The Freedom Bulletin

Did you know that the federal government can ban you from growing too much wheat on your farm? In the 1942 case of Wickard v. Filburn, the Supreme Court affirmed (unanimously, no less!) a federal law doing just that. Farmer Roscoe Filburn was fined for every bushel of wheat he grew that exceeded a government-set limit. According to the New York Times, this case will play a large role in the Court’s upcoming deliberations over the constitutionality of the Affordable Care Act (“ObamaCare”).

“To hear the Obama administration tell it, the Filburn decision illustrates just how much leeway the federal government has under the Constitution’s commerce clause to regulate the choices individuals make in matters affecting the national economy. If the government can make farmers choose between growing crops on their own land and paying a penalty, the administration’s lawyers have said, it can surely tell people that they must obtain health insurance or pay a penalty.

Opponents of the law draw a different lesson from Mr. Filburn’s case. They say it set the outer limit of federal power, one the health care law exceeds. It is one thing to encourage farmers to buy wheat by punishing them for growing their own, the argument goes. It is another to require people to buy insurance or face a penalty, as the health care law does.”

In other words, there’s a difference between banning people from making something themselves in the hope that they will have to purchase it from someone else, and actually requiring people to purchase something (namely, health insurance).

In my opinion, this isn’t a very big difference; philosophically and morally, both the Wickard decision and the Affordable Care Act’s  individual mandate are wrong. But out of these two violations of individual rights, the individual mandate is somewhat worse. Punishing people for growing something on their own land is bad enough, but the ACA would punish people for inactivity and would compel them to participate in an economic transaction that they do not necessarily wish to participate in. Additionally, while the wheat law allows people the option of going without wheat (admittedly not a very good or practical option), the ACA does not even allow people the option of declining to participate in the health care market.

Lawyer Michael A. Carvin, in a brief for the National Federation of Independent Business, made an excellent analogy:

“The uninsured regulated by the mandate are the teetotalers, not the bootleggers, of the health insurance market.”

ACA supporters almost always equate not having health insurance with receiving medical services for free and therefore becoming a free rider. Although this is true of some people, it is not true of all. Some people choose not to receive medical services at all. And some people choose to pay with their own money for each health service they receive, instead of paying for insurance. It would be just as wrong to force these people to purchase health insurance as it would be to force teetotalers to purchase alcohol.

It will be interesting to see if the Court agrees with this analogy.

I don’t usually go to sites like AmericanProgress.org, which probably isn’t surprising given my mostly libertarian / conservative political views. But I recently happened upon an article at that site by Ian Millhiser, claiming that “it is absolutely clear that the health reform bill survives constitutional scrutiny,” that it was “clearly erroneous” to allow Virginia Attorney General Ken Cuccinelli’s lawsuit against the law to proceed, that the lawsuit is “baseless” and “wholly without merit,” and that the decision “sadly allows him to continue to waste taxpayer dollars on this frivolous lawsuit.”

I disagree with these claims, to say the least. But there are two arguments in particular that Millhiser makes that I would like to respond to.

First of all, he quotes Justice Antonin Scalia, who once said, “Where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” According to Millhiser, everyone agrees that it’s constitutional to ban insurance companies from refusing coverage to people with pre-existing conditions. If this happened but there was no individual mandate requiring people to buy insurance, then only sick people would buy health insurance, and prices would rise. I’m sure everyone doesn’t agree that the pre-existing conditions law is constitutional, but I’ll give him these first two points.

I disagree with Millhiser and Scalia, however, that if Congress has the right to pass a law, it has the right to do whatever it takes to make that law effective. Congress has the right to defend America from foreign invaders, but it doesn’t have the right to institute a draft, in my opinion, even if a draft were necessary for a strong military. Congress has the right to ban the hijacking of airplanes, but in my opinion, it doesn’t have the right to force people to take their shoes off and go through strip search machines. Individual rights come first, and the government is never justified in taking away people’s freedom, even if that is necessary to make a law effective.

Second, Millhiser claims that the individual mandate is equivalent to prohibiting businesses from using racial discrimination against potential employees or customers, since these both involve requiring people to engage in economic activity. This comparison is completely off base.

Banning segregation affects people only if they choose to own or manage businesses, and it affects them only in their role as a business owner or manager, not as a private individual. Additionally, it does not require anyone to engage in economic activity. It simply says that if someone wants to run a business, they must accept all customers regardless of race, and not use race in hiring decisions. Everyone still has the option of not running a business.

The individual mandate, however, tells people that they must use their money to buy health insurance. It tells people what to do with their own, private money that they have earned, and it applies to everyone.

So anti-segregation laws and the individual mandate are vastly different. One applies only to people who choose to run businesses and applies only when they are acting in their professional capacity. The other applies to all people in their role as private citizens. It is completely reasonable to find the former constitutional but not the latter.

Good news for anyone who is opposed to the individual mandate requiring all Americans to purchase health insurance. Virginia’s lawsuit against the mandate has taken a step forward, as a judge gave it the okay to proceed today. From Fox News:

“U.S. District Court Judge Henry Hudson said he is allowing the suit against the U.S. government to proceed, saying no court has ever ruled on whether it’s constitutional to require Americans to purchase a product.

‘While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen’s decision not to participate in interstate commerce,’ Hudson wrote in a 32-page decision.”

I sure hope the lawsuit succeeds. If judges still care about the Constitution, it will. Although the Commerce Clause gives the federal government the power to regulate interstate commerce, it does not allow the government to force people to engage in commerce.