If Conservatives Think The Individual Mandate Is Totalitarian, Why Do They Back a Commerce-Clause Case?

Once in a while I have an objection to a common argument that seems so obvious that I think my logic circuits must be misfiring. This is one of those times.

It’s become quite popular in libertarian and conservative circles to call the Affordable Care Act, and the individual mandate in particular, totalitarian. (I must admit that Republicans have all the best totalitarian ideas.) Googling “Obamacare totalitarian” yields almost three million results. The top hits include posts on patientpowernow.org and bluecollarphilosophy.com, and this rather unhinged one on moonbattery.com. More recently there was this by the always fascinating Tim Cavanaugh at Reason.

But I just can’t understand why, given this, conservatives seem completely unfazed by the fact that the court challenges against the ACA are basically commerce clause cases. The whole question is whether a failure to buy insurance counts as commerce so that it is within the power of Congress to regulate it. I have yet to see a serious legal argument that would place the individual mandate beyond the police powers of an individual state. (Bruce Brown at The New Republic has pointed out that such an argument would have to rest on due process, presumably of a substantive kind, and would be very marginal in that form.)

There’s clearly some confused argumentation out there. Take this from the Wyoming Liberty Group:

If the individual mandate to purchase health insurance withstands its current court challenge and the challenge of health care freedom amendments, there will be nothing to stop the government from mandating that we drive “environmentally friendly” automobiles. After all, if the mere fact that we will eventually utilize the health care system puts us within the grasp of the Commerce Clause, then surely the fact that we will eventually drive or ride along in trucks, SUVs, Corvettes and other glorious machines on national highways does so as well. It’s only right, then, that government mandates what kind of cars we drive. Chilling.

But in addition to the oddness of the example (hate to break it to them, but the government already regulates what kinds of cars may be offered for sale, and we lack the liberty to buy one without a seatbelt), the mention of the Commerce Clause gives the game away. Nothing the Supreme Court says about the Commerce Clause, either way, will do a damn thing to protect individual liberty against a “government” that happens to be a state government. Wyoming could constitutionally compel every resident to buy a pickup truck any time it wanted to.

The prevalent conservative and libertarian constitutional position is, bluntly, this: totalitarian infringements on individual liberty are perfectly constitutional provided that a state enacts them. Whenever you hear the typical slippery-slope arguments—if this is upheld, the government can require us to buy broccoli, or wear tattoos, or drive Priuses or whatever—keep this very clearly in mind, because conservatives sure won’t. Anyone making a commerce-clause argument is already conceding that Sacramento or Nashville may constitutionally require such things. The only question is whether Washington can follow suit. The lawyers are arguing not about whether people have the liberty not to buy broccoli but about which level of government has the power to nonchalantly ram the green flowery stuff into our shopping carts. Little Brother is already watching you.

[Cross-posted at The Reality-Based Community]

Andrew Sabl

Andrew Sabl is a Visiting Professor in the Program on Ethics, Politics, and Economics and in Political Science at Yale University.