Why Defeating the Individual Mandate isn’t Much of a Victory for Individual Freedom

By Bradley Latino
In Health Law
April 2, 2012
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Dear Americans:

bl22A recent poll by the Kaiser Family Foundation suggests that 51% of us believe the Affordable Care Act’s (ACA) minimum coverage requirement — its “individual mandate” — is unconstitutional. By my completely unscientific calculations, if about 41% of us like the ACA as a whole, then at least one in ten Americans likes our new reform law but believes the individual mandate to be unconstitutional.[1] This doesn’t count those who dislike the entire Act despite approving of its various features. In other words, there are a lot of us out there who agree with the ACA’s ends, but do not find them to constitutionally justify its means.

If this describes you, there’s something you should know about this lawsuit that’s been in the news lately. You can’t possibly win.

Yes, the Supreme Court may end up killing the mandate in an exciting 5-4 squeaker. But unless you passionately care about states’ rights in the purest, platonic sense, prepare to be deeply disappointed — win, lose, or draw.

My guess is that, if you support the plaintiffs in HHS v. Florida, you do so because you see the mandate as a threat to your personal freedom. Understandably, you don’t like the idea that your government can tell you to buy something you may not want. Health coverage itself is perfectly fine (a majority of the ACA’s detractors already have it), but coercion gives you the creeps. Me too.

Unfortunately, this lawsuit has little or nothing to do with our individual liberties. No iteration of the word “liberty” was mentioned in the March 27 oral arguments on the mandate’s constitutionality.  Attorney for the private plaintiffs, Michael Carvin, mentioned “individual freedom” once, but only after he said this:

Well I don’t think the test of a law’s constitutionality is whether it more adheres to the libertarian principles of the Cato Institute or the statist principles of someone else. I think the test of a law’s constitutionality is not those policy questions; it’s whether or not the law is regulating things that negatively affect commerce or don’t.

To borrow from Bob Dylan, a favorite of mine and the Chief Justice’s, if you’re looking for someone to protect you and defend you, Carvin just said “It ain’t me, babe.” In a nutshell, his argument was this: Congress cannot regulate inactivity, and not buying health insurance is inactivity. Neither proposition is self-evident, but assume for a moment that the latter argument is true. What is at stake here?

Congress premised the individual mandate on its power to regulate commerce between the states, pursuant to Article I, Section 8 of the Constitution. This power is, in a word, tremendous. The Supreme Court, in a 2005 case about the personal growth of medical marijuana, put it like this:

First, Congress can regulate the channels of interstate commerce.

Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce.

Third, Congress has the power to regulate activities that substantially affect interstate commerce.

Carvin didn’t argue that health insurance does not substantially affect interstate commerce. That would be insane. Rather, he argued that although “free riders,” who don’t buy health insurance until they need it, do have a substantial effect on the cost of insurance, they simply haven’t done anything until they do it. And until they do, the federal government can’t touch them. But their state can.

Why? The 10th Amendment says those “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Among these are your state’s “police powers,” which allow it to regulate your behavior in ways Washington can’t. If the plaintiffs here are fighting for any constitutional right at all, and not simply doing this to screw with the President, it is Florida’s right — not your own.[2]

I doubt this will satisfy you, as you probably care more for your own liberty than the exclusivity of your state’s right to violate it. But if the rest of the ACA is upheld (which remains a good bet) some states may do exactly that, and enact their own mandates to prevent free riders from jacking up already high premiums. As for Congress, although it would no longer be able to regulate interstate commerce with an individual mandate, it was never likely to do something so unpopular again anyway. Congress would, however, remain perfectly free to enact individual mandates under a number of its many other Article I powers. That was one of the first things Congress ever did, in fact.

There are other lawsuits out there which could actually help you, but these are premised on our Fifth Amendment rights. As Sixth Circuit Judge Sutton (Bush 43 appointee) has asked, “Why construe . . . this limitation — that citizens cannot be forced to buy insurance, vegetables, cars and so on — solely in a grant of power to Congress, as opposed to due process limitations on power with respect to all American legislative bodies?” But the plaintiff states have no stake in our liberties, and the private plaintiffs’ liberties have yet to be affected; focused on the fastest and easiest path to the ACA’s total destruction, both deemed the Bill of Rights “a loser” in this context.

This is what I mean when I say you can’t win. I write not to change your mind on any issue, but to warn you. We may disagree on the ACA’s mandate’s constitutionality, or even its necessity. But unlike many of this lawsuit’s political allies, who wax poetic on liberty despite having supported more draconian mandates 20 years ago, I’m willing to tell you what the Washington elite already knows:

You don’t have a dog in this fight, and the only prize is a bowl of kibble.


[1] A roughly equal number supports the ACA as a whole, but is not sure of the mandate’s constitutionality. The same poll found that only 12% of respondents would be angry if the Supreme Court killed the mandate provision.

[2] This is exactly why the Fourth Circuit dismissed a similar lawsuit brought by the state of Virginia: when a state challenges a law that only applies to individuals, its lack of a “personal stake” in the case means that it may misrepresent or even disserve the interests of the people who do.

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One Response to “Why Defeating the Individual Mandate isn’t Much of a Victory for Individual Freedom”

  1. Chris says:

    51% finding the mandate unconstitutional + 41% approving of the ACA as a whole = 10+% who identify with both? How do you make the assumption that these probabilities are not disjoint?

    On the same note, I disagree with the Chief Justice’s assertion that not buying health insurance is ‘inactivity’. As it functions now, not buying health insurance is simply a bet against volatility, and for many, it’s effectively financial arbitrage. If you’re going to allow inactivity of the uninsured while they’re well, you have to allow inactivity of the doctors when the uninsured get sick.

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