(photo: IslesPunkFan flickr)

[Cross-posted from Angry Bear, with minor editing.]

I’ve written repeatedly at Angry Bear during the last year or so that the challenge to the constitutionality of the ACA’s minimum-coverage provision (a.k.a., the individual-mandate provision) is not really a Commerce Clause challenge but instead a challenge under the Fifth Amendment’s due process clause, under what is known as the “substantive due process” constitutional law doctrine. The Fifth Amendment’s due process clause limits what the federal government can do vis-à-vis individuals. A clause in the Fourteenth Amendment is nearly identical, and identical in substance, to the Fifth Amendment’s due process clause, except that it limits what state governments can do vis-à-vis individuals.

SCOTUSblog’s Lyle Denniston’s early report suggests that I was right. The outcome of the case, he predicts, will depend on whether Kennedy believes that the Court can uphold the mandate provision without opening the door to unlimited congressional mandating of purchase specific things, not because Congress lacks that power under the Commerce Clause but instead because it violates liberties protected under the Fifth Amendment’s due process clause. Denniston does not mention the Fifth Amendment, but, whether or not the justices themselves did specifically, that is the upshot.

The “substantive due process” doctrine holds that there are certain incursions into personal autonomy and certain impositions on individual liberty beyond which the Constitution allows the government to go. It is this doctrine by which the Court has stricken down such laws as state laws barring the sale and use of contraceptives, state laws prohibiting abortion under all circumstances (Roe v. Wade), and state laws criminalizing sodomy.

But based on Denniston’s early report about the nature of Kennedy’s concerns, I don’t see how, absent an utterly artificial Commerce Clause-based ruling, a ruling that the mandate unconstitutionally infringes upon person choice, upon personal liberty, would not also mean that Massachusetts’s “Romneycare” law, and state laws that require drivers to purchase auto insurance, would be constitutionally permissible.

Kennedy likes to wax eloquent, as he did last year in an opinion in a case called Bond v. United States, about how divisions of power among various governments—by which he means state governments vs. the federal one—protect individuals from tyranny. (He’s usually less interested in constitutional checks than on balances to state power—especially to state-court power—but that’s another subject.) In Bond, he said, rightly, in my opinion, that a person indicted under a federal criminal law has legal “standing” (the legal right) to argue that the federal statute unconstitutionally infringed upon an area of criminal law reserved solely for the states to address, because the federal statute impinged (literally, in that case) her personal freedom. So if the problem with the insurance mandate is that it exceeds Congress’s authority under the Commerce Clause, then a ruling that the ACA, a federal statute, is unconstitutional would not affect state statutes.

But that’s a separate issue from whether the mandate is an unconstitutional violation of personal liberty irrespective of whether or not the Commerce Clause power would allow Congress to enact the law. And under the Court’s longtime Commerce Clause jurisprudence, Congress does have the authority to legislate the mandate to buy health insurance, given the impact on the healthcare market of the uninsureds’ usage of health care. A ruling to the contrary would be transparently artificial. Which probably won’t matter to Kennedy.