Necessary and Proper

When federal Judge Henry E. Hudson ruled the individual mandate unconstitutional earlier this week, conservatives hailed the ruling as a desperately needed check on federal power.

"At its core, this dispute is not simply about the business of insurance, or crafting the scheme of universal health insurance coverage," Judge Hudson wrote. "It's about an individual's right to choose not to participate."

The conservative argument against the individual mandate, a tax levied on people who avoid buying health insurance, is as powerful as it is simplistic: If the federal government can force you to buy health insurance, then it can make you do anything. It's a critique liberals need to answer more forcefully. The problem is that the policy argument for the individual mandate -- that the only way a universal health-insurance scheme works is with a federal mandate -- is closely related to the constitutional argument.

"The idea behind limited and enumerated powers is that the federal government can act when there's a genuinely federal problem," explains Yale law professor Jack Balkin. On the policy side, "what we're asking is whether [health-care insurance] is a genuinely federal problem. And the constitutional question is whether it's a genuinely federal problem."

Asked about the constitutional basis for the individual mandate, some liberals mumble quietly about legal precedent before making the compelling policy argument that without the mandate, you can't preserve the private insurance market and ensure affordable universal coverage. As Attorney General Eric Holder and Kathleen Sebelius wrote in an op-ed on Tuesday, "Imagine what would happen if everyone waited to buy car insurance until after they got in an accident. Premiums would skyrocket, coverage would be unaffordable, and responsible drivers would be priced out of the market."

But on the battleground of constitutional first principles, mere legal precedent and policy arguments are inadequate weapons. No one is comforted by the notion that we've arrived at a state of "tyranny" mere inches at a time. To say the mandate is supported by precedent and is necessary for the system to work isn't enough -- the law has to be able to be reconciled with the enumerated powers the Constitution places in the hands of the federal government.

That's easier than it seems. The commerce clause grants the federal government authority to regulate interstate commerce, of which the health-insurance market is most certainly a part. That authority is meaningless if it does not allow the federal government to deal with the particular problems the health-insurance market poses, like adverse selection and guaranteed issue in individual states. But that doesn't make the federal government all powerful.

Earlier this week, Atlantic blogger Megan McArdle worried that recognizing the individual mandate would open the door to all sorts of government-mandated purchases, asking, "What can't the government force you to do?"

That's not a trivial question. But recognizing that the commerce clause gives the federal government authority to regulate health insurance doesn't mean that Steve Jobs is the only thing standing between America and the great Microsoft Zune Mandate of 2015. Health insurance is a specific type of product. Without some kind of federal mechanism, you can't preserve the private insurance market and ensure affordable universal coverage. States that impose mandates will bear the costs of providing insurance for those that don't. This is why Hudson's argument that the commerce clause doesn't give the government the authority to regulate economic "inactivity" in this context rings hollow -- you can't actually choose not to participate in the health-insurance market, because deciding not to buy health insurance drastically affects everyone else.

While the framers may not have predicted the rise of a complex interstate health-insurance market, that's no more an argument against the individual mandate than the failure to include thermal imaging devices in the Fourth Amendment. "The Founders' logic was that the enumerated powers are to map on to areas where you need a federal solution," Balkin says. "You couldn't do this with cars, you couldn't do this with cell phones, you couldn't do this with Cuisinarts. [Health] insurance is special." Conservatives worried about a "food mandate" might remember that unlike health insurance, the price of food doesn't go up dramatically when someone waits until they're starving to eat.

The real difference between liberals and conservatives is that liberals admit that in the pursuit of a fairer and more equitable society, they make judgment calls about the balance between freedom and providing for the general welfare. Conservatives borrow the thoughtful anti-statism of their libertarian allies, right up until they endorse the coercive power of the state to manipulate Americans into doing everything from buying homes to getting married. They admit no contradictions between decrying the overreach of the federal government and demanding it prevent gays and lesbians from marrying or imitate Arizona's descent into a virtual police state. Their choices between adhering to free-market principles or deciding to provide for the general welfare far too often seems to hinge on which choice best enhances or preserves the power of an entrenched financial, religious, ethnic, or cultural hegemony.

Realistically, the Supreme Court is a fairly partisan institution, and an ideological case like constitutionality of the individual mandate will ultimately be decided based on the policy preferences and personal foibles of the sitting justices, not on the more persuasive or well-grounded constitutional argument. But liberals should still be prepared to counter conservatives' selective libertarianism not merely on practical or policy grounds but within the context of constitutional first principles.

"Liberals should take a page from the Tea Partiers and wave their pocket Constitutions around and ask, what part of regulating commerce between the states don't you understand?" Balkin says. "What part of tax and provide for the general welfare don't you understand?"

The phrases "necessary and proper" and "provide for the general welfare" might be somewhat disquieting to conservatives. But those phrases are as much a part of the Constitution as the "right of the People to keep and bear arms." The Constitution meant to grant "limited and enumerated powers" to the federal government actually grants some pretty broad ones. But that's exactly why, as former Supreme Court Justice David Souter has explained, constitutional interpretation is about the difficult task of reconciling the Constitution's conflicting values, not simply obtuse readings of the parts we like.

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