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Posted at 10:43 AM ET, 01/18/2011

Is the individual mandate unprecedented?

By Ezra Klein

The legal argument that conservatives have raised against the individual mandate is that it's novel because it forces you to do something when you might have preferred to do nothing. Put differently, it regulates "inactivity," and that's unprecedented. Or is it?

Guns: President George Washington signed a law that required much of the country to purchase a firearm, ammunition and other equipment in case they needed to be called up for militia service. Many of the members of Congress who voted for this mandate were members of the Philadelphia Convention that wrote the Constitution.

Civil rights: The Civil Rights Act of 1964 compelled business owners to engage in transactions they considered undesirable -- hiring and otherwise doing business with African Americans.

Insurance mandates: The Affordable Care Act is not even the only federal law requiring someone to carry insurance. The Price-Anderson Act of 1957 requires nuclear power plants to purchase liability insurance and the Flood Disaster Protection Act requires many homeowners to carry flood insurance.

Other mandates: Other laws require individuals to perform jury service, file tax returns and register for selective service.


That list comes from Ian Millhiser. There's a good reason that Republicans didn't think the individual mandate unconstitutional when they came up with the idea in the early '90s, and there's a good reason they didn't think it unconstitutional when dozens of Republican senators co-sponsored various bills that included individual mandates in both the '90s and the Aughts. What's changed since then is not the Constitution or even dominant trends in constitutional thought. What changed is that Democrats embraced an individual mandate in a bill Republicans didn't like.

By Ezra Klein  | January 18, 2011; 10:43 AM ET
 
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Comments

There are conservatives today who proposed local laws to force everyone to own a firearm. Sorry I forget where.

Posted by: lauren2010 | January 18, 2011 10:59 AM | Report abuse

Social Security taxes falls under this category too.

Everyone must contribute, but not all retire or use those benefits later.

Posted by: lauren2010 | January 18, 2011 11:01 AM | Report abuse

Forcing businesses and utilities to do something they might otherwise not want to do is clearly within Congress' purview. Going back to George Washington is hilarious. And folks are welcome to not buy houses within a flood plain.

I don't want to live in a country where the government can force an individual to do business with an industry they find abhorrent. You'll find it in the Constitution under "Liberty."

Posted by: Hieronymous | January 18, 2011 11:03 AM | Report abuse

Umm... the argument presented in the Prospect has been fully debunked on the judicial record. In every instance cited, an individual had to perform an affirmative act before becoming subject to regulation.

For example, the Civil Rights Act applies only to those who affirmatively engage in interstate commerce, the Price-Anderson Act applies only to those who engage in the nuclear power industry, and flood insurance is required only of those who both engage in interstate commerce (ie, get a commercial loan) and choose to live in a 100-year flood plain. Selective service and jury duty are part of the trinoda necessitas (see discussion following adoption of the 13th Amendment) and Selective Service is also an express part of the Constitution (raising armies and navies).

The better examples are the Post Office requirements: if a person can be made to give up land for a Post Office or Post Road, why shouldn't he be made to give up money for a government takeover of health care? The Post Office example is on-point, but if land is so taken, reimbursement is required. Interestingly, the 13th Amendment is always applicable to the PPACA: can I be forced to use my money, gained from work, to enhance the fiscs of another person? That is, can I be forced to work, then have a portion of my wages directed into the profit of another person? Is this a form of peonage?

Under the PPACA, those with the ability to work are required to purchase specific goods offered by another... with the other party gaining profit from the transaction. This is far different from (for example) the Social Security Act, where they federal government is simply laying a tax: under the PPACA, hard-working individuals are forced to generate profit for other individuals.

Posted by: rmgregory | January 18, 2011 11:17 AM | Report abuse

Ezra,
Most of these are weak arguments and I'm disappointed that you made them. Let's go down the list:

1. Guns: Please cite the actual law. I didn't see it in the linked article.

2. Civil rights: The obvious retort is that no one is required to own a business. I.e. If you do X, then you are required to do Y.

3. Insurance mandates: The same. If you own a Nuclear power plant or live on a flood plain, you are required to do X.

4. Filing tax returns required a constitutional amendment, the sixteenth. Jury service and selective service have clear English common law origins that predate the Constitution.

Requiring a person to purchase a service from a private company just because they reside in the United States is an unprecedented expansion of power under the Commerce Clause, which has almost become meaningless as a defined and enumerated power granted to the Federal Government under the Constitution. You can argue that it's a justified expansion, but you are on weak ground trying to spin it as being similar to the examples you cite. Typically, these sorts of mandates have been reserved to for the states in our Federal system.

Posted by: jnc4p | January 18, 2011 11:19 AM | Report abuse

Ironically, many of the same people who claim the insurance mandate is unconstitutional favor Soc. Sec. privatization.

Privatized mandatory universal health care system? Boo! Privatized mandatory universal retirement plans? Hunky dory!

Posted by: jleaux | January 18, 2011 11:21 AM | Report abuse

@lauren2010 "There are conservatives today who proposed local laws to force everyone to own a firearm. Sorry I forget where."

The argument isn't that local and state governments aren't allowed to do this, it's that the Federal government isn't allowed to do this because it's an incorrect reading of the Commerce Clause.

"Social Security taxes falls under this category too.

Everyone must contribute, but not all retire or use those benefits later."

This is due to the Sixteenth Amendment to the Constitution that expressly gives the Federal Government the power to collect income taxes.

Note that the Federal Government's legal case would be a lot stronger if their argument was simply that this was a deduction to the income tax, rather than a universal mandate. It would probably address 99.9% of the problem as well.

Posted by: jnc4p | January 18, 2011 11:24 AM | Report abuse

I'm pretty sure everyone in this country seeks/is seeking/has sought health care. In my entire life I've never met anyone who's not been to the doctor, or expects to never again see a physician. By being humans in the 21st century, we are participants in the (already highly regulated and subsidized) health care system. So the "If x" in jnc4p conditional clauses is a given. An assortment of "then y"s already apply in current law. The individual mandate is simply another "then y".

Posted by: dollarwatcher | January 18, 2011 11:50 AM | Report abuse

Isn't the issue...not whether the individual mandate is constitutional...but whether the commerce clause can be used to establish constitutionality. Judge Hudson's decision in the Virginia case acknowledged that the penalty for failing to purchase health insurance would be constitutional if it were framed as a tax, but since Congress carefully didn't frame it as a tax, the mandate to purchase something doesn't stand the test of regulating interstate commerce.

Posted by: wretan2900 | January 18, 2011 11:51 AM | Report abuse

I am a full supporter of single-payer universal health care but Erza's arguments are weak unfortunately.
.
The way to do this is as a tax that provides health care as it's benefit. The gov't is fully and clearly able to enact taxation for purposes it deems worthy.
.
Forcing people to buy something isn't a great idea I like and frankly is probably unconstitutional. I don't mind that it is unconstitutional. It should be done the proper way and that is through taxation and benefit provided; not through legal requirement to purchase. In the end perhaps they are the same thing, but the current method opens up an avenue for the gov't to make us buy things other than health care.

Posted by: rpixley220 | January 18, 2011 12:16 PM | Report abuse

I have to agree with many of the above comments that Ezra makes some really bad comparisons. Is he really comparing the individual mandate to the Civil Rights Act? And rather than trying to establish or debunk the idea of precedent, I think it's better to trumpet or criticize the individual mandate on the basis of its own merits or faults. I think its crap, mostly because instead of offering a service that any decent advanced country should provide to its citizens, it mandates the purchase of a product that has been shown to be a bad deal for consumers. Now, Ezra might well be proved right in his zeal for the mandate when, 10 years from now, we have a tightly regulated private insurance market in which insurers make a modest profit while providing comprehensive coverage for a reasonable price to millions of Americans. But speaking of precedent, I'm not aware of many cases over the last 30 years in which U.S. government regulators effectively stopped large private industries from screwing people.

Posted by: andrewbaron78 | January 18, 2011 12:40 PM | Report abuse

The Commerce Clause: The congress shall have power, ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

No one has argued that the individual mandate does not regulate commerce. It does. The argument is that Congress has never regulated commerce in this particular way before, namely, requiring someone to purchase something. But for all you textualists out there, where does it say that Congress can't regulate commerce by requiring people to buy something? It doesn't.

The language doesn't matter, the argument goes, because the individual mandate is an unprecedented exercise of power that, if left unchecked, would logically lead to unlimited power for Congress. Is it unprecedented? Who cares? Congress should be doing the unprecedented. And will it lead to unlimited power for Congress? No. If Congress requires you to do something, it still must be regulating commerce. There is SCOTUS precedent defining what constitutes commerce. This precedent is a sufficient check on Congress' power, and thus, there is no need to put stuff in the Constitution that isn't there.

Posted by: lucasblower | January 18, 2011 12:53 PM | Report abuse

Posted at 10:43 AM ET, 01/18/2011
Is the individual mandate unprecedented?
By Ezra Klein
The legal argument that conservatives have raised against the individual mandate is that it's novel because it forces you to do something when you might have preferred to do nothing. Put differently, it regulates "inactivity," and that's unprecedented. Or is it?

Guns: President George Washington signed a law that required much of the country to purchase a firearm, ammunition and other equipment in case they needed to be called up for militia service. Many of the members of Congress who voted for this mandate were members of the Philadelphia Convention that wrote the Constitution.

Civil rights: The Civil Rights Act of 1964 compelled business owners to engage in transactions they considered undesirable -- hiring and otherwise doing business with African Americans.

Insurance mandates: The Affordable Care Act is not even the only federal law requiring someone to carry insurance. The Price-Anderson Act of 1957 requires nuclear power plants to purchase liability insurance and the Flood Disaster Protection Act requires many homeowners to carry flood insurance.

------------------------------------------
1. Arms. Necessary and Proper provision from being a member of the unorganized militia. Congressional authority comes from the ability to raise an Army and a Navy. There is no way not to not be able to join or not join as males were considered a part of the militia by being adult members.
2. Civil Rights. Actually, if fewer than 15 members, the federal government does not have the ability to coerce. If a person does not wish to engage in interstate commerce, he or she does not have to hire African Americans. The duty to hire African Americans actually comes from Amendment 14, Section 5, but if a business is not hiring, the govenrment cannot compel the hiring of African Americans.
3. Insurance mandates. If a company desires to operate a nuclear power reactor, it must have insurance. If a company does not wish to operate a nuclear power reactor, that is engage in interstate commerce, it does not have to have insurance.

The application of these three examples seem to favor Judge Hudson's view, not oppose it.

Posted by: PALADIN7E | January 18, 2011 1:02 PM | Report abuse

The Commerce Clause: The congress shall have power, ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

No one has argued that the individual mandate does not regulate commerce. It does. The argument is that Congress has never regulated commerce in this particular way before, namely, requiring someone to purchase something. But for all you textualists out there, where does it say that Congress can't regulate commerce by requiring people to buy something? It doesn't.

The language doesn't matter, the argument goes, because the individual mandate is an unprecedented exercise of power that, if left unchecked, would logically lead to unlimited power for Congress. Is it unprecedented? Who cares? Congress should be doing the unprecedented. And will it lead to unlimited power for Congress? No. If Congress requires you to do something, it still must be regulating commerce. There is SCOTUS precedent defining what constitutes commerce. This precedent is a sufficient check on Congress' power, and thus, there is no need to put stuff in the Constitution that isn't there.

Posted by: lucasblower | January 18, 2011 12:53 PM | Report abuse
-------------------------------------------
Ninth Amendment and Tenth Amendment. The Federal Government is a government of express and implied powers. The necessary and proper clause only goes to the ability to carry out these implied powers.

IF the government can order a person to make particular purchases from a particular company or companies when he chooses not to do so,that would seem to give the federal government the power to compel an individual to take any action that the government desires in a field that can be related to a governmental economic interest. That's a bridge too far. That power properly belongs, if it is to be exercised, with the states and the people under the Ninth and Tenth Amendment.

Posted by: PALADIN7E | January 18, 2011 1:09 PM | Report abuse

Another question to pose for those opposed to the Affordable Care Act:

Are you against *this* method of providing health insurance or are you against providing health insurance at all?

Would you support doing this via a tax that provides people with health insurance?

Those questions are generally lost in the rancor unfortunately.

Posted by: rpixley220 | January 18, 2011 1:24 PM | Report abuse

@PALADIN7E wrote:
"That power properly belongs, if it is to be exercised, with the states and the people under the Ninth and Tenth Amendment."
.
Wait, so it's bad for the Fed gov't to force you to buy something, but okey dokey for a state to do so?
.
I'd imagine any gov't shouldn't be able to 'force' us to buy anything, no?

Posted by: rpixley220 | January 18, 2011 1:29 PM | Report abuse

Ezra, you finally mentioned the one and only precedent for the individual mandate: you have to go back to the Second Militia Act of 1792, in which people were forced to engage in the activity of arming themselves.

One little thing, though: THAT WAS A TIME OF REVOLUTIONARY EMERGENCY AKIN TO MARTIAL LAW. Are you seriously proposing that that law should be used by the courts as precedent, that we are still in some sense under threat from the British and under quasi-martial law?

If not, then you're forced to rely on these other points of comparison, which, as other commenters have noted, are exceptionally weak. They obviously all involve people undertaking activities like owning businesses or nuclear plants. No chance Justice Kennedy won't understand that distinction.

People are not automatically engaged in the health insurance market as a function of being born. You can pay cash out of pocket for your medical services.

The only option for the government to mandate coverage would have been for them to do it as a tax and then provide it themselves through a public option (while letting you exempt yourself from the tax if you carry private insurance.)

Interested to see what Ezra's response to the facts would be.

Posted by: michaelh81 | January 18, 2011 1:30 PM | Report abuse

It's fun to quote a law signed by George Washington. Ironically, at least one law supported and signed by participants in the Constitutional Convention is now considered blatantly unconstitutional -- the Alien and Sedition act of 1798.

Posted by: congm | January 18, 2011 1:33 PM | Report abuse

Several "wrongs" still don't make a "right", Klein.

Posted by: msoja | January 18, 2011 2:18 PM | Report abuse

I see a bunch of righties calling Ezra's post wrong. I don't see any of the righties denying that the individual mandate was a frimly held belief until Democrats used it in a bill of their own.

That is the point of this article.

It's curious that you righties could ignore the republican birth of the individual mandate.

Posted by: kindness1 | January 18, 2011 2:24 PM | Report abuse

"It's curious that you righties could ignore the republican birth of the individual mandate."

kindness1,

Okay, I'll bite here. Republican politicians are, in general, unprincipled political opportunists. They are quite comfortable with statist policies provided those policies benefit them politically.

Satisfied?

Posted by: justin84 | January 18, 2011 2:35 PM | Report abuse

If your against an individual mandate then please explain to everyone who it is that will pay for the healthcare of an individual who is able to pay for health insurance but refuses to do so.

I think if you are against an individual mandate then you must be willing to tell people who refuse that they cannot receive healthcare, even on an emergency basis, unless they can pay for it themselves upfront. No free rides, right?

Posted by: carlbezanson | January 18, 2011 3:02 PM | Report abuse

carlbezanson, you're buying a myth. Of course uninsured people pay for their own care - I know, I am one. Not only that, we are charged a lot more than the insured. If you go to an ER and don't pay, they refer it to the bill collectors and they keep pursuing you until they get their money or destroy your credit. Not exactly "free" or "unfair", now is it? For more actual info about the uninsured being charged 3 or 4 times the insured and how even in a liberal state like CA, people only end up with "free care" in rare life-threatening situations, rather than pipe dreams about free riders, see:
http://www.vcstar.com/news/2008/jan/26/web-site-offers-data-on-free-hospital-care/

Posted by: michaelh81 | January 18, 2011 3:17 PM | Report abuse

@PALADIN7E wrote:
"That power properly belongs, if it is to be exercised, with the states and the people under the Ninth and Tenth Amendment."
.
Wait, so it's bad for the Fed gov't to force you to buy something, but okey dokey for a state to do so?
.
I'd imagine any gov't shouldn't be able to 'force' us to buy anything, no?

Posted by: rpixley220 | January 18, 2011 1:29 PM | Report abuse

--------------------------------------------
Because the founders of the federal government were worried about centralized government power, but were rightly concerned that the federal government not bee too weak, as they had just gone through the disaster of the Articls of Confederation.

SO the founding fathers gave the federal government the explicit powers it needed to allow the states to work together, but kept the hands of power in the states and the people.

Kind of what it says in COnstitution and hte Federalist papers. Might want to read de Toqueville while you are at it (He warned what would happen if you let the federal government get too strong in central power). They are great things to actually read.

Okey-dokey??

Too bad they don't teach civics and history classes in junior high anymore. Try to wait a few days before watching "Are you smarter than a fifth grader".

Posted by: PALADIN7E | January 18, 2011 3:28 PM | Report abuse

These examples are ludicrous. The Civil rights act is blatantly unconstitutional, but that's whole other debate. NONE of these examples require a person, simply for being alive, to enrich private for-profit companies. This is the first law that orders every American to spend their money on a service offered by a private for-profit company. It's insanity the liberals who don't have any respect for liberty and how don't at all understand what this law does to it and try comparing other programs which bare no resemblance in theory or practice.

Posted by: EdSled | January 18, 2011 4:12 PM | Report abuse

"I think if you are against an individual mandate then you must be willing to tell people who refuse that they cannot receive healthcare, even on an emergency basis, unless they can pay for it themselves upfront. No free rides, right?"

carlbezanson,

Free rides are fine, as long as all transactions are voluntary.

Posted by: justin84 | January 18, 2011 4:25 PM | Report abuse

I think the Republicans are picking the wrong fight here. Fight WHAT is mandated, not the mandate. What is mandated is government designed health plans (don't call it insurance) that make health care MORE expensive for almost everyone, which makes it harder to pay for the expansions in coverage that even most centrists really want to have happen!

Posted by: staticvars | January 18, 2011 10:40 PM | Report abuse

michaelh81: Fact: Most of them don't end up paying the full bill. And that is one reason, the hospitals claim, that healthcare costs are so high: they are recouping the cost of taking care of non-payers or under-payers from people with insurance. I sincerely hope you don't go bankrupt or need a transplant or chemotherapy. I hope you stay healthy and can always afford your medical care until you're on Medicare.

justin84: There is no such thing as a free ride. Just freeloaders.

Posted by: carlbezanson | January 19, 2011 9:37 AM | Report abuse

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