Article   |   Volume 159, Issue 6

The Individual Mandate, Sovereignty, and the Ends of Good Government: A Reply to Professor Randy Barnett

Patrick McKinley Brennan

June 2011

People 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 challenge 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.

The 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 -