During the oral arguments before SCOTUS today on the constitutionality of the Patient Protection and Affordable Care Act, Justice Anthony Kennedy asked:
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.
p. 30, lines 9-23
I haven’t read the whole thing yet (indeed, I’ve only skimmed the first part), but I thought this was an interesting point.
Given the reactions in the media and the blogosphere, my impression is that things did not go well for the government and its case.
Fine by me.