If The Government Can Force You To Buy Healthcare ...

Yesterday Megan asked: if the commerce clause "allows the government to force you to buy insurance from a private company, what can't the government force you to do?" Conor keeps the question alive:

If the Obama Administration’s health care reform bill stands, I do not imagine that America is going to cease to be free, or that a decisive blow in the battle between capitalism and socialism will have been struck. Although I would’ve preferred different variations on health care reform, I am not even expert enough to know for sure whether they’d have been more successful.

What does worry me is the notion that the federal government is no longer an entity of enumerated powers – that a limit on its scope purposefully established by the Founders no longer exists. It used to be a check and balance. Is it now completely gone? 

Tim Lee gives a reluctant defense of the mandate, which sounds a bit like this reader's take.  Chait also pushes back:

Regulations to prevent people from offloading their risks onto others are extremely common and extremely necessary. So, again, the right's portrayal of this as a dramatic expansion of the scope of Congressional action is wildly misleading, and it owes itself not to any sober analysis of federal power but to the psychology of reaction.

Now, Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.

A reader offers another counter-point:

In response to Megan's question, I can't help but wonder if she's considered the draft. Our government reserves the right to force young men to wear a uniform, cut their hair, follow the whims of all who hold a higher military rank, take up arms against a foe, and possibly die facedown in the mud in a foreign land, whether they agree with the reasoning of the war or not. Failure to comply can result in imprisonment.

What government cannot do is deprive those young men of due process should they choose to dodge the draft. Government cannot deny citizens the ability to speak out against the war. There are actually many things that government can't force you to do - worship, marry someone you don't love, recite the Pledge of Allegiance, etc. But conservatives tend to only see freedom in the immediate vicinity of their wallets. No other freedoms are quite as important to them.

Another reader:

In Ohio, everyone by law has to purchase car insurance. I assume that's the case in most if not all states. And everyone sees why. And nobody on any end of the political spectrum seems put out by it. So why is a health insurance mandatereally so different?


Megan's comment seems, to me, to miss the point. The commerce clause doesn't protect individual rights at all. It only restricts the federal government. State and local governments are completely free to force you to buy products and services from private companies. If the mandate were a state law, it would be clearly constitutional, despite having the same liberty-reducing effect on individuals.

What this decision really is about is the federal government encroaching on the province of the states. It's about federalism and the separation of powers. It's not about some imagined "economic liberty" at all.


It seems to me that the ruling invalidating the Individual Mandate in the Health Care Reform would also be applicable in any future discussions of the privitization of Social Security.

Why would an individual mandate to invest with  private investment companies be any different than a mandate to buy private medical insurance?

Yet another:

Can we get a little perspective on the mandate question?  There are actually a number of moving pieces, and much of the commentary I've read – including Megan's and Radly Balko's at The Agitator, to pick two people I generally respect – lumps all the moving pieces together into a caricature of the legal issue that is actually before the courts. 

There are two questions that people need to ask themselves about the individual mandate: the question actually before federal courts and the question that commentators want to debate.

The Courts have been asked to decide a limited question:  whether the U.S. Congress has the authority under any of its enumerated Article I powers to prohibit citizens from refraining to purchase a product from a private corporation.  Under the the Supreme Court's Commerce Clause jurisprudence from the last 80-odd years, the answer is pretty plainly yes.  But the Federalist Society, the Heritage Foundation, conservative legal scholars and commentators have mounted a decades-long attack on this line of cases, and many observers believe their understanding of these issues is much more closely aligned with the original intent of the Constitution.  Judge Hudson clearly agrees with that analysis.  Only the Supreme Court can resolve this issue, and they will undoubtedly get the opportunity.  

Commentators mostly seem to want to debate a different question: whether government – any government – has the power to compel its citizens to purchase a product from a private corporation.  The Courts, including the Supreme Court, can't answer this question.  It's a political question, and it cuts right to fundamental differences in perspective. 

Most important to the present discussion, the Constitution has no problem with a government requring such action, as long as it's a state government.  Massachusetts already has an individual mandate under Romneycare. 

In this regard, there are now four primary responses to the Hudson's order striking down the mandate:

(1) Hooray for Federalism!  Only the states have this kind of police power, and Congress is again overreaching. 

(2) Hooray for libertarianism!  Government shouldn't have this kind of power in the United States.  Let's attack Romneycare's mandate on fundamental liberty grounds next.  

(3) Boo Federalism!  The role of the states in the Constitution is an anachronism in light of modern transportation, communication, and economic activity.  If states regulate something as important as health care, then we will have a race to the bottom.  Everyone loses in such a system.

(4) Boo libertarianism!  Health care is a fundamental right, and the government needs to take whatever steps are necessary to ensure its affordable availability regardless of ability to pay. 

There are important differences between (1) & (2) on the right and between (3) & (4) on the left.  Commentators and the public need to take a deep breath and figure out what exactly pleases or upsets them about this decision.  An honest discussion within the right and the left on these issues would benefit everyone.