On today’s Morning Joe, Senator Ron Johnson (R., Wis.) fell into a trap when co-host Mika Brzezinski asked him whether the health-insurance mandate was the first time our government had forced citizens to engage in commerce. Johnson replied in the affirmative, prompting his opponent, Dr. Ezekiel Emanuel, brother of Rahm, to howl with glee.
“That’s absolutely untrue,” Emanuel said. “George Washington required American households to have a gun. In the Heart of Atlanta case, the Supreme Court required people in the South who owned motels, owned restaurants to serve blacks — against their conscience, against what they wanted. The Supreme Court has required people to get vaccinated — against what they wanted. The Supreme Court and the country have [long] said that for the common good, for an individual’s benefit, you can require people [to do things].”
Not quite. In the examples Emanuel cites, government has forced citizens to do things they disliked, but it has done so under specific provisions of the Constitution.
Start with Washington. Yes, the Militia Act of 1792, which Washington signed into law, required “every free able-bodied white male citizen” within the ages of 18 and 45 to “provide himself with a good musket.” But that didn’t make old George a socialist. In Article I, Section 8, clause 16 of the Constitution, it states that Congress shall have the power “to provide for organizing, arming, and disciplining, the Militia” — which is exactly what that law did.
It’s unclear to which case Emanuel is referring when he talks of the Court requiring people to get vaccinated. The case that comes to mind is Jacobson v. Massachusetts, in which the Court held that the state of Massachusetts, acting through the city of Cambridge’s board of health, could fine a citizen for not receiving a mandatory vaccination. Yes, a state government can do this — as the Tenth Amendment makes clear — but that doesn’t mean the federal government can.
The Heart of Atlanta case is trickier, because in it, the Court held that Congress could force motels to accommodate blacks under a loose interpretation of the Commerce Clause. The Court declared that Congress’s “power over interstate commerce extends to the regulation of local incidents thereof which might have a substantial and harmful effect upon that commerce.” Liberals argue that non-ownership of insurance is one such “incident.”
In United States v. Lopez, however, the Court limited the scope of the Commerce Clause by striking down a federal law that had prohibited carrying a firearm in a school zone. Writing for the Court, Chief Justice William Rehnquist held that Congress could regulate “those activities that substantially affect interstate commerce.” The question, then, is whether the decision not to buy a product is an “activity” that affects commerce.
In short, we mustn’t mistake political messaging for constitutional analysis. Yes, the government can force you to do things, but only if the people have authorized the government to do so.