Obamacare’s individual mandate will soon be addressed by the Supreme Court. Hallelujah, I think. Court rulings thus far have varied, with some finding that requiring a citizen to purchase something from a private provider goes beyond the Constitution’s Commerce Clause. Others find it permissible, arguing that the Commerce Clause justifies virtually all economic regulation.
In order to find the individual mandate permissible under the Constitution, the Court must find that there is no limit to federal powers under the Commerce Clause. The argument hinges on an eerily postmodern twist in jurisprudence–namely, that requiring someone to purchase something is the same as prohibiting or regulating something they do purchase.
Applying this reasoning sincerely leaves nothing free of the power of the federal government when it comes to economic liberty. One could as easily argue that buying ice cream promotes domestic tranquility or that bug zappers are essential to the entertainment industry in the South.* Don’t laugh–this all started with the government telling a farmer how much wheat he could grow, even though he intended to use it for seed rather than sell it.
As George Will eloquently notes, the root issue is whether one sees a tradeoff between individual rights and governmental power. Writing for the majority, Judge Laurence Silberman of the US Court of Appeals of the DC Circuit seems to have no problem with saying that upholding the individual mandate is an interpretation of the scope of the Commerce Clause, not the establishment of a new right. In other words, making someone buy something in virtue of living in the United States is not an encroachment on individual rights.
And so, presumably, tax breaks are the same as tax increases and reductions in growth rates are cuts. Opponents of such incursions into private life, including economic life, should not only abhor the individual mandate and its brethren, but all the Hydra-like heads that emanate from this political abuse of language.
Making someone do something they would not have done is fundamentally different from regulating or prohibiting something they choose to do. Nothing fails to be included in the category “things I choose not to do.” I choose not to sell advertising on my shaved head. Does that make it regulable? I elect not to buy a tablet PC today. May I be forced to do so legitimately?
Every power held by one diminishes the rights of another–a point no-limit advocates would like the rest of us to forget. Every facet of life regulated (or in this case, mandated) by government curtails the rights of every individual it affects. One may argue, though I do not concur, that regulating economic behavior is a legitimate function of government. However, it is monstrously disingenuous to pretend that does not coercively limit rights. Not being able to grow wheat in the quantities one desires limits the right to grow wheat. Being forced to purchase health insurance limits one’s right to live without it. By implication, it also limits one’s right to purchase other things instead.
Sometimes, killing an idea involves no more than exposing it for what it is. Fortunately, supporters of the individual mandate have added strength to this tactic by admitting as much. The individual mandate can only stand if the Supreme Court is willing to say that there is no limit to government’s power to force people to buy anything at all, no matter how ridiculous. This, in effect, renders useless any individual claim to economic liberty. If the Court upholds the individual mandate, we will have seen the collapse of our last defense against total economic subjugation. At least now they will have to do so openly.
*Terry acknowledges that not all Southerners find bug zappers entertaining.