If conservatives think the individual mandate is totalitarian, why on earth 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.

Comments

  1. Katja says

    On a more substantive note, if you hate something, but can only fight it at the federal level, but not at the state level, that can still better than not fighting it at all. The commerce clause simply happened to be the most practical lever they had to apply.

    That’s the rational explanation (and I suspect that there are some practicing libertarians who actually subscribe to it). In practice, I suspect, it’s Obama Derangement Syndrome is the primary cause that drives opposition at the federal level as opposed to the state level, combined with widespread cluelessness about the actual law (in this WSJ article, even Nobel Prize winner Gary Becker mostly just shows that he doesn’t understand either the Swiss healthcare system, which is positively socialist compared to the PPACA, or the PPACA itself).

  2. SamChevre says

    Anyone making a commerce-clause argument is already conceding that Sacramento or Nashville may constitutionally require such things.

    Not exactly–may should be “might be able to”. They are independent states, with their own constitutions, institutions, and etc. There are all kinds of things that states can do that are unconstitutional for the federal government to do.

    Remember, the conservative position is that the Constitution is a law, not a statement of principles.

    • C.S. says

      Remember, the conservative position is that the Constitution is a law, not a statement of principles.

      Whaaaa? If that’s “the conservative position,” it is interesting that no actual conservatives seem to be arguing from that position. Then again, I may have missed it in all the hubbub about how the Constitution is something more akin to the Word of God.

      • Brett Bellmore says

        But they are arguing from that position: They’re arguing that the Commerce clause, a part of the Constitution, is a law whose actual words (Including that jazz about “with foreign Nations, and among the several States, and with the Indian tribes;”) matter, rather than some nebulous principle about “national problems being solved at the national level”.

  3. Brett Bellmore says

    What Sam said. It’s primarily a rule of law issue here. States with constitutions that permit laws of this sort can institute them, and retain the rule of law. Because it’s unconstitutional at the federal level, upholding this law compromises the rule of law. And the rule of law is a powerful barrier to authoritarian and totalitarian government.

    That’s why doing exactly the same thing at the state level, and at the federal level, can have completely different implications. If the Constitution can’t stop something like this, then it’s not really in force, we’re just pretending to have a constitution at the federal level.

  4. Jennifer says

    Isn’t this what Romney has basically been saying for several months now? That ‘Romneycare’ is OK because it was passed by the state – and Obamacare is not because it was done by the feds? Of course, conservatives also don’t seem to like Romney much, but I don’t think they’ve pushed back much on his ‘states’ rights’ argument.

    • Dan says

      Nope. The Bill of Rights has been “incorporated”, via the 14th amendment, to apply to the states. So there is no inconsistency in opposing Mass. having a state religion and supporting Romneycare.

  5. says

    I guess I will bite on this. I don’t recall directly appealing to the Commerce Clause, but may have linked to someone who did. I think the reason we Conservatives are skittish about ObamaCare is that the stated goal of it is to get to single payer, meaning a totally government run system. I am not a fan of Romney(just to get that out of the way). Regardless of how the Commerce Clause fits in this, I think you find a similar dislike for a state that doing something similar. A state requiring that only this or that car or type of broccoli can be purchased, or what your daily ration of government cheese should be, seems just as Totalitarian as ObamaCare. Not stopping ObamaCare may only embolden “Little Brother” to try and do the same thing. On a practical level, I do not want my hospital experience to be like going to the DMV. Check the UK to see how well government run health care is.

    • liberal says

      “On a practical level, I do not want my hospital experience to be like going to the DMV.”

      A more direct comparison would be the VA, which is better run than most private health organizations.

      “Check the UK to see how well government run health care is.”

      The UK has roughly the same health care outcomes we do, at a much, much cheaper price.

    • politicalfootball says

      I think the reason we Conservatives are skittish about ObamaCare is that the stated goal of it is to get to single payer, meaning a totally government run system.

      Oddly, the reason that liberals are skittish about ObamaCare is that the stated goal is to forestall single-payer.

      Of course, single-payer would not mean “a totally government run system.” That would be “single-source.”

      • Kev says

        UK healthcare as good as US for less money? Less of who’s money? What do the Brits really pay for their glorious health care system?

    • Katja says

      Blue Collar Todd: Check the UK to see how well government run health care is.

      Pretty well, actually. Meaning that I’ve now been living in Scotland for six years and had two babies under NHS-provided care (as well as various and sundry other care for both myself, my husband, and our two girls). It is not perfect, but as someone who has experienced both US and UK healthcare, I prefer the UK system, especially (but not only) from a peace of mind perspective.

  6. Wonks Anonymous says

    Yes, the U.S constitution restricts the federal government in ways it does not restrict state governments, which have their own constitutions. News at 11.

    Personally I’m bothered by the case because it’s likely the court will rule in favor and make explicit the virtually unlimited commerce clause authority which was previously only implicit.

    Dan, were you aware of the “Blaine amendments” which attempted to apply separation of church and state to state governments AFTER the 14th was already ratified?

    • Dan says

      I’m not following. The SC has incorporated the bill of rights via the 14th amendment (that is, applied them to the states) over time, beginning I believe in 1925. So if you are citing Blaine as evidence that the BoR doesn’t apply to the states (since Blaine introduced his proposals after the adoption of the 14th, and he wouldn’t have made his proposals if the BoR already applied to the states), then I have to suggest you read up on “Incorporation.”

  7. says

    What we’ve seen in previous supreme-court cases is that the commerce clause extends pretty much to the heat death of the universe when the thing being proscribed is something the court doesn’t like, and extends only as far as actual transactions across state lines when the thing being proscribed is something the court is OK with. So it’s a crapshoot here.

    I’m interested by the idea that the court took up the coercion claim, i.e. that congress can’t force states to do things by threatening to withhold federal money if they don’t. That would affect everything from discrimination to drinking ages.

    • Brett Bellmore says

      Yeah, that might even be a bigger deal than limiting the interstate commerce clause power to… interstate commerce.

      The problem here is that the Court went for so long not enforcing some of these limits, that the federal government spent generations growing into areas it had no actual authority to be in. I’d estimate that, were you to actually enforce the Constitution with any rigor, you’d have to declare at least half the federal budget, and most of it’s agencies, unconstitutional.

      There might, for that reason, be no going back. But the rule of law is a really important thing, we should not easily give it up in the name of “reliance interests”. One of the reasons I support a constitutional convention: I expect we’d come out of one with a Constitution which actually authorized a heck of a lot more federal government than I like. (Though probably less than we’ve got now, which is why Congress would fight having one, probably to the point of constitutional crisis.) But it would actually authorize it, which means we wouldn’t have to staff the government and courts with people comfortable with such an insane level of sophistry.

      That would be worth embracing a chibi Leviathan.

  8. Jason K says

    “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.”

    Well, sure. But as it doesn’t seem likely that individual states will compel their citizenry to make unpopular purchases this statement isn’t very meaningful (i.e. it’s highly unlikely that the citizens of Wyoming would allow state legislation to pass which compelled them to purchase a Prius). It doesn’t seem unreasonable for the citizens of Wyoming to be more concerned with the actions of the federal government (which they have relatively little influence over) in this regard than with their own state government (which they have relatively more influence over).

  9. Jmg says

    The point is that, yes, states have plenary power and the Feds don’t. The Feds are supposedly operating a govt of enumerated powers, not one of solving big problems at the big league level. wickard, the case relentlessly cited for the federal government’s unlimited reach over anything that looks, sounds, or smells like commerce, was a terrible decision that was nothing if not results oriented. The proper basis for Wickard was to note that farmer Wickard was taking federal money as part of a wheat price support program … The court should simply have told him that the rules comes tied to the money. If you don’t want the rules about not growing wheat for your own use, don’t take money aimed at supporting wheat prices by limiting supply and boosting demand.

    And it is a totalitarian principle, by the apway, that’s not just hyperbole. If the federal government, formerly limited to it’s enumerated powers, is held to have the power to compel purchase of “health insurance” sold by private actors, then there is nothing obvious that would allow any person to figure out the limit of federal power. Instead of a federal system, we wind up with a superstate, with a completely bought and sold Congress and corporation selected president in charge. At least with states you can comparison shop and stay out of the idiot places; no such luck if the Feds take over all daily decisions

    • Katja says

      Jmg: And it is a totalitarian principle, by the apway, that’s not just hyperbole. If the federal government, formerly limited to it’s enumerated powers, is held to have the power to compel purchase of “health insurance” sold by private actors, then there is nothing obvious that would allow any person to figure out the limit of federal power. Instead of a federal system, we wind up with a superstate, with a completely bought and sold Congress and corporation selected president in charge.

      Huh? You can have a centrally governed country (such as France) without it being totalitarian. Even if Congress had no limits on its powers other than basic democratic principles (separation of powers and judicial review, the Bill of Rights, etc.), that would not make the United States a totalitarian country. It would probably not work particularly well, but it would not be totalitarian.

      There is not even support for the claim that if the federal government could mandate the purchase of health insurance, then they could do everything. In fact, there are federations (Switzerland, Germany) where the federal government has clearly delimited powers and where there is also an individual mandate for health insurance. There is no reason to believe that you cannot have an individual mandate under the Commerce Clause (or not even touch the Commerce Clause by invoking the Necessary and Proper Clause) while also reserving powers for the states that the federal government does not have.

      And any reference to “totalitarian principles” in this context is indeed hyperbole.

  10. says

    There is a huge difference between regulating insurance, or cars, and forcing people to buy those products. That was the point of my post. The feds have already gone far enough in regulation, but creating such bunk products that the public needs to be forced into purchasing them is, indeed, a new and slippery step.

    And if you’d done a bit deeper research, Andrew, you’d notice that the Wyoming Liberty Group was a lead proponent of the Health Care Freedom Amendment in Wyoming, which will restrict the state of Wyoming from using its police power to force its residents to purchase insurance (among other things). It will be on the ballot in November, 2012.

    So, yes, at least some of us do believe in liberty versus each level of goverment.

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