04/03/2012 02:17 pm ET | Updated Jun 02, 2012

The "Individual Mandate" Is a Great Advance for Freedom

Libertarians are fond of saying, "Your right to swing your fist ends where my chin begins." The idea is that the only legitimate limits on freedom of action are those that forbid direct harm.

Liberals have a more subtle understanding of social relationships. Human beings exist in complex webs of responsibilities and consequences, and a childish model of "freedom" that doesn't take account of our positive social obligations merely empowers bullies. Scientists -- evolutionary biologists, ethologists, psychologists, anthropologists -- now know what Republicans will not acknowledge: Our success as a species arises from the collaborative, mutualist nature of our social structures; attributes, shaped by evolution, that define us as a species. While individual initiative clearly counts for a great deal, no human individual is entirely self-made, as Elizabeth Warren reminds us.

There are many institutions that can mediate our nondiscretionary social obligations. In the modern world, mediation by legitimate, democratic government is not a gross imposition on a natural state of freedom, as libertarians believe. It is a guarantor of freedom, a check against bullies.

The current Republican Party is hardly a libertarian party. Its sole agenda is making most of us into slaves of the Koch brothers and their class (and if you think that's even slightly an exaggeration, you really ought to read more about the Republicans' stated positions on the budget, labor, taxation, campaign finance, environmental policy, financial regulation, and many other areas.) But it has been useful for Republicans to champion the childish version of freedom as they incite the Tea Party know-nothings to betray their own interests. Thus we have, for example, outrage on the right about the grievous attack on freedom represented by a ban on incandescent lightbulbs (actually not a ban, but tightened efficiency standards that most current incandescents would not meet.) How dare the Nanny State regulate a personal consumer decision?

But of course it's not just personal. The use of wasteful lightbulbs affects us all. It involves huge unnecessary aggregate energy usage, pollution from power stations, global warming, environmentally destructive resource extraction, and increased reliance on foreign energy supplies (with the resulting empowerment of hostile states and terrorists.) Why shouldn't we take a collective interest in this "personal choice"?

It's worth remembering the disingenuousness of the "personal choice" position on incandescents while the Supreme Court judges the Affordable Care Act and its Individual Mandate. Here's what Charles Krauthammer has to say about freedom:

If the federal government can compel a private citizen, under threat of a federally imposed penalty, to engage in a private contract with a private entity... is there anything the federal government cannot compel the citizen to do?... If Obamacare is upheld, it fundamentally changes the nature of the American social contract. It means the effective end of... finite, delineated powers beyond which the government may not go.... The new post-Obamacare dispensation is a central government of unlimited power...

Krauthammer -- an MD who has betrayed both medicine and journalism by arguing that the government can torture anyone it judges a threat to national security -- is an odd champion of limited government. But even so: What hogwash. The government can compel you to purchase insurance for your car. It can compel you to contribute to your own publicly-administered retirement fund. It can compel you to buy food for your children. Quite rightly so. And quite constitutionally so.

The individual mandate is nothing new. Founding Father John Adams supported it in 1798, albeit on a smaller scale. Jeffrey Toobin said:

The main argument that opponents of the health-care law have come up with is that the mandate regulates economic inactivity -- i.e., not buying insurance -- and the Commerce Clause allows only the regulation of economic activity. In the first appellate review of the law... the Sixth Circuit demolished that argument. The court pointed out that there are two unique characteristics of the market for health care: "(1) virtually everyone requires health care services at some unpredictable point; and (2) individuals receive health care services regardless of ability to pay." Thus, there was no such thing as "inactivity" in the health-care market; everyone participates, even if he or she chooses not to buy insurance. Indeed, the choice to forgo insurance imposes a direct cost on the taxpayers, who wind up footing the bill. Those choices by consumers, especially in the aggregate, represent an economic matter that Congress may decide to regulate.

Health care really is different from other consumer products, even if the present Supreme Court has scandalously little understanding of this (see here and here.) The intellectual tragedy of this whole stupid debate is that two-thirds of Americans are opposed to the individual mandate, yet two-thirds support the ACA's requirement that insurers cover pre-existing conditions. They don't understand the social connection here, the way that individual behavior affects an entire society. If there were no mandate, but insurers could not refuse coverage, many consumers would not buy health insurance until they got sick. That would make the necessary costs of private insurance utterly unaffordable for those who do get sick. And in a civilized society -- yes, I take this for granted, although ideological libertarians and most Republicans do not -- we cannot refuse treatment to anyone on the grounds of inability to pay.

The assurance of health care is a great advance for freedom, and I wish liberals weren't so timid about forthrightly defending it as such. Individuals are freer to pursue their own happiness, their own goals in life, their own idiosyncratic freedom as individuals, if they know that they cannot go bankrupt should they become ill. A society that values freedom -- and not just the freedom of the rich and privileged -- should value this.

So what to do? I hope very much that the individual mandate will be upheld. That would be a great victory for freedom, for the principle that every individual has greater liberty when our society supports all of us in adversity. Yet the ACA is a clunky law, and a great giveaway to private insurance interests, which very much do not have individual liberty at heart. We can do better. I hope it will be upheld but repealed, and replaced with true single-payer national health insurance, Medicare for all. With tax increases to pay for it.

It's infuriating that while virtually all democracies that have such systems also have better health care -- including higher rates of patient satisfaction -- at lower per-capita cost than we do, the reactionaries continue to insist, against all evidence, that we have the best health care in the world. The success of single-payer is no mystery: When everyone's in the risk pool, risk is distributed and costs are lower. In a well-funded public system, there's no incentive to limit treatment in the name of the bottom line. Yes, there would be rationing, as there would be in any private system, including purely free-market ones; but the rationing would allocate resources so as to help the greatest number of people, not so as to expand profit margins.

The first priority, however, is to establish that the concept of liberty is meaningless outside of a social context. The apparent Supreme Court desire to overturn the ACA is the greatest threat to liberty we face right now.

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