What is at stake in the case challenging the constitutionality of the Affordable Care Act (ACA), scheduled for oral argument in the Supreme Court in March? The challengers maintain that the case is about fundamental liberty, specifically our freedom not to be compelled to purchase things we don’t want. But that frame, while undoubtedly appealing to the radical libertarian strain in the Tea Party, is misleading. In fact, the only “liberty” that would be protected by a victory for the challengers is the freedom of insurance companies to discriminate against sick people.
The case is principally focused on the “individual mandate,” the law’s requirement that people who are not insured and can afford health insurance must buy it or pay a tax penalty. The federal government is a government of limited powers, and although Congress has the power to regulate interstate commerce, the challengers concede, if it can force people to “enter into commerce” in order to regulate them, then its powers are in effect unlimited. The reason Congress has never imposed such a mandate, they maintain, is that the power does not properly exist.
The Supreme Court deems the issue sufficiently serious to schedule an almost unprecedented five and a half hours of oral argument (it usually schedules a single hour). But the argument against the law is remarkably flimsy. Two of the country’s most conservative judges, Jeffrey Sutton of the Sixth Circuit and Laurence Silberman of the DC Circuit, were unable to find a valid argument against the law and voted to uphold it. Harvard law professor Charles Fried, Ronald Reagan’s solicitor general, has also said the law is plainly constitutional. It’s always dangerous to predict Supreme Court rulings on controversial cases, but if the Court applies its precedents faithfully, it should be a victory for the administration.
Although the challengers focus their attack on the individual mandate, that provision cannot be separated from the act’s prohibiting insurance companies from denying coverage or charging higher rates based on “pre-existing” medical conditions. No one contests Congress’s constitutional authority to enact that overwhelmingly popular protection from dubious insurance practices. But without the individual mandate, the nondiscrimination protection would be unworkable. People would have a powerful incentive to wait until they get sick before they buy insurance, because they could not be penalized for doing so. Such “free-riding” would defeat insurance’s purpose of spreading risk. As one expert told Congress, health insurance cannot work if people can delay buying it until they are on the way to the hospital. Several states have tried to prohibit discrimination against those with pre-existing conditions, but the reforms have failed everywhere they have been enacted without an individual mandate. (Only in Massachusetts, where the protection is coupled with a mandate, has the reform been sustainable.)
Conservatives are fond of reminding us that society involves not just rights but responsibilities. Yet here, they don’t seem to get it—the right afforded by the ACA will work only if it comes with the responsibility to purchase insurance if you can afford it. In the end, the challenge to “Obamacare” is not conservative at all; it’s radically libertarian.
We’ve seen this kind of libertarian constitutional argument before. In the early twentieth century, after the Industrial Revolution had concentrated economic power in employers’ hands, Congress and the states passed many laws designed to protect workers from exploitation. Time and again, the Supreme Court invalidated these statutes. It deemed the federal laws beyond Congress’s power to regulate interstate commerce because they were said to regulate the terms of production, manufacture or mining, all of which were said to precede interstate commerce. And it invalidated state labor laws as infringements on the “freedom of contract” protected by the due process clause.