The controversial 2005 Supreme Court case Kelo v. City of New London has several things in common with the current case that will decide the fate of health care reform.
1) Anthony Kennedy is the swing vote.
2) Both cases involve the use of private enterprise for public purpose.
The majority opinion in Kelo by John Paul Stevens held that legislatures are due a wide deference in their judgment of the public welfare, declining to define a bright-line rule that would create an "artificial restriction on the concept of public use". The concurring opinion by Justice Kennedy applies a rational-basis standard of review (a level of scrutiny that only requires that government action have a non-arbitrary reason, but not necessarily an intelligent reason) so that private parties can benefit from government action so long as it is not the primary purpose.
The minority opinion by Sandra Day O'Connor opines that the decision renders the term "public use" in the Fifth Amendment's Taking Clause practically meaningless. It criticizes Kennedy for relying upon an "as-yet-undisclosed test" for whether government action favors private parties to an unacceptable degree.
Although Kelo deals with eminent domain, I see similarities to the legal debate over health care reform. Just as the conservative point of view was concerned that Kelo gave legislatures practically unlimited ability to take and re-purpose private property, so, too, do conservatives now voice concerns that upholding the Patient Protection and Affordable Care Act will give Congress practically unlimited power through an expansive view of the Interstate Commerce Clause.
I am not a lawyer or a legal scholar (and linking to Kelo is apparently a bit of a novel idea, so perhaps there is value in being an outsider) , so I am not trying to make a legal argument that Kelo is a precedent that should be cited. Rather, I'm pointing out some similarities and suggesting that an argument to uphold health care reform could have a philosophical resemblance to Kelo, especially concerning the limits on the power of government.
Perhaps, it is necessary to explicitly refute the need for a bright-line rule that strongly defines the boundaries of the Commerce Clause. I tend to have a preference for balancing tests rather than bright-line rules (a dichotomy I characterize as Breyer vs. Scalia), but I can see how that idea is disconcerting to others who want clear boundaries on government power in other areas. I can even see how bringing up this comparison might make some on the left, especially those who weren't too enthusiastic about the mandate to begin with, a bit less certain that the PPACA should be upheld. Still, I wonder if Justice Kennedy can reconcile voting against the mandate (if he chooses to do so) with voting for Kelo.