In the pages of The New Republic, Einer Elhauge argues that the federal health-insurance mandate has close precedents in laws endorsed by the founding fathers themselves. One of them is the 1792 Militia Act:
In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. . . . Four framers voted against this bill, but the others did not, and it was also signed by Washington.
The Militia Act of 1792 did not actually require the purchase of anything, but it did require that “every citizen, so enrolled [in the militia] and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt,” etc. This was not, however, an exercise of the commerce power, but of the militia power.
Article I gives Congress the power “[t]o provide for organizing, arming, and disciplining the Militia.” It also authorizes Congress “[t]o regulate Commerce . . . among the several States.” The power to “provide for . . . arming . . . the Militia” specifies an end that Congress is entitled to pursue, and leaves the means to implication. The power to “regulate Commerce . . . among the several States” specifies a means, and leaves the end to implication (or to the whim of Congress). The former power is thus open-ended in a way that the latter is not.
But can’t the power to regulate commerce be recast as an end, which Congress is entitled to use various means to pursue? Yes, but not in a way that helps the defenders of the health-insurance mandate. The Commerce Clause, for instance, would entitle Congress to purchase the paper it needs in order to draft its interstate-commerce legislation. Though this is not itself a regulation of interstate commerce, it is a necessary means to the end of regulating interstate commerce. In contrast, a health-insurance mandate has no relationship at all to regulating commerce.
I am not convinced by Elhauge’s other two examples, but they are a subject for another post.