The Obamacare plaintiffs, I’ve noted here, have a point: a federal mandate to purchase health insurance raises enumerated powers problems of a sort that mere prohibitory regulations—“don’t do X”—do not. Today, let’s hear it for the feds.
With the exception of narrowly cabined “mandates” that ensure the operation of the federal government’s own institutions (such as juries and the armed forces), say plaintiffs, the federal government has never compelled performance as a condition of lawful residence in the United States. That’s a pretty potent argument. The government’s response is that a congressional failure to exercise a particular power doesn’t mean that Congress lacks that power. That’s technically true but substantively lame.
A much better answer is that the plaintiffs’ argument is in fact wrong. We are all familiar with an individual mandate that was authorized by the U.S. Congress and notoriously upheld by the U.S. Supreme Court: the affirmative duty of persons of Japanese descent to report to a Civil Control Station. Korematsu v. United States, 323 U.S. 214 (1943).
The distinction between mere prohibition and command played a large role in the internment cases. In an earlier case, Hirabayashi v. United States, 320 U.S. 81 (1943), plaintiff had been convicted on two counts: (1) failure to report of a Civil Control Station; (2) violation of an 8:00pm – 6:00am curfew. Chief Justice Stone’s opinion for the unanimous Court carefully addressed only the curfew violation, ostensibly on the grounds that the three-months prison terms for each violation were running concurrently. Technically, that left the constitutionality of the report-for-detention order up for grabs.
Strikingly, even the Korematsu Court sought to avoid that question. The military authorities had artfully issued concurrent orders excluding the plaintiff and others from the military area in question, while also prohibiting them from leaving that area; the only way to avoid punishment was to report to an assembly center. Seizing on the (plainly pretextual) formal distinction between the prohibitions and an affirmative command to report, the Court again declined to rule on the constitutionality of the mandate. Korematsu, 323 U.S. at 222. Justices Roberts and Jackson, in separate dissents, sharply criticized the majority and, insisting on the difference between the curfew and the detention regime, opined that the latter was a bridge too far.
Obviously, the racial classification in Hirabayashi and Korematsu has long been impermissible, and Mr. Korematsu’s conviction has been overturned, 584 F.Supp. 1406 (N.D. Cal. 1984). Moreover, Korematsu does not quite clinch the government’s case. Putting aside the Court’s technical evasion of the mandate issue, there was a war on at the time (a real war, not a Sebelius war over who pays for contraceptives), and it’s hard to contend with the logic that says that the power to wage war encompasses the power to wage it successfully. Still, Korematsu is a perfectly fine precedent: it has never been overruled. Moreover, it is the feds’ best and only precedent.
So why don’t they cite it?