Would defeating the individual mandate today lead to something worse tomorrow? I don’t know. I don’t have a crystal ball, but neither does Orin. We can’t answer this question, but we can identify reasons why mandate-style approaches to health care reform can increase the threat to individual liberty and undermine democratic accountability. My point below was not that a single-payer plan is necessarily preferable to the individual mandate on libertarian grounds, as it would depend on how such a system was designed and implemented. But I would argue that upholding the mandate risks greater threats to liberty insofar as a) mandate-style measures help hide the real costs of health care reforms, thereby undermining democratic accountability, and b) it would set the precedent that the federal government’s regulatory power could be used to mandate the purchase of a good or service from private firms. Direct government provision or subsidization of health care services does not suffer from the first problem as the costs are readily identifiable through the budget process (which is precisely why we got the mandate in the first place). And direct government provision or subsidization of health care services does not suffer from the second problem as the relevant precedent has already been set.
Orin seems to equate the financial cost of government programs with the extent to which they impair individual liberty. The cost of a government program may be a rough proxy for the extent to which liberty is impaired, but it is just that. Freedom is about more than the size of one’s tax bill. Zeroing out government expenditures altogether might reduce the tax burden, but insofar as some governmental functions (such as national defense, police, a judicial system, etc.) it would not maximize individual liberty.
In any event, the individual mandate and other measures constraining health care markets may not increase the tax burden, but that does not mean they are “free.” Health insurance must be paid for either way; the mandate just keeps more of it off the federal government’s ledger. Indeed, the individual mandate was expressly designed to facilitate redistributive policies that could not be adopted directly — and this is so precisely because the mandate and associated insurance reforms are less transparent than taxes and direct expenditures. If the American people want a given degree of economic distribution, so be it, but neither liberty nor accountability are furthered by allowing such redistribution to occur off-budget through the imposition of regulatory dictates.
I will admit I am a bit perplexed by Orin’s reference to school vouchers, as vouchers have far more in common with traditional government programs than does the mandate. The “thinking behind school vouchers” is that a given good –education, health care, whatever — should be funded out of tax revenues, but that control over how the benefit is used remains with the recipient. This sounds more like a traditional benefit program than the recent reforms. Indeed, there are quite a few mandate opponents who support reforms that would “voucherize” existing and proposed benefit programs. The reason entitlement programs are so hard to control is not tax withholding, but that the budgets for such programs are on auto-pilot, and not limited by appropriations, and so are more difficult to restrain than discretionary expenditures.
Insofar as Orin’s concern is that opposition to the individual mandate cannot produce a relatively stable political outcome unless and until its opponents find some other way to satisfy the demand for health care “reform,” I would agree with him. However much I dislike much of the recent health care reforms, it was responding to some real (and some perceived) needs and deficiencies of the current system. It is also true that many conservatives and libertarians (and even more Republicans) devote far more time and effort to tearing down proposed reforms than proposing positive solutions of their own. (I’ve made similar complaints about the Right’s approach to environmental policy for years.) So I share the concern that defeating the mandate could be a Pyrrhic policy victory if there are not serious efforts made to improve the health care system and (in particular) expand access to care. But I don’t see why such concerns counsel against opposing the mandate, let alone why such concerns should be relevant to the constitutional debate.