Another word on mandates

When asked where Congress derives its power to issue a mandate to citizens to buy health insurance or face large fines or jail time, Democratic politicians like Nancy Pelosi, Patrick Leahy, and Steny Hoyer scoff at the very question as “ridiculous.”  However, the last time such a mandate was proposed, at least one entity on Capitol Hill did not find it ridiculous at all.  In 1993, the Congressional Budget Office analyzed HillaryCare and reported to Congress that it would take an “unprecedented” step in issuing such mandates (via Verum Serum):


A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.

Federal mandates typically apply to people as parties to economic transactions, rather than as members of society. For example, the section of the Americans with Disabilities Act that requires restaurants to make their facilities accessible to persons with disabilities applies to people who own restaurants.  The Federal Labor Standards Act prohibits employers from paying less than the federal minimum wage. This prohibition pertains to individuals who employ others. Federal environmental statutes and regulations that require firms to meet pollution control standards and use specific technologies apply to companies that engage in specific lines of business or use particular production processes.  Federal mandates that apply to individuals as members of society are extremely rare. One example is the requirement that draft-age men register with the Selective Service System. The Congressional Budget Office (CBO) is not aware of any others imposed by current federal law.

The Selective Service registration has been controversial since its restart in 1980, but it doesn’t require that young men buy military uniforms each year as a consequence.  It requires a one-time registration as a means to have a ready mobilization plan for national defense in an emergency — and drafts have long precedent in American history.  Even a draftee’s time in the service, however, isn’t permanent, but a temporary service, usually two years.

As the CBO noted in this 1993 analysis, there has never been a federal mandate for residence to buy any product, let alone one from a private industry heavily regulated by the government.  The Constitution does not grant Congress that power, and the Tenth Amendment strictly limits the federal government’s powers to those enumerated in the Constitution.  Some dismiss the Tenth Amendment as a “truism” rather than a fact of constitutional law in order to dismiss the entire point of the document — which was precisely intended to prevent the federal government from assuming dictatorial power over the states and individual citizens.

I’ll close with explanations of “general welfare” from James Madison and Thomas Jefferson, two men who led the effort that produced the Constitution, and its close connection to enumerated powers and their limitations:

Money cannot be applied to the General Welfare, otherwise than by an application of it to some particular measure conducive to the General Welfare. Whenever, therefore, money has been raised by the General Authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress. If it be, the money requisite for it may be applied to it; if it be not, no such application can be made. (James Madison, via Quoty)

[O]ur tenet ever was, and, indeed, it is almost the only landmark which now divides the federalists from the republicans, that Congress has not unlimited powers to provide for the general welfare, but were to those specifically enumerated; and that, as it was never meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money. (Thomas Jefferson, via Quoty)

If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions. (James Madison, Letter to Edmund Pendleton, January 21, 1792 Madison 1865, I, page 546)

The Tenth Amendment was added to the Constitution to explicitly enforce that limitation.

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