Saturday, October 15, 2011

Why the Individual Mandate is Still Unprecedented

Jason Mazzone

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. Congress did it once and it can do it again.

The claim that the self-arming provision of the May 8, 1792 Militia Act was an early individual mandate, imposed by the federal government, and of the same general form as the minimum essential coverage provision, has so far gone unchallenged. There has been further debate about whether it is wise to compare militia service to health insurance and distinctions have been offered between Congress’s Commerce Clause power—the basis for the health insurance mandate—and Congress’s enumerated powers over the militia. Nonetheless, everyone seems to have accepted that if the comparison does hold, the supporters of the minimum essential coverage provision have found a piece of historical precedent.

There is, however, one big problem in comparing the self-arming requirement of the May 8, 1792 Militia Act to the individual mandate requirement of the healthcare law.

Read alone, section 1 of the May 8, 1792 Militia Act does appear to mandate that individual militiamen purchase weapons and other military supplies. Here is what it says:
That every citizen so enrolled and notified, shall, within six months thereafter, 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; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
That sure sounds like a mandate.

But analogizing this provision to the new healthcare law requires ignoring a fundamental difference between the two statutes. The difference is this: unlike the healthcare law, which enforces its mandate through income tax penalties, the May 8, 1792 Militia Act contained no enforcement mechanism. The statute imposed no fine, tax, or prison term, or any other penalty against militiamen who failed to comply with this requirement. (The law also offered no incentive for compliance.) Individuals could (and did) simply refuse to purchase the arms and equipment Congress told them to purchase and there was nothing any federal officer could do about it.

Perhaps there was some other mechanism under federal law for enforcing the arming requirement outside of the four corners of the May 8, 1792 statute? Not according to Secretary of War Henry Knox. In December of 1794, Knox issued a report to Congress (on “the difficulties attending the execution of the act establishing a uniform militia throughout the United States”) in which he called “a difficulty of primary importance” the fact that “the militia are requested to arm and equip themselves, at their own expense; but there is no penalty to enforce the injunction of the law.”

Indeed, even as Congress saw, in the militia returns it collected and from the complaints of officers, that militiamen did not arm and equip themselves according to the law, and even though Congress enacted a slew of additional statutes regulating the militia, at no point did Congress ever provide for a penalty against militiamen for failing to purchase or otherwise obtain the requisite arms and equipment.

Besides lofty expectations of militiamen obeying federal law out of a sense of patriotic duty, Congress counted on the states, mostly by exhortation but at times also by legislation, to give effect to the federal arming requirements. But the states were no puppets of the federal government and relying upon them replicated the problem Congress had in telling militiamen what to do with no penalty to back up the requirement. States also suffered no penalty if their militiamen were not armed and equipped according to federal direction and they received no reward for producing compliance. Soon after the enactment of the May 8, 1792 law the states implemented a system of monetary fines against militiamen who failed to maintain arms and equipment. But the states themselves decided which arms and equipment their militiamen should possess rather than following blindly Congress’s demands. To the extent federal law was implemented, it was implemented in only the ways that individual states deemed fit. Moreover, state enforcement through fines was lax. Muskets were not always available for purchase and when they were available they were expensive. The states understood that there was generally little point in fining local militiamen who did not have a musket (let alone other equipment) in their possession. Local officials, who wanted to remain in office, were also reluctant to seek fines against resentful militiamen. Viewed in terms of the relationship between the federal government and the states, the arming provision of the May 8, 1792 Militia Act (and subsequent statutes) actually reinforced the authority of the state governments over the militia.

The May 8, 1792 Militia Act is not a precedent for the individual mandate of the healthcare law. A request, as Henry Knox called the self-arming provision, is not a requirement. A modern healthcare law that looked like the old militia requirement would tell Americans to buy a certain type of health insurance—but without any consequence as a matter of federal law for their failure to do so. States would be able to enforce the insurance requirement, or some other requirement they preferred, through fines and other mechanisms. Just as the May 8, 1792 Act failed to produce a fully-armed militia, this approach would be unlikely to produce a fully-insured America.

Supporters of the healthcare law would be wise to steer clear of the Militia Act as either a precedent or as a blueprint for what they hope to accomplish.

[A footnote: This post is based on an article I am finishing up called "Guns and Healthcare." I expect to have a draft of the article up at SSRN soon.]

Update: My colleague-in-blogging, Andrew Koppelman attributes to me the view that "the Constitution is violated whenever Congress does anything unprecedented." In so doing, Professor Koppelman commits the common sin of the law professor of believing all analysis is advocacy. The subject of my post is clear: is the 1792 Militia Act a precedent for the individual mandate? This question, as Professor Koppelman knows, has arisen in public debates about the individual mandate and in the litigation over it. Supporters of the individual mandate say, yes it's been done before; opponents say no. My post is an effort to set the historical record straight. What that record means for resolving the constitutional question is a wholly separate issue. On that issue I didn't advocate one outcome or another.

As far as Professor Koppelman's own advocacy goes, in deeming "preposterous" the notion that a lack of precedent casts doubt on Congress's power, he gravely misjudges the current state of constitutional jurisprudence. Members of the Supreme Court do not find arguments based on an absence of precedent to be preposterous. Instead, they consider precedent to be highly relevant to construing the modern scope of congressional power. The Court majority in Printz v. United States relied, in good part, on the absence of historical precedent in concluding that Congress lacked power to commandeer state governments to carry out federal programs. "Because there is no constitutional text speaking to this precise question," the Court explained there, "the answer to the . . . challenge must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court." And, after finding no similar federal statute in the nation's past, the Court concluded that the lack of precedent "tends to negate the existence of the congressional power asserted." It may be that on a similar approach, the "structure of the Constitution" and the "jurisprudence of this Court" will outweigh a lack of precedent for the healthcare mandate and that it will therefore be upheld. Nonetheless, advocates operate in a world in which, as a practical matter, precedent for congressional action is relevant. Getting the historical analysis right is therefore rather important.


Since the Constitution explicitly authorizes the Congress to "provide for organizing, arming and disciplinary the Militia," it is hard to see how it would matter, even if it were a mandate.

err, disciplining

MLS: I don't understand your point. The Constitution also explicitly authorizes Congress "To regulate Commerce . . . among the several States." In neither case, though, does the text tell us whether Congress can exercise its power by compelling individuals to purchase a good; that's the question in the current litigation.

But congress absolutely has done something like this before. It hasn't created a criminal penalty for failure to purchase insurance. What it has done is increased your taxes if you don't. Surely no one is going to argue that congress doesn't have the power to levy a tax, and the Court's precedent in Wickard shows that the government can force someone to enter the stream of interstate commerce, either through taxes or through fines and penalties.

If someone wants to argue that the individual mandate is unconstitutional, they need to argue why it's not a tax.

Critics of the law sometimes argue that the requirement (not called a "mandate" as such) is separate from the tax penalty in place to enforce it. They need to do this since they are reminded that w/o various things (such as a certain income), there is -- as in 1792 -- no actual penalty for non-performance.

The "mandate" is there in both cases. The novelty is an enforcement mechanism, which is a lot easier to defend, if the basic power is there in the first place.

The idea Congress can never require a person to buy something from a private vendor is a weak argument. I need to buy such things to serve on federal jury duty. I need clothes, a means to get to the courthouse and so forth. It is a frivilous claim to suggest -- even if the 1792 law didn't have teeth -- the gov't can't require a person to buy a uniform to serve in the militia.

So, the argument than becomes that somehow enforcing interstate commerce regulation is different, which tends to be a matter of "it wasn't done this way before," forgetting that even the draft was controversial into the 20th Century.

Or, some overly nuanced argument that is a lot harder to make than the quick slogans tossed around by opponents. So, I say, continue using the 1792 precedent.

jacobadenbaum: My post is about the specific question of whether Congress has ever before mandated a private purchase, a question that has been at issue in the litigation. Congress might well be able to tax individuals who do not purchase health insurance but that's a separate question; there is a dispute in the cases as to whether the healthcare mandate is actually an exercise of Congress's taxing power or must be examined solely as an exercise of Congress's Commerce Clause power. As for Wickard, I'm not sure what you mean by "compelled to enter the stream of commerce" but the farmer in the case wasn't compelled to purchase anything: he could simply lower his wheat consumption or substitute the wheat with something else (or stop growing wheat altogether for that matter). So we're still left with the question of whether Congress has ever before required Americans to purchase something. The Militia Act isn't an example of that.

Joe, You are right that there is a question as to whether and why it matters for determining the scope of Congress's power whether or not there is some precedent in place (different people have different views on that issue). But that's a separate issue from the question of whether there is a precedent. You are also right that for certain people (those without income or those who do not have to file a tax return) there is no effective means for the government to collect the penalty for failure to maintain coverage. But that still leaves a penalty collected by the IRS on the incomes of tax-filers who lack the requisite coverage. There was no parallel to that in the 1792 Militia Act.

The basic point is that there IS a precedent for a requirement (all those "shalls" underline the point).

Your point is that there is no precedent for an actual federal enforcement mechanism. The presence of the "mandate" remains; even under your analysis, it had some real effect, even if it was underenforced.

The precedent of an actual federal individual responsibility requirement carries a lot of water since if it was legitimate, some sort of enabling legislation must be as well.

And, whatever the proper reach of that enabling legislation is, some sort of requirement to purchase a private good (even w/o the avoidance mechanisms possible here) is rather easy to defend.

Others can add their .02, but one more thing. The fact that states were left with the duty to enforce is seen in other areas. Take the federal draft. During the Civil War, the federal government was loathe to press the point. First, it called forth state militia. Only if states did not provide enough, did it draft, using a relatively weak one at that. In time, something like that could have been in place here too. If states did not do enough, let's say during the War of 1812, to enforce the law, further federal action might have been submitted.

The underlining principle is what matters: the power to put forth a mandate of some sort. That is over half the battle. So, as with Jacob, I don't quite see the point of not raising the precedent.

Joe, I don't think your argument works. The penalty is being challenged: the litigants don't want to have to pay a tax penalty for failing to maintain coverage. On your analysis, nobody should care if the Supreme Court holds that the coverage provision is constitutional but the penalty provision is not. I don't predict the administration will advocate that outcome. And whether or not members of Congress in 1792 thought they could enact "enabling legislation" is a different question from the one I am interested in, which is whether Congress did enact enabling legislation. The answer to that is no.

I didn't say "no one should care." I separated the mandate from the enforcement. So, it matters.

A basic argument is made that the government cannot "mandate" citizens to do something. Okay? The law you cite is a precedent for that.

The law said people "shall" do something. The law had real effect. The states didn't pass those requirements simply out of good will. I assume the law had some effect in that department.

The feds can't say people "shall" worship in churches even if there is no penalty involved. The penalty gives the litigants here standing, but the fundamental point is that the feds shouldn't be mandating citizens to purchase stuff.

Whatever you are interested in, which is fine, that makes it sensible for defenders to bring the precedent up.

"It hasn't created a criminal penalty for failure to purchase insurance. What it has done is increased your taxes if you don't."

The only problem with that argument is that they specifically said, in the law, that it wasn't a tax, it was a penalty. If the Court is going to mindlessly pretend penalties are taxes, if Congress decides to call them taxes, the flip side is that, if they call the penalty a penalty, the Court gets to take them at their word.

My argument is that the Militia Clause is an entirely separate grant of power to Congress, with very different language and, I suspect, very different history. The power to “provide for organizing, arming, and disciplining, the Militia” must include the power to ensure that every individual who is part of the Militia has a weapon. Now I suppose that it doesn’t necessarily mean that Congress has the power to mandate that each individual purchase the weapon himself, but it makes perfect sense, even without the example you cite, that this would be understood as the most practicable way of achieving that objective.

But the fact that Congress has the power to mandate the purchase of weapons under a provision specifically aimed at arming the Militia has no bearing whatsoever, as far as I can see, on whether the Congress has the power to mandate the purchase of everything else under a provision to “regulate Commerce . . . among the several States.” If anything, the former power would seem to cut against the existence of the latter, since there would be no reason to provide for arming of the Militia if the Commerce Clause already gave Congress the power to compel everyone, whether or not in the Militia, to purchase weapons.

To give another example, I assume that Congress has the power to mandate that members of the Militia engage in periodic training and could require that training to include physical exercise to ensure that they are combat-ready. Does it follow that Congress can mandate that all citizens engage in physical exercise as part of its Commerce Clause power? I just don’t see how one has any bearing on the other.

Didn't the 1798 "Act for Relief of Sick & Disabled Seamen" mandate that privately employed sailors purchase health care insurance?

The Militia and Commerce Clauses are fundamentally different provisions.

The MC is a pretty open ended grant of affirmative power to form and maintain a militia. There Is no textual limit against Congress requiring militia members to arm themselves.

Conversely, the CC is a grant of negative power to regulate or limit preexisting interstate commerce. There is no textual grant of affirmative power to compel anyone to engage in the commerce desired by Congress.

The 1792 law was somewhat controversial. It made 'perfect sense' to some people, not others.

The argument here is not some power to regulate the purchase of 'everything else' but requiring certain people to have insurance and then be required to pay a tax if something else is involved such as income. It is a specific requirement that like purchase of military supplies is tied to the power in question.

The relevance is that some claim the government never mandated purchase. Untrue. We can then show how one provision empowers different things. But, as with the lack of enforcement, that is a separate concern. People are talking past each other here.

Brett, not only is the tax system used to collect it, it is reliant on income like an income tax, but repeatedly, as far back as the 1860s, stuff that acts like a tax but is not expressly called one, like fees, was treated as taxes.

If this sort of word game is played in a different situation, I wouldn't be surprised if you would be against it as such. The word 'penalty' like the well known 'marriage penalty' is a description. It is a tax penalty.

But, Joe, the actual legislation called it a penalty.

Again, I repeat: If the Court is obligated to pretend a penalty is really a tax, just because Congress calls it a tax, then if Congress calls the penalty a "penalty", is not the Court obligated to treat it as a penalty, not a tax?

Brett, the courts should and has looked at how the legislation actually works.

This legislation works as a (two words) tax penalty. Taxes -- see Art. I. -- can be applied to pay debts, promote the general welfare or common defense. This one does at least two. It collects revenue and promotes the general welfare.

How is it collected? I have looked at the law and the relevent portions are connected to the tax system. Payment is generally reliant on your income, like an income tax, and/or based on certain activities, like an excise tax. Other means of collection was purposely denied.

Jack Balkin et. al. defended it as a tax when it was under consideration. The government, when needed, defends it as a tax. Politically, 'read my lips' it's best not to do that. But, we are adults here, so we know a tax when we see it, even if some other word is used. Unless, we want to "pretend" otherwise.

Jason, if you are looking for further support that the 1792 National Militia Act and the Individual Mandate are not one in the same, see my article "The 1792 National Militia Act, the Second Amendment, and Individual Militia Rights" in the Georgetown Journal of Law and Public Policy. It can be downloaded here

As you will see, you are correct that the Militia Act had no enforcement mechanism for "arming." This was deemed a State issue, and was confirmed by mulitiple Congresses.

However, I will say that this does not completely dispel the constitutionality of the individual mandate. If one follows John Marshall and Alexander Addison's legal analysis on the Necessary and Proper Clause, the mandate is arguably constitutional. That is another debate for another post...

As other commenters have said, this post is pure stawman bashing, since there are hundreds of other conditional taxes that are economically identical to the ACA.

And, as I've also argued many many times, the ACA does the *exact* same thing as an existing federal statute, 26 USC 106: impose a higher tax on those who fail to purchase health insurance. That Congress called it a "tax" in 45 places and a "penalty" in a dozen others doesn't really seem to change the basic economics. And considering that the baseline rule is that Congress doesn't have to label something a "tax" to invoke its taxing power, it's not clear why the choice of label has any meaning at all.

So I think if you want to advance the conversation, it would be useful to engage with some of those points.

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