Still Unprecedented: Recycling the Same Two Examples of Supposed Economic Mandates

My friend, Harvard law professor Einer Elhauge, has an essay in the New Republic, If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?, in which he breathlessly recycles the same two supposed precedents for economic mandates under the Commerce Clause that have been much discussed over the past two years.  The first is the requirement that ship owners provide insurance for their sailors.  While navigation laws such as this one were an exercise of the commerce power, it is a garden variety regulation of how commerce, in this case the activity of shipping, is to be conducted.  To be subjected to this regulation, you first have to engage in the commercial activity of shipping, or what was called, “the carrying trade.”  The fact that this particular regulation required ship owners to provide insurance does not distinguish it from, say, regulations providing for life preservers or life boats (which also have to be purchased!).

The second is the well-trod example of the Militia Act that requires persons to provide their own weapons.  Of course, this was an exercise of Congress’s militia power, and the militia duty traditionally required members to provide their own weapons.  Contrary to Elhauge’s characterization of this as a “purchase mandate,” guns could be gifts or borrowed or inherited.  There was no requirement that they be purchased.  Challengers to the mandate have never denied that Congress has the power to require persons to do things.  I have long listed the draft, jury duty, the filing of a tax return, and service on a posse, as examples of fundamental duties of citizenship that are owed to the government in return to the protection it affords to citizens.  This is all explained in my 2010 article, Commandeering the People:  Why the Individual Insurance Mandate is Unconstitutional.  But just because the federal government has the power to make you fight and die for your country does not entail that it has the totalitarian power to make you do anything less than this.

Every court that has considered the constitutionality of the insurance mandate, including those judges that upheld its constitutionality, have concluded that this mandate is unprecedented.  The fact that these two examples have been so well discussed, debunked, and rejected explains why the Solicitor General cited neither in his oral argument when Justice Kennedy characterized this Commerce Clause mandate as unprecedented.  Indeed, the fact that, over two years into this debate, these are the only supposed examples of such mandates on offer by defenders of the Affordable Care Act strongly supports, rather than detracts from, the claim that such mandates are unprecedented.  One reason why supporters of the mandate were so surprised by the apparent skepticism of some of the Justices towards this claim of Congressional power may simply be that they are not all that familiar with the constitutional arguments that have actually been made by the challengers in their briefs or the analysis presented in the opinions of lower court judges.

[Update with Einer's reply moved to separate post above.]