By all accounts, it was a bad day for Pres. Obama’s health care law on Tuesday at the Supreme Court, where the law is being challenged — and, in particular, the individual mandate at the heart of the bill...


By all accounts, it was a bad day for Pres. Obama’s health care law on Tuesday at the Supreme Court, where the law is being challenged — and, in particular, the individual mandate at the heart of the bill.  The mandate compels Americans to purchase health insurance and penalizes those who don’t comply with the government edict, which critics have argued is unconstitutional.  Ironically, Obama argued against an individual mandate as a candidate in 2008 and used his opposition to it as a way of differentiating himself from Hillary Clinton and winning the Democratic Party nomination for president.

Most troublesome perhaps for Obama is that during the debate of the ObamaCare mandate at the Supreme Court, Justice Anthony Kennedy — the “swing vote” in numerous 5-4 decisions by the Court — suggested that the mandate fundamentally changes the relationship of a citizen with the government.  His exchange with the Solicitor General, who argued the case on behalf of the bill, follows:

CHIEF JUSTICE ROBERTS:  The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers.  The Federal Government is. And it seems to me it's an entirely different question when you ask yourself whether or not there are going to be limits in the Federal power, as opposed to limits on the States, which was the issue in Lochner.

SOLICITOR GENERAL VERRILLI:  I agree, except, Mr. Chief Justice, that what the Court has said as I read the Court's cases is that the way in which you ensure that the Federal Government stays in its sphere and the sphere reserved for the States is protected is by policing the boundary:  Is the national government regulating economic activity with a substantial effect on interstate commerce?

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.