First, an uncontroversial statement: Despite academics’ resistance, libertarian arguments played a huge role in the Supreme Court’s Obamacare decision. That seems obvious. Chief Justice Roberts and the four dissenters based their Commerce Clause analyses largely on notions of individual freedom, asserting that the federal government should not be allowed to force individuals to purchase private products.
But to heath scholars, that line of analysis is incredibly irksome and even a bit dissonant. Health insurance isn’t like ordinary private products, we cry; it is intimately connected to health care regulation, and forcing people to have health insurance, unlike forcing them to buy (or even eat) broccoli, will make them healthier! Congress made this point explicitly, finding that “[t]he economy loses up to $207[ billion] a year because of the poorer health and shorter lifespan of the uninsured”! Failing to eat broccoli doesn’t make you unhealthy the same way that failing to carry insurance does, especially if you’re substituting broccoli with green beans instead of donuts. And eating broccoli doesn’t make you healthy the same way that carrying insurance does, especially if you’re also eating steaks (or eating more than 2000 calories a day of pure broccoli). So, Supreme Court, you just got it wrong. The individual mandate isn’t a crass attempt to get people to buy something. It is, like countless other uncontroversial provisions of the U.S. Code, an attempt to improve the health and longevity of the American people. If you don’t think Medicare (or a Certificate of Need law) infringes liberty, you shouldn’t think the individual mandate does.
Here’s the problem: The Solicitor General didn’t make that argument.
He didn’t cast health insurance as a means of improving the health care consumption choices—and therefore the health outcomes—of the American people. He cast it the mandate purely as an attempt to combat adverse selection and cost shifting. He didn’t cast the uninsured, as a group, as unhealthy people who make systematically less-well-informed health care consumption choices because they lack the salutary manipulations of medical necessity review and zero-marginal-cost preventive care. He cast them as free riders. And that makes it look like Congress was simply trying to stimulate the health insurance market by forcing everyone to engage in it. It makes the individual mandate indistinguishable from the justices’ favorite hypothetical: the alternative to auto bailouts of mandating purchases of American-made cars. The SG’s argument made it possible for the Supreme Court to deny the inextricable connection between health insurance and health care and thereby to deny that the individual mandate had much if anything to do with health care regulation.
So why didn’t the Solicitor General make this argument that seemed, to health law scholars at least, to be so obvious and relevant? Why didn’t he point out Congress’s own finding that health and longevity are systematically worse among the uninsured? The answer, I think, is that liberty played a much bigger, much more profound role in the case than even the justices themselves realized. President Obama’s Solicitor General could not stand up in an election year and argue that mandatory private insurance is constitutional because it does a good job of manipulating individuals’ health care consumption—because health insurers do a good job of blocking inefficient consumption and encouraging more-efficient consumption. That sounds like, gasp, rationing! And, whether we scholars like or not, voters hate rationing. (Or at least they hate becoming aware of the system’s pervasive rationing.) The freedom of health—the liberty interest in health care autonomy—was a strong political constraint on the arguments that the SG was willing to present to the Court.
The freedom of health might not be a Fifth or Fourteenth Amendment constraint. It might not have any doctrinal relevance to the Obamacare case, and it certainly had no explicit relevance to the conservative justices’ opinions. But it was a strong constraint on the SG’s argument, and it was a constraint that made a real difference in the case’s outcome. Whether we want to or not, we scholars should take that constraint seriously, and we should be trying to figure out exactly how and why the freedom of health—the political resistance to “rationing”—works. We need to take the liberty and the libertarians seriously because, to a greater extent than we’re willing to admit, they’re winning.
(For anyone interested in reading more, I’ve made these and related points at greater length here, here, and here.)
Another reason why the Solicitor General didn’t try to rebut the liberty argument in the way you suggest is that the challengers to the individual mandate did not assert liberty as a freestanding basis for overturning the individual mandate, at least not directly. And the challengers declined to frame their case in that way for good reason — a substantive liberty theory would have also knocked out Romneycare and all sorts of other state police powers (overruling e.g., Jacobson), and would have reinvigorated the Griswold v. Connecticut theories of liberty, which later came to underwrite Roe.
Not at all. A ruling that the Federal government lacks the authority to mandate the purchase of health insurance to all citizens says nothing about a state’s right to do the same. Unless, in Griswald fashion, the majority were willing to create some sort of emanation or penumbra. Absent that, any state would still be able to fall back on the tenth amendment and use this power because the Constitution does not prohibit the states from so doing.
Ah, but that doesn’t really matter. It didn’t need to be presented as a substantive due process challenge (and, by the way, it WAS presented as a substantive due process challenge in the district courts but was summarily rejected and not appealed). But it was obvious that conservative judges were taking the liberty-based arguments seriously as a constraint on “proper” in “necessary and proper” and as a federalism constraint in the Commerce Clause. (See this one of mine: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1919272.) And the SG tried to rebut the liberty arguments more generally, just not by pointing out the rationing, health care regulatory characteristics of health insurance.