Keep Obamacare's Individual Mandate in Proper Perspective

I'd like to see some intellectual humility—from both left and right—on the question of whether the individual mandate is constitutional.

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For the record, I'm not a fan of the Affordable Care Act. I think there were plausible alternatives to the individual mandate that could have addressed free-ridership in healthcare. Like Washington Post columnist Robert Samuelson, I'm skeptical that Obamacare will significantly improve health outcomes.

And yet, I'm also taken aback by the overdramatic opposition to the law, and I think suspicions that its critics' endgame is to dismantle much more than Obamacare are well-founded.

At the very least, I'd like to see some intellectual humility—from both the left and right—on the question of whether the individual mandate is constitutional. In the Yale Law Journal, for example, Andrew Koppelman sidesteps the economic activity/inactivity controversy by calling it an "interesting semantic question" that "does not matter." What matters is that Congress identified a legitimate end—that is, ensuring all citizens have access to healthcare—and the Constitution empowers Congress to do all that's "Necessary and Proper" to achieve that end.

[See a collection of political cartoons on healthcare.]

Koppelman writes:

If locking up mail robbers is no part of the operation of a post office, then an attempt to do that under the Necessary and Proper Clause is equally offensive to the Constitution. If growing marijuana for one's own consumption is not regulable economic activity, then it too is immune from federal law.

But robbery and growing pot are actions. Such reasoning is compelling only after you've wiped your hands of the activity/inactivity distinction.

Then again, there's this from the editors of National Review:

The administration argues that an individual's decision not to purchase health insurance has an effect, however minute, on health markets nationally, and that such decisions when aggregated have a large effect. But of course the same is true of individuals' decisions to remain sedentary or eat too many sweets.

[Read the U.S. News debate: Should the Supreme Court Overturn Obama's Healthcare Law?]

This is argument is as equally glib as Koppelman's. Notice how National Review's editors assume that our hypothetical fatties are going to consume healthcare and, because of their sloth and incorrigible sweet-tooths, cost some insurance company a lot of money. This is precisely the administration's argument: Virtually everyone will receive some sort of medical attention at some point in his or her life, irrespective of whether he or she is currently enrolled in a plan.

For now, I'll leave you with a cool draft of sanity from Orin Kerr of the libertarian Volokh Conspiracy website:

I'm deeply sympathetic to the argument that current Commerce Clause doctrine gives the government too much power. At the same time, I think it's worth noting that arguments in support of the mandate do reflect a limitation on the scope of federal power: the line between regulating markets in goods and services and regulating outside of markets in goods and services. The basic idea is that Congress has Article I power to regulate markets in goods and services, as markets in goods and services are commerce. In contrast, Congress does not have have a general Article I power to regulate on subjects outside of markets in goods and services, as that is not part of commerce.

So there. Settle down, all you pocket Constitution-wielding thumbsuckers. There is no threat of unlimited police power here. What the Supreme Court has before it this week is a messy attempt to address an incredibly complex set of problems. Isn't that enough to worry about it?

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