by Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University Law School
Last spring, the Supreme Court came within one vote of taking health insurance away from over 30 million people, exposing a dangerous intellectual trend that, simply put, threatens to hurt you and your family. The near-success of the constitutional arguments against the Affordable Care Act is scary news, because those arguments silently rely on a philosophy at war with the most fundamental purpose of the Constitution: to empower the American people to solve their most pressing problems.
The ACA included an individual mandate to have insurance, because no other path to universal insurance was workable. Even Republicans had supported such a mandate for years. Universal health insurance logically means that everyone must have insurance.
The litigation depended on a different ideal, which we can call Tough Luck Libertarianism: any obligation of healthy people to contribute to care for the sick is an intolerable imposition on liberty; if you get sick and can’t pay for care, that’s your tough luck.
The constitutional challenge was devised by conservative lawyers who had, for a long time, been eager to impose limits on Congressional power. They proposed a new and previously unheard-of constitutional rule: the state can’t make you do things or buy things. It may regulate only those who engage in some self-initiated action.
This action/inaction distinction came advertised as a great bulwark of liberty. Actually, it was a crude bit of political opportunism. No one can live in the world without engaging in self-initiated actions all the time. This rule is not a serious constraint on government power. It allows Congress to act in every case in which the citizen has voluntarily taken some action. Most of us can’t realistically avoid having jobs and buying things, and it’s not much consolation to be told that I can avoid oppression if I live in the woods and eat berries. This limitation is unlikely to have any application after the ACA litigation, and is patently tailored to bring about a desired result in a single case.