Many commentators frame the constitutional question in Obamacare as one of liberty: “Can the government force citizens to buy things they don’t want?” “Is that power infinite?” “Could the government force a person to buy broccoli?” “What about a gym membership?”
Those are all basically questions of liberty. Where does the government’s power stop and the individual’s liberty start? But those questions miss the point of the Obamacare case.
The legal question in the Obamacare case is not whether the government can do those things. It is whether the federal government can do those things. That is a huge difference. Nearly all experts agree that state governments could do all of those things if they chose.
But that means that the issue is not about liberty. If I live in Massachusetts, a mandate from my state government affects me in exactly the same way that a mandate from the federal government would. Either way, I have to purchase health insurance. Yes, I could move to another state, but that is a federalism argument, not a liberty argument. The other states also have the power to pass an individual mandate. So, I have no more constitutionally (a.k.a. legally) protected liberty in those other states than I would in Massachusetts.
So, the argument that Obamacare is unconstitutional because it gives Congress power that infringes upon the liberty of the people does not make sense. The law might reduce the liberty of the states. But are the opponents of Obamacare really concerned about the liberty of state governments? Perhaps some are. But I have trouble believing that there are so many ardent federalists in the United States that an affront on the liberty of states would cause such a backlash.
Now, one might say, “perhaps the Constitution protects a fundamental right to liberty, and as a result, neither the federal government nor the states should have the power to force citizens to buy things they don’t want.” Although a decent theory, the Supreme Court has actually tried that.
Those who have read a lot about the Obamacare case may have come across discussion of the Lochner case. That was a 1905 case in which the Supreme Court decided that there is a fundamental right to liberty enshrined in the Constitution. As a result, the Court held that citizens of the United States had a right to enter into contracts with one another. According to the Court, neither state governments nor the federal government could interfere with the right to enter private contracts unless for reasonable, non-arbitrary reasons.
The Court found this fundamental right to personal liberty in the text of the Fourteenth Amendment, specifically, “[no state shall] deprive any person of life, liberty, or property, without due process of law.” The Court determined that the Due Process Clause prevented the state of New York from enforcing a law that capped the number of hours that bakers could work in one week at 60. According to the Court, the law amounted to a deprivation of liberty, which was protected by the Due Process Clause.
But the Lochner decision was overruled. In a series of cases during the 1930s and 40s, the Court held that the states have wide latitude to experiment with laws that affect the general welfare of the people of the state. Part of the reason for the reversal was that the Court found it too difficult to determine which restrictions on liberty were acceptable and which were unacceptable. Nearly every law restricts liberty in some way. So, how exactly should courts determine which restrictions are unconstitutional.
The result of the reversal of the Lochner doctrine is that the Constitution does not protect the economic liberty of American citizens. The Supreme Court tried that in 1905. It didn’t work.
So, people may fairly argue that Obamacare is unconstitutional as a violation of the principles of federalism. But people who argue that Obamacare is unconstitutional as a violation of personal liberty are simply wrong.