06/06/2012 07:31 pm ET Updated Aug 06, 2012

Letter to Justice Kennedy: The Limitations You Requested

Dear Mr. Justice Kennedy:

You are your colleagues have a critical role in our democracy. Please take its exercise seriously. Constitutional scholar Alexander Bickel referred to SCOTUS as "the least dangerous branch" because it decides only cases and controversies that are ripe for disposition, and defers to Congress unless violations of the Constitution are clear and unambiguous.

With that in mind, you requested during oral argument some line that could be drawn after the Patient Protection and Affordable Care Act ("PPCA") were upheld that could demark the limits of federal power.

That limitation has two elements: process and substance. With respect to process, you should use the taxing authority as a limitation. That is, a tax, or any process that would be "lesser included" with respect to freedom of choice and compulsion would serve as the process limitation. As in the present case, the individual mandate that compels coverage but leaves open a number of choices would be "lesser included" compared to a tax.

With respect to substance, the limitation would be the Court's interpretation of what constitutes interstate commerce. The Court has recognized that almost all commerce today is interstate -- not because the interpretation of the Commerce Clause has changed since 1789, but because the economy has changed. Thus, the suggestion that there is some legal toothpaste to put back into the tube with regard to the scope of interstate commerce is legally and factually misguided -- unless the Luddites prevail and we return to horse-and-buggy days.

Let us address directly your colleagues' concerns. Justice Scalia is worried about broccoli. Let us observe that this Court has already determined that the Commerce Clause empowers Congress to regulate growing the broccoli (see, e.g., Wickard v Filburn).

It does not compel anyone to eat broccoli or wheat or anything else, just as the PPCA does not compel anyone to get medical care, only to purchase insurance in case they need it and want it.

What about Justice Alito's concern about the federal government mandating funeral insurance? If Congress found that there were a lot of dead bodies lying around on the streets, and that the reason was people did not have the money to bury them, and concluded that funeral insurance would solve that problem -- it would be perfectly proper for the government to mandate such insurance.

Surely, you would agree with that. Or, is the government powerless to prevent us from having rotting human flesh around us preferable? Again, this is Justice Alito's example, not mine.

With that in mind, I would observe that there was surprisingly little reference in oral or written argument about the PPCA to the universally-accepted principle that Congress, as a co-equal and majoritarian branch, must be accorded great deference before the Supreme Court overturns one of its laws.

Moreover, the reason for overturning that law must be a clear violation of a constitutional principle.

Instead of conjuring reasons to overturn a law of Congress, the Court has traditionally searched for ways to uphold it. It is only when that search comes up empty that the Court should overturn an act of Congress. In Marbury v. Madison, the Supreme Court declared its power of judicial review, but it is often forgotten that they declined to exercise it.

For example, you stated in the oral argument that the individual mandate created a new relationship between government and its citizens: "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 a very fundamental way." (As an aside, if you do not mind a little nitpicking, there was never a claim that the Federal Government "has a duty," merely that it has the "power" should it decide to do so.)

Does the PPCA truly change the relationship of the Federal Government to the individual?

Superficially, perhaps -- obligating people to purchase something from a private seller. Again, it does not compel anyone to get medical care, it just regulates the market for health care services.

But you, Justice Kennedy, have an obligation to go beyond the superficial, not to invent a cover disingenuously, but to determine if there really is a precedent that has done the same thing in perhaps different ways.

Such an opportunity is readily, and obviously, available to you. A tax is the ultimate mandate, is it not? The federal government decided in 1965 that our senior citizens should have their health care paid for by taxing everyone's salaries. The PPCA is less demanding -- it mandates insurance coverage, but it provides for an unlimited number of choices of insurance policies from state exchanges.

Surely, Justice Kennedy, providing consumers those alternatives is far less of an intrusion into a person's choice than is a tax. Not only does this mean you do not need to take a leap beyond what we have done before, it really says you need take no leap at all, as it is a step "backwards" toward a less intrusive means of achieving what everyone agrees is a legitimate congressional goal, regulating the health care market.

Should you need a further boost from our founders, recall James Madison's comment in the Federalist Paper #44: "No axiom is more clearly established in law or in reason than ... wherever a general power to do a thing is given, every particular power for doing it is included."

Finally, one hopes you do not have the same need as your colleague, Justice Scalia, seems to have to understand insurance. Of course, some people pay into the pool who do not need it -- that is the point! And, you can go back to Medicare to recall that every worker, not just those over 65, pays in to the system.

It is worth recalling that plaintiffs admitted that an individual mandate -- requiring the purchase of insurance at the time health care services are consumed -- was constitutional so long as it was applied only to those using the health care system. Thus, there was no objection to the concept of a mandate to purchase a product from private sellers. Hence, that issue should be off the table anyhow.

Are you really going to overturn the PPCA on the issue of timing -- when in a person's life that mandate is applied? There is no question that the existence of an uninsured population raises premiums, and thus impacts that market, regardless of whether any given individual is consuming health care services at the time.

Justice Scalia is an outlier. The rest of us know that insurance works by pooling risks and providing financial assistance when certain members in the pool randomly require it, the larger the pool, the lower the costs.

In conclusion, Justice Kennedy, the PPCA regulates a national market in what are life-and-death issues for our citizens. Overturn it if you find it is a clear violation of a constitutional principle.

But, if you can find, as you should, that the mandate is actually less intrusive than a tax and a single-payer system, take the opportunity of saying so. If you can, as you should, defer to Congress on the impact of the uninsured on the health care market even when they are not using health care services, please do so. Recall, the attorneys general admit that the mandate is constitutional when a person is using those services.

Millions of children, women and men depend on your decision for their health and well-being. Our country depends on your decision for getting some control of its debt. Medicare's solvency was extended by 10 years when the PPCA was passed. Overturning it will cut eight years off Medicare's solvency.

So, before you overturn the PPCA, be very certain that you have a clear and unambiguous reason to do so. Real lives of very vulnerable people depend on it.

Surely, you ought not deny Congress flexibility in fashioning a more market-oriented approach to health care insurance coverage than a tax. Do not forget, the idea for the PPCA and the mandate came from the Heritage Foundation.

The Patient Protection and Affordable Care Act (aka "Obamacare") is far from perfect -- but it is far from unconstitutional either.