The Weak Liberal Case For The Individual Mandate

Although I remain skeptical of the chances of lawsuits challenging the Obamacare individual mandate under the Commerce Clause, one compelling question is gaining traction among the commentariat.  As Jennifer Rubin frames it: “If the government can force you to buy insurance, is there any limit to its power?”  Or as Megan McArdle put it: “On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?”  I asked it myself here.

I have been looking for the liberal answer to this question without much luck, until today.  Writing at The American Prospect, Adam Serwer notes that when “[a]sked about the constitutional basis for the individual mandate, some liberals mumble quietly about legal precedent before making the compelling policy argument that without the mandate, you can’t preserve the private insurance market and ensure affordable universal coverage,” then takes a crack at it himself.  Actually, Serwer further illustrates the conundrum by not being able to make a meaningful rejoinder.

Instead, Serwer simply declares health care to be a federal problem begging for a federal solution:

Without some kind of federal mechanism, you can’t preserve the private insurance market and ensure affordable universal coverage. States that impose mandates will bear the costs of providing insurance for those that don’t. This is why Hudson’s argument that the commerce clause doesn’t give the government the authority to regulate economic “inactivity” in this context rings hollow — you can’t actually choose not to participate in the health-insurance market, because deciding not to buy health insurance drastically affects everyone else.

This is not correct.  We have a private insurance market and no federal mandate now.  What you cannot have without the mandate is a new kind of market — one that Serwer undoubtably prefers — that requires insurers to take on new insureds who have pre-existing conditions.  But that does not mean that in every instance “choos[ing] not to participate in the health-insurance market . . . drastically affects everyone else.”

Moreover, the same can be said about everything.  More demand or less supply in a market economy impacts the prices everyone else pays.  It is called the law of supply and demand.  Look it up.  So that cannot be the basis for Commerce Clause authority, or Congress would have authority over everything.

Serwer then moves on to, essentially, the penumbra of the Commerce Clause, citing Yale law professor Jack Balkin:

“The Founders’ logic was that the enumerated powers are to map on to areas where you need a federal solution,” Balkin says. “You couldn’t do this with cars, you couldn’t do this with cell phones, you couldn’t do this with Cuisinarts. [Health] insurance is special.” Conservatives worried about a “food mandate” might remember that unlike health insurance, the price of food doesn’t go up dramatically when someone waits until they’re starving to eat.

Ah, health insurance “is special.”  That is not much of an argument. 

And in any event, the previously mentioned law regarding supply and demand means that the price of food does go up dramatically when many want to eat it and supply is limited.  Or, for example, when they use corn as fuel for cars.

Again, Serwer must assume one part of Obamacare to support the second part — if you require insurers to take on new insureds who have pre-existing conditions, then you need to get everyone into the pool or the system will go bankrupt.   But a problem created by Congress cannot be used as a bootstrap to expand Congress’ power over citizens.  The power has to be in the Constitution.  Where is it, and what limits are there if it allows the individual mandate?  Serwer still has not answered the question he set out to address.

So he retreats back to policy arguments and chest thumping about how darn nice liberals are:

The real difference between liberals and conservatives is that liberals admit that in the pursuit of a fairer and more equitable society, they make judgment calls about the balance between freedom and providing for the general welfare. 

I disagree with the notion that liberals alone “make judgment calls about the balance between freedom and providing for the general welfare.”  But let’s stick to the question at hand.  If the government can force you to buy insurance, is there any limit to its power? 

That question will remain unanswered.  Serwer instead falls back behind Professor Balkin, who more or less handwaves about tea partiers, general welfare, and taxes:

“Liberals should take a page from the Tea Partiers and wave their pocket Constitutions around and ask, what part of regulating commerce between the states don’t you understand?” Balkin says. “What part of tax and provide for the general welfare don’t you understand?”

The problem, of course, is that the Congress is attempting to regulate non-participation in intrastate commerce.  And the individual mandate is not a tax.  President Obama himself said so, rather emphatically.  What part of “it’s not a tax” don’t you understand, Professor?

It seems the real difference between liberals and conservatives (at least on this question) is that conservatives think the Constitution imposes limits on government power, and we should adhere to them.

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Published in: on December 17, 2010 at 4:38 pm  Comments (1)  

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  1. […] instead we get Adam Serwer jumping back into the fray (I responded to Serwer’s earlier defense of the individual mandate here) to declare that If there’s one thing that’s clear from Florida Judge Roger […]


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