Caricature Assassination: Andrew Koppelman and the Myth of Tough Luck Libertarnianism
In 2010, President Obama signed the Patient Protection and Affordable Care Act into law. Over four years later, it is still the subject of heated debate, administrative tinkering, and more importantly for our purposes, books and lawsuits. In The Tough Luck Constitution and the Assault on Health Care Reform, Northwestern School of Law Professor Andrew Koppelman analyzes the legal opposition to the law, and the purported ideology behind that opposition. Koppelman ultimately argues that the Supreme Court properly upheld the constitutionality of the individual mandate in NFIB v. Sebelius. But his argument rests not on what the Constitution means, and instead, on what it cannot mean—and to Koppelman, the Constitution cannot require libertarianism. Koppelman sees the opposition to Obamacare and what he calls “Tough Luck Libertarianism”as inextricably linked, and because the latter is so repulsive, he argues that the Constitution cannot require it.
This review takes a look at “Tough Luck Libertarianism,” both as it allegedly applies to the Affordable Care Act now, and as it has applied to arguments against expansive uses of government power in other eras. By taking a closer look at Tough Luck Libertarians’ rhetoric as articulated in legal briefs and court opinions, it becomes clear that opponents of government intervention a requite moderate, and have consisted not just of politically powerful businessmen, but of politically powerless groups as well. Many exploited or subjugated groups who ostensibly “needed” government intervention have wanted to be left alone—often because government intervention would have done more harm than help. From this perspective,the arguments against the ACA find a strong basis in American constitutional tradition, and Koppelman’s attack on libertarianism turns out to be an attack on a caricature.
