Legal Commentary

?Give me liberty or give me health care?

By Randy Barnett

Charles Lane, the Washington Post?s columnist, member of the Post?s editorial board, and its former Supreme Court reporter has an excellent column in today?s Washington Post that deserves to be read in its entirety. Here is a bit:

. . . As a policy matter, there is a case to be made that an individual mandate to buy certain health insurance from certain companies, enforceable by a monetary penalty, involves less direct federal intervention in the private economy than conceivable alternatives. But in constitutional law, this is immaterial. Nor does it matter that some Republicans once approved of the idea ? or that President Obama once fervently opposed it. The only consideration is whether Congress has enacted the mandate pursuant to one of its enumerated constitutional powers.

Conservatives, therefore, are not hypocritical to suggest that a single-payer system would be less libertarian but more constitutional than the health-care law?s individual mandate. Single-payer ? and any reduction in liberty it might entail ? would be clearly authorized under Congress?s power to raise revenue and spend it on the general welfare (Article 1, Sec. 8). Ditto for a state individual mandate like the one Massachusetts enacted under its sovereign police power, which raises no question of congressional authority at all (see the much-maligned Tenth Amendment).

The point Ezra [Klein] misses ? by a country mile ? is that the threat to liberty, if any, comes not so much from the individual mandate itself, but from the other things Congress might do if it gets away with claiming authority for this measure under the commerce clause.

Fairly stated, this is the conservative constitutional argument: Health care for all is a good cause. But if, in the name of that noble goal, you construe Congress?s power to regulate interstate commerce so broadly as to encompass individual choices that have never previously been thought of as commercial, much less interstate, there would be nothing left of the commerce clause?s restraints on Congress?s power. And then, the argument goes, Congress would be free to impose far more intrusive mandates. . . .

Read the whole thing here. By the way, Lane is also the author of a marvelous book on the excrable Cruikshank case, The Day That Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction. It is a terrific read about a horrible case that should go down in infamy, but is still considered good law.

And he is portrayed by Peter Sarsgaard in the film, Shattered Glass.

Full post as published by The Volokh Conspiracy on February 04, 2011 (boomark / email).