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In Arizona ruling, Justice Kennedy tips his hand on health-care mandate

The health-care law's 'individual mandate' is vulnerable to the Supreme Court deciding that Americans cannot be forced to buy health insurance. Kennedy's reasoning in a decision issued Monday hints at his worries. His vote will be pivotal.

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Get ready, Congress. Anthony Kennedy, the pivotal justice in most of the split decisions by the Supreme Court, may have just tipped his hand on how he might rule in a likely case involving the one-year-old health-care law.

Justice Kennedy’s reasoning in a ruling issued Monday about tax credits to help private schools in Arizona could easily be applied to a critical piece of President Obama’s major legislative achievement.

A key provision of that 2010 law is the “individual mandate.” It requires most Americans to buy health insurance or face a hefty fine. Such an imposition on private health choices is based on an unproven assertion that everyone at some point will use a hospital emergency room. (The mandate also provides the major funding to achieve universal health care.)

But in writing for the court’s majority in Monday’s ruling, Kennedy warns against government action based on hypotheticals or conjecture. Courts especially should not endorse mere speculation and must instead deal with actual or imminent situations.

He argues against making inferences about “premises as to which there remains considerable doubt” or that are “not particular to certain persons.”

Such general language reflects Kennedy’s long-held caution about government overreach – which could include the health-care mandate. The justice also is often concerned about liberty of conscience, as he noted in this latest ruling.

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