During oral arguments on the constitutionality of the health care reform law’s individual mandate before the Supreme Court on March 27, a major focus was the question of limits to federal power in the Constitution.

Justice Anthony Kennedy, who often is a swing vote on the divided court, expressed substantial misgivings about the individual mandate. Before he aired his concerns, there was some back-and-forth debating between U.S. Solicitor General Donald Verrilli, representing the plaintiffs, and Justices Antonin Scalia and John Roberts.

Scalia noted the 10th Amendment says powers not given to the federal government are reserved not just to the states but to the people. “And the argument here is that the people were left to decide whether they want to buy insurance or not.”

Verrilli countered that the Court in previous rulings has upheld congressional regulation of economic activity with a substantial effect on interstate commerce and to do otherwise now would be a very significant departure.

The conversation revolved around a prior case, called Lochner, and whether it fit in the current argument. Said 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.”

Verrilli replied: “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?”

That’s when Kennedy chimed in:

“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 a relationship of the Federal Government to the individual in a very fundamental way.”

The full 131-page transcript of the oral arguments over the individual mandate is available here.

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