Justice Kennedy's Dilemma

Justice Kennedy’s has to make a decision.

Justice Anthony Kennedy realizes that, once again, he is the swing vote on a major issue, this time the constitutionality of ObamaCare. He likes being in the center of attention.

Thus, the briefs and oral arguments were directed at winning the heart, mind, soul and vote of Justice Kennedy.

The Justice takes his responsibility seriously. He adheres to a core set of beliefs. He has not yet succumbed to Potomac Fever, as has Justice Stevens.

A look at his opinions shows three general themes: he believes strongly in the structural design of the Constitution, preserving the sovereignty of the states versus the federal government, and individual liberty.

Justice Kennedy has a real dilemma. He knows the individual mandate in ObamaCare is unconstitutional. He knows that the statute, if upheld, will change the fundamental role of the people versus the government.

His questioning of the Solicitor General, Donald Verrilli, Jr., included this statement “You are changing the relationship of the individual to the government.” Instead of being a government of enumerated powers, Congress would be able to use the Commerce Clause to regulate individual conduct. The Court has in the past clearly articulated that Congress and the federal government do not possess the historic police powers, which are retained by the states. The federal government is now attempting to exercise the police powers to regulate individuals through the Commerce Clause.

Justice Kennedy further asked Solicitor General Verrilli what limits could be placed on the Commerce Clause; in short, where do you draw the line? The Solicitor General could not provide any limits – a shocking failure. Instead, the Solicitor general argued health care is unique.

So too are housing, food, water, air quality, water quality, wetlands protection, transportation, and the list goes on. The government can argue any interest is compelling and unique.

Mr. Virrelli attempted to appeal to Justice Kennedy’s belief in liberty by stating the statute extends the “blessings of liberty” to those with disabilities or families facing major illnesses. His statement displays lawyers crafting arguments which defy reason and common sense: “There will be millions of people with chronic diseases like diabetes and heart disease” who will no longer have to worry about medical care. That is not the personal liberty envisioned by the drafters of the Constitution.

Congress can provide for these people through the Spending Clause. Instead, it choose to do so by forcing individuals to obtain medical insurance, whether they wanted it or not, to defray the costs of the ill. The healthy will have to pay for the ill, but without calling it a tax.

Justice Kennedy knows the alternatives: 1) uphold the individual mandate and the Medicare changes the states are objecting to; 2) Strike down the mandate and either invalidate the entire statute or uphold the rest, doing what Congress did not – include a severance clause in the statute; or 3) uphold the mandate and strike the Medicare changes.

He knows that if the Court strikes down the statute then liberals and the media will crucify the Court, as they did after Gore v. Bush. They will decry the opinion as political with the Court overstepping its jurisdiction. He also knows that if casts the deciding vote to uphold the statute, he will be reviled by conservatives and go down in history for judicially amending the constitution, perverting the intent and words of the framers.

The New York Times has already counseled the Justices in an editorial that “The Justices must accept limits on their powers and upheld the individual mandate.” The media, which loves activist courts when they create new rights, decries conservative jurists for judicial activism when they seek to enforce the Constitution.

Will Justice Kennedy vote his principles or listen to the media?