11 Pages Posted: 16 Mar 2012
Date Written: March 15, 2012
This Article originated as remarks from Professor Randy Barnett as part of the Hot Topic Panel Discussion on health care reform held at the Association of American Law Schools (AALS) meeting on January 7, 2011.
In 2010 something happened in this country that has never happened before: Congress required that every person enter into a contractual relationship with a private company. While the author realizes that writers make lots of factual claims that readers are wise to be skeptical about, he proves that an economic mandate like this one is unprecedented. If this mandate had ever happened before, everyone reading this passage would know all the contracts the federal government requires them to make, upon pain of a penalty enforced by the Internal Revenue Service (IRS). No reader, however, can recite any such mandate and neither could any reader’s parents or grandparents because this has never been done before.
It is not as though the federal government never requires American citizens to do anything. They must register for the military (and serve if called), submit a tax form, fill out a census form, and serve on a jury. Additionally, they must join a posse organized by a United States Marshall. The existence and nature of these very few duties, however, illuminates the truly extraordinary and objectionable nature of the individual insurance mandate. Each of these duties is necessary for the operation of government itself, and each has traditionally been widely recognized as inherent in being a citizen of the United States.
Consider why in 1918 the Supreme Court of the United States rejected the claim that the military draft violated the Thirteenth Amendment, which bars “involuntary servitude.” At first glance, conscription surely looks like a form of involuntary servitude. The Supreme Court, however, said that it could not see how “the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation . . . can be said to be the imposition of involuntary servitude.” Keep that phrase, “supreme and noble duty” of citizenship, in mind. For this - and nothing less than this - is what is at stake in the fight over the constitutionality of the individual insurance mandate. Is it part of the supreme and noble duty of citizenship to do whatever the Congress deems in its own discretion to be convenient to its regulation of interstate commerce? If this proposition is upheld, the relationship of the people to the federal government would fundamentally change: they would no longer fairly be called “citizens;” instead, they would more accurately be described as “subjects.”
In Article III, the United States Constitution distinguishes between citizens of the United States and subjects of foreign states. What is the difference? In the United States, sovereignty rests with the citizenry. The government, including Congress, is not sovereign over the people but is the servant of the people. In Yick Wo v. Hopkins, the Supreme Court reaffirmed that “in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.” If Congress can mandate that citizens do anything that is convenient to its regulation of the national economy, however, then that relationship is now reversed, and Congress has the prerogative powers of King George III.
Keywords: Health insurance mandate, Constitutional law, Sovereignty, Federal power
JEL Classification: K00, K1, K2, K3, H51, I18
Suggested Citation: Suggested Citation
Barnett, Randy E., Turning Citizens into Subjects: Why the Health Insurance Mandate is Unconstitutional (March 15, 2012). Mercer Law Review Vol. 62, 2011; Georgetown Public Law Research Paper No. 12-046. Available at SSRN: https://ssrn.com/abstract=2023233