Legal Commentary

Set aside the constitutional argument against the PPCACA's individual mandate. (I've already offered horse doctor's doses of my opinions on that score). I've got a different question: Shouldn't libertarians like Randy Barnett applaud the individual mandate as good health care policy that, if somehow precluded to the feds by Article I, ought to be pursued by the states? I ask, because the leading libertarian book on health care seems to embrace the mandate. John C. Goodman & Gerald L. Musgrave, Patient Power: Solving America's Health Care Crisis (Cato Institute 1994) provides that non-purchasers of insurance be subject to a special tax (aka fine) to compensate institutions that provide them with free health care services like emergency room access. (Id. at 68-69). Daniel Shapiro, a prominent libertarian philosopher on health care financing, thinks that this tax does not go far enough for indigent persons: He'd "force the indigent to take the refundable tax credit and purchase health insurance." Daniel Shapiro, "Why Even Egalitarians Should Favor Market Health Insurance," 15 Soc. Phil. & Pol'y 84, 99 (1998).

This libertarian support for an individual mandate should hardly be surprising: Libertarians stand for personal responsibility, and people who do not buy health insurance, based on these principles, are parasites on the public fisc. The individual mandate forces these wastrels to internalize the cost of their own medical care. Of course, one could imagine the provident "ants" kicking the improvident and uninsured "grasshoppers" into the gutter when the latter get sick. But who'd clean up the mess? At the very least, even the most stony-hearted liberatarian would insist that the uninsured get burial insurance. And libertarians actually are not a stony-hearted bunch, as Goodman's and Musgrave's book indicates: They understand that improvident (or, more likely, unlucky) uninsureds impose a "Good Samaritans' externality" on the rest of us by getting sick, because we will inevitably come to their aid despite their lack of foresight (or resources) in not saving for their own sicknesses.

So why are libertarians now denouncing the individual mandate as an outrageous intrusion on individual liberty -- you know, "can Congress force you to eat broccoli?" and other silliness -- when just sixteen ago, the Cato Institute declared it to be an essential part of market-based health care? My best guess: They do not really mean it. Attacks on the Individual Mandate are just a convenient way to beat up on the PPCACA, which they dislike for other (and perhaps better) reasons. But this hypocrisy comes at a cost: Anti-paternalism rhetoric directed against a program that everyone knows libertarians actually embrace sounds either cynical or unintelligent.

In light of these realities, here's my advice to libertarian critics of PPACA: Enough with the anti-paternalism rhetoric in denouncing PPACA's Individual Mandate. Stick to your Article I technicalities (for what they are worth). Unless you reject every libertarian, market-based health care plan yet proposed in favor of euthanasia, you are on board as favoring such a mandate at some level of government.