Striking down the individual mandate still matters

Striking down the individual mandate still matters
© Greg Nash

In his argument earlier this month before the Fifth Circuit Court of Appeals, Texas Public Policy Foundation’s Robert Henneke once again demonstrated how Obamacare’s individual mandate provision harms hard-working, law-abiding citizens. (Full disclosure: I too work for the Texas Public Policy Foundation.) Henneke represents individuals who continue to be injured by the Affordable Care Act — working Americans whose health insurance premiums have skyrocketed, who have lost the doctors of their choice, and who now suffer rationed health care access.

Despite contentions from some that striking down the mandate would be of little practical consequence, the resulting real-world benefits to everyday people have become increasingly apparent. Less appreciated, however, is the momentous impact that such a decision would also have within the legal sphere.

One of the fundamental issues lying at the heart of this case is the degree to which respect for the rule of law is essential to maintaining a free society. Many have claimed that the penalty for noncompliance being lowered to zero now means that there’s no harm in the government telling people what insurance they must buy. After all, they contend, those people can simply choose to ignore what the statute unambiguously tells them to do.

ADVERTISEMENT

But a lack of punishment does not excuse someone from his or her legal duties. And “lawfully” disobeying the law is an oxymoron. Claims to the contrary end up amounting to little more than advancing the old — and deeply flawed — saying, “it’s not illegal if you don’t get caught.” Everything in our legal tradition tells us that such sentiments do nothing to secure the blessings of liberty, but instead invite in the afflictions of anarchy.

Striking down the individual mandate would also put to rest whether Chief Justice John Roberts’ discussion of the limits of the Commerce Clause in NFIB v. Sebelius was a precedential holding or mere dicta to be ignored.

Since the dawn of the New Deal, courts have tended to uphold the blob-like expansion of federal power under an increasingly broad interpretation of interstate commerce. While various decisions over the years have expanded this power to areas that involve neither interstate actions nor commerce, the individual mandate went even further.

Where prior laws set parameters for those choosing to engage in commerce, the individual mandate regulates even those who refrain from entering the marketplace — in other words, who don’t engage in commerce. For a majority of the justices on the Court, this was a bridge too far, even under the overly expansive interpretation of Commerce Clause powers that has dominated since the 1930s.

However, because one of those justices, Chief Justice Roberts, chose to “save” the mandate by construing it as an exercise of the taxing power, a controversy has emerged about whether the Commerce Clause analysis was truly precedential. If TPPF’s challenge succeeds — in the Fifth Circuit and beyond — through the faithful application of the reasoning in NFIB v. Sebelius, it would once-and-for-all put to bed any lingering doubts about whether the Commerce Clause authorizes Congress to place mandates upon those who would otherwise abstain from commerce — from purchasing a product they don’t want, but the government commands them to buy.

ADVERTISEMENT

Finally, as constitutional law scholar Randy Barnett has pointed out, striking down the individual mandate would be a powerful rebuke of the mistaken conventional wisdom that permeates much of legal academia. Elite law professors are not only responsible for teaching the best and brightest of our next generation of attorneys. Just as importantly, these professors are also opinion leaders with an outsized influence on setting the agenda for future constitutional litigation. Success in this case might mean a more open-minded reception the next time around.

Ultimately, the Fifth Circuit’s decision will not be the final word on the individual mandate. But if and when this matter is finally resolved in favor of those who have been harmed by the individual mandate, that decision will restore liberty not only in living rooms, operating rooms, and board rooms, but also in court rooms across the country.

J. Aaron Barnes, Sr. is an attorney with the Texas Public Policy Foundation’s Center for the American Future.