In an oral argument before the Supreme Court on Tuesday March 27 in the case Dept. of Human Services Et Al. v. Florida Et Al. about the Constitutionality of the individual health-insurance mandate, Justice Anthony Kennedy made the following statement expressing deep skepticism that the power claimed by the Obama administration to compel individuals to purchase health insurance against their will is a power compatible with our traditional understanding of the relationship embodied in the common law and our jurisprudence between an individual citizen and his or her government.
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.
Following Justice Kennedy’s pronouncement, the Justices and the lawyers kept referring to the existence or the non-existence of a “limiting principle” that would prevent the government, if its power to impose an individual mandate were granted, from exercising an unlimited power over the economic decisions of individuals under the “commerce clause.” By all accounts, Chief Justice Roberts, and Justices Scalia and Alito expressed similar concerns to those of Justice Kennedy. Justice Thomas, as is his wont, remained silent during the oral argument, but he has already written skeptically about the extent to which the “commerce clause” has been used in earlier cases to justify government regulation of private economic activity.
A few days later in the case Florence v. Board of Chosen Freeholders of County of Burlington Et Al., Justice Kennedy, writing for a majority (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) of the Court, upheld the power of jail officials to strip search detainees arrested for any offense at their own discretion, regardless of whether there was probable cause to suspect the detainee of having contraband on his person. According to press reports, a nun arrested at an anti-war protest was subjected to a strip search under the discretionary authority approved by Justice Kennedy and his four learned colleagues. Here is an excerpt chosen more or less randomly from Justice Kennedy’s opinion.
Petitioner’s proposal―that new detainees not arrested for serious crimes or for offenses involving weapons or drugs be exempt from invasive searches unless they give officers a particular reason to suspect them of hiding contraband―is unworkable. The seriousness of an offense is a poor predictor of who has contraband, and it would be difficult to determine whether individual detainees fall within the proposed exemption. Even persons arrested for a minor offense may be coerced by others into concealing contraband. Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility.
It also may be difficult to classify inmates by their current and prior offenses before the intake search. Jail officials know little at the outset about an arrestee, who may be carrying a false ID or lie about his identity. The officers conducting an initial search often do not have access to criminal history records. And those records can be inaccurate or incomplete. Even with accurate information, officers would encounter serious implementation difficulties. They would be required to determine quickly whether any underlying offenses were serious enough to authorize the more invasive search protocol. Other possible classifications based on characteristics of individual detainees also might prove to be unworkable or even give rise to charges of discriminatory application. To avoid liability, officers might be inclined not to conduct a thorough search in any close case, thus creating unnecessary risk for the entire jail population. While the restrictions petitioner suggests would limit the intrusion on the privacy of some detainees, it would be at the risk of increased danger to everyone in the facility, including the less serious offenders. The Fourth and Fourteenth Amendments do not require adoption of the proposed framework.
One can’t help but wonder what limiting principle these five honorable justices would articulate in circumscribing the authority to conduct a “reasonable search and seizure” under the Fourth Amendment to the Constitution. But I really don’t want to go there.