The “Unprecedented” Individual Mandate
The Supreme Court is currently deliberating on the constitutionality of the Patient Protection and Affordable Care Act’s “individual mandate”, which requires all Americans to purchase medical insurance.
It has been pointed out by opponents that the individual mandate is an unprecedented requirement to engage in commerce. The Congressional Research Service, for example, observed that “it is a novel issue whether Congress may use the clause to require an individual to purchase a good or a service.”
The Cato Institute came to a similar conclusion, that “[f]inding the mandate constitutional would be the first interpretation of the Commerce Clause to permit the regulation of inactivity — in effect requiring an individual to engage in an economic transaction.”
Yet it seems that, from an examination of history, they are incorrect.
Congress, through the Second Militia Act of 1792, required
That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years … shall … provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder.
This is not only a requirement to engage in commerce; it’s a very specific shopping list, for items almost certainly to have been obtained through private-sector commerce. Clearly, a requirement to engage in commerce isn’t unprecedented. And not only does it have a precedent, it was signed into law by President George Washington. That is, it was signed into law by one of our “Founding Fathers”, the group to whom Constitutional Originalists claim to hew.
This observation has begun to gain traction. A few conservatives have tried to counter by saying “yeah, but that was different”. Different how?
Some suggest that it’s different because the Militia Act stipulates no penalties for violating the law. The implication here is that the individual mandate is acceptable, but the penalty is not. Of course, there’s not much point in having a law that isn’t enforceable; clearly Congress expected the Executive to take the steps necessary to ensure that the law was followed.
Others point to the Constitution’s militia clauses in Article I:
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States
as the justification for forcing citizens to buy weaponry. But the militia clause provides for arming the citizens, not for forcing the citizens to arm themselves. Congress could have (and perhaps should have) supplied “every free able-bodied white male citizen” with the goods in the shopping list. Instead, they mandated that the citizens engage in private-sector commerce, purchasing the goods.
Yet, there they are, arguing that this applies only to the militia. Surely the federal government couldn’t order people to buy medical insurance.
Or could they?
Another of the Founding Fathers, President John Adams, signed into law an act for the relief of sick and disabled seamen. In that law, 20 cents per seaman per month was required to be paid to the federal government in order to cover “sick or disabled seamen”, and to build hospitals to treat them. Employers could opt to pay for it themselves, or they could deduct the 20 cents per month from the seamen’s paychecks.
Neither the Militia nor Seamen Acts were considered unconstitutional, either at the time or in the centuries since. It would seem, then, that healthcare is under the jurisdiction of the federal government, and so is a mandate to engage in private-sector commerce.
Not that I expect Justice Scalia to actually care about that.
- The Original Individual Mandate, Circa 1792 (thehealthcareblog.com)
- HARVARD LAWPROF EINER ELHAUGE EMAILS A LINK TO HIS PIECE IN THE NEW REPUBLIC: If Health Insurance M… (pjmedia.com)
- SOME BACK-AND-FORTH BETWEEN EINER ELHAUGE AND RANDY BARNETT on the Individual Mandate. And note thi… (pjmedia.com)
- The Duty to Bear Arms and Buy Health Insurance (delong.typepad.com)
- GUNS, SEAMEN, AND THE COMMERCE CLAUSE: Columbia Lawprof Phil Hamburger responds to Einer Elhauge. … (pjmedia.com)