The Commerce Clause, Libertarianism, and the Good Life

I have to admit I just don’t “get” the argument that the mandatory insurance provisions of the Patient Protection and Affordable Care Act are unconstitutional because the Commerce Clauses only empowers Congress to regulate “activity,” not “inactivity.” (For yesterday’s federal district opinion endorsing that argument, see here.  For more detailed critiques, see, for example, the recent blog posts by Steve Shiffrin and Mike Dorf.)  In particular, I don’t get the argument that a bright line between activity and inactivity “is precisely the sort of distinction that courts must draw if there are to be judicially enforceable limits on the federal government’s enumerated powers.” To the contrary, a whole truckload of effective and more germane doctrinal and normative tools would remain available to police the limits of federal power even without the activity/inactivity line: (1) cutting off subjects of regulation whose connection to the national economy is too attenuated, (2) special vigilance regarding subjects that are at the core of the States’ traditional domains, (3) not to mention, the protection of specific domains of individual liberty against either federal or state intrusion.  And if these tools are still insufficient, one can even imagine the courts drawing inspiration from European (yes, European) ideas of subsidiarity or Canadian (yes, Canadian) doctrines of “pith and substance,” or elsewhere.  Of course, none of these other doctrines would challenge the health care reform Act, but that’s only because any sensible modern view of federalism would understand that the enormous and complex national system of medical care provision and insurance is an appropriate subject of federal regulatory interest.

What I really want to talk about here, though, is something of perhaps more immediate relevance to this blog: my even more profound puzzlement at the sort of free-floating libertarianism that undergirds both the logic of the activity/inactivity line and much of the political battle against health care reform.

I can understand (though don’t really buy) John-Stuart-Mill-style moral libertarianism, which would limit the government to regulating “harms.”  But that form of libertarianism, though it might tend to a laissez-faire view of the limits of government with respect to economic regulation, would still allow a more nuanced and case-by-case set of judgments than many contemporary libertarians could tolerate. (For an interesting reading of Mill on this subject, see here.  Consider also economist Robert Frank’s effort to reconcile Mill with a “libertarian welfare state.”)

I can also understand purely practical, efficiency-based, arguments against government intervention, even if I take them with a grain of salt.  And I can certainly understand arguments for specific liberties, even those (such as, say, a right to assisted suicide or a right to carry guns in public places) that I don’t support myself. But free-floating resistance to government regulation is more radical than a commitment to either efficiency or specific liberties.

The most charitable reading of free-floating libertarianism is that it seeks to protect the ability of individuals to pursue their own vision of the “good life” with as little interference as possible from the rest of us.  Let’s assume, just for now, that this makes sense.  But let’s get down to brass tacks.  How, precisely, is anyone’s distinctive vision of the good life thwarted by a requirement to buy medical insurance?  To be sure, some religious communities, as part of their distinctive vision of the good life, commit themselves to norms of mutual support and communal self-sufficiency that are at odds with the general system of commercial medical insurance.  But such groups are explicitly exempted from the requirements of the mandatory insurance provisions, as they have been exempt from social security and other forms of social insurance for years. (I would also, I think, support an exemption for folks who reject medical care entirely, but that’s a more complex question that I don’t want to explore here.)

But what about the rest of us?  What vision of the good life, exactly, is thwarted if we no longer allow some relatively healthy folks to gamble on the odds of their continued good health and thus distort the cost of insurance for everybody else?  And what vision of the good life, exactly, is advanced when individuals remain uninsured so that, when they do get sick, they will delay treatment until they get even sicker, then rely on “free” care when they can no longer avoid getting treated?

The Amish and similar communities make a choice, which society should completely respect, to engage in social solidarity on a smaller, more intimate, scale than is possible for the rest of us, or that the rest of us might even want.  But free-floating libertarians come close to rejecting the very notion of social solidarity.  And they come close to denying the conviction, common to both our philosophical and religious heritage, that human beings are inherently social beings whose collective decisions (sometimes expressed through the instrument of government) are themselves objects of value and possible foundations for the good life.  And that’s what I don’t “get.”

Also posted on religiousleftlaw.