Adam Litpak had a good article noting that Verrilli’s oral argument appealed to Kennedy with the freedom-enhancing qualities of the Affordable Care Act. This motivated Ann Althouse, who didn’t seem to even understand the argument, to respond like a member of their junior high school’s Ayn Rand club participating as their team’s third-stringers at the forensics meet:
“Liberty” is a high abstraction. What is it about the liberty of compulsion to buy an expensive health insurance policy that Justice Kennedy is supposed to find appealing? Just because someone loves liberty doesn’t mean they’re going to love everything you slap a “liberty” label on!
Obviously, as a complacent reactionary who benefits from the security of taxpayer-funded health insurance Althouse can’t grasp why universal health care might be freedom-enhancing, but it’s not at all complicated:
- First of all, Althouse seems to assume that everyone who is uninsured wouldn’t want affordable insurance if they could get it, as if many people don’t have health insurance because of pre-existing conditions or because it’s not affordable for ordinary workers under the status quo.
- Once we move past this silly assumption, it’s not difficult to see the point the SG was making. Universal health care has freedom-enhancing properties in a lot of ways: it allows you to move, or engage in entrepreneurial activities, without losing the employer-based coverage that is the only practical means of obtaining insurance for those who aren’t poor or extremely wealthy. Mobility, particularly in American constitutionalism, has always been a treasured liberty. Bankruptcy is, to put it mildly, detrimental to liberty in all kinds of ways. Beyond that, whether you want to call the security that comes from health coverage freedom-enhancing is a matter of taste, but this security is certainly more valuable to most people that the “freedom” of knowing that you can be bankrupted by an accident or unforeseen illness.
- The even bigger problem here is that the rugged individualists who go without health insurance are not making a “choice” to be free of state constraint and state-provided benefits. They are, in fact, making a choice to stick the taxpayers with the bill if they have a medical emergency. Even a moderately sophisticated libertarian understands that the “freedom” to free ride is no freedom at all. Perhaps Althouse, like the judicial idol she defended so feebly, would prefer a libertarian dystopia in which people who aren’t lucky enough to have taxpayer-funded health insurance are just left to die from accidents or treatable illnesses. But whatever they would like the policy baseline to be, what matters both for public policy and for the question of whether the mandate is a necessary and proper part of a concededly constitutional regulatory framework is what the policy baseline under federal, state, and common law actually is. Kennedy actually showed some signs of understanding this, one of the few bright spots to come from the three days of depressingly inept work by he and his Republican colleagues.