''I'M NOT going to talk about whether a broccoli mandate could conceivably make sense (because of course it could!). I want to talk about the alleged distinction between mandating that individuals buy stuff and taxing individuals to buy them stuff.
It seems to me that the federal government forces me to pay for interstate highways, national parks, my father's Medicare, aerial murder drones, and a great deal more, whether I want to or not. I cannot see the principled distinction between government (a) taking a dollar by force and then handing it to Raytheon and (b) forcing me to hand a dollar to Raytheon. Randy Barnett, a libertarian law professor at Georgetown and a leading figure in the fight against the constitutionality of the individual mandate, does see a distinction. Here's Ezra Klein of the Washington Post asking him about it:
EK: Perhaps you can clarify a distinction that escapes me here. It’s understood to be constitutional for the government to tax me in order to pay for Medicare, which is a single-payer insurance program that I’ll get when I’m over 65. But it’s not okay for the government to say I have to self-insure on the private market before I’m 65.
RB: There are several answers, but I’ll limit myself to two. First, there’s the text of the Constitution itself. The text of the Constitution itself gives Congress the power to levy taxes on people and on income. We can’t dispute that. It does not give Congress the power under its commerce power, at least not expressly, to make them do business with private companies.
The second point I would make is that the duty to pay taxes is part of your duty to support the government in return for the protections the government gives you. What the government is claiming here is this power — and this ought to disturb people on the left — to make people do business with private companies when Congress thinks it’s convenient.
Let's take Mr Barnett's second point first. Suppose I sell a novel to a publisher. If the publisher cuts a check to my agent, and my agent cuts a check to me, did I really not do business with the publisher? Of course I did. The middle man is irrelevant to whether or not business has been done between the publisher and I. Likewise, if I cut a check to the government and the government cuts a check to Raytheon, I did business with Raytheon.
So then we're left with the first point: that there is an enumerated power to tax, but no explicit grant of power to make people do business with private companies. This does not strike me as a separate argument. Clearly, this turns on one's response to Mr Barnett's second point. If forcing me to hand a dollar to Raytheon and taking a dollar by force and handing it Raytheon are two materially equivalent ways of making me do business with Raytheon, and they are, then the undisputed power of Congress to tax and spend was a power to force me to do business with private companies all along.
One principled libertarian line on this question is that government has the power to tax only for the purpose of spending on the provision of those public goods, such as the common defence, which voluntary exchange on the free market cannot be relied on to provide. Having read a number of Mr Barnett's books, it's not clear to me that he thinks there are any such goods; his ideal political economy has a marked anarchist flavour. And that's why I suspect his attempt to enforce a distinction is strategic rather than principled. A ruling to the effect that government may not force citizens to do business with private entities could be useful to a libertarian legal activist precisely because there really is no sound distinction between mediated and unmediated transactions. Having used a spurious distinction to elicit a decision striking down government's power to make people buy things, the savvy libertarian legal eagle can turn around and attack the very same distinction in order to set limits on the government's current power to spend tax dollars on anything it likes.''
http://www.economist.com/blogs/democracyinamerica/2012/03/individual-mandate
