Federalism, Freedom, and the Individual Mandate

Defenders of the individual mandate often argue that the concerns about individual liberty raised by the mandate’s opponent’s are overblown, because most of the latter concede that the Constitution allows state governments to impose similar mandates. A health insurance mandate imposed by a state such as Massachusetts seems no less oppressive than one adopted by the federal government. University of San Diego lawprof Michael Ramsey recently posted a good response to such claims:

[Joey] Fishkin has it wrong to say that denying federal power while recognizing state power is “pure federalism, drained of all libertarian talk of personal freedom.” To the contrary, it is worse for personal freedom for the federal government to impose the mandate (or make you eat your broccoli) than for states to do it. As Kennedy put it for the Court in United States v. Bond, “Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power….”

[F]ederalism creates a market for government, in which dissatisfied “customers” can “vote with their feet…..” That in turn preserves individual liberty, not just because people actually do move to avoid oppressive regulation (though they do), but more fundamentally because states and local governments understand that people can move. States are less oppressive, not necessarily because they are closer to the people, but because people have options and states know it. As Kennedy also wrote in Bond, quoting Justice O’Connor in the earlier case Gregory v. Ashcroft, federalism “makes government ‘more responsive by putting the States in competition for a mobile citizenry.’”

Of course, to an extent there are alternatives to the U.S. national government as well. But these are harder for individuals and businesses to adopt. The United States’ internal federalism is especially protective of liberty because people and businesses can move so readily (both legally and culturally) from state to state. That’s not true internationally, so competition at the nation-to-nation level provides lesser protection for liberty……

Obviously, though, internal federalism protects liberty in this way only if the states can offer different options. The more power held by the national government, the less effective the federalism protections of liberty will be. Thus there is an immediate relationship between individual liberty and limited government at the national level….

Returning to broccoli, I think Fishkin is wrong to assume that Texas could not constitutionally (try to) force him to eat it. To say the least, no provision of the text seems plausibly directed to that end. But in any event, our liberties don’t depend on conjuring such a limit from the Constitution. If that regulation were to be passed, and if it were thought unduly oppressive, non-broccoli eaters could leave the state (or, if out-of-state, decline to move there). And it would not likely pass in the first place, because the state lawmakers would know it would have that effect. As a practical matter, Texas can’t make Fishkin eat broccoli, not because something in the Constitution says so directly, but because federalism will give Fishkin broccoli-free alternatives. In contrast, the national government lacks this structural constraint on its potential for oppression. Quite unlike the states, the national government knows it has, to some significant extent, a captive population, and may be expected to act accordingly.

For the reasons outlined by Ramsey, there is no inconsistency in believing that individual freedom is protected by constitutional rules forbidding Congress from enacting laws that can still be adopted at the state level. Obviously, states can and do sometimes enact oppressive policies. But the right of exit makes them, on average, a lesser threat to freedom than similar policies adopted at the federal level.

I previously discussed Bond and the relationship between federalism and freedom here.