Randy Barnett criticizes Health Insurance Mandate at von Hayek Lecture

Professor Randy Barnett gave the Sixth Annual Friedrich A. von Hayek Lecture in a triumphant mood. His topic, “Commandeering the People: Popular Sovereignty and the Health Insurance Mandate,” addressed the questionable constitutionality of the Patient Protection and Affordable Care Act as a dramatic expansion of Congress’s Commerce Clause powers. Just prior to the lecture, Barnett’s argument received a strong endorsement from Judge Roger Vinson of the U.S. District Court for the Northern District of Florida. Hours earlier, Judge Vinson had sided with 20 states by permitting a lawsuit against the so-called Obamacare to proceed to trial, referencing Barnett’s forthcoming article to be published in the Journal, which served as the basis for his lecture, in the opinion. For the packed audience inside Greenberg Lounge, Oct. 14 may have been any other rainy fall day, but for Barnett it marked a victory for a sensible legal reading of the Constitution.

Barnett addressed first how the health insurance mandate was not authorized by prior Commerce Clause jurisprudence and second why it would be dangerous for the Supreme Court ultimately to extend the Commerce Clause’s reach in this case. The first 20 minutes of his presentation served as a Commerce Clause crash-course. He touched upon cases that dealt with child labor, minimum wages, maximum work hours and the use of the Necessary and Proper Clause to expand the Commerce Clause’s reach into purely intrastate activities.

“Until 1995, we believed Congress could do whatever it wanted under the Commerce Clause,” he said. Then, in U.S. v. Lopez the Supreme Court invalidated a law prohibiting gun possession near schools because it did not relate to economic activity in general. According to Barnett, after Lopez courts must evaluate the Commerce Clause by looking at a given activity and determining whether or not it is “economic.” This simple, stark dividing line “provides a workable doctrine to evaluate the appropriate fit between means and ends without having to look at whether the law is more or less necessary,” he said.

Barnett’s criticism of the health insurance mandate rests upon the simple fact that “it converts an inactivity--not to buy insurance--into an activity to decide not to buy health insurance.” Prior cases, he noted, involve voluntary activity: possessing a gun, operating a hotel, perpetrating gender-motivated violence. “They all involve activity, not inactivity,” he said. Prior Commerce Clause jurisprudence did not equate economic decisions to actual economic activity. “Doing something and not doing something are not the same thing,” Barnett said. “This is basic common sense.” The health insurance mandate, he argued, “obliterates” this distinction. He stated the only way the Supreme Court could rationally uphold the mandate would be to use nothing less than legal alchemy.

“None of us can think of any such personal mandates that have been imposed upon us by the Commerce Clause before because it’s never been done,” Barnett said. Alongside jury duty, taxes and a military draft now sits health insurance. “[They], however, are fundamental duties of citizenship,” according to Barnett, “and not some convenient regulation of commerce.” Barnett conceded that some might argue that the mandate is necessary, as requiring everyone to buy health insurance is essential to the broader regulatory purpose of providing expansive health care to all. However, even if that is the case he wondered how a mandate could be considered proper.

Noting that doctrine is lacking because mandates are so categorically “unprecedented,” Barnett focused on the Supreme Court’s sharp criticism and rejection of congressional commandeering of state sovereignty in the name of regulating interstate commerce. “This principle was ultimately grounded on the 10th Amendment,” he said.

Barnett emphasized that the 10th Amendment also reserves rights to the people themselves. “Might mandating the people not improperly infringe upon popular sovereignty?” he asked. “Mandates are different than regulations--and, indeed, even prohibitions,” he said. “Making you do something is really a step beyond.”

In the spirit of Hayek’s examination of the proper role of government in society and individual liberty itself, Barnett concluded by defining the sides of this debate between a “very capacious notion of the duties owed by a citizen to the state” and America’s traditionally limited but fundamental notion of citizenship. He worried that this transformation would not only weaken government accountability in the long term but would “open the door to an infinite variety of mandates in the future, obliterating once and for all the scheme of enumerated powers.” In the future, Barnett mused, nothing could stop Congress from ordering Americans to buy government-owned GM-made cars.

“This is not merely another regulation imposed by their friendly federal government,” he concluded, “but it crosses an important line between limited and unlimited government power.”

The entire lecture and subsequent question and answer session is available to view: