In oral argument today in the Supreme Court regarding the individual mandate in the Affordable Care Act, Justice Anthony Kennedy–almost certainly the swing vote here–said the following to the Solicitor General (page 30 of the transcript, which, along with the audio, can be found here):
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.
If Justice Kennedy thinks this law changes the relationship between the federal government and individual citizens in a “very fundamental way,” how can he vote to uphold making that change by mere statute? The fundamental relationship between government and citizen can only be changed by changing the fundamental law that governs that relationship, i.e., the United States Constitution.