Is the Mandate More “Market-Oriented” than Available Alternatives (and Does It Matter?) — A Response to Orin

Orin Kerr’s post below suggesting that the individual mandate is less of a threat to liberty than some of the available alternatives has drawn quite a response.  See, for instance, these posts by Timothy Sandefur at PLF and Trevor Burrus at Cato@Liberty.  They make some important points, but I wanted to add a few of my own.

First, I think there’s too much attention paid to whether the individual mandate is or is not “unprecedented,” and what conclusions we should draw from that observation.  As a simple factual matter, it is true that the federal government has never sought to use the commerce power to mandate the purchase of a good or service from private firms.  But this fact, by itself, does not establish that the mandate is unconstitutional.  At most, it requires greater analysis as there is no clear analog from prior cases or government actions to which one can turn, and may justify some resort to constitutional first principles (as in Lopez) to answer the question.  (As a related matter, whether one program or another is more or less of a threat to individual liberty may or may not be relevant to the constitutional question.)

Second, many of the prior, government-run programs adopted in the past are actually far more market oriented than the individual mandate, let alone the entire health care reform law.  Traditional welfare programs, for instance, involve the direct provision of cash or vouchers that the recipients decide how to spend.  Even though there are sometimes restrictions placed on how such assistance may be used, this approach remains far more market-oriented — and “libertarian” — than a mandate.  Indeed, individual providers of eligible goods and services are compete against each other more in this context than insurance companies will under the individual mandate and the health care reforms other measures.  Indeed, even Medicare, despite all of its problems, is more market-oriented in many ways than the current reforms, in that recipients still get to choose among providers, and does less to distort health care markets than regulatory mandates.  Further, as the example of Medicare shows, direct government provision of a benefit does not necessarily become “monopoly” provision.  Medicare is a “mandatory” program, but recipients are free to decide whether tehy will partake in the program and may supplement it as they choose.  Of course, that one program is more “market-oriented” than another is a different question from whether one is more or less constitutionally suspect.

Third, it is generally accepted that the primary constraints on the federal government’s exercise of its taxing and spending are political, not judicial.  That is, we let the political process discipline the federal government’s excesses when it taxes or spends too much, or on the wrong things.  Judicial intervention is generally reserved for ensuring that the government does not subvert political accountability or use these powers to achieve otherwise unconstitutional ends (as with the unconstitutional conditions doctrine).  The “political safeguards” approach to federalism advocated by Herbert Wechsler and Justice Blackmun has been decisively rejected because it is too easy for the federal government to subvert political accountability when it is using other powers.

Fourth, there are many areas in which it is recognized that allowing the federal government to compel activity by others is a greater threat to liberty and does more to undermine political accountability than to allow the government to act directly.  I’ll give just two quick examples.

  1. Commandeering: Under cases like New York v. U.S. and Printz v. United States, the federal government may not compel state governments or state officials to implement a federal program.  Part of the rationale is that it is better to force the federal government to implement such measures itself, and that the risk of the federal government over-reaching as a result is less than the threat to political accountability of letting the federal government be the states’ puppet-master.
  2. Compelled vs. Government Speech: Current doctrine concerning compelled commercial speech (marketing orders and the like) subject government mandates that private parties speak to a greater level of scrutiny than the government’s use of taxes or special assessments to fund the same message.  In other words, current doctrine is more suspicious of efforts by the government to force, say, fruit growers to espouse the government’s message than it is of efforts by the government to tax the very same fruit growers so that the federal government can itself promulgate the same message.  As with commandeering, part of the concern here is political accountability.  It is easier to hold the government accountable when it must openly raise revenues and act itself than when it can dictate that others devote their resources in a manner the government prefers.

Finally, Orin’s post suggests a false dichotomy insofar as it implies that the only relevant options for health-care reform are something like the individual mandate and government monopoly provision.  In reality, there are many ways to expand health care coverage or otherwise reform health care.  Not only are there less intrusive ways of subsidizing health care for those in need, there are less intrusive (and more effective) ways of enhancing competition within health care markets.  So invalidating the mandate does not necessarily mean that we’d eventually get something worse — but even if it did, that would not resolve the constitutional question.

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