Legal Commentary

Judge Hudson's opinion holding unconstitutional Obamacare's "purchase insurance" mandate (aka the "minimum essential coverage" rule) rests critically on the notion that there is some fundamental distinction between the feds' forcing action and requiring inaction. Somehow, a federal measure becomes less necessary and proper for the regulation of interstate commerce if the measure requires one to participate in such commerce than if the measure bars such participation.

At one level, this is deeply silly. Suppose that the feds do not forbid Farmer Filburn from consuming home-grown wheat but instead require him to consume wheat that has traveled in interstate commerce. Is it not obvious that the latter measure is more directly related to the regulation of interstate commerce than the former? At least with the "buy interstate wheat" mandate, there is some commercial activity being required. How can this not be regarded as interstate commerce?

I suspect that the real unwritten basis for Judge Hudson's opinion (and Randy Barnett's legal theory on which it is based) is the notion that, when the feds impose paternalistic or otherwise especially intrusive burdens, then their impositions ought to be reviewed with especially suspicious scrutiny under the doctrine of enumerated powers. Put another way, a libertarian theory of rights ought to be built into the limits on the federal government.

Is this mixing of rights theories and federalism theories wise?

Here is an advantage of the amalgamation of rights and federalism: Federalism becomes a sort of "libertarianism lite," a way to pursue libertarian goals by indirection. The feds are barred from traducing the libertarian, anti-paternalistic ideal, but the states can still experiment with meddlesome mandates or live-free-and-die rugged individualism. As activism goes, this devolution of controversial rights theories to the states has a certain moderation about it: The states can compete, and the best theory of rights can eventually win, one might argue, and the courts need not directly foist their preferences on the rest of us.

Here is the equally obvious disadvantage: Such a theory of federalism is structurally otiose, because it does not provide any account of whether subnational capacity to regulate the activity in question really reflects subnational preferences. If, for instance, healthcare mandates are affected by significant interstate economies, then one might predict that states will be incapable of imposing those mandates even if their citizens really want to do so. Such a collective action problem surreptiously enforces libertarianism without actually defending it explicitly: It is not libertarianism lite but rather libertarianism covert. Put another way, it is a sort of intellectual dishonesty likely to discredit federalism.

The antidote, of course, is some thoughtful account of how the states actually can address the issue that the feds are barred from addressing. Sadly, this ingredient is missing from Judge Hudson's opinion: there is no discussion of whether federal action might be "necessary" because state action is afflicted by external effects that lead to collective action problems. The opinion reads not like a defense of federal diversity but an attack on laws that force individuals to take actions (even obviously commercial actions).

As someone with libertarian inclinations, I endorse that latter attack. But using the doctrine of enumerated powers to advance this attack seems calculated to bring that doctrine into disrepute without really advancing the libertarian agenda in the long term.