September 20, 2011 2:37PM

‘The Difference Between Governments Where There Is Responsibility, and Where There Is None.’

Over at Volokh Conspiracy, Professor Orin Kerr has taken to defending the individual mandate on supposedly libertarian principles. Professor Kerr, a Cato Constitution Day participant and an excellent defender of civil liberties, argues that the individual mandate preserves our liberties better than a top-down, government-controlled program à la Medicare. He writes, “If the courts conclude that the mandate approach is unconstitutional, then the more market-oriented approach to benefits would be ruled out. Congress would have a choice: Don’t mandate benefits, or else mandate using a 1960s Great Society government monopoly model.”

While I have the utmost respect for Professor Kerr, his analysis here is woefully mistaken. First of all, I will only mention what my colleague Michael Cannon has tirelessly pointed out: ObamaCare will throttle the operation of a free market in numerous ways. It will not only stifle innovation, it will likely result in the evacuation of insurance providers from the market as they get caught in a “death spiral” caused by the simultaneous mandatory insurance of the sick while healthy individuals increasingly choose to pay the fine rather than purchase health coverage. Richard Epstein has also argued that ObamaCare’s regulatory controls on health insurance providers will “systematically strip[] the regulated health-insurance issuers of their constitutional entitlement to earn a reasonable rate of return on the massive amounts of capital that they have already invested in building out their businesses,” thus converting “health insurance companies into virtual public utilities.” Or, in the words of Cannon, “Compulsory health insurance enables, and ultimately would require, politicians and government bureaus to control nearly all aspects of health care and medical practice.”

But perhaps the most insidious thing about ObamaCare is precisely the aspect that Professor Kerr seems to fall for: This is a government take-over clothed in market-based rhetoric. This take-over has been facilitated by nearly a century of constitutional misinterpretations that have left us with the "choice" between one unconstitutional system, a single-payer health care system, and another, the "market reform" of the individual mandate. Professor Kerr, like so many others, has been taken in by the façade of choice and markets. But this façade not only has political significance, it has constitutional significance.

The mandate was partially passed in order to avoid the political accountability that a tax increase would have engendered. Rather than taking your money through properly authorized political channels, Congress decided to further pervert the Commerce Clause in order to save their jobs. Thus, they chose to compel its citizens to purchase a product from a private company. While there is no constitutional provision that proscribes “constitutional avoidance,” misinterpreting the enumerated limits of federal power, as the Court has repeatedly done since the New Deal, encourages such constitutional run-arounds.

The Founders were very wary of a government that had unchecked power to take property from its citizens or laws that compelled citizens to give their property to another. After all, taxes—the Sugar Act, the Stamp Act, the Declaratory Act, the Townshend Duties, the Tea Act—had been instrumental in incubating the Revolution. Therefore, taxation is treated very seriously in the Constitution.

Properly understood, the General Welfare Clause—“Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”—allows taxes to be collected only in pursuit of the enumerated powers of Congress and only for the “general,” rather than the “specific” (that is, special interest), welfare. Moreover, Article I, Section 7, Clause 1 of the Constitution commands that “All Bills for raising Revenue shall originate in the House of Representatives[.]” During the debates in Philadelphia, Benjamin Franklin expressed “that it was always of importance that the people should know who had disposed of their money, & how it had been disposed of. It was a maxim that those who feel, can best judge. This end would, he thought, be best attained, if money affairs were to be confined to the immediate representatives of the people.” During the Convention, even the clause that allowed the Senate to add amendments to bills of revenue that originated in the House (a clause which eventually found its way into the Constitution) was opposed by those who thought that no form of taxation should be entrusted to a representative body that was not directly accountable to the people (at the time the Senate was chosen by the state legislatures).

Similarly, Article I, Section 9, Clause 7 stipulates that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

As St. George Tucker, one of the most influential legal scholars of the founding generation, wrote in 1803:

All the expenses of government being paid by the people, it is the right of the people, not only, not to be taxed without their own consent, or that of their representatives freely chosen, but also to be actually consulted upon the disposal of the money which they have brought into the treasury; it is therefore stipulated that no money shall be drawn from the treasury, but in consequence of appropriations, previously made by law: and, that the people may have an opportunity of judging not only of the propriety of such appropriations, but of seeing whether their money has been actually expended only, in pursuance of the same; it is further provided, that a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. These provisions form a salutary check, not only upon the extravagance, and profusion, in which the executive department might otherwise indulge itself, and its adherents and dependents; but also against any misappropriation, which a rapacious, ambitious, or otherwise unfaithful executive might be disposed to make. In those governments where the people are taxed by the executive, no such check can be interposed. The prince levies whatever sums he thinks proper; disposes of them as he thinks proper; and would deem it sedition against him and his government, if any account were required of him, in what manner he had disposed of any part of them. Such is the difference between governments, where there is responsibility, and where there is none.

Finally, the Takings Clause of the Fifth Amendment also demonstrates a concern that government officials would take property to either enrich themselves or to enrich politically powerful interest groups. In short, all the provisions listed above make it clear that the Framers intended the forced taking of property to be above board, on the books, and as politically accountable as possible. As Justice Scalia once wrote:

The politically attractive feature of regulation is not that it permits wealth transfers to be achieved that could not be achieved otherwise; but rather that it permits them to be achieved “off budget,” with relative invisibility and thus relative immunity from normal democratic processes.

Nevertheless, like most politicians, the administration has shown that both its rhetoric and its constitutional theories are sharpened with a Machiavellian edge. During the debates over the law, it wasn’t a tax (as President Obama vigorously asserted to George Stephanopoulos). After the law was passed and the public no longer had a say in the outcome, the mandate suddenly became a tax for the purposes of litigation strategy. Although the Constitution doesn’t require government officials to be rhetorically consistent, there is something truly disturbing about the level of constitutional perversion that is occurring here. The avoidance of proper democratic channels of taxation is yet another way in which the mandate is “improper” and, in the words of Chief Justice Marshall, is inconsistent with “the letter and spirit of the constitution.”

Although a nightmare in terms of policy, a single-payer system funded through taxation would, in many ways, be constitutionally preferable to the individual mandate. As Timothy Sandefur writes at the PLF Blog:

Were the system run by the government, inefficient and troubling as that would be, citizens would at least have a general idea whom to blame and how to remedy the situation. Instead, by reaching back to a model that pre-dates even the Progressive era reforms that the administration likes to evoke in its rhetoric, Obamacare manages to achieve something that the Constitution’s founders would have thought utterly deplorable: using government coercion to enrich private industry in the most direct and anti-democratic way conceivable—all while telling the citizens that it’s for their own good.

Couldn’t have put it better myself.