Not Available For Download

The Individual Mandate's Due Process Legality: A Kantian Explanation, and Why It Matters

Posted: 8 Jul 2012  

Peter Bayer

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: July 7, 2012


In its recent National Federation of Independent Business v. Sebelius, U.S., 12 Westlaw 242810, one of the most controversial decisions of this young century, an intensely divided Supreme Court upheld under Congress’ power to tax the Patient Protection and Affordable Care Act’s most provocative feature, the Individual Mandate (“IM”). In so doing, the Court rejected what appeared to be the IM’s more applicable constitutional premise, Congress’ authority to regulate interstate commerce. Yet, neither the Constitution’s Taxing Clause nor its Commerce Clause provide the ultimate answer whether Congress may regulate the multi-billion dollar healthcare market by compelling unwilling persons to buy private health insurance. The final determination of the IM’s constitutionality lies within the profound and pivotal tenets of liberty secured by the due process clauses of the Fifth and Fourteenth Amendments.

Indeed, the prime criticism against the Individual Mandate is that Government exceeds its legitimate authority -- infringes liberty -- by compelling individuals to purchase unwanted products even for the greater public good. As the popular cliché goes, if today Congress may mandate buying health insurance, tomorrow it could be cars or broccoli.

This article argues that, to the contrary, the Individual Mandate comports fully with vital liberty interests without opening a “floodgate” whereby Congress can force persons to buy any commodity to promote any purported societal benefit. Specifically, after an introduction summarizing the argument, Part II briefly reviews contemporary judicial standards to show that due process liberty principles underlie and animate the Commerce and Taxing Clauses. Thus, the due process clauses hold the answer to the IM’s constitutionality.

Part III explains that due process protects the innate dignity of every person from even well meaning impositions by any level of government. In this crucial regard, although courts do not so acknowledge, modern due process jurisprudence has intuited and applied the “metaphysics of morals” espoused by the highly respected Enlightenment philosopher Immanuel Kant. Kantian morality explains modern substantive and procedural due process of law.

Among his essential tenets, Kant famously argued that although there is no general duty to aid the poor, Government cannot enact laws that create supplicants, meaning persons who, due to dependence on charity for minimal sustenance, become virtual slaves. Kant illustrated his argument by noting that although indispensible to greater society, property and contract law create impoverishment because all available property will be held by less than all of the people. When the law itself causes poverty, Government, as the author of that law, has an absolute duty to restore the poor from quasi-slavery to independence. Kant sensibly suggested a tax for the benefit of the indigent, enabling them to regain liberty sufficient to stop begging.

The Individual Mandate is the very type of tax Kant anticipated, preventing individuals from becoming vagabonds -- effectively slaves -- pleading for the vital healthcare that they cannot afford but eventually will need. Thus, the IM comports with liberty as vouchsafed by due process. Moreover, Congress cannot exercise such power merely to safeguard even significant commercial markets because unlike acquiring health insurance, consumers who now refuse to buy cars and broccoli will not suddenly need those products to survive but be unable to purchase them absent insurance.

Keywords: Individual Mandate, due process of law, Kantian ethics, Kant, interstate commerce

Suggested Citation

Bayer, Peter, The Individual Mandate's Due Process Legality: A Kantian Explanation, and Why It Matters (July 7, 2012). UNLV William S. Boyd School of Law Legal Studies Research Paper Series. Available at SSRN:

Peter Bayer (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States
702-895-2480 (Phone)

Paper statistics

Abstract Views