At oral argument in Florida v. Dept. of Health and Human Services, Judge Stanley Marcus repeatedly suggested that the constitutionality of the individual mandate boiled down to a liberty question. But indeed, the Commerce Clause and the other seventeen enumerated powers in Art. I, Sec. 8 of the Constitution were created by the Founders precisely to protect individuals from a central government with too much power. Where there is no explicit power, there is liberty for “we the People.”

When the Constitution was ratified, the Tenth Amendment did not have the force of law for two more years; it was, after all, an amendment to that Constitution. The Federalists maintained that the rights retained by the states and by the people were protected already because the Constitution only granted certain powers to the federal government. A bill of rights was unnecessary and dangerous in Alexander Hamilton’s view:

“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?” – The Federalist #84

Alas, the states ratified ten amendments to the new Constitution, memorializing certain liberties that were already in existence, and making it clear that – as James Madison said in The Federalist #45 – the powers of the federal government are “few and defined” with all of the rest being reserved to the several states or, as the Tenth Amendment very clearly states, “to the people.” Madison writes further down in #45:

“The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Clearly, the people who wrote the Constitution and the Bill of Rights were well aware that, where there is no power for the federal government, it is retained by the states or by the people themselves. It logically follows that individuals, as well as state governments, have the right to challenge laws passed by the federal government as exceeding the authority granted to it by the Constitution.

Justice Kennedy, in a unanimous opinion in Bond v. United States, reaffirms this notion:

“Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, see New York, 505 U.S., at 155–159, and action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States. See United States v. Lopez, 514 U.S. 549, 564 (1995). The unconstitutional action can cause concomitant injury to persons in individual cases.”

Many are excited about this decision because it stands for the idea that individuals have the right to sue the federal government if they believe the government has enacted an unconstitutional law that infringes on state sovereignty. While reading too much into a narrow, unanimous opinion such as this would be a folly, it could be a glimpse into the crystal ball of the Supreme Court’s future Affordable Care Act decision. If Justice Kennedy, whom many believe will be the swing vote on any challenge to the individual mandate under the Commerce Clause, is eloquently expounding on the virtues and interconnected nature of federalism and individual liberty, it is a good day.

It also doesn’t hurt that he cited United States v. Lopez, the landmark Commerce Clause case on which opponents of the mandate rely. WLF has filed several briefs supporting challenges to the new law, most recently in Florida v. Dept. of Health and Human Services.