JUSTICE KENNEDY: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike - than striking the whole. . . . I just don’t accept the premise.
In fact, it would be extraordinarily radical for the Court not to strike down the entirety of Obamacare, if the individual mandate is found to be unconstitutional. As I explained yesterday, insurance companies cannot survive if they are obliged to cover everyone who wants a policy regardless of pre-existing conditions, but healthy people aren't obliged to purchase policies. There will literally be no money available to pay for the health care of sick people who show up demanding coverage. So, if the Court were to let Obamacare stand but invalidate the individual mandate, what the Court would be doing, in effect, would be tantamount to enacting a single-payer, nationalized, socialist health care system, because the only thing that would remain after insurance companies left the business would be the government Leviathan. No one ran on that, no one voted for that, no one honestly announced their intention that a single-payer socialist system would be the result. In short, if that resulted, you would have had a monstrous change in American society and the relationship between an individual and the federal government enacted by a single monarch -- Anthony Kennedy.
In other words, there are two paths of judicial restraint. One would be to let the individual mandate stand on the theory that Congress has the power under the Commerce Clause to do practically anything. The other would be to invalidate it all, on the theory that the mandate is unconstitutional, and the rest of Obamacare is incoherent without it. The path of judicial activism (truly judicial tyranny) is to strike down the mandate but leave the rest of the unsustainable carcass of Obamacare in place.
I think that's what Justice Kennedy is sensitive to. I hope he does the right thing.