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!

It's that last point I want to emphasize.

If you're the type that worries about precedent-setting behavior and its slippery-slope implications, note that we've effectively empowered the president of the United States to wage war without Congressional approval, kill American citizens without due process, indefinitely detain prisoners without charges or trial, and secretly spy on everything from our telephone calls to our email messages in massive data-mining efforts. Alternatively, if you're the sort who self-identifies as a cynical critic of unchecked government except on matters of national security, where you slavishly and ahistorically trust that the president won't abuse the extraordinary power you want to give him -- let's be honest, there are a lot of you in America -- then consider some of the domestic affronts to liberty that are everyday parts of life in the United States:

  • Though more than 40 percent of Americans, including our past three presidents, have tried marijuana, we continue to arrest and confine in metal cages a certain subset of people caught possessing the drug, though it causes less harm to others than legal substances like alcohol. 
  • Merely being suspected of drug possession is enough to get your door broken down by a battering ram.
  • Police departments nationwide practice asset forfeiture, a civil procedure in which they can take your property if they suspect it was used in the commission of a crime, and you can't have it back unless you prove to them that it isn't so. (I know that sounds unbelievable, but it's true.)
  • The government locks millions of people up in prisons where there is a decades-long ongoing epidemic of rape, often perpetrated and more often overlooked by employees of the state.
  • In order to fly on an airplane now you must choose between a government employee running his or her hands over your genitals in a intrusive pat-down or step into a scanner that reveals to a government employee an image of your naked body.
  • Countless thousands are prevented from entering into the profession of their choosing -- hair-braider, interior designer, lawyer -- due to onerous professional licensing requirements, despite zero evidence of their efficacy.
  • Congress routinely redistributes money from taxpayers to private corporate interests, most egregiously during the bailouts. It's one thing to collect taxes from me for public goods, even ones with which I disagree, and quite another to use my taxes and yours to shore up Goldman Sachs.

This is hardly an exhaustive list. But it's sufficient to explain why I am made so cynical by a conservative movement that invokes freedom and liberty at every opportunity, only to overlook most of the issues I've just mentioned in favor of protecting me from having to buy health insurance.

I don't particularly like Obamacare or the individual mandate. But the fact that its repeal would be treated by Republicans as a seminal victory for liberty betrays a stunning lack of perspective.