who are politically “conservative”or “libertarian”
in the way those terms are often deployed in contemporary American public
discourse almost universally regard the Patient Protection and Affordable
Care Act (PPACA) as objectionable and, in a related but
distinct vein, unconstitutional. The favorite focus of such conservative
and libertarian protest is the Act’s so-called individual mandate—the
requirement that individuals buy health insurance from a private market.
As of the time of writing, federal district courts in Florida and Virginia
have held the Act unconstitutional on account of the individual mandate.
In each case Republican presidents had appointed the district judge.
The two district judges that have upheld the Act against constitutional
Regardless of whether one approaches the issue from the right, the left,
or the middle, however, the individual mandate merits a hard look:
a statutory requirement that an individual spend his or her money on
health insurance unsettles many entrenched American moral, political,
and legal expectations. Whether this requirement does so for good
or for ill remains to be seen.
conservative and libertarian objections to the individual mandate implicate
some of the deepest and most contested questions concerning our Constitution,
constitutionalism in general, and the relation of positive law—including
constitutional law—to the ends of good government. It is no
exaggeration to say that it even implicates questions about who we are.
Professor Randy Barnett has recently argued that the mandate raises
questions about the sovereignty of “We the People.”
Specifically, Barnett contends that the mandate is unconstitutional
because it violates the people’s sovereignty by “commandeering”
them into buying health insurance.
Why, one must therefore ask, is it wrong for a government to commandeer
its own people? The Individual Mandate, Sovereignty, and
the Ends of Good Government: A Reply
to Professor Randy Barnett - PennLawReview.com