Let me just start by saying that I'm sick of talking about the Affordable Care Act.
I'm sick of explaining it to people who are using every ounce of their limited brain-power to try their darnedest to not understand it, and to characterize it in a way that maximizes their own sense of martyrdom. I've examined it nine ways to Sunday and illustrated nine ways to Sunday how the law can only be held constitutional unless the five conservative (non-activist, of course) justices change the law and create a new constitutional doctrine out of whole cloth. I find the whole thing exhausting and I'm just not going to do it anymore.
As most of us who are not die-hard fans of the GOP know, Republican politics is rife with contradictions. I think it stems from the party's core contradiction of using rhetoric that expresses an almost pathological hatred of government, of governing, of lawmaking and of law enforcement, to win elections to public office and thereby become the thing they despise and take on responsibility for doing all those things that their rhetoric suggests should not be done in the first place.
Obviously, Republicans don't hate government per se; they only hate some of the things it does, and they hate not being in charge of it. That's just politics. But when it comes to the Affordable Care Act, the GOP has plumbed new depths of hypocrisy, dishonesty and what I think is ultimately damaging rhetorical excess, for two essential reasons.
One is the obvious one, which is that the Affordable Care Act is a version of what was the "conservative" solution to the uninsured/free-rider problem in health care for 20 years, from the Heritage Foundation's initial proposal in 1989 to the HEART Act of 1993, through RomneyCare, more endorsements and advocacy of it by Republicans and conservative think-tanks throughout the 1990s and 2000s right up until the moment the individual mandate found its way into the debate in 2009-10. We get that this is a Republican law, and a lot of GOP fans are in denial about that. The problem is not just that the rhetorical opposition is phony and dishonest, that they've turned on their own idea because -- and only because -- it was enacted by a Democratic Congress and President; it's that the right has nowhere to go from here. There is no solution to the uninsured/free-rider problem that is to the right of the individual mandate, except to keep the uninsured out of emergency rooms and throw people in jail for not paying their hospital bills.
The other is more fundamental; equally dishonest and hypocritical, but ultimately I think more damaging. What the Republicans and their fans/enablers have done in dishonestly and hypocritically opposing the individual mandate is create and/or enable the patently false perception that legislative overreach is the equivalent of infringement of liberty.
A lot of people confuse liberty with autonomy. I was told recently by a commenter over at HuffPo that all laws, regardless of what they are or by whom they are legislated and enforced, infringe on liberty. A law against littering, for example, reduces the freedom of the litterer to litter. Laws always mean less freedom, hence fewer laws always means more freedom.
This, of course, is hogwash. By this person's logic, laws against murder reduce the freedom of the murderer to murder. (A hyperbolic comparison, I know, but it does follow logically.) It never occurs to people like this that "liberty" might include the ability to use a public sidewalk without having to trudge through piles of other people's litter. Laws against littering thus enhance liberty; inter alia, because more people use the public sidewalk than feel the need to litter on it.
The point is that whether you're talking about the freedom of the litterer to litter or the freedom of the murderer to murder, the conversation about "liberty" cannot and does not end there, as the latter example makes obvious. That is autonomy not liberty. The mere act of making and enforcing a law, whether it restricts or compels behavior, is not in and of itself an infringement of liberty.
This comes into sharp focus when one considers that the GOP and its fans/enablers seem to be perfectly fine with imposing a mandate at the state level, as Mitt Romney did in Massachusetts. Somehow, the state government "forcing you" (as some GOP fans might say, "at gunpoint") to "buy something you don't want" doesn't take away your freedom, but the federal government doing the exact same thing, does.
Here's the problem: Republicans and their fans/enablers, and the conservatives on the Supreme Court (particularly Justice Antonin Scalia), have always been hostile to the doctrine of "substantive due process," i.e., "unenumerated rights." It has been the right's main "principled" objection to Supreme Court decisions like Loving, Griswold, Roe and Lawrence. They have always objected to the idea of state laws being struck down by the Supreme Court for violating constitutionally-protected rights and freedoms because, according to conservatives, such rights and freedoms do not actually exist, the Ninth Amendment notwithstanding. There is no right to privacy, they say, and certainly no subsidiary rights under the umbrella of privacy, like reproductive choice and same-sex copulation that would be violated by state laws criminalizing abortion and sodomy.
To their credit, no one on the anti-ACA side has argued that the individual mandate violates a specific liberty interest or a specific constitutional right; they just characterize it as a generic violation of liberty. And therein lies the problem: It's not, and more than that, there is no such thing as a generic violation of liberty. The only basis for the argument that it's a violation of liberty is that it exceeds Congress's power to legislate, to regulate interstate commerce, to tax and spend for the general welfare, &c. Even if it is a legislative overreach -- which it isn't unless the Supreme Court creates a new doctrine that makes it so -- that's all it is. They're not arguing that it violates the due process clause of the Fifth Amendment, which would be the case if it truly was an infringement of liberty, and certainly no one is arguing that Mitt Romney's Massachusetts mandate violates the Due Process clause of the Fourteenth Amendment ("No state shall ... deprive any person of ... liberty ... without due process of law.")
The difference between federal and state law, irrespective of substance, is purely organizational, nothing more. The federal government can legislate in certain areas and the states can legislate in certain areas, and both do, with a good deal of overlap in a number of legal subject matter (such as banking, insurance, transportation, &c). But the issue of whether a law infringes liberty is unrelated to the organizational principles of federalism. States may have plenary police powers, but they can't infringe individual rights and liberties any more than the federal government can. In fact, they can only offer more protection to individual liberties than the federal Constitution does, not less. If a federal law infringes liberty, then an analogous or identical state law also infringes liberty. Conversely, if a state law doesn't infringe liberty, then an analogous or identical federal law doesn't infringe liberty.
In order to make this vacuous and mendacious argument that somehow a federal mandate violates freedom while a state mandate doesn't -- a legal impossibility -- one has to believe that somehow it matters which governmental entity legislates and enforces the law, i.e., which governmental entity imposes the restriction or obligation on the individual citizen.
IT DOESN'T.
At least, I haven't heard a good explanation of why it does. All I've heard is some vague, abstract platitudes about "limited government" and "how the Founding Fathers™ wanted it to be" and a whole bunch of really, really stupid slippery-slope paranoid fantasies about being dragged by federal agents down to Whole Foods and being force-fed a stalk of broccoli that they forced you at gunpoint to buy. No one seems to be asking, "If the state government can force you to buy health insurance, what can't it force you to do?" If this were really about that, if this were really about "freedom" and "liberty," we'd be hearing that question as well.
But we're not, because this isn't about freedom or liberty; apart from pure cynical partisan politics, it's about organizational principles of government, lawmaking and law enforcement. Which have nothing whatsoever to do with "freedom" or "liberty." In terms of how I live my life from minute to minute and day to day, whether a particular obligation or restriction on my behavior comes from Washington, Albany or Hempstead is of absolutely no consequence. It may effect how I feel about it, but that's all. How I feel about things is not an issue of legal or constitutional dimension.
I suppose one could argue that if you don't like the obligations and restrictions that a state or local government places on your life, you can always move to another, "freer" state or locality, whereas you can't escape a federal obligation/restriction without leaving the country altogether. But that only brings us back to the liberty principles discussed at the top, viz., that liberty includes being able to live in the state where you want to live, and not having to endure the expense and hardship of uprooting one's family and engaging in various employment and real-estate transactions. And if you don't have the "right" or the "freedom" to live in the state of your choosing, why would you have the right or the freedom to live in the country of your choosing?
As I said at the outset, I'm tired of talking about the ACA and I expect I won't be saying any more about it until after the Supreme Court rules, and maybe even then. That it's likely the Court will strike it down makes me sad; that we have not been able to have an honest debate about it, not even in the Court itself, makes me sadder.