Writing for the Court, Chief Justice Harlan Fiske Stone wrote:

The power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed," Gibbons v. Ogden, 9 Wheat. 1, 196 [...] The power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Gibbons v. Ogden, supra, 196. [...] it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states.

In its famous footnote 4, Carolene Products distinguished economic regulations by the government from those that impinged on fundamental individual rights stating that "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth [Amendment]." This has been the understood constitutional interpretation since 1937. But a change is afoot. And this change is being led, at least in principle, by Justice Kennedy.

In the oral argument regarding the constitutionality of the individual mandate, Justice Kennedy said:

“Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed [...] 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 a, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”

For 75 years, the answer has been a clear "no." Indeed, as recently as two years ago, the answer appeared to be "no." But Justice Kennedy may choose to change that in the ACA cases.

In my Sunday post discussing the oral argument on the ACA cases, I noted that in 2010, the Supreme Court issued a decision upholding a federal civil commitment statute in United States v. Comstock. In Comstock, the Court held that:

We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. Sabri v. United States, 541 U. S. 600, 605 (2004) (using term “means-ends rationality” to describe the necessary relationship); ibid. (upholding Congress’ “authority under the Necessary and Proper Clause” to enact a criminal statute in furtherance of the federal power granted by the Spending Clause); see Gonzales v. Raich, 545 U.S. 1, 22 (2005) (holding that because “Congress had a rational basis” for concluding that a statute implements Commerce Clause power, the statute falls within the scope of congressional “authority to ‘make all Laws which shall be necessary and proper’ to ‘regulate Commerce … among the several States’ ” (ellipsis in original)); see also United States v. Lopez, 514 U. S. 549, 557 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276 (1981). [Emphasis supplied.]

The standard is not "has the Congress ever done this before?" The standard is what the Congress has done rationally related to the exercise of an enumerated power. In the case of the individual mandate then, the question is, "Is the individual mandate rationally related to Congress' exercise of the commerce power in enacting new laws regarding the health insurance market (ACA)?" I think we all know the answer to that. The answer is YES!

Justice Kennedy appears to believe otherwise. As stated before, he believes the question regarding the constitutionality of the individual mandate is, does it meet a "heavy burden of justification to show authorization under the Constitution"?

This would be a revolutionary change in our Commerce Clause jurisprudence. Justice Kennedy first hinted at this transformational formulation in his concurrence in Comstock:

Concluding that a relation can be put into a verbal formulation that fits somewhere along a causal chain of federal powers is merely the beginning, not the end, of the constitutional inquiry. See United States v. Lopez, 514 U.S. 549, 566–567 (1995) . The inferences must be controlled by some limitations lest, as Thomas Jefferson warned, congressional powers become completely unbounded by linking one power to another ad infinitum in a veritable game of “ ‘this is the house that Jack built.’ ” Letter from Thomas Jefferson to Edward Livingston (Apr. 30, 1800), 31 The Papers of Thomas Jefferson 547 (B. Oberg ed. 2004); see also United States v. Patton, 451 F. 3d 615, 628 (CA10 2006). This separate writing serves two purposes. The first is to withhold assent from certain statements and propositions of the Court’s opinion. The second is to caution that the Constitution does require the invalidation of congressional attempts to extend federal powers in some instances.

Does Kennedy enunciate a limitation in Comstock? Beyond the rote federalism lines, not really. He stated:

The terms “rationally related” and “rational basis” must be employed with care, particularly if either is to be used as a stand-alone test. The phrase “rational basis” most often is employed to describe the standard for determining whether legislation that does not proscribe fundamental liberties nonetheless violates the Due Process Clause. Referring to this due process inquiry, and in what must be one of the most deferential formulations of the standard for reviewing legislation in all the Court’s precedents, the Court has said: “But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487–488 (1955) . This formulation was in a case presenting a due process challenge and a challenge to a State’s exercise of its own powers, powers not confined by the principles that control the limited nature of our National Government. The phrase, then, should not be extended uncritically to the issue before us. [Emphasis supplied.]

There is no due process or liberty challenge to the individual mandate. But what of Kennedy's admonitions regarding "the limited nature of our National Government"? What is Kennedy driving at? He continues:

The opinion of the Court should not be interpreted to hold that the only, or even the principal, constraints on the exercise of congressional power are the Constitution’s express prohibitions. The Court’s discussion of the Tenth Amendment invites the inference that restrictions flowing from the federal system are of no import when defining the limits of the National Government’s power, as it proceeds by first asking whether the power is within the National Government’s reach, and if so it discards federalism concerns entirely. These remarks explain why the Court ignores important limitations stemming from federalism principles. Those principles are essential to an understanding of the function and province of the States in our constitutional structure. [Emphasis supplied.]

So Kennedy has identified federalism as a limiting principle. And the Court adopted this limiting principle in the non-economic sphere in Lopez. But the individual mandate does not impinge on any federalism concerns. What more can he be thinking of?

Surely not personal liberty. In Comstock, Kennedy concurred in a judgment where the Court upheld a Congressional statute, based on the Commerce power, which provide for the involuntary detention of a citizen of the United States. Talk about impacting a liberty interest. If the Congress, through the Commerce power, can involuntarily and indefinitely detain a citizen, what liberty interest can the Commerce power not reach? Is Kennedy really of the view that the Commerce power empowers the Congress to enact legislation to indefinitely detain American citizens but not to impose a $500 penalty? Really?

In the ACA oral argument, Justice Kennedy asked the advocates to provide him with a "limiting principle." But Justice Kennedy cannot articulate a limiting principle that resides in our constitutional jurisprudence that is applicable to the individual mandate. The reason is there is none applicable.

It does not feel right to Justice Kennedy. This is the entire story. The law is not the problem. Justice Kennedy's "gut" is the problem. And herein we have a revolution of sorts—the Constitution's new limiting principle. One may think of it as an "equitable" principle of sorts: Justice Kennedy's "gut."

In my Sunday piece, I wrote:

Unlike many, if not most, legal commenters, I have no compunction in noting that Chief Justice Roberts is as unprincipled as his predecessor, Chief Justice Rehnquist. He is capable of any vote, even those that fully depart from his stated principles. See Parents Involved. As for Justice Scalia, he is even more unprincipled. [...] Justice Kennedy holds the answer. What Kennedy will do remains the key question, as it so often is. (See Kennedy's deciding votes in the recent 5-4 right to counsel decisions.) What can we expect from Kennedy here? Is he willing to overturn ACA? Does he believe ACA can be treated as sui generis? (To me this requires buying into the activity/inactivity nonsensical distinction.) Is Kennedy concerned about the political fallout of such an action? [...] [W]hat does Kennedy want as a result here? Justice Kennedy does, in my view, enjoy legislating from the bench. And more so than most justices, he has less pretense about it.

Justice Kennedy, it seems to me, wants to strike down the individual mandate. He does not like it. And he seems willing to do it. Does the Constitution require it? It will if Justice Kennedy wants it to.

Thus, the Kennedy "revolution" is upon us. The consequences could be devastating.