Posted by Trevor Burrus
Over at Volokh Conspiracy, Professor Orin Kerr has taken to defending the individual mandate on supposedly libertarian principles. Professor Kerr, a Cato Constitution Day participant and an excellent defender of civil liberties, argues that the individual mandate preserves our liberties better than a top-down, government-controlled program à la Medicare. He writes, “If the courts conclude that the mandate approach is unconstitutional, then the more market-oriented approach to benefits would be ruled out. Congress would have a choice: Don’t mandate benefits, or else mandate using a 1960s Great Society government monopoly model.”
While I have the utmost respect for Professor Kerr, his analysis here is woefully mistaken. First of all, I will only mention what my colleague Michael Cannon has tirelessly pointed out: ObamaCare will throttle the operation of a free market in numerous ways. It will not only stifle innovation, it will likely result in the evacuation of insurance providers from the market as they get caught in a “death spiral” caused by the simultaneous mandatory insurance of the sick while healthy individuals increasingly choose to pay the fine rather than purchase health coverage. Richard Epstein has also argued that ObamaCare’s regulatory controls on health insurance providers will “systematically strip the regulated health-insurance issuers of their constitutional entitlement to earn a reasonable rate of return on the massive amounts of capital that they have already invested in building out their businesses,” thus converting “health insurance companies into virtual public utilities.” Or, in the words of Cannon, “Compulsory health insurance enables, and ultimately would require, politicians and government bureaus to control nearly all aspects of health care and medical practice.”
But perhaps the most insidious thing about ObamaCare is precisely the aspect that Professor Kerr seems to fall for: This is a government take-over clothed in market-based rhetoric. This take-over has been facilitated by nearly a century of constitutional misinterpretations that have left us with the “choice” between one unconstitutional system, a single-payer health care system, and another, the “market reform” of the individual mandate. Professor Kerr, like so many others, has been taken in by the façade of choice and markets. But this façade not only has political significance, it has constitutional significance.
The mandate was partially passed in order to avoid the political accountability that a tax increase would have engendered. Rather than taking your money through properly authorized political channels, Congress decided to further pervert the Commerce Clause in order to save their jobs. Thus, they chose to compel its citizens to purchase a product from a private company. While there is no constitutional provision that…
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