In The New Republic Purdue University political science professor Frank J. Colucci, author of Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty, ponders whether Justice Kennedy will vote to uphold the individual mandate. Colucci writes:
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.
Colucci goes on to identify three concerns defenders of the mandate will have to address in order to prevail, most significantly whether the arguments proffered in the mandate’s defense have meaningful limits.
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.
It is fashionable in some academic quarters to dismiss the need for a justiciable limit on federal power. The argument that the principle limit on federal power is, and should be, political has a long pedigree. (See, e.g., Herbert Wechsler’s 1954 Columbia Law Review article, “The Political Safeguards of Federalism.”) For a period of time the Court embraced this argument, most recently in Garcia v. SAMTA. The Court’s more recent federalism decisions, however — including United States v. Lopez, United States v. Morrison, Alden v. Maine, New York v. United States, and Printz v. United States, among others — have thoroughly rejected this view, have rejected this view. These decisions, in which Justice Kennedy has joined, have held that there must be meaningful, judicially enforced limits on federal power — and a judicially enforceable limit requires drawing a line beyond which federal power may not reach.
This, in the end, is why mandate defenders need to be able to provide a doctrinally satisfying answer to the broccoli question: If the federal government may require everyone to purchase qualifying health insurance plans from private companies, why can’t it also require everyone to purchase broccoli? Suggesting that Congress would never seek to do such a thing is insufficient, as citing political safeguards on federalism is no answer and does not respond to Justice Kennedy’s concern.
It is notable in this regard that some mandate defenders, such as former Solicitor General Charles Fried, argue that Congress could mandate that everyone present in the country purchase broccoli, at least as part of some broader economic or regulatory scheme (though Fried would add he does not believe Congress could mandate anyone eat the broccoli, albeit on substantive due process, rather than enumerated powers, grounds). This is a perfectly respectable view held by many judges and academics. But it is also a view that implicitly rejects the idea embedded in the Court’s post-1990 federalism jurisprudence that the judiciary must safeguard federalism. For that reason, it is a view of the individual mandate that might prove difficult for Justice Kennedy to swallow (or so opponents of the mandate hope).
[On a somewhat related note, VC readers may be interested in this brief paper, based on a presentation I gave at a symposium on federalism and health care reform sponsored by the Kansas Journal of Law & Public Policy. It does not discuss the individual mandate, but does address some other constitutional and policy issues.]