After months of debate, several lawsuits, and multiple competing federal court rulings, the Affordable Care Act will have its day in court. That day will determine the nature of freedom in America.
On Monday, the US Supreme Court agreed to examine the constitutionality of the health-care law sometimes known as Obamacare. The main question is its “individual mandate,” specifically whether the federal government has constitutional authority to require citizens to purchase health insurance. For that justification, supporters have looked to the Commerce Clause in the Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
But for the Commerce Clause to provide sufficient authority to the federal government to mandate that everyone buy health insurance, choosing not to buy health insurance has to be regarded as “activity.”
The distinction between inactivity and activity is vital for upholding the Constitution’s principle of enumerated government powers and thereby maintaining a free society. It is important that all Americans understand the threat President Obama’s health-care law poses to freedom in the US.
The truer it is that individuals have discretion to act except as specifically prohibited by law and the truer it is that government has discretion to act only as specifically empowered by law, the freer a society is. There is abundant evidence that the Founders understood and believed this.
They also understood that the first premise (individual freedom) is not meaningful if the second premise (limited government) is not also true. This is because government discretion tends to crowd out the discretion of individuals. This is why the doctrine of enumerated powers is so important and why, in free societies, most laws are proscriptive rather than prescriptive in nature.
Property rights theorists call the idea that the owner of property can do as he or she pleases with it except as specifically prohibited by law “residual control.” This acknowledges that ownership is not absolute, that there are limits to discretion even over one’s own property.
But residual control nevertheless captures the essence of ownership. Under this concept, the set of possible actions an owner can take with regard to his property (all actions not currently prohibited by law) is potentially infinite. Who controls that set of possibilities makes all the difference. In free societies, individuals do.
However, if citizens are to live in harmony with others, then freedom, like property ownership, also cannot be absolute. As Oliver Wendell Holmes famously argued, his right to swing his fists needs to end where another individual’s nose begins.
Now turn Holmes’s point around. It is one thing for government to forbid specific actions while leaving all other possible actions to the discretion of the individual. It is quite another thing for government to compel an individual to take specific actions (telling people to do things they have already chosen not to do). The first is consistent with the kind of practicable freedom we now enjoy. It comports with the Constitution’s principle of enumerated government powers. The latter is not and does not.
If government goes from only regulating activity to also regulating inactivity, it will effectively go from telling individuals what they cannot do to telling them what to do. This renders residual control meaningless because it effectively removes private discretion to act, except as specifically permitted or directed by government.
The result is that government, not individuals, will then possess residual control over the behavior of individuals, much as parents now do over children. Government possessing de facto residual control over adult individual behavior is antithetical to freedom in a society of adults. Indeed, it contradicts the overarching spirit of the Constitution, which was obviously crafted to enumerate government powers.
The Supreme Court is now in a perfect position to assert unequivocally that the practice of using the Commerce Clause to justify regulating inactivity is unconstitutional because the Constitution was obviously crafted to leave discretion with individuals while conferring to government the discretion to act only as enumerated. This would be a mighty victory for freedom.
The stakes are higher than ever. In Judge Vinson’s Federal District Court ruling in January, he raised this issue of inactivity explicitly, stating: “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.” That part of his ruling was affirmed in August by the 11th Circuit Court of Appeals.
If the Supreme Court does not clarify the question of whether the Commerce Clause applies to inactivity, the individual mandate in the Affordable Care Act may become the precedent upon which future activists justify even further expansion of government power.
If the Supreme Court fails to make a clear ruling or rules to uphold the constitutionality of the individual mandate, those who favor expanding government power at the expense of individual freedom could then argue that precedent now allows the doing of nothing to be construed of as the doing of something – as activity.
This will mean that both activity and inactivity – everything – will now fall under the purview of the Commerce Clause and therefore under the power of government regulation.
America is therefore at a fork in the road of legal precedent, one with far reaching implications for maintaining the free society many now take for granted.
David C. Rose is a professor of economics at the University of Missouri-St. Louis. He is the author of “The Moral Foundation of Economic Behavior.