By Mike Dorf
In response to my FindLaw column and accompanying blog entry last week on the libertarian objection to the proposed individual mandate in various pending health care bills, I received a number of emails and came across various commentaries on the web taking issue with my view. Here I want to respond to a couple of what I think are clearly misguided objections and then unpack one that, in my view, has more bite.
1) Some critics accused me of ignoring what they regard as the best objection to the individual mandate--that there is no power in Congress to require it. (E.g., here.) Yet I quite clearly say at the beginning of the column that there are two primary objections to the individual mandate, and the second one contends "that the federal government lacks the authority under the Constitution to impose the mandate or to penalize those who do not comply." I then say that I will object this second objection--an objection that constitutional lawyers would routinely call a "federalism objection"--in a followup column. So, stay tuned on that front.
2) Some other critics say that I haven't rebutted the libertarian argument because I take the existing level of government involvement in the economy as my baseline but that baseline is already way too high. Yet I did not claim to be responding to all libertarians who object to anything more than a Nozickian watchman state. I have quite clearly styled my interventions here as a response to the libertarian objections that have been most clearly directed at the individual mandate as such. And those objections--coming from the Cato Institute (the leading American libertarian thinktank) and leading Republican Senators--make the argument that the individual mandate is, in a key respect, unprecedented. In other words, their argument takes the existing level of government as the baseline, and I was responding to that. If libertarians object to the proposed individual mandate on the same grounds that they object to Medicare, Social Security, Medicaid, vaccination, jury duty, and other government activities--including most taxation--they should say so loudly and clearly, rather than muddy the issue by saying that the proposed individual mandate would be unprecedented.
3) But now onto what I find to be the most interesting libertarian objection, which has not been posed specifically as an objection to my defense of the individual mandate but is nonetheless salient. Some libertarians object that what makes the individual mandate different from prior government mandates is that it is a mandate to engage with a private firm. The obligations to serve jury duty, to pay taxes, to register for the draft, and to educate one's children involve bilateral relations between the citizen and the government. By contrast, the individual mandate would require people to buy health insurance from third parties--either for-profit or non-profit organizations. Thus, even some on the left, most notably TruthDig's Robert Scheer (speaking on KCRW's Left, Right & Center), have argued that this is unfair.
The core question I would pose for people like Scheer is why this is any worse than taxing people for other privately provided goods and services they don't use. The federal government uses my tax money to subsidize private animal agriculture, even though I'm not eating any of the resulting animal products. The libertarians have complained that the individual mandate is a tax on "existence," but that's just a formality. The U.S. Constitution expressly approves of head taxes (so long as apportioned according to population) and they were used in the nineteenth century. Moroever, as I explained in my column, the excise tax in the Baucus bill is triggered by income relative to the poverty line, and so this could just as easily be thought of as an income tax.
Scheer's real objection should be that the various proposals floating around in Congress operate as regressive taxes: the only people who will pay them are those who don't have employer-based or other health insurance and can't afford to purchase it privately. But that's an egalitarian objection to the stinginess of the proposed subsidies, not a libertarian objection to the mandate.
Scheer also said (during last week's LRC episode) that he would not object to the individual mandate if it were coupled with a robust public option--presumably because then people would not be told by the government to do business with a third party. That does not appear to be the view of other libertarians on this issue, many of whom would be no happier (and probably less happy) if there were also a public option. But if we take Scheer's view as the starting point, then I think we can connect it to a rather widely shared position: namely that it is wrong for the government to take from A to give to B. That impulse underlies the public opposition to the sort of taking for private redevelopment that the Supreme Court upheld in Kelo.
I would still argue that the libertarian objection to the individual mandate is misguided, but by seeing it as fundamentally about a perceived abuse of government power to serve private ends, we can at least render it coherent.