Justice Kennedy: Obamacare 'changes the relationship of the Federal Government to the individual in the very fundamental way.'

It's too bad most of the other justices don't have such a clear eyed view of the real danger of Obamacare. This exchange involving Justice Roberts, SG Verrilli, and Kennedy, courtesy of RealClearPolitics, is instructive regarding why the individual mandate should be struck down:

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.

Or, as Kennedy also said yesterday, "Can you create commerce in order to regulate it?" Where would this power end? Justice Scalia wondered if the mandate was confirmed, if that wouldn't destroy the very concept of limited government.

Obamacare flips the notion that power is derived from the consent of the governed. In that respect, an ambitious and aggressive government, would literally be able to require anything, as long as it was for the "common good."

I hope Roberts asks Kennedy to write the opinion - hopefully, the majority opinion.

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