Conservatives Encouraged by Justice Kennedy's Comments on Individual Mandate

Susan Jones | March 28, 2012 | 9:01am EDT
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The United States Supreme Court in Washington (AP Photo/Haraz N. Ghanbari)

( - A conservative civil liberties group says it is encouraged by Tuesday's oral arguments before the U.S. Supreme Court, in which Justice Anthony Kennedy raised "serious questions about the constitutionality" of Obamacare's individual mandate, which would force most Americans to purchase health insurance.

The American Center for Law and Justice (ACLJ), which is challenging ObamaCare on behalf of more than 100 members of Congress and nearly 145,000 Americans, noted that Justice Kennedy is presumed to be the swing vote in the anticipated 5-4 ruling:

At Tuesday's session, Justice Kennedy seemed skeptical about individual mandate, calling such an idea "unprecedented."

"Can you create commerce in order to regulate it?" Kennedy asked the Obama administration's attorney.

Later, Kennedy asked the attorney if he could "help me with this."

"Assume for the moment that this (the requirement to purchase health insurance) is unprecedented, this is a step beyond what our cases have allowed -- the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?"

Kennedy also questioned whether 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 a very fundamental way."

"The questions raised by Justice Kennedy indicate a growing concern about the constitutionality of the individual mandate," said Jay Sekulow, Chief Counsel of the ACLJ.

"While you can never predict the outcome of a Supreme Court case based on oral arguments, it is very encouraging that it appears a majority of the Justices understand that requiring Americans to purchase health insurance raises significant constitutional questions," Sekulow said.

"The concerns were clear: if the government is permitted to force Americans to purchase health insurance, where do you draw the line? Most Americans don't want ObamaCare and we're hopeful that a majority of the Justices declare the entire health care law, including the individual mandate, unconstitutional."

The ACLJ in its friend of the court brief is urging the Supreme Court to find that Obamacare's individual mandate violates the Commerce Clause of the Constitution and must be rejected.
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