At Balkinization, Jason Mazzone: Why the Individual Mandate is Still Unprecedented.
Professor Mazzone's important post addresses a key contention in the debate over the Affordable Care Act: that it is unprecedented for Congress to require ordinary citizens to purchase a product. The response is that Congress (supposedly) did so in the 1792 Militia Act, which appears to require the purchase of guns and ammunition. As Mazzone frames the argument:
Those who contend that the individual mandate provision of the healthcare law exceeds Congress’s powers under the Constitution assert that never before this law has Congress required Americans to enter into a market and purchase a good or service from a private entity. According to these critics, the fact that Congress has never before mandated that people buy something is evidence that Congress lacks the power to force Americans to buy a health insurance policy. If it hasn’t been done, these critics say, Congress cannot now do it.
In response to this argument, supporters of the individual mandate’s constitutionality argue that the law’s opponents have their history wrong. As evidence that Congress has indeed mandated private commercial transactions in the past, supporters offer up as historical precedent the Militia Act of May 8, 1792. Signed into law by none other than President George Washington, this statute enrolled free white men between the ages of 18 and 45 in the militia and required them to provide their own arms and equipment. If Americans could be required to purchase guns in 1792, the argument says, Americans can surely be required to purchase health insurance in 2014.
Professor Mazzone then explains why the 1792 Militia Act doesn't prove what people think it proves.
Posted at 7:00 AM