The Individual Mandate\u27s Due Process Legality: A Kantian Explanation, and Why It Matters

In National Federation of Independent Business v. Sebelius, one of the most controversial decisions of this young century, an intensely divided Supreme Court upheld the Patient Protection and Affordable Care Act’s most provocative feature-—the Individual Mandate-—under Congress’s taxing power. In so doing, the Court rejected what appeared to be the Individual Mandate’s more applicable constitutional premise-—Congress’s authority to regulate interstate commerce. Yet, neither the Constitution’s Taxing Clause nor its Commerce Clause provide the ultimate answer as to whether Congress may regulate the multi-billion dollar healthcare market by compelling unwilling persons to buy private health insurance. The final determination of the Individual Mandate’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—-i.e., infringes liberty—-when it compels individuals to purchase unwanted products, even for the greater public good. As the popular cliché goes, if today Congress can make us buy health insurance, tomorrow it could be cars or broccoli. This Article argues that, to the contrary, the Individual Mandate fully comports with vital liberty interests without opening a “floodgate” whereby Congress can force persons to buy any commodity to promote any purported societal benefit. Specifically, 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; that is, persons who, due to dependence on charity for minimal sustenance, become virtual slaves. 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 that Kant anticipated to prevent individuals from becoming vagabonds—-effectively slaves-—pleading for the vital healthcare that they cannot afford but eventually will need. Thus, the Individual Mandate 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 these products to survive but be unable to purchase them absent insurance