be enforced by federal authorities.  Medicaid certainly impacts state’s interests, but that’s tomorrow’s argument.  Bear in mind that the only way that the states were properly before the Court today – their ticket to the Big Dance – was the presence of the NFIB and individual plaintiffs.  The Fourth Circuit, on Virginia’s go-it-alone challenge to the individual mandate, dismissed the Commonwealth for lack of standing.  The state plaintiffs rode into the courthouse on the individuals’ and association’s coattails.

The further irony of this posture is that the essential constitutional argument against the individual mandate turns on the power of the federal government with respect to states, not with respect to individuals.  Or so it seemed until Justice Kennedy began questioning the litigants today.

On a visceral level, the individuals’ and association’s objections to the mandate seem straight-forward:  They assert a right to be left alone, a right not to be told how to spend their money, a right not to enter any particular commercial transaction.  Post-Lochner, however, economic liberties do not receive robust protection, and government intrusions on them are subject only to low-level scrutiny, which the individual mandate likely would survive.

Personal autonomy and medical decisionmaking claims also unavailing because the mandate does not require individuals to receive any particular medical treatment.  Nor does the ACA require individuals to seek medical care the health insurance policies that they purchase; it merely requires the purchase of health insurance.  In fact, from a risk-pooling perspective, it is all the better if individuals purchase health insurance policies but do not actually use them.

Accordingly, individual rights claims, while politically salient and arguably sympathetic, seemed like losing constitutional arguments.  ACA challengers instead claimed that the mandate is unconstitutional because Congress exceeded the scope of federal enumerated powers vis-à-vis states’ reserved powers.  But what interest do private individuals and entities have in maintaining the federalist structure of government?

One answer is that the very purpose of diffusing power between a central government and separate sovereign states is to protect individual rights; hence, structural issues necessarily are individual rights issues.  Justice Kennedy, writing for the majority in Bond v. United States, noted that “an individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable.  Fidelity to principles of federalism is not for the States alone to vindicate.”  Although involving a very different statute and a very different sort of injury, Bond infuses the Tenth Amendment with cognizable individual rights.

Several of Justice Kennedy’s questions bring the underlying individual rights objections to the health insurance mandate the forefront.  He repeatedly expressed concern that the mandate effects a “fundamental” change in the relationship between the federal government and individuals and thus requires a “heavy burden of justification.”  He observed that the mandate operates as an unprecedented “affirmative duty to go into commerce.”  He compared the mandate to the no-duty rule in torts and urged that “the reason this is concerning is because it requires the individual to do an affirmative act.”  Summarizing his understanding of the U.S. Government’s argument, Justice Kennedy questioned Clement about the relevance of the “person who is sitting at home in his or her living room doing nothing” to the health insurance system.

Later, during Carvin’s argument, Justice Breyer tried to shift focus away from the individual rights issue and back to the scope of federal power:  “So I thought the issue here is not whether it’s a violation of some basic right or something to make people buy things they don’t want, but simply whether those decisions of that group of 40 million [uninsured] people substantially affect the interstate commerce that has been set up in part through these other programs.”

The “heavy burden of justification” that Kennedy would demand seems to be effectively no-scrutiny review for federal interference with individual rights.  The individual and association plaintiffs, by asserting commerce or taxing power challenges to the individual mandate, effectively elevate their libertarian objections from easily overcome rational-relation scrutiny to effectively no scrutiny at all.  If a federal law exceeds enumerated powers, Congress may not enact it, no matter how good its reasons.  By contrast, a substantive due process challenge would at least allow Congress to justify its reasons for infringing on otherwise constitutionally protected rights.

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