On Liberty: Kennedy and Verrilli in Oral Argument over Health Care

If there is one constitutional principle that Justice Anthony Kennedy is devoted to it is the principle of "individual liberty." In oral argument yesterday Solicitor General Donald Verrilli took an opportunity to address that concept.

The debate over health care reform has long centered over the concept of individual liberty. The opponents of the law contend that the individual mandate violates the liberty of the individual to decide for himself or herself whether or not to purchase health insurance.

The opponents of the law do not contend that they have a constitutional right to refuse to purchase insurance. They must concede that the states have the power to impose this obligation. Instead, they argue that Congress lacks the power to enact this law under the Commerce Clause or the Necessary and Proper Clause, and that to allow Congress to require individuals to purchase health insurance represents a threat to individual liberty.

This is an argument that resonates with Justice Anthony Kennedy. In opinion after opinion, Justice Kennedy has focused on and elaborated upon the right to "liberty." This is why he decided Citizens United the way he did, holding that corporations have a constitutional right to spend as much money as they wish in support of political candidates. It is why he ruled in Lawrence v. Texas that people have a constitutional right to have sex with other persons of the same gender. It is why in the case of Casey v. Planned Parenthood of Southeastern Pennsylvania he voted to reaffirm Roe v. Wade; even though he is personally opposed to abortion he respects the liberty of a woman to terminate a pregnancy in its early stages.

Kennedy's devotion to the principle of liberty is evident even in his literary style. The first word of his opinion in Lawrence v. Texas is "liberty."  The last word is "freedom." The first word in the joint plurality opinion he co-authored with Justices O'Connor and Souter is "liberty." The last word is also "liberty."

The foregoing are all cases dealing with fundamental individual rights, so it is understandable that Justice Kennedy would invoke the principle of "liberty." But Kennedy has invoked the concept of "liberty" even in cases that are concerned solely with the extent of governmental powers. In Clinton v. New York, for example, a separation of powers case involving the constitutionality of the federal Line Item Veto Act. Justice Kennedy was moved to write a separate concurring opinion in which he rebutted the notion, advanced by Justice Breyer, that the case did not involve an infringement of individual liberty. Kennedy wrote:

I write to respond to my colleague Justice Breyer, who observes that the statute does not threaten the liberties of individual citizens, a point on which I disagree.  The argument is related to his earlier suggestion that our role is lessened here because the two political branches are adjusting their own powers between themselves. To say the political branches have a somewhat free hand to reallocate their own authority would seem to require acceptance of two premises: first, that the public good demands it, and second, that liberty is not at risk. The former premise is inadmissible. The Constitution's structure requires a stability which transcends the convenience of the moment.  The latter premise, too, is flawed. Liberty is always at stake when one or more of the branches seek to transgress the separation of powers. Separation of powers was designed to implement a fundamental insight: Concentration of power in the hands of a single branch is a threat to liberty.

Just as Justice Kennedy found in Clinton v. New York that individual liberty was at stake when an enhanced power to rewrite legislation was concentrated in the Executive Branch, so he might find in this case that individual liberty is threatened by an unwarranted expansion of the power of the Legislative Branch to enact legislation requiring individuals to enter commerce.

Kennedy said as much during the first day of oral argument. Kennedy stated to Solicitor General Verrilli:

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 a very fundamental way.

On Monday Solicitor General Donald Verrilli did not have a good answer to Kennedy's concern. Yesterday, however, General Verrilli used his last few minutes on rebuttal in the Medicaid portion of the case to return to this point, and I think the much-criticized advocate for the government hit a rhetorical home run. Here are Verrilli's closing remarks in full:

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I'd like to take half a step back here, that this provision, the Medicaid expansion that we're talking about this afternoon and the provisions we talked about yesterday, we've been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can't afford insurance.

There is an important connection, a profound connection, between that problem and liberty. And I do think it's important that we not lose sight of that.
That in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.

And the same thing will be true for -- for a husband whose wife is diagnosed with breast cancer and who won't face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone. And I could multiply example after example after example.

In a very fundamental way, this Medicaid expansion, as well as the provisions we discussed yesterday, secure of the blessings of liberty. And I think that that is important as the Court is considering these issues that that be kept in mind. The -- the Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment, and its judgment is one that is, I think, in conformity with lots of experts thought, was the best complex of options to handle this problem.
Maybe they were right; maybe they weren't. But this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it. And I would suggest to the Court, with profound respect for the Court's obligation to ensure that the Federal Government remains a government of enumerated powers, that this is not a case in any of its aspects that calls that into question. That this was a judgment of policy, that democratically accountable branches of this government made by their best lights.

And I would urge this Court to respect that judgment and ask that the Affordable Care Act, in its entirety, be upheld. Thank you.

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That's exactly right. When we speak of constitutional rights, we speak of "negative liberties," the concept that the government may not invade our inalienable rights of freedom of speech, freedom of religion, and the right to privacy. But when we speak of constitutional powers we are really concerned with "positive liberties" - the right of the American people, through their government, to construct roads, build bridges, protect the weak, feed the hungry, shelter the homeless, free the oppressed, educate our children ... and extend adequate access to medical care to all American citizens.
In his book Abraham Lincoln and the Second American Revolution, James McPherson draws a distinction between "positive liberty" and "negative liberty," and defines positive liberty as "freedom to achieve a status of freedom previously denied by disability or law." McPherson, at 62-63, 137-138 (1991). McPherson notes that the powers of the federal government greatly expanded under Abraham Lincoln, whose administration built the transcontinental railroads, created the land-grant colleges, and opened the west to settlement through enactment of the Homestead Act - all during the Civil War. After the War the American people quickly ratified the 13th, 14th, and 15th Amendments all of which granted enforcement powers to Congress to protect our rights against encroachment by the states. The continued expansion of Congressional power under the Commerce Clause and the Spending Clause in the 20th century does not represent an infringement of the liberty of individuals, but rather an enhancement of the right of the American people, through their democratically-elected representatives, to enhance their "positive liberty" by raising their standard of living and improving their quality of life.

I deeply hope that Justice Kennedy and the his colleagues on the Supreme Court observe the limitations of the judicial role in reviewing the constitutionality of economic legislation. This case does not involve an infringement of one of our "negative liberties." Instead it centers upon the power of our government to enhance our "positive liberties" by extending health care to all Americans.

Wilson Huhn teaches Constitutional Law at The University of Akron.