By Mike Dorf
In my latest FindLaw column I consider the libertarian objection to the proposed individual mandate in most of the health care reform proposals now before Congress. Some libertarians say that it is both unprecedented and categorically worse for the government to require people to do something affirmative (such as buying health insurance) than it is for the government either to forbid some action or to require some other action as a condition of engaging in an activity (such as practicing medicine) that the govt could prohibit. I end up concluding that the objection is not sound.
Here I nonetheless want to try to unpack the intuition that there is something worse about affirmative impositions on liberty than prohibitions. Let's begin with a pair of examples that show how an affirmative imposition feels worse. Suppose the govt says that I must be at jury duty from 9 to 5 for a week. That is clearly a greater restriction than a negative imposition that forbids me from, say, going to the movies during that same time. In the first case, I can't do anything other than go to jury duty; I can't even go to the movies. By contrast, in the second case, I can do anything I want--other than go to the movies. So the affirmative imposition seems MUCH more of an imposition than the negative one. And we might think this is typical: Prohibitions take one option off the table (the prohibited conduct) but leave us free to do anything else, whereas affirmative obligations tell us exactly what to do. They leave no freedom of movement.
But the foregoing juxtaposition does not appear to be an inevitable feature of affirmative versus negative impositions. Consider an example suggested to me by Neil Buchanan: Suppose that a parolee is under a form of house arrest. The parole condition could state that the parolee must be in his house at all times--an affirmative obligation to be somewhere--or it could state that the parolee is forbidden from going anywhere outside his house at any time--a negative imposition. Yet obviously these conditions are identical. Indeed, we could frame a much more restrictive negative prohibition--e.g., don't leave your house--than a positive one--e.g., you must be in North America. The key is the scope of the restriction, whether positive or negative, not whether it is positive or negative.
Can every affirmative obligation be turned into an equivalent negative one and vice versa? I don't think so. For example, if I am told that I am forbidden from doing anything other than being at jury duty, that still doesn't get me actually serving on the jury without some sort of affirmative obligation--except in the trivial semantic sense of a prohibition on not serving on the jury. But even if we acknowledge that there are some such cases where an affirmative obligation cannot be turned into a negative one except by double negatives, it still does not follow--for reasons I explore in the column--that affirmative obligations are necessarily or even generally more restrictive than prohibitions.