THE BLOG
02/18/2011 11:22 am ET Updated May 25, 2011

What My Snowy Sidewalk Has to Say About the Individual Mandate

Because I teach constitutional law and it's that time of year, I've recently been teaching old cases about the commerce clause. Because I live in the Boston area and it's that time of year, I've been shoveling snow from the sidewalk in front of my house. And because I've been doing both, I've figured out why some think the Affordable Care Act is unconstitutional. I've also decided why they're wrong.

What does shoveling snow have to do with the constitutionality of health care reform?

The most controversial piece of the health care reform is the individual mandate, the requirement that we all buy health insurance. This has been criticized as being destructive to individual liberty.

My town -- like many in New England -- has an ordinance that requires me to shovel when it snows. And we've had a lot of snow this year. So unless I hire an entrepreneurial teenager to do it, I have to drag myself out to shovel before someone slips and falls. It's annoying as hell and destructive to my individual liberty to sit inside where it's warm.

Notice that both the individual mandate and the snow removal ordinance would punish me for inaction. If I sit on my hands and do nothing, I will be fined.

In my view, the individual mandate is the same as the snow ordinance. Unless I can come up with a reason why I have a constitutional right not to shovel snow, I cannot resist the health care mandate either.

Here's why. When figuring out a constitutional question, one must look at questions of government power on the one hand and individual rights on the other. Too often these issues are conflated. Let's separate them.

As to power, governments cannot do whatever they want. The federal government is said to be a government of "enumerated powers," meaning that Congress has only those powers expressly listed in Article I of the Constitution. If Congress passes a law outside its authority -- a grant of a title of nobility, for example -- then courts will strike it down. Though states are generally assumed to retain a general power to regulate, often called the "police power," they, too, have limits to their authority. States cannot, for example, enter into treaties.

In the case of the snow removal law, the city doubtless has the power (delegated to it by the state) to adopt the ordinance. It's a run-of-the-mill regulation of public safety. With the health care law, the question of authority is also straightforward. A regulation of the $2 trillion health care industry clearly falls within the enumerated authority to "regulate commerce." Moreover, the individual mandate is a "necessary and proper" part of the framework, to quote another important constitutional provision. Even the Florida federal judge who struck down Obamacare recognized that the individual mandate was essential to its statutory design.

So the only way I have a right to refuse to buy insurance or shovel my walk is if I have some kind of fundamental individual right to refuse. And the "right" has to be more weighty than my tendency to be a curmudgeon.

Do I have a free speech right to refuse to buy health insurance or shovel my walk? Of course not. A right to privacy? Nope. A right based on freedom of religion? Not unless being a jerk to my neighbors or demanding free care in emergency rooms is a fundamental tenet of my faith.

Do I have a right to not engage in economic transactions? That, like a right to be free from shoveling duties, is nowhere to be found in the Constitution.

Like a failure to shovel, a failure to pay for my own health insurance is simply a way to shift risk onto my neighbors to avoid personal responsibility. The assertion that I have a constitutional right to impose those costs on others is ludicrous.

Finally, the inaction/action distinction makes no difference. If the government is acting within its authority and where I don't have a fundamental right to refuse, it can force me to act. I can be required to register for the draft, or even to serve in the military during time of war, pursuant to the federal authority to raise and maintain an army. I can also be forced to file tax returns or serve on a jury. The fact that I might be punished for inaction is neither here nor there.

The snow is finally melting, and the commerce clause section of my con law course is about to come to an end. If only the constitutional challenges to the ACA would fade as quickly.