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CC
07-08-2012, 02:09 PM
I've not consulted this oracle recently, so may have missed any discussion. I apologize for any redundancy. But I think I heard that at one point in our early history, George Washington declared that everyone had to purchase a firearm, presumably to be ready for any possible further aggression by the British. This was clearly an individual mandate. Was this event cited as precedent in the government's recent arguments before the Supreme Court?

RealityChuck
07-08-2012, 04:30 PM
Yes, though that was based upon the second amendment, which was not an issue here. More relevantly, the first Congress passed and Washington signed a law that required sailors to purchase insurance in pretty much the same circumstances as the health care law did. I'm sure it was mentioned in the legal briefs on the case, though not in the oral arguments.

CC
07-08-2012, 04:53 PM
I certainly understand ownership of firearms is a second amendment issue, but REQUIRING people to own them doesn't fall under that section. Mandating individual purchase of a gun sounds like something closer to mandating individuals to buy insurance. That's why I wondered if that particular matter was raised.

Really Not All That Bright
07-08-2012, 05:07 PM
Yes, it's true. The firearm and sailors' insurance arguments were raised by Harvard Law professor Einer Elhauge (http://www.tnr.com/article/politics/102620/individual-mandate-history-affordable-care-act), who was a signatory to an amicus brief (http://www.law.harvard.edu/news/2012/01/related-content/11-398tsachealthlawprofessors.pdf) filed by a group of law professors in support of the mandate. Neither the firearm nor the sailors' insurance arguments appear in the brief, though.
Yes, though that was based upon the second amendment, which was not an issue here.
Eh? It would have been based on the militia clause of Article I, Section 8*, not on the Second Amendment - had Congress been in the habit of identifying the power they were exercising in enacting something in those days, which they weren't. The latter is a limitation on Congress, not a power.
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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress...

Victor Charlie
07-08-2012, 06:10 PM
Yes, though that was based upon the second amendment, which was not an issue here. More relevantly, the first Congress passed and Washington signed a law that required sailors to purchase insurance in pretty much the same circumstances as the health care law did. I'm sure it was mentioned in the legal briefs on the case, though not in the oral arguments.

Splitting hairs here, but the law signed by Washington required employers to carry insurance for their sailors. It was Adams who signed the law requiring sailors to pay for their own.

Why this wasn't a more significant part of the administration's defense I can't guess.

John Mace
07-08-2012, 06:34 PM
It should be noted that just because Congress passed a similar law in the past, does not necessarily make a law more or less constitutional. Unless, of course, the law had been upheld or struck down by an earlier court ruling.

Victor Charlie
07-08-2012, 06:46 PM
It should be noted that just because Congress passed a similar law in the past, does not necessarily make a law more or less constitutional. Unless, of course, the law had been upheld or struck down by an earlier court ruling.

That's true, but it certainly sets a powerful precedent when the law was signed by two of the original framers of the Constitution itself. The Founding Fathers' intent has been a central theme to nearly all constitutional debates, and the Founding Fathers' intent is pretty clear on this one. I'm baffled that it ever came down to power of taxation.

John Mace
07-08-2012, 06:52 PM
That's true, but it certainly sets a powerful precedent when the law was signed by two of the original framers of the Constitution itself. The Founding Fathers' intent has been a central theme to nearly all constitutional debates, and the Founding Fathers' intent is pretty clear on this one. I'm baffled that it ever came down to power of taxation.

Depends on the particular justice, I suppose. A textualist wouldn't care.

Fear Itself
07-08-2012, 07:01 PM
It should be noted that just because Congress passed a similar law in the past, does not necessarily make a law more or less constitutional. Unless, of course, the law had been upheld or struck down by an earlier court ruling.Not so. Every law passed by Congress is presumed to be constitutional, until ruled otherwise by a court. There is no limbo where they reside until they are ruled one way or another.

John Mace
07-08-2012, 07:22 PM
Not so. Every law passed by Congress is presumed to be constitutional, until ruled otherwise by a court. There is no limbo where they reside until they are ruled one way or another.
Not really. Unless there is some long legislative history, the fact that Congress passed one law over 200 years ago is hardly going to make a dent in a justice's thoughts about whether the current law is constitutional. They are going to look to court precedent since then.

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