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This You Must Do

Plaintiff-respondents’ briefs in the “individual mandate” portion of the Obamacare litigation, here (link no longer available) and here (link no longer available), rely heavily on a distinction between regulating a commercial transaction and compelling it: the Commerce Clause, they say, authorizes Congress to do the former but not the latter. The government and its friends object that that distinction does not come from the Commerce Clause; the plaintiffs made it up. One can think of potent responses—among them, the reply that a contestable limit to the commerce power is still a lot more plausible, constitutionally speaking, than the government’s theory of a commerce power with no limit. The larger point, though, is that the plaintiffs’ distinction—and, more broadly, the agitation against the mandate—has real resonance even and perhaps especially with folks who aren’t terribly interested in constitutional nuances. Constant official assurances to the effect that the mandate is unique, and limited, and meant to make all the good Obamacare things (like guaranteed issue) work haven’t dispelled the public’s sense that a bridge is being crossed here.

There’s a potent vindication of that sense in a famous article by Lon L. Fuller entitled “Positivism and Fidelity to Law: A Reply to Professor Hart,” 71 Harvard Law Review  630 (1958). At the end of a devastating critique of Hart’s Legal Positivism, Fuller asks why positivism is so hostile to “purposive” interpretation of legal texts. Fuller views this posture as a response (albeit an “inept” response) to what he calls the real, growing, and crucial “problem of the impressed purpose”—that is, laws (or purposive mis-interpretations of laws) that compel private performance in accordance with social objectives and, in the process, threaten human freedom and dignity in a way in which mere prohibitions do not. Naturally, Fuller starts with examples involving speech and matters of conscience. He mentions the employers’ statutory duty to bargain “in good faith.” He mentions the flag salute cases and, remarkably, the “perversity” of Nazi laws coercing “Heil Hitlers!” Then comes this (p. 672):

Questions of [impressed purpose] are undoubtedly becoming more acute as the state assumes a more active role with respect to economic activity. No economic activity can be organized exclusively by “don’ts.” By its nature economic production requires co-operative effort. In the economic field there is special reason, therefore, to fear that “This you may not do” will be transformed into “This you must do—but willingly.”

“We all know,” Fuller continues, the most effective means of effecting this change: informal administrative proceedings “in which the negative threat of a statute’s sanctions may be used by its administrators to induce what they regard, in all good conscience, as ‘the proper attitude.’”

This is the world of Secretary Sebelius, whose recent pregnancy rule reflects a supreme confidence that anybody can be bullied. It is the world of the health insurance lobbyists at whose behest the individual mandate was written into Obamacare: yielding willingly to low-level tyranny is their business model. The point of public opposition to the rule and the mandate is the same: “This we won’t take—at least not willingly.”

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