“What If Congress Forced You To Buy A Gun?: George Washington’s Individual Mandates
Eric Spiegelman has an interesting post on how the legal establishment got the individual mandate so wrong. In it, he writes:
How far can the definition of Congress’ enumerated powers be stretched? As Justice Scalia asked during oral arguments: if Congress can force you to buy health insurance, can they also force you to buy broccoli? The question I like to ask is: what if Congress forced you to buy a gun?
But Congress has forced Americans to buy guns. It’s in the Militia Acts of 1792. The relevant section is a bit lengthy, so I’ve bolded the key parts:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this act. And it shall at all times hereafter be the duty of every such captain or commanding officer of a company to enrol every such citizen, as aforesaid, and also those who shall, from time to time, arrive at the age of eighteen years, or being of the age of eighteen years and under the age of forty-five years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrolment, by a proper non-commissioned officer of the company, by whom such notice may be proved. That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
Now, you could argue that this was not done under the Commerce Clause. But as Yale’s Akhil Reid Amar says, “the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a ‘well-regulated’ militia with a mandate, why can’t Congress regulate interstate commerce the same way?”
Incidentally, that’s not the only time an early congress mandated that Americans purchase privately sold products:
In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.[…]
Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.
That’s from Einer Elhauge, a professor at Harvard Law, who continues, “not only did most framers support these federal mandates to buy firearms and health insurance, but there is no evidence that any of the few framers who voted against these mandates ever objected on constitutional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were unconstitutional.”
Also of note: unlike the mandate to buy muskets, the maritime mandates were exercised under the Commerce Clause.
By: Ezra Klein, The Washington Post Wonkblog, June 26, 2012
“In Pursuit Of Partisan Aims”: What’s The True Meaning Of Patriotism?
Recently I publicly debated a regressive Republican who said Arizona and every other state should use whatever means necessary to keep out illegal immigrants. He also wants English to be spoken in every classroom in the nation, and the pledge of allegiance recited every morning. “We have to preserve and protect America,” he said. “That’s the meaning of patriotism.”
To my debating partner and other regressives, patriotism is about securing the nation from outsiders eager to overrun us. That’s why they also want to restore every dollar of the $500 billion in defense cuts scheduled to start in January.
Yet many of these same regressives have no interest in preserving or protecting our system of government. To the contrary, they show every sign of wanting to be rid of it.
In fact, regressives in Congress have substituted partisanship for patriotism, placing party loyalty above loyalty to America.
The GOP’s highest-ranking member of Congress has said his “number one aim” is to unseat President Obama. For more than three years congressional Republicans have marched in lockstep, determined to do just that. They have brooked no compromise.
They couldn’t care less if they mangle our government in pursuit of their partisan aims. Senate Republicans have used the filibuster more frequently in this Congress than in any congress in history.
House Republicans have been willing to shut down the government and even risk the full faith and credit of the United States in order to get their way.
Regressives on the Supreme Court have opened the floodgates to unlimited money from billionaires and corporations overwhelming our democracy, on the bizarre theory that money is speech under the First Amendment and corporations are people.
Regressive Republicans in Congress won’t even support legislation requiring the sources of this money-gusher be disclosed.
They’ve even signed a pledge – not of allegiance to the United States, but of allegiance to Grover Norquist, who has never been elected by anyone. Norquist’s “no-tax” pledge is interpreted only by Norquist, who says closing a tax loophole is tantamount to raising taxes and therefore violates the pledge.
True patriots don’t hate the government of the United States. They’re proud of it. Generations of Americans have risked their lives to preserve it. They may not like everything it does, and they justifiably worry when special interests gain too much power over it. But true patriots work to improve the U.S. government, not destroy it.
But regressive Republicans loathe the government – and are doing everything they can to paralyze it, starve it, and make the public so cynical about it that it’s no longer capable of doing much of anything. Tea Partiers are out to gut it entirely. Norquist says he wants to shrink it down to a size it can be “drowned in a bathtub.”
When arguing against paying their fair share of taxes, wealthy regressives claim “it’s my money.” But it’s their nation, too. And unless they pay their share America can’t meet the basic needs of our people. True patriotism means paying for America.
So when regressives talk about “preserving and protecting” the nation, be warned: They mean securing our borders, not securing our society. Within those borders, each of us is on our own. They don’t want a government that actively works for all our citizens.
Their patriotism is not about coming together for the common good. It is about excluding outsiders who they see as our common adversaries.
By: Robert Reich, Robert Reich Blog, June 25, 2012
“A Potential Warning Sign”: Our National Political Science Experiment
Can Mitt Romney win the election without actually saying anything?
MSNBC’s First Read has an excellent take on the Romney campaign’s flexibility, or lack thereof:
If there is a constant criticism about Mitt Romney and his campaign from both the left and right, it’s that they’re not nimble – especially when it comes to dealing with issues they’d prefer to ignore. […]
We’ve said it before and we’ll say it again: Much of a president’s job is crisis management, and the only way to succeed is being nimble. That Team Romney seems to struggle with this aspect of the job is a potential warning sign for a challenger against an incumbent president.
What compounds the problem is the fact that Romney is also evasive on those issues he wants to talk about. Despite his monomaniacal focus on economic growth, Romney has been reluctant to give details on what he would actually do to improve the short-term economic situation. In fact, when pressed for details, he gives a surprisingly candid answer on why he refuses to offer any meat to the public:
“The media kept saying to Chris, ‘Come on, give us the details, give us the details,’’’ Romney has said about New Jersey Gov. Chris Christie’s 2009 gubernatorial race. ‘’We want to hang you with them.’”
Put another way, Romney won’t give you details because he doesn’t want to deal with the political fallout, as if there’s something illegitimate about critiquing a politician for their policy proposals.
How you think this plays out depends, in large part, on what you think determines elections. If you see the economy as the most crucial variable, then Romney will not suffer from his refusal to offer details. By virtue of being not-Obama, he’ll win disaffected voters and succeed Obama as president of the United States. But, if you give weight to campaigns, then–as First Read points out–Romney’s behavior is a real liability. There might be a critical mass of voters who want a different direction, but aren’t willing to make a blind leap for Romney. To win those voters, he’ll need to offer specifics.
This is a long way of saying that we’re basically in the midst of a large-scale political science experiment. Romney’s campaign will answer a crucial question—with a bad economy in the background, does a challenger have to offer anything to win election?
By: Jamelle Bouie, The American Prospect, June 27, 2012
“More Elections For Sale”: Supreme Court Reaffirms That The Robber Barons Are In Charge
The US Supreme Court may still retain some familiarity with the Constitution when it comes to deciding the nuances of cases involving immigration policy and lifetime incarceration. But when it comes to handing off control of American democracy to corporations, the Court continues to reject the intents of the founders and more than a century of case law to assure that CEOs are in charge.
Make no mistake, this is not a “free speech” or “freedom of association” stance by the Court’s Republican majority. That majority is narrowing the range of debate. It is picking winners. To turn a phrase from the old union song, this Court majority has decided which side it is on.
The same Court that in January 2010 ruled with the Citizens United decision that corporations can spend freely in federal elections—enjoying the same avenues of expression as human beings—on Monday ruled that states no longer have the ability to guard against what historically has been seen as political corruption and the buying of elections.
The court’s 5–4 decision in the Montana case of American Tradition Partnership v. Bullock significantly expands the scope and reach of the Citizens United ruling by striking down state limits on corporate spending in state and local elections. “The question presented in this case is whether the holding of Citizens United applies to the Montana state law,” the majority wrote. “There can be no serious doubt that it does.”
Translation: if Exxon Mobil wants to spend $10 million to support a favored candidate in a state legislative or city council race that might decide whether the corporation is regulated, or whether it gets new drilling rights, it can. But why stop at $10 million? If it costs $100 million to shout down the opposition, the Court says that is fine. If if costs $1 billion, that’s fine, too.
And what of the opposition. Can groups that represent the public interest push back? Can labor unions take a stand in favor of taxing corporations like Exxon Mobil?
Not with the same freedom or flexibility that they had from the 1930s until this year. Last Thursday, the Court erected elaborate new barriers to participation in elections by public-sector unions—requiring that they get affirmative approval from members before making special dues assessments to fund campaigns countering corporations.
How might it work? If Walmart wanted to support candidates who promised to eliminate all taxes for Walmart, the corporation could spend unlimited amounts of money. It would not need to gain stockholder approval. It can just go for it.
But if AFSCME wants to counter Walmart argument, saying that eliminating taxes on out-of-state retailers will save consumers very little but will ultimate undermine funding for schools and public services, the union will have to go through the laborious process of gaining permission from tens of thousands, perhaps hundreds of thousands of members. And even then, it will face additional reporting and structural barriers imposed by the Court.
Campaign finance reformers had held out some hope that states might be able to apply some restrictions on corporate spending, as Montana did with its 100-year-old law barring direct corporate contributions to political parties and candidates. That law, developed to control against the outright buying of elections by “copper kings” and “robber barons,” was repeatedly upheld. Until now.
Now, says Marc Elias, one of the nation’s top experts in election law, “To the extent that there was any doubt from the original Citizens United decision [that it] broadly applies to state and local laws, that doubt is now gone.… To whatever extent that door was open a crack, that door is now closed.”
There may still be a few legislative avenues left for countering the “money power” of the new “copper kings” and “robber barons.” But they are rapidly being closed off by a partisan high court majority.
That’s why US Senator Bernie Sanders, the Vermont independent who has emerged as a leading proponent of moves to amend the US Constitution to restore the rule of law in elections, says: “The U.S. Supreme Court’s absurd 5-4 ruling two years ago in Citizens United was a major blow to American democratic traditions. Sadly, despite all of the evidence that Americans see every day, the court continues to believe that its decision makes sense.”
When billionaires can “spend hundreds of millions of dollars to buy this election for candidates who support the super-wealthy,” argues Sanders, “this is not democracy. This is plutocracy. And that is why we must overturn Citizens United if we are serious about maintaining the foundations of American democracy.”
Sanders says he will step up his efforts to enact a constitutional amendment to overturn not just the Citizens United ruling but the democratically disastrous rulings that extend from it.
“In his famous speech at Gettysburg during the Civil War, Abraham Lincoln talked about America as a country ‘of the people, by the people and for the people.’ Today, as a result of the Supreme Court’s refusal to reconsider its decision in Citizens United, we are rapidly moving toward a nation of the super-rich, by the super-rich and for the super-rich,” explains Sanders. “That is not what America is supposed to be about. This Supreme Court decision must be overturned.”
By: John Nichols, The Nation, June 25, 2012
“Bush v Gore”: The Only Precedent That Seems To Matter To “Judicial Counter Revolutionaries”
Nobody would much describe Monthly alumnus and long-time Atlantic writer James Fallows as a firebrand. But he does have a sense of historical perspective. Over the weekend, mulling a probable Supreme Court action to invalidate some or all of the Affordable Care Act, Fallows put together a stunningly brief summary of how we came to this point:
Pick a country and describe a sequence in which:
* First, the presidential election is decided by five people, who don’t even try to explain their choice in normal legal terms.
* Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
* Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
* Meanwhile their party’s representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation — and appointments, especially to the courts.
* And, when a major piece of legislation gets through, the party’s majority on the Supreme Court prepares to negate it — even though the details of the plan were originally Republican proposals and even though the party’s presidential nominee endorsed these concepts only a few years ago.
How would you describe a democracy where power was being shifted that way?
Fallows answers his own question by using a term—“long-term coup”—that he later downgrades to “radical change.” That’s appropriate, since “coup” implies tanks in the street rather than black-robed ideological cheerleaders. But it’s becoming more obvious each day that the judicial counter-revolutionaries of the Supreme Court don’t need the crisis atmosphere that they used to justify Bush v. Gore to continue its legacy. Indeed, it seems to have become the only precedent the majority reliably respects. Maybe they will surprise us all on Thursday and step back from the brink. But without question, if another seat on the Court falls their way, the constitutional substructure of every 20th century social accomplishment from the New Deal to the Civil Rights Act to the Clean Air Act to the right to an abortion is in immediate danger. And anyone who remembers that strange night in 2000 when the Court’s Republican appointees decided to seize the opportunity to choose a president should not be surprised.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, June 25, 2012
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