Give me liberty or give me health care

By Charles Lane

Judge Roger Vinson's ruling striking down the health-care law's individual mandate and, with it, the rest of the statute, may or may not stand up in higher courts. But it's more convincing than some arguments I've read on the other side.

My colleague Ezra Klein, for example, argues that "whatever the legal argument about the individual mandate is about, it's not, as some of its detractors would have it, a question of liberty." The individual mandate involves less intrusion in private markets and more personal choice than alternatives such as a single-payer system, Ezra notes -- borrowing the point from no less a conservative eminence than Charles Fried of Harvard Law School. Indeed, quite a few liberty-loving Republicans have supported various individual mandates in the past. This proves, according to Ezra, that conservative and Republican opposition to the current iteration of the individual mandate is just legal pettifoggery and political opportunism.

Uh, no.

As a policy matter, there is a case to be made that an individual mandate to buy certain health insurance from certain companies, enforceable by a monetary penalty, involves less direct federal intervention in the private economy than conceivable alternatives. But in constitutional law, this is immaterial. Nor does it matter that some Republicans once approved of the idea -- or that President Obama once fervently opposed it. The only consideration is whether Congress has enacted the mandate pursuant to one of its enumerated constitutional powers.

Conservatives, therefore, are not hypocritical to suggest that a single-payer system would be less libertarian but more constitutional than the health-care law's individual mandate. Single-payer -- and any reduction in liberty it might entail -- would be clearly authorized under Congress's power to raise revenue and spend it on the general welfare (Article 1, Sec. 8). Ditto for a state individual mandate like the one Massachusetts enacted under its sovereign police power, which raises no question of congressional authority at all (see the much-maligned Tenth Amendment).

The point Ezra misses -- by a country mile -- is that the threat to liberty, if any, comes not so much from the individual mandate itself, but from the other things Congress might do if it gets away with claiming authority for this measure under the commerce clause.

Fairly stated, this is the conservative constitutional argument: Health care for all is a good cause. But if, in the name of that noble goal, you construe Congress's power to regulate interstate commerce so broadly as to encompass individual choices that have never previously been thought of as commercial, much less interstate, there would be nothing left of the commerce clause's restraints on Congress's power. And then, the argument goes, Congress would be free to impose far more intrusive mandates. Judge Vinson suggested that Congress "could require that people buy and consume broccoli at regular intervals," and that is hardly the most absurd or mischievous imaginable consequence.

There may be a convincing rebuttal, but I haven't heard it yet. (Orin Kerr attempts one, and Jonathan Adler counters it.) Rather, it looks like the law's drafters never took such concerns very seriously and are paying a price now for their legal overconfidence. It's not terribly persuasive to suggest, as the Obama administration has done, that the health-care market is "unique" -- that's asking the courts for a ticket good on one train only.

Ezra says this is all about "semantics." Congress has the power to levy taxes; and the "penalty" attached the mandate really is a tax, but Congress couldn't use the word "tax," because it's politically "toxic." "I don't believe our forefathers risked their lives to make sure the word 'penalty' was eschewed in favor of the word 'tax,'" he writes. Wrong again: Actually, one purpose of the Constitution is to prevent government from engaging in politically expedient deception. The modern term, I believe, is "transparency."

This passage from New York v. United States, from which Judge Vinson also aptly quoted, puts it rather well:

Some truths are so basic that, like the air around us, they are easily overlooked. Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear "formalistic" in a given case to partisans of the measure at issue, because such measures are typically the product of the era's perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.

Justice Sandra Day O'Connor -- not exactly a right-wing nut -- wrote those words, in 1992. What she was basically saying is that, under our Constitution, the ends do not justify the means.