Halbig and Two Conceptions of Liberty

September 2nd, 2014

At its core, the debate in NFIB v. Sebelius and the individual mandate boiled down to two conceptions of liberty–freedom from the government, or freedom of financial concerns involving health insurance costs.

For the government, Solicitor General Verrilli argued that the Affordable Care Act promotes liberty. No longer needing to fear what will happen to you if you get sick, makes you more free. In short, with government aid, you are now free from uncertainty. As I explained in Unprecedented, this was a message shared by Verrilli, the President, and many other supporters of the law:

“There is an important connection, . . . ” he began, then paused for emphasis. “A profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that. . . . In a very fundamental way, this Medicaid expansion [pro- tects] individual liberty and dignity interests.” The relationship between health security and liberty was a ser- mon that progressives had preached throughout the enactment of the ACA.

Upon signing the bill, President Obama declared that it enshrined “the core principle that everybody should have some basic security when it comes to their health care.” On March 22, 2010, minutes after the midnight vote in the House that passed the ACA, a jubilant Speaker Nancy Pelosi beamed that “this bill tonight [cre- ates the] opportunity for affordable health care for all Americans [so they] have the freedom to have a healthier life [and] to have the lib- erty to pursue their own happiness.” Pelosi was channeling Thomas Jefferson’s eternal ode to freedom from the Declaration of Indepen- dence, which recognizes our “inalienable rights of life, liberty, and the pursuit of happiness.”

President Obama delivered a similar message in his second inaugural address, also evoking Jefferson.“That they are endowed by their creator with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness. Today we continue a never-ending journey to bridge the meaning of those words with the realities of our time. For history tells us that while these truths may be self-evident, they’ve never been self-executing. That while freedom is a gift from God, it must be secured by his people here on earth.” It is the people, through the collective, not the individual, who must secure these rights. This was President Obama’s modern liberty, and Verrilli was its messenger to the Court.

But, on the other hand, Paul Clement argued that the Affordable Care Act itself was the threat to liberty. Rather than fearing uncertainty, opponents of the ACA feared the government, and coercion itself. Also from Unprecedented:

Paul Clement rose to have the last word and provided an impromptu rebuttal that offered a very different vision of what individual liberty means.

“Let me just finish by saying I certainly appreciate what the solic- itor general says, that when you support a policy, you think that the policy spreads the blessings of liberty.” After three long, hard-fought days of argument, Clement would have the last word on liberty.

“But I would respectfully suggest that it’s a very funny concep- tion of liberty that forces somebody to purchase an insurance policy whether they want it or not.” This was not the individual liberty of Justice Kennedy.

Clement echoed a point he had made in his brief: “The Constitu- tion protects and promotes individual liberty, while the mandate’s threat to liberty is obvious. The power [of the federal government] to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’s authority to regulate existing commercial intercourse. It is a revolu- tion in the relationship between the central government and the gov- erned.” Such a conception of freedom for society as a whole comes at the expense of liberty for the individual. “

With Halbig, it seems we have returned to the same debate. Nick Bagley explains that if Halbig is successful, up to 8 million people will be free from the Affordable Care Act’s mandate. But, what does it mean for them to be free? Which conception of liberty are we talking about?

Jon Adler and Michael Cannon seem to be using the Clement-version of liberty–freedom from the government itself.

For the challengers, that’s a good thing. In Michael Cannon’s words, “a victory for the Halbig plaintiffs would free more than 8.3 million residents” from the mandate. The pending Supreme Court petition makes the same point:

[B]y purporting to make a credit “allowable” in states served by HealthCare.Gov, the IRS Rule reduces the number of people in those states exempt from the individual mandate penalty. Now ineligible for exemptions, those individuals are no longer free to forgo coverage … .

Bagley focuses on the latter vision of freedom–freedom from financial harm.

Would you really have more freedom if you lost the tax credit and, because you could no longer afford insurance, you were exempt from the mandate? No doubt, some people would say yes. They bristle at the mandate and don’t value insurance very much—even cut-rate insurance. They’re also pretty cavalier about asking the rest of us to pick up the tab if they fall ill or have an accident.

Many near-poor families, however, would find it liberating to get cheap coverage, even if they were required to do so. As Bill has eloquently observed, health insurance offers a kind of freedom, too. It’s the freedom to quit that stultifying desk job that you stay in only because of the health benefits. It’s the freedom not to have to choose between making rent and buying your kid’s asthma medication. And it’s the freedom not to fear that a car accident or a cancer diagnosis might bankrupt you.

Yes, if the Halbig challengers prevail, millions of people would be exempt from the mandate penalty. But that just means they’d be free to decline coverage that, without tax credits, they can’t afford anyhow. What kind of freedom is that?

Bagley alludes to Justice Kennedy:

The argument is tailor-made for Justice Kennedy, who cares so deeply about personal liberty that whole books have been written about it.

We should recall that in NFIB, Kennedy took the classical, rather the active view of liberty.