ObamaCare, the Militia Act, and The House That Jack Built


Author: Timothy Sandefur

Some defenders of President Obama’s health care legislation argue that it’s perfectly legal for Congress to force people against their will to buy health insurance from a private company, because in 1792, Congress enacted a law called the Militia Act that required all able bodied white men to buy arms to prepare for militia service. “The 1792 mandate directly contradicts the notion that longstanding American values somehow establish a freedom from government-mandated purchases,” wrote a law student recently at Seton Hall University’s Health Reform Watch blog.

There are two answers to this….

First, and most obviously, the Militia Act was passed under the militia clauses, not under the Interstate Commerce Clause, and the difference is telling. The militia clauses allow Congress “to provide for calling forth the Militia,” “to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States…,” and “To raise and support Armies….” The Commerce Clause, by contrast, gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The militia clauses specifically contemplate Congress requiring things directly—causing activity which otherwise would not have occurred at all. Congress is given power to “raise” the armies, to “arm” the militia, and to “call forth” the militia—but it is not given any power to “raise” commerce or to “call it forth” or to cause or compel or create commerce in any way.

To “regulate” means to cause activity that is already going on to conform to a prescribed rule. Johnson’s Dictionary, for example, defined regulate as “to adjust by rule or method,” and a regulator as “that part of a machine which makes the motion equable”—not that makes the motion, but that makes it equable.The 1776 Encyclopedia Britannica defined regulation as “A rule or order prescribed by a superior, for the proper management of some affair.” The term “regulate” simply does not confer on Congress the same kind of power that the militia clauses give it—that is, it gives Congress power to prescribe a rule to govern commerce that people choose to engage in. It doesn’t give Congress power to force people to participate in commerce if they otherwise would not.

Another interesting comparison is between ObamaCare’s individual mandate and the military draft. The draft also forces people to do something they would otherwise not have chosen to do—but, again, the draft laws are enacted not under Congress’ power to regulate commerce, but under its power to “raise” an army. In the Selective Draft Law Cases, 245 U.S. 355 (1917), the Supreme Court said that forcing men to join the military was “sanctioned…by the text of the Constitution, and by its significance as read in the light of the fundamental principles with which the subject is concerned, by the power recognized and carried into effect in many civilized countries, [and] by the authority and practice of the colonies before the Revolution, of the States under the Confederation and of the Government since the formation of the Constitution….” None of these factors are present in the case of ObamaCare’s individual mandate.

Second, to say that the Constitution does not protect “a freedom from government-mandated purchases” is to read the Constitution backwards. The burden of proof is not on individual American citizens to prove that they have some government-created privilege against “mandated purchases.” No, the burden is on the government to prove that it has the constitutional authority to force people to do things they don’t want to do. The Constitution was written specifically to deny Congress any general or “plenary” power. Article I of the Constitution says Congress has only those “legislative powers herein granted”—not all power, but only those “powers” that are “herein granted”—and the Tenth Amendment reserves all remaining powers to the people or to the states. It is not necessary to show that there is some “freedom from government-mandated purchases”—in fact, the Constitution itself tells us not to go on any searches for specific freedoms like this. The Ninth Amendment specifically says that just because a particular freedom is not named in the Constitution does not mean that such a right doesn’t exist. On the contrary, it’s necessary for ObamaCare’s supporters to show that there is federal power to impose the individual mandate.

True, in the years since the New Deal, courts have increasingly ignored the fact that Congress has only limited powers. These courts have wrongly expanded Congressional authority by ever-more strained readings of the Commerce Clause and the “Necessary and Proper Clause,” thus sabotaging the founders’ handiwork. Commenting on what he saw as the potential abuse of the Necessary and Proper Clause, Thomas Jefferson observed that such reasoning would eliminate all restraint on congressional authority: “Congress are authorized to defend the nation. Ships are necessary for defence; copper is necessary for ships; mines necessary for copper; a company necessary to work mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack built?’ Under such a process of filiation of necessities the sweeping clause makes clean work.”

In Jefferson’s day, this “filiation of necessities” seemed like a far-off speculation. No longer.