Individual mandates: not new, not unconstitutional

So, you think it’s unconstitutional and unprecedented to pass a federal law mandating the purchase of a product? Think again. In 1792, America’s founders, the folks who wrote the U.S. Constitution, passed a law mandating that people buy guns and ammunition as part of their duties in the citizen militia. How do you like that, strict constitutionalists?

Nevertheless, when the U.S. Supreme Court begins hearing arguments about the constitutionality of the Affordable Care Act [ACA] on March 26, 2012, they’ll undoubtedly hear the anti-“Obamacare” contention that individual mandates are “unprecedented” and “unconstitutional.” If ACA is upheld, goes the argument in a Supreme Court brief filed by opponents, “it will be nothing less than a revolution in the relationship between the central government and the governed.”

But, according to one constitutional lawyer, that argument would be wrong.

In an op-ed in the San Jose Mercury News, Adam Winkler—a professor of constitutional law at UCLA– points to several historical Supreme Court cases that tested the individual mandate concept—and failed.  Winkler says that, throughout American history, opponents of reform have used the “unprecedented” argument to claim that innovative legislation undermines the Constitution. Some of the examples Winkler cites include:

-A case filed in 1819 challenging a Congressional law that chartered a national bank to stabilize the financial system. Opponents called the law a grave threat to federalism. The Supreme Court upheld the law.

-A Supreme Court challenge to the 1964 Civil Rights Act outlawing racial discrimination in public accommodations. Opponents called the law—you guessed it—unprecedented and argued that: “if upheld, the Civil Rights Act would “expand the concept of the regulation of commerce among the states far beyond any point or limit as explained and developed in all previous decisions.”

In this case, too, the Supreme Court rejected that argument and ruled in favor of the Civil Rights Act.

Also falling into the “unprecedented” category were cases challenging laws establishing a minimum wage; bans on discrimination against the disabled; environmental laws; the Voting Rights Act; and even federal drug laws, writes Winkler.

Why has the Supreme Court repeatedly rejected the “unprecedented” argument? Winkler explains:

The Constitution grants Congress broad authority to regulate interstate commerce; such regulation, to be effective in a constantly evolving economy, requires innovation. Just as technology, business practices and the marketplace change, so too must the legislative response.

Challengers to the health care act emphasize the novelty argument because they have little else on which to rely. Health care, which makes up roughly 18 percent of our gross domestic product, is unquestionably a matter of interstate commerce. The insurance coverage requirement itself regulates a quintessential part of that commercial activity: how consumers pay for medical expenses they will inevitably incur. And past Supreme Court cases interpret the word “commerce” very broadly, holding that it covers even the possession of marijuana for personal use and the growing of wheat for personal consumption.

“Mandates aren’t new, concludes Winkler, noting that we are mandated to file taxes, serve on  juries and register for the draft. “But neither is the argument of health care reform’s opponents. What would really be unprecedented is for the Supreme Court to hogtie Congress to the use of 18th century regulation to solve 21st century economic problems.”

Gloria Shur Bilchik Gloria Shur Bilchik (471 Posts)

Gloria Shur Bilchik is a freelance writer and community volunteer in St. Louis, Missouri. She is the editor of Occasional Planet. She views the preservation of progressive values as vital to making the US a humane, livable place for her children and grandchildren.


  • Bunsiegran

    Great research job, Gloria. I’ve also heard that attorneys who will defend the ACA before the SCOTUS will reference these cases. This will be too much information for self-proclaimed “constitutionalists”. I anticipate that they will jump up and down in a frenzy, claiming history has been altered.