Sunday, March 25, 2012

The HCR notUnprecedented Mandate

The basic arguments against the constitutionality of the health care reform are that the individual mandate is unprecedented in forcing individuals to buy something and that it goes against the intent of the founders. So, for example, Allen West in The Washington Times stated that, “The 2012 Supreme Court must determine whether the Founders had any intention of mandating the behavior of private enterprises and individuals. To me, the answer is obvious: absolutely not.” Likewise, Paul Gigot argued that, “the Affordable Care Act represents the first time Congress has required Americans to purchase a product. "I do think the question is novel enough -- the compelling of commerce by the federal government."”

There’s been a lot of comment in the past few days on the applicability of the 1792 Second Militia Act, everywhere from the Yale Law School News and Events page to Yahoo News. That was the law, passed by the second Congress and signed by President Washington, that mandated that all able-bodied men purchase muskets for the purpose of being ready and able to serve in the militia if called. That would seem to answer both questions rather conclusively, but for those who see too many differences between an obligation to be prepared to serve in the nation’s defense and buying health insurance, there is another, more relevant precedent.

Just six years later, in 1798, then president John Adams signed An Act for the Relief of Sick and Disabled Seamen that required, among other things, that private individuals who wanted to take employment as sailors on merchant ships buy health insurance. Unlike the Militia Acts, this had very specific mechanism for collection and specified penalties for failure (namely, not getting a job). Rick Ungar reported on this in Forbes over a year ago, in an article that answers every critique I’ve seen about the applicability of the Militia Act. If you missed it the first time around, it’s well worth a look now.

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