In light of the Supreme Court hearing arguments this week about the constitutionality of the Affordable Care Act and the individual mandate, it seems appropriate to revisit a New England Journal of Medicine article from January concerning the mandate’s legality.
The article, like others that cite precedent for the individual mandate, first considers Wickard v. Filburn and Gonzalez v. Raich, the 1942 and 2005 rulings that uphold Congress’ authority to regulate an individual’s commercial activity if their action (or inaction) has an effect on the market as a whole. Such citations are often countered by conservatives who maintain that, no matter what legal precedent exists today, the Founding Fathers would never have dreamed of such a tyrannical interpretation of the Constitution and would have considered any form of a mandate an affront to freedom, liberty, justice, and all other things green and good in our country.
But is that really the case?
The article goes on to cite three laws, passed in 1790, 1792 and 1798 respectively, that provide for mandates not unlike the one being considered by the Supreme Court this week. Einer Elhauge, the author, writes:
[In] 1790, the first Congress, which was packed with framers, required all ship owners to provide medical insurance for seamen; in 1798, Congress also required seamen to buy hospital insurance for themselves. In 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm. This history negates any claim that forcing the purchase of insurance or other products is unprecedented or contrary to any possible intention of the framers.
PolitiFact dug deeper into Elhauge’s claims and found evidence that mandates were approved by Congressmen who had also signed the Constitution; refuting the assertion that the laws passed despite framers’ objections:
There was no roll call for the House and Senate bills requiring health care for seamen. But on the proposal mandating the purchase of a musket, firelock or rifle as part of the larger bill to establish a uniform militia, 10 of the 14 framers whose votes were recorded endorsed the measure.
Not only did mandates pass muster with the Framers in Congress, they were signed into law by George Washington and John Adams. Those who say that the Founding Fathers would object to any governmental regulation of the free market should double-check their history. They won’t like what they find.