The Enduring Potency of the Liberty Argument Against the Individual Mandate

March 12th, 2017

Over the past week, debates about repealing the individual mandate has triggered the strongest sense of déjà vu. During the run-up to NFIB v. Sebelius, one of the most potent arguments against the law was what I would broadly refer to as the “liberty” argument. That is, Congress can’t force people to buy insurance. Or, as it was often described, the government can’t force you to buy broccoli.

True, the case was not premised on a substantive due process liberty interest (though such a claim was dismissed by the district court, and was dropped on appeal). However, the arguments against the mandate wove together closely the notion of structural federalism and individual freedom.

Chief Justice Roberts, citing from New York v. U.S., observed for the majority, that “State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”

Justice Kennedy’s statement from the bench made this point far more directly:

“Structure means liberty, for without structure, there are insufficient means to hold to account a central government that exceeds its powers in controlling the lives of its citizens. Today’s decisions should have vindicated, not ignored, these precepts. For these reasons, we would find the act invalid in its entirety.”

Five years later, the “liberty” argument retains its resonance.

Consider Paul Ryan’s colloquy this morning on Face the Nation–pay attention to his invocation of “freedom” from the mandate:

RYAN: The score, we believe, will come out probably Monday or Tuesday, well before we go to the floor. Well before we go to the floor we’ll have the score. The one thing I’m certain will happen is CBO will say, well, gosh, not as many people will get coverage. You know why? Because this isn’t a government mandate. This is not the government makes you buy what we say you should buy, and therefore the government thinks you’re all going to buy it. So there’s no way we can — you can compete with on paper a government mandate with coverage.

What we are trying to achieve here is bringing down the cost of care, bringing down the cost of insurance, not through government mandates and monopolies, but by having more choice and competition. And by lowering the cost of health care, you improve the access to health care. And by having the things that we’re talking about, tax credits, risk pools, health savings accounts, you dramatically increase the access to health care, but we’re not going to make an American do what they don’t want to do. You get it if you want it. That’s freedom.

DICKERSON: How many people are going to lose coverage under this new —

RYAN: I can’t answer that question. It’s up to people. Here — here’s the premise of your question. Are you going to stop mandating people buy health insurance? People are going to do what they want to do with their lives because we believe in individual freedom in this country. So the question is, are we providing a system where people have access to health insurance if they choose to do so? And the answer is yes. But are we going to have some nice looking spreadsheet that says we, the government of the American — of the United States are going to make people buy something and, therefore, they’re all going to buy it? No. That’s the fatal conceit of Obamacare in the first place.

So it’s not our job to make people do something that they don’t want to do. It is our job to have a system where people can get universal access to affordable coverage if they choose to do so or not. That’s what we’re going to be accomplishing.

Scholars who scoffed at the challenge to the mandate never fully embraced the intrinsic affront to laymen of the federal government forcing them to buy health insurance. Ryan is trying to channel, and perhaps reignite that latent sentiment.

Ryan’s answer also is quite candid. The Congressional Budget Office has long assumed that the mandate was far more effective than it actually was to increase enrollment. (See my earlier post). If more people are exempted from the coverage requirement, then more people will choose to go uninsured. So the decrease in coverage numbers will, at least in some measure, be the result of individual autonomy.