Individual Liberty and the Health Care Law


Washington Post editorial board member Charles Lane takes issue with Washington Post blogger Ezra Klein's breezy assertion that "whatever the legal argument about the individual mandate is about, it's not, as some of its detractors would have it, a question of liberty." Not so fast, writes Lane:

The point Ezra 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. Judge Vinson suggested that Congress "could require that people buy and consume broccoli at regular intervals," and that is hardly the most absurd or mischievous imaginable consequence.