The Libertarian Challenge to Obamacare

How the constitutional challenge to Obamacare pitted liberty against power.


The challenge to Obamacare was, at its heart, a libertarian challenge. The legal arguments were fashioned by prominent libertarians, such as Georgetown law professor Randy Barnett. The law being attacked was one libertarians opposed for decades on policy and economic grounds. And, the notion of mandated health insurance is inherently anti-libertarian. But, this was not only a philosophical argument, or one of policy. As the Supreme Court's opinion demonstrated, these libertarian principles resonated strongly in the structural protections of our Constitution, which stood as bulwarks against two of Obamacare's biggest increases in federal power: the individual mandate and the Medicaid expansion.

Obamacare's individual mandate, in an effort to ensure that health care was more affordable, requires that most Americans purchase health insurance. This provision offends libertarian principles of individual autonomy and free choice. As early as July 1993, Ed Crane, president of the Cato Institute, objected to the individual mandate, which "flies in the face of the American heritage of individual liberty and individual responsibility." Further, it aggrandizes a potentially-limitless power in the hands of the federal government–the ability to force people to do something that they do not want to do. The notion that the federal government and the states have separate spheres of autonomy ensures that those closest to the people can respond to their needs more appropriately.

A less discussed, but equally bold aspect of Obamacare was the Medicaid expansion. Under this statute, in order for states to maintain the billions of dollars in Medicaid funding they already receive, they must agree to spend billions of dollars insuring many new patients above the poverty line. As the law was written, states were not free to reject the additional funding, without losing their earlier funding. This law disrupts the balance between the federal government and the states, and distorts our federalist system. The Court found that states which agreed to early, limited expansions into their sovereignty only had a false choice of whether to accept future spending, with many more strings attached. Rather than viewing this law as a choice, of whether states can, or cannot receive new funding, libertarians would view this law as a coercion of the states.

What is perhaps most striking about the resolution of the Obamacare case in National Federation of Independent Business v. Sebelius, is a majority of the Supreme Court recognized these libertarian principles, as embodied in the structural protections of our Constitution. First, for the individual mandate, the Constitution's system of enumerated powers only allows the federal government to do that which the Constitution gives it the power to do. Congress has the power to regulate commercial activities, and make all laws that are necessary and proper to effecting that aim. But, five justices held that the Obamacare mandate was not regulating any commercial activity—after all, it was a decision not to buy health insurance. Further, while the mandate may have been necessary to implementing Obamacare, it was not proper in the manner in which it was designed. Further, seven justices (including Justices Stephen Breyer and Elena Kagan) held that offering the new Medicaid funding, with many strings attached, was not truly a choice, but in fact a coercion of the states. This expansion altered the vertical federalism vision of our state and federal governments, and went too far.

There is no doubt that Obamacare offended many of the most agreed-upon libertarian sensibilities. Seizing on this point, scholars and pundits critical of the constitutional challenge to Obamacare argued that this was not really a constitutional argument at all. Rather, it was a purely liberty-based challenge (in legal lingo, a violation of the Constitution's guarantee of due process of law). Legal positions, which were ostensibly framed in terms of Congress's abilities to regulate interstate commerce, or to tax and spend, were really efforts to enforce a libertarian vision of the Constitution.

These criticisms reflect a very common divide in constitutional thought that is inherent even in the way constitutional law is taught in law schools—that there is a bold gap between the Constitution's guarantees of rights and liberties on the one hand, and its structural protections on the other. In most law school, these topics are divided into totally separate classes.

Students of constitutional law often focus on the Due Process Clauses of the Fifth and 14th Amendments as the Constitution's main fount of freedom, apart from enumerated provisions in the Bill of Rights (such as freedom of speech). Thus, the criticism goes, arguments that the individual mandate violates individual freedom must come from injecting a libertarian philosophy into the Constitution, rather than any textual provision within the charter itself.

But, in fact, it is not only the Due Process Clause that protects individual liberty. The framers of the Constitution crafted the structural protections of our Constitution as bulwarks of freedom. Remember, these provisions were written before the Bill of Rights was even ratified. In the period between 1789, when the Constitution was ratified, and 1791, when the Bill of Rights was ratified, what limits existed on the power of the federal government?

The idea that Congress can only do certain things, and that there are limits on how Congress can act with respect to the states, is just as essential to protecting freedom as guarantees of free exercise of religion or banning unreasonable searches and seizures. This structure is key. As Justice Kennedy repeated twice while delivering his opinion in NFIB v. Sebelius, "Structure means liberty. Structure means liberty" (for this point, Chief Justice Roberts was on the same page, so it likely commands five votes).

The libertarian principles evident in the Constitution became apparent when a law, such as Obamacare crashes into the Constitution's structural foundation. After the Supreme Court's opinion in NFIB v. Sebelius, this dichotomy between structure and rights makes less sense. Instead, structure and rights, according to the Court, are not isolated spigots that drip weak limits on the government, but instead are an intricately woven framework aimed at protecting individual liberty.

Of course, there were four dissenting votes in NFIB, who articulated a polar opposite vision of the Constitution's approach to protecting liberty. Under this approach, the federal government is charged with ensuring that people have certain social securities, such as affordable health insurance, so that they can enjoy their pursuit of happiness. In his recent speech on the 50th Anniversary of the March of Washington, President Barack Obama remarked that "liberty is linked to one's livelihood, that the pursuit of happiness requires the dignity of work, the skills to find work, decent pay, some measure of material security." And it is the federal government to ensure that those livelihoods are available.

These two competing conceptions of liberty, between positive and negative views of freedom, reflect a more accurate dichotomy in our constitutional order. The structural provisions of the Constitution, which limit what the federal government can do, stands in stark contrast with the positive vision of freedom, which requires the federal government to take such action.

Going forward, meandering between these two poles of security—that of the individual and that of the collective—will define the congruence between the Constitution and libertarianism.

NEXT: Brickbat: Aaaarrrggh

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  1. I dont hear anyone talking about the broccoli mandate anymore. You can be sure it is coming. The pols are waiting to see how smoothly the health insurance mandate goes, if they are able to pull that off without widespread resistance, a thousand broccoli mandates will follow.

    Here is to hoping John Roberts has a stroke that leaves him barely functional and in agony for decades.

    1. +1 burst blood vessel

      1. -1 burst blood vessel.

        Do you want to give President Obama the opportunity to appoint a justice to the Supreme Court? I’m no fan of Chief Justice Roberts, but he is a better Justice than anyone President Obama would name.

        1. Duh. We don’t need another Wise Latina nor Dyketarian hack.

          Nowhere did I indicate I wanted another Obama appointee.

          I just hope – like Suthenboy – that Roberts rots in a personal hell at some point for this and a couple other HORRID decisions.

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    2. Suthenboy,

      Starting at some point yesterday, all of your comments (and some other users) have been hidden and are replaced with this text that I can click on to show your comment “^\s show once”. Why has reason been such a mess on chrome the last 24 hours?

      1. It looks like the regex ^s (which matches all names starting with s) was added to the reasonable troll list.

  2. The challenge to Obamacare was, at its heart, a libertarian challenge.

    So what you’re saying is that it’s doomed to failure?

    1. My thoughts exactly. Sad…and yet…sad.

  3. What is perhaps most striking about the resolution of the Obamacare case in National Federation of Independent Business v. Sebelius, is a majority of the Supreme Court recognized these libertarian principles threw the plebes a rhetorical bone before permitting the whole fucking thing to stand.

  4. I agree that the individual mandate is onerous and offends the right to self determination but that was the cost for breaking into the health insurance cartel. Since no one – not even libertarians, would offer a real free market alternative we all lose that little bit of freedom to avoid paying our own health care costs.

    1. The fact that insurance and healthcare costs in MA skyrocketed faster than the national average after the implementation of Romneycare, and that costs are doing the same now in preparation of Obamacare indicates that ‘breaking into the health insurance cartel’ actually helped the cartel, not weakened it.

      But since noone could offer ‘a real free market alternative,’ (for some nebulous and subjective definition of ‘real’ and ‘free market’) I guess raising prices even faster is what must be done!


      1. Please do not feed the trolls.

      2. Both your claims are false.

        On Romneycare:

        The truth about premiums is that they’ve gone down for those who buy their own insurance (in what had been the so-called “individual market’), and the health care law is given credit for several reasons.


        Also, as the CBO just released, health costs are declining both as a per cent of GDP and as a % of individual income.

        Nice try though. You are not the first to face plant onto the Buttplug.

        1. Holy shit your own page proves you wrong. Let’s see the whole paragraph and not just one sentence, shall we?

          The truth about premiums is that they’ve gone down for those who buy their own insurance (in what had been the so-called “individual market’), and the health care law is given credit for several reasons. And while premiums have gone up for large employers who buy coverage for their workers (the so-called “large group market”), there’s no clear evidence that the law was the cause. As we mentioned, the law attempted little cost control, and Massachusetts premiums, and those nationwide, have been rising for years before the law was passed. The law has had one clearly negative impact on small businesses who bought coverage in the “small group” market. Their premiums have risen faster than before, a small part of which can be attributed to the law’s workings. This has been a major disappointment because small businesses had been hoping for a decrease.

          1. “Let’s see the whole paragraph and not just one sentence, shall we?”

            And leave that cherry unpicked? Do you expect anything approaching honesty from shreek?

          2. Premiums for those who buy their own insurance may have gone down.

            The Democratic Party, however, and the new healthcare act, strongly discourage individual health plans, vastly preferring to force employers to provide it, even though it is exactly this ass backwards approach that causes people to have to switch plans every time they change jobs and have all the problems with pre-existing conditions, etc., etc., that this law is supposed to fix (instead of cause).

            McCain (someone who normally makes me throw up a little in the back of my throat whenever I hear him mentioned) suggested a few years back that the Feds give tax breaks for individual health insurance plans that would be comparable to the breaks employers get for providing health insurance.

            Lefties went ape-shit. How could that evil bastard remove a company’s “traditional” function of providing health insurance for employees?

            Now we’re being told that while, yes, Obamacare has made all those corporate plans that we made everybody put into more expensive, and yes small businesses are getting screwed like no one (just like small business owners predicted), but the IMPORTANT thing is that premiums on individual plans that cost more inherently because you gon’t get the “large group” employer discount have come down.

            Therefore, the program is a resounding success.

        2. Also, as the CBO just released, health costs are declining both as a per cent of GDP and as a % of individual income.

          LOL oops:

          National health care spending continues to grow at historically low rates this year — but it will rise faster over the next decade as the economy recovers, the population ages and President Barack Obama’s health care reform law adds millions to the the health insurance rolls, according to a federal audit released Wednesday.

          The government, businesses and households will spend $2.9 trillion on health care in 2013, which will be a 3.8 percent increase from the previous year, according to a report published in the journal Health Affairs by the U.S. Centers for Medicare and Medicaid Services Office of the Actuary. The total amounts to approximately 18 percent of the U.S. economy.


          1. Don’t be hard on him: he can’t read with comprehension.

            If an article talks about a decrease in the rate of growth in a quantity, he’ll take it is as a decrease in the quantity. If a prediction of an increase is adjusted down to a lesser increase, he’ll read it it as a decrease.

            He keeps confusing any quantity in question with the different order of its derivatives and their estimates. And, somehow, it’s always in the administration’s favor.

        3. Nice try though. You are not the first to face plant onto the Buttplug.

          You seem very reasonable. Post more.

      3. Obamacare helps the insurance companies I reckon. Insurance stocks are doing fine.

    2. Since no one – not even libertarians, would offer a real free market alternative

      Shriek, I’ll offer an alternative – an actual FREE MARKET. It’s never been tried. Let’s try it!

      Just this once. Just the tip. Just to see what it feels like happens.

      1. Let’s go for it!

        Step 1 – Kill Medicare and Medicaid.

        Step 2 – Kill EMTALA.

        Step 3 – Kill the ACA.

        You have to choke the neck first (Medicare).

        1. OK – I’m in

    3. “we all lose that little bit of freedom to avoid paying our own health care costs.”


      Not my place to argue Obamacare, but my place to debate such a comment. I could also give an idea what’s in store for America seeing I’m Canadian in all.

      Insurance doesn’t even exist up here anymore – not in a classic sense anyway. And our system is anything but patient-centric; it’s cost-centric. But not in an efficient classic sense. It’s all about rationing. No, seriously. Sarah Palin is more on cue than you think.

      Alas, I would need to write a book at how Canadians gave up their freedoms and came to love, absolutely irrationally adore, single payer. It makes us superior to you barbaric Yanks!

      At this point, what difference does it make?

      Why not just add groceries as a right now? Make all of Maslow’s needs a “right” and be done with it already.

      The Americans already tried to give everyone a home and when authorities removed some acts to achieve this were in shock at the result and how banks behaved; to say nothing of the remedial contract reading skills of homebuyers and their shortcomings in household budgetary finance.

      Still stuns me that 85% had insurance and you did this for less than 15% of the population. I’m sure many an actuary sat in stunned silence as well.

      1. 85% have insurance when you count those with government paid health care like Medicare.

        In reality just under 50% of Americans pay for their own insurance or their employer subsidizes/co-pays.

        1. So fix Medicare/Aid. I think America is the only country in the world where employers are compelled to pay for health insurance. That too is a problem since it probably distorts the labor market.

          Look, I’m just projecting what I see in my business in my country onto what I read about the States when it comes to government intervention. My impression and actual experience is that it DISTORTS more than it helps.

          Simple as that.

          1. Shriek wants the market distorted. Because rich white teathuglicans. For Great Social Justice. For Fairness. For THE CHILDREN!

            1. Yes. Better government distortion and chaos than corparaaaaashun distortion and chaos since, you know, the government is out to protect you.

          2. And why is that? Well thank you FDR and centrally planned economies, that’s why. We had to have wage controls during WWII (and here I thought the Left was for the working little guy…) so companies got around that by offering free health insurance.

            Then we had to enshrine it in the tax code after the war so that those who buy insurance on their own can’t deduct the cost of insurance on their taxes and get to pay the full burden while health insurance then becomes tied to employer.

            What’s not to love?

      2. Since the 6A mentions the right to counsel, I propose yet again single-payer legal care.

        Because there’s not one single lawyer out there who does anything worth more than minimum wage.

        Alas, I would need to write a book at how Canadians gave up their freedoms and came to love, absolutely irrationally adore, single payer.

        And wasn’t it for the longest time illegal to get private-sector health care? To do so, you had to go into temporary exile in the US. I’d also point out that the anti-Americanism used to promote Canada’s health care system shows that certain forms of bigotry are not only considered acceptable, but virtuous.

        1. Yes, I would contend being anti-American was a necessary feature of nationalists.

          Those pricks.

          And yes, we had until recently the most rigid health care system in the world. A few years back the OECD concluded ours to be the most restrictive than OECD nations putting us in Cuba and North Korea territory.

          Ironically, it’s in socialist Quebec where private clinics are popping up everywhere. Here and B.C. are the leaders.

          People are slowly realizing a simple truism: If I have the money why shouldn’t I have a private option? Why should I wait 10 hours to see a god damn doctor in a bacteria filled hospital reminiscent of Romania circa 1974?

          1. Yes, I would contend being anti-American was a necessary feature of nationalists.

            Those pricks.

            My impression is that the pricks using anti-Americanism are the same ones who claim to be “tolerant” and the first to use charges of xenophobia against people who aren’t necessarily fans of Third World cultures.

            Gotta love the CBC and the New Dictators Party.

            1. Yup.

              Among the parties the NDP and Green are the worst. The Liberal party has its moments so I’d say 50/50. Under Chretien in the 90s and 2000s they were unhinged in their anti-Americanism. Conservatives are the least anti-American these days. But that’s always been a part of our national, navel-gazing discourse.

              Yet, when given the choice, they will watch the NFL over the CFL. They’ll gladly walk to Wal-Mart over Canadian Tire.

              1. Let me add that in Canada being anti-American isn’t xenophobic. It’s telling it like it is. Sorta like how xenophobia in Quebec really isn’t about that but about “protecting” the master culture.

                It’s retarded, bizarro logic.

          2. How ironic is it that everywhere you look around the world, people are moving away from socialism, except here in Obama’s America?

            I guess most other countries have already experienced its failure up close and person, and we haven’t. It’s a shame we apparently have to learn the hard way.

            1. It certainly looks that way. Here’s the thing, USA has more socialism than Canada does. I don’t know vis-a-vis Europe but I do know Europe is divided into a public OR private health system.

              Maybe it’s all about how they employ their socialist policies?

            2. I think you’re dead on – countries that embraced communism and socialism early on are now running screaming trying to revive private sector economies.

              The US, which resisted socialism probably more than anyone else at first, doesn’t have enough experience with its failures to realize that its stories aren’t true.

    4. Since no one – not even libertarians, would offer a real free market alternative […]

      Alternatives have been advocated by many people on these boards. Your comment is nothing short of ludicrous. Here is one free market suggestion for you, how about we stop requiring certificates of need from health care providers? CoN laws basically create monopolies for existing health care players.

      1. Forget it. Progressives need their strawmen. It’s all they have.

        1. I would like an explanation of why creating monopolies in health care is okay, when we so often go on witch hunts to prevent it in other industries.

          And just because I know this irks certain people…

          Healthcare = industry
          Patients = customers

          The economic principles which affect business also affect health care – it isn’t special and somehow above economics. As an example, having more grocery stores leads to lower prices and better products. Certificates of Need believe having more healthcare providers will lead to fewer options and worse service. This doesn’t mesh with 200+ years of economics.

          I would like an explanation, even an intellectually stunted one, as to why government needs to have nearly complete control over this particular industry.

          1. I think the standard response is that health care is too important to be left to the free market and needs to be controlled by the state.

            To which a good response would be: “Here’s my copy of ‘The Road to Serfdom.’ Get back to me when you’ve read it.”

          2. Private-sector monopolies are wicked.

            Government-sector monopolies are virtuous.

          3. Your explanation is already in your response. People who support universal health care don’t see healthcare as a product that should be governed by market forces.

            They see health care as a public service, like teachers, firefighters, and police. The same reasoning for not privatizing the school system is used for making health care a public service.

            Is the argument a good one? Should teachers, firefighters and police also be subject to market forces? Same debate.

            It isn’t this particular industry that’s different – it’s a function of the fundamental difference in opinion about what constitutes a public service and to what extent the service should be provided by the government.

      2. You don’t understand. When statists ask for a “free market alternative,” they’re asking for some centrally planned alternative. The question itself shows that they do not understand the concept of emergent order, which is what free markets are all about. So the “free market alternative” is whatever would emerge from a free market.

        1. Exactly – a “real” free market alternative is an alternative that doesn’t entail a free market. Suggeting a free market doesn’t count.

    5. The free market alternative might have started with allowing consumers to purchase policies across state lines. Using a non-free market as an example of a free market’s shortcomings is disingenuous. It’s like pointing to a tire that’s half-inflated and claiming that air isn’t working, so the tire needs less of it.

    6. the cost for breaking into the health insurance cartel.

      Yeah, cartels fear nothing more than increased regulatory moats and mandates that people buy their product.

    7. I agree that the individual mandate is onerous and offends the right to self determination but that was the cost for breaking into the health insurance cartel.

      Translation: I did it for their own good.

  5. Listened to Morning Edition today. They were talking about how 2 of the 3 roads into Estes Park, CO are impassable due to recent floods and how this was going to drastically increase travel times for ambulance rides to larger hospitals. This increased travel time will naturally cause costs to go up. Then they interview a local bleeding heart who doesn’t think people in Estes Park should pay more for their medical travel just because the road got longer. Apparently the rest of us are supposed to subsidize their decision to live in a rural paradise…

    1. Let’s get into the mind of a bleeding heart.

      A bleeding heart will defend someone who will not save, for example, for their kids education in an education plan offered in our countries.

      I know people like this. They’d rather plump cash into a lease for a BMW.

      In 20 years when costs will inevitably rise once their kid is set to presumably go to college/university they will complain at how expensive it is. They will bitch about how it’s unfair. Panicked like rates in a corner, they will vote for the persons or party who play the part of angelic shyster offering “free” post-secondary education.

      Enter the bleeding heart out to remedy the injustice of one person being responsible at the expense of another!


      Our mindset doesn’t reward or praise people who are disciplined or responsible it seems. We’re always looking to protect the douche who willingly chose to make the bad choice.

      1. Mark Twain wrote a bitter little story in that vein … ever have we had folks like that.

    2. My dad lives in that area. Since the flood washed out a couple canyons, he’s gone from being thirty minutes away from Boulder to three hours away from Golden. He was talking about it in context of shopping, but yeah that’s a big deal if someone needs to get to a hospital.

    1. “if we all just think real hard, we can stop this rain!”

      (hippies chanting) “NO RAIN! NO RAIN NO RAIN NO RAIN!””

      cue biblical deluge

      best scene from Woodstock, the movie

  6. yo, OT threadjack, but people have to read the “struggling san jose…” story in the NYT today to get a dose of statist comeuppance… its a case study in progressive bewilderment at their own systemic failures, and hysterically trying to find something to blame other than “too much spending”. my favorite photo is thhe one of the multimillion new city hall which the caption sadly notes is “underused”

    1. I live in a suburb of San Jose. It’s amazing to me how many of my friends (let’s face it, in this area, they’re mostly liberal) can’t understand why these cuts are happening.

      Note the part about the state law that allows police to retire at 50 with 90% pay. It’s this sort of hairbrained thinking that has kept me in a state of perpetual disdain for Sacramento.

  7. oh, see, the problem is that people are so unwelcoming to higher property taxes. not the multibillion entitlement regime

  8. Regarding the Medicaid arguments… how is this any different from the federal mandate of a 21 y/o drinking age? I’m honestly curious to know. I know the punishment for refusing to have that min age for drinking is much less severe — 5% of federal highway funds — but it does seem like the Supreme Court striking down the Medicare expansion is at odds with the Supreme Court decision upholding the min age for drinking mandate.

    1. I’ll take genuine progress any way I can get it.

  9. The libertarian strategy has to be more than “just say no” to Obamacare. Libertarians and other free market advocates must be proactive with a free market alternative.

    I have been frustrated at the ineptitude of prominent politicians and pundits who think they are fighting “big government” as they fall into the trap of defending a status quo that was not theirs to defend.

    There is a legitimate argument to be made that long before Obamacare, government interference in the health care marketplace – most prominently the tax incentives that tie health care to the workplace – are at the root of the very real concerns people have about health care access and affordability. But this point has not been well or widely articulated.

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  11. Here’s one “free market” idea. Ask a doctor how much that physical will cost. In elective medicine, costs have continued to be market-based because they can actually advertise that Lasik surgery for $895.

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