The PPACA Mandate: The Government’s Best Case

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?

Reader Discussion

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on February 09, 2012 at 09:11:50 am

The decision in Korematsu is an ugly blot on the record of the Supreme Court, a source of deep shame, no better than Plessy v. Ferguson or Dred Scott (in some ways worse). Any decision that needs to rely upon Korematsu for its justification would invite well-deserved derision. As I recall, Justice O'Conner relied upon Korematsu for support of her rationale in the University of Michigan affirmative action case (Bollinger v. Gratz? I always get those two cases confused), and my immediate reaction was, if you have to rely upon Korematsu, you are building your argument on quicksand.

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Daniel Artz
on February 09, 2012 at 18:29:21 pm

SCOTUS upholding the ObamaCare mandate using the Korematsu precedent? I can't think of a better recipe for mass civil disobedience and even civil strife. Can you?

Things could easily get very ugly, very quickly....

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Image of MarkJ
on February 09, 2012 at 18:35:48 pm

Two problems that the administration might have in citing Korematsu are Justice Jackson's dissent and Justice Murphy's dissent. In addition, citing this case would seem to suggest an application of strict scrutiny in assessing the constitutionality of all aspects of Obamacare. We're not currently at war (officially anyway) and as a society we tend to be less forgiving of overtly racist behavior on the part of the government than has been the case in the past. Being required to state a compelling interest in an economic case, assuming Obamacare is about economics, might not be the direction the administration would like to go.

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Tim Jurgensen
on February 09, 2012 at 18:38:50 pm

Way to answer the rhetorical.

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El Kabong
on February 09, 2012 at 18:44:58 pm

Medicare is many decades old, is compulsory, and therefore would seem to be a strong precedent for declaring the legality or general acceptance of compulsory, federal medical insurance. I'm vehemently against Obamacare, and equally against Medicare, which in my opinion has been the primary reason for medical cost inflation. In any event, can't the argument be made that compulsory is already "settled?" I haven't noted any discussion of this.

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Image of Art Hyland
Art Hyland
on February 09, 2012 at 18:52:55 pm

Several differences but one big one:

1) This was wartime when a large majority of Japanese-"Americans" worshiped a foreign emporer-god which was brought down from his perch only after he was defeated.

The decision has the same weight as Lincoln's numerous (and defensible) Executive Orders during the Civil War.

Using these precedents to stump for Obamacare is - to put it frankly - stupid.

PS: Your use of Obamacare to try to ridicule the Korematsu decision (if that's what you intended) is equally stupid.

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Image of Terry
on February 09, 2012 at 19:04:20 pm

"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?"

I see what you did there.

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Image of anonaonm
on February 09, 2012 at 19:05:44 pm

Why indeed.

Since the Obama Regime won't cite it, the plaintiffs certainly should bring up the disgraceful Korematsu v. United States.

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Image of Ed
on February 09, 2012 at 19:06:27 pm

Wasn't the Selective Service Act (a.k.a.. the military "draft") sustained by Supreme Court decisions, and a collectivist theory of government, that would be easily adapted to supporting the PPACA Mandate?

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Image of geTaylor
on February 09, 2012 at 19:07:08 pm

Of course a cite to Korematsu could be somewhat countered by distinguishing between broad federal powers regarding security in time of war, and diminished federal powers not related to war.

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Image of DonM
on February 09, 2012 at 19:14:40 pm

Didn't you solve your own riddle? "There was a war on at the time." Nothing to see here. Move along ...

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Image of Sara B
Sara B
on February 09, 2012 at 19:23:12 pm

Of course nobody wants to approvingly cite Korematsu, since I have no doubt that the present Supreme Court would be deeply embarrassed by that blot on its history. Which suggests that an excellent strategy would be for some individuals or organization to submit an amicus curiae brief arguing that the court should uphold the individual mandate based precisely on that precedent. Lay it out in stark language: If the U.S. government was not prohibited from mandating that U.S. citizens of Japanese descent report to detention camps, then surely it is much less of a Constitutional burden to require U.S. citizens to obtain health insurance. Force the USSC to confront that problem. My guess is that they're much more likely to reverse the Korematsu precendent and toss the individual mandate then to uphold the individual mandate on what would appear to be obviously racist grounds.

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Image of Daniel Wiener
Daniel Wiener
on February 09, 2012 at 19:28:43 pm

Relying on the SCOTUS to protect our freedoms has always been a crap shoot , especially during the FDR years. Dollars to donuts this thing gets all mushed up with pieces staying in place and pieces falling in the dumpster. But by and large this monstrousity will not disappear ,even if that squish Romney gets elected.

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Rich K
on February 09, 2012 at 19:44:27 pm

Korematsu involves an emergency military measure while Obamacare's mandate is an economic one. But hey, everything involves commerce between the states if you look hard enough!

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Image of luagha
on February 09, 2012 at 19:45:55 pm

I lived thru that era not knowing about the Japanese sent away to camps until one day I asked a co-worker where she got her southern accent. She said, "In the camps in Arkansas." It was an eye-opening event. Roosevelt may have had the best interest of the country in mind at the time, but what he did was reprehensible, and so is Obamacare.

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Image of Jim
on February 09, 2012 at 19:52:22 pm

Would it be that everyone now thinks Korematsu was wrongly decided anyway, and doubt seriously that the Supreme Court would take it seriously as an argument?

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Charlie Martin
on February 09, 2012 at 19:57:50 pm

I'm sorry, but I fail to see the similarity (value for a precedent) between reporting for your incarceration in a federal custodial facility as required by government edict as a condition of being Japanese as compared to purchasing a private insurance policy by government edict as a condition of being a citizen? Surely the power to mandate an individual to do a"performance" by congress is too abstract and unlimited for a serious analysis? If not, then surely the requirement that all 18 year old males register for the draft has value as a performance precedent for defending the mandate to purchase private insurance? Indeed, given the current bias for insuring equality of conditions for similarly situated persons to perform regardless of race and sex, surely the current exemption of females by congress from registering for the draft is problematic? Surely it's about time we have equal dying for equal pay between guys and gals in the military?

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on February 09, 2012 at 23:28:20 pm

You can compel presence and service for jury duty. However, to compel a purchase is worse than compelling an appearance. It is a taking and so worse than this embarrassing precedent.

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Image of Mark
on February 10, 2012 at 01:03:25 am

But that is not an accurate characterization of the argument the Plaintiffs are making. Rather, they argue that the Congress has never used its Article I, Section 8 power "to regulate commerce . . . among the several states" to require the purchase of a commodity. Korematsu had absolutely nothing to do with Congress' power to regulate interstate commerce, but rather its (and the President's) war powers. Korematsu is only relevant if the Obama Administration argues that the individual mandate is a valid exercise of Congress' war powers. Clearly, the scope of Congress' war powers is different than its power to regulate interstate commerce.

Enumeration, folks. Just because the Congress can compel action pursuant to one of its specific powers (i.e., compelling payment of tax pursuant to its taxing power) does not mean it can compel any other action pursuant to another specific power. Korematsu, even if it were not a horrible precedent, would not be helpful to the Administration's argument.

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Image of Mick
on February 10, 2012 at 01:05:37 am

Wickard v. Filburn is much more helpful to the Administration's case, even if it's not directly on point.

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on February 10, 2012 at 03:27:37 am

"even if..."! Especially if.

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Image of Sonar
on February 10, 2012 at 13:43:11 pm

Nice. How about the Obamacare opponents briefing Korematsu? Attorneys have a duty to bring contrary authority to the attention of the court. They could say something like "we realize that an individual mandate was upheld in Korematsu. But here's why you should reject both Korematsu and the similar provision in the health care law." Then away you go. Maybe it baits one of the justices into asking the Solicitor General a question about Korematsu.

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Bud Norton
on February 11, 2012 at 13:04:47 pm

"Korematsu was rightly decided" -- Richard Posner

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Image of Michael Kochin
Michael Kochin
on March 06, 2012 at 03:28:58 am

Hi Pete,We do care about the PC users. It's coming we swear . WRT the scipeal deal. PC users will be grandfathered in as well. If you signed up for the PC waiting list before Dec 7th. You will get the same treatment as the Mac folks. We are one with the PC folks we just had a hard time finding a programmer we could vibe with. We now have that person.. he kicks ass PC coming soon.. we swear

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Image of Prakash
on March 06, 2012 at 05:18:40 am

Just fired this email off to one of my Senators, Amy Klobuchar (D-MN), who voted against Brown-Kaufman:Sen. Klobuchar, I am mesaahd that you would vote to keep the Too Big To Fail megabanks from being broken up by voting Nay on the Brown-Kaufman amendment. Our government's misguided actions to support Bear Stearns, AIG, Goldman, GMAC, and all TARPed banks only increased the probability that risk-seeking traders will make ever-bigger speculations, knowing the taxpayers will bail them out if they are wrong, while keeping all the upside if their speculations are correct. Only by breaking up these behemoths, a la Teddy Roosevelt, can we unlock the power of entrepreneurship without rent-seeking and deliberate hiding of information for profit. At least vote for the Kanjorski amendment to give regulators some power to break up the megabanks.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.