My New Essay On Reason – The Libertarian Challenge to Obamacare

September 24th, 2013

I do like the subtitle Reason provided (I didn’t write it), How the constitutional challenge to Obamacare pitted liberty against power. Here is a sample:

The challenge to Obamacare was, at its heart, a libertarian challenge. The legal arguments were fashioned by prominent libertarians, such as Georgetown law professor Randy Barnett. The law being attacked was one libertarians opposed for decades on policy and economic grounds. And, the notion of mandated health insurance is inherently anti-libertarian. But, this was not only a philosophical argument, or one of policy. As the Supreme Court’s opinion demonstrated, these libertarian principles resonated strongly in the structural protections of our Constitution, which stood as bulwarks against two of Obamacare’s biggest increases in federal power: the individual mandate and the Medicaid expansion.


What is perhaps most striking about the resolution of the Obamacare case in National Federation of Independent Business v. Sebelius, is a majority of the Supreme Court recognized these libertarian principles, as embodied in the structural protections of our Constitution. First, for the individual mandate, the Constitution’s system of enumerated powers only allows the federal government to do that which the Constitution gives it the power to do. Congress has the power to regulate commercial activities, and make all laws that are necessary and proper to effecting that aim. But, five justices held that the Obamacare mandate was not regulating any commercial activity—after all, it was a decision not to buy health insurance. Further, while the mandate may have been necessary to implementing Obamacare, it was not proper in the manner in which it was designed. Further, seven justices (including Justices Stephen Breyer and Elena Kagan) held that offering the new Medicaid funding, with many strings attached, was not truly a choice, but in fact a coercion of the states. This expansion altered the vertical federalism vision of our state and federal governments, and went too far.

These two competing conceptions of liberty, between positive and negative views of freedom, reflect a more accurate dichotomy in our constitutional order. The structural provisions of the Constitution, which limit what the federal government can do, stands in stark contrast with the positive vision of freedom, which requires the federal government to take such action.

Going forward, meandering between these two poles of security—that of the individual and that of the collective—will define the congruence between the Constitution and libertarianism.