But as UCLA Constitutional Law Professor Adam Winkler points out in his column Thursday, individual mandates have been constitutional before, despite the cries and screams of those who want to pretend our country will crumble before The Great Insurance Liberty Swipe of 2014.
As early as 1819, anti-reformers were using the "It's unprecedented!" argument in an effort to overturn federal law. When Congress chartered a national bank to stabilize the financial system, opponents characterized the law as a grave threat to federalism. Nevertheless, the court upheld the law in a landmark decision studied by every law student since.
When Congress passed the Civil Rights Act of 1964, outlawing racial discrimination in public accommodations, the justices were told once again that this groundbreaking law was wholly without precedent. If upheld, the Civil Rights Act would "expand the concept of the regulation of commerce among the states far beyond any point or limit as explained and developed in all previous decisions." Once again, the argument fell on deaf ears.
Similar ominous threats have been raised in cases challenging laws establishing a minimum wage; bans on discrimination against the disabled; environmental laws; the Voting Rights Act; and even federal drug laws.
The laws vary, but the arguments against them remain the same. As the Affordable Care Act challengers assert, "If Congress really had this remarkable authority, it would not have waited 220 years to exercise it."
Except it's not new, as Winkler explains. It's actually established law stretching all the way back to the early 1800s. When the hype is stripped away, the issue at hand is whether Congress can regulate interstate commerce, which health insurance and health care definitely is.
It's refreshing to read a reasonable voice in this whole mandate debate. Winkler is known as a pragmatic, calm voice in the wilderness of the gun control debate, and his new book "Gunfight: The Battle over the Right to Bear Arms in America" is an example of that. It's refreshing to have a calm, educated voice explain the history of mandates and why the individual mandate is not new, and is consistent with the "personal responsibility" principle.
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