an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Liberty of Free Riders: The Minimum Coverage Provision, Mill's "Harm Principle," and American Social Morality
Many defenders of the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA) think it obvious that the main constitutional objection to the provision sounds primarily in economic substantive due process — specifically, to the Lochner Court's protection of individual freedom from participation in any involuntary contract. Opponents of the minimum coverage provision deny this, even though many of the most vigorous opponents are self-identified libertarians who want very much to re-establish Lochner as the law of the land. They deny this even though Mitt Romney seems to be making little political progress convincing fellow opponents of the ACA that his enabling of an individual mandate in Massachusetts is reconcilable with his condemnation of the ACA.
But if defenders of the ACA are right about how the constitutional objection to the minimum coverage provision is best understood, it does not follow that this objection is misguided. That needs to be independently established. Should an economic substantive due process objection to any individual health insurance mandate imposed by any government in America succeed, either as a matter of legal doctrine or as a matter of political morality?
Much has been written about the adverse selection and cost shifting problems targeted by the minimum coverage provision. In a recent piece in the American Journal of Law and Medicine, my Duke colleague Jedediah Purdy and I argue that these free-rider problems link the federalism dimension of the debate over the minimum coverage provision to the doctrinally separate and suppressed individual rights dimension. As the scope of these problems justifies federal power to require individuals to obtain health insurance coverage, so their very existence illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that refusing insurance is far from being a purely self-regarding action. For reasons rooted in this interdependence, serious obstacles confront anyone who aims to establish that the liberty claims of free riders should be constitutionally or morally decisive.
We identify these obstacles to recognition of the claimed liberty interest with help from law, economics, and philosophy. First, we show (as have many others by now) that an economic substantive due process objection to the minimum coverage provision is doctrinally unavailable. Indeed, its unavailability helps to explain why libertarian opponents of the provision take the less straightforward doctrinal approach of recasting the Commerce Clause in libertarian terms. Second, we invoke the long-standing tradition of argument in economics that market failures justify government regulation.
Third, and most extensively, we draw from the “harm principle” of John Stuart Mill’s On Liberty. Mill’s deep commitment to libertarianism, which reflects the same anti-authoritarian spirit that moves many libertarians today, does not condemn the minimum coverage provision. This is because Mill’s criterion categorically forbids only paternalism in law-making, and the provision is justified on non-paternalistic grounds. When the regulation under consideration is not paternalistic, Mill’s libertarianism points explicitly to law and social morality to resolve boundary questions about what members of a society owe one another. In our judgment, these considerations — from federal and state safety net programs to charitable hospital practices — weigh in favor of the permissibility of the minimum coverage provision. There is, in short, nothing fundamentally un-American about it.
To be clear, we draw from Mill not because we (incorrectly) think that libertarian opponents of the ACA subscribe to the harm principle. Rather, we appeal to Mill because his libertarianism directs attention to arguments that ought to count as public reason-giving in the United States. To defend a specific version of libertarianism as giving reasons that other citizens ought to respect, one cannot avoid arguing that this libertarian vision best expresses the values of the political community. Of course, one can advocate whatever version of libertarianism one likes. But defending it as potentially authoritative for others requires appeal to values that one holds in common with them, or at least to values that the contending parties jointly recognize as central to a shared political culture. Posted
by Neil Siegel [link]