The Individual Mandate Isn't Even Close to the Biggest Threat to Liberty

The only reason to prioritize repeal is politics. Champions of freedom should be more concerned with the war on terror and the war on drugs.


Since the Supreme Court ruling on President Obama's health-care law, several right-leaning acquaintances have told me that they can't bring themselves to be particularly upset by the outcome. As one put it, "God knows I wouldn't have tried to reform medicine by passing Obamacare. I'd love to see strict limits on the Commerce Clause too. But it baffles me that so many people treat the individual mandate as if it's the biggest threat to liberty that Americans face."

My correspondent is right.

Health care is hugely important. If Mitt Romney took office and wanted to replace Obamacare with the package of reforms laid out in "How American Health Care Killed My Father," I'd support him, for I have little faith in the recent reforms. But treating the individual mandate as a particularly dire affront to liberty and elevating its repeal to priority number one in a Romney Administration?

Why would anyone who cares about liberty want that?

Will Wilkinson identifies an error in constitutional analysis that helps to explain why the right is so exercised. "In one breath they denounce the courts' activist misinterpretation of the Constitution's plain meaning, and then, in the next, lament that henceforth judges will be forever and inescapably bound by the plain implications of the precedent they have just created," he writes. "But if the judges are the exegetical libertines conservatives say they are, why not predict that they'll simply make of their latest decision what they choose to make of it? Duh."

I agree -- whether the Commerce Clause will be more or less restrictive 10 years hence has, in fact, yet to be decided -- but I'd add some perspective that ought to be enough, in itself, to make the individual mandate a lower priority for liberty-focused voters everywhere.

The perspective occurred to me as I reflected on the argument that one day we may be forced to buy broccoli, and again as I read John Yoo's reaction to the Obamacare ruling in the Wall Street Journal: "Justice Roberts's opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts's tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress's power to tax."

To be sure, I am against a broccoli mandate, an electric-car imperative, a kale ultimatum, or a solar-panel decree. But I can't help noticing that even these bad things, supposedly made more likely in a post-mandate world, are (1) not exactly the stuff of dystopian literature; (2) less alarming to me than other things government definitely has the power to do, like raise my tax rate by 10 percent; (3) much less destructive of liberty than lots of things that government already does!

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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