Legal Commentary

There is one unequivocal benefit to the recent controversy over the constitutionality of ACA's Individual Mandate: The argument against the mandate may force us all to revisit the correctness of the Selective Draft Cases, 245 U. S. 366 (1918). Randy Barnett's amicus brief in the Sebelius case attempted to distinguish the Draft Cases by arguing that conscription of personnel is somehow more explicitly linked to the power to raise armies than conscription of insurance purchases (aka conscription of "commercial" activity) is to the power to regulate commerce. In the amicus brief's words,

To be sure, there are exceptional situations in which the federal government may mandate individual activity. It can require registration for a military draft. Selective Draft Law Cases, 245 U.S. 366 (1918). It can require people to serve on juries. U.S. Const. art. III, § 2; id., amend. VI; id., amend. VII. It can require people to pay income taxes and file tax returns. Id. amend. XVI; Brushaber v. Union Pacific R.R., 240 U.S. 1 (1916) (upholding income tax laws and accompanying procedures). But these duties go to the heart of American citizenship. The draft relates to Congress? explicit power ?to raise and support armies.?

Yes, of course, the power to raise armies is an explicit power. So is the power to regulate commerce. If the feds can force someone to join the army, why can't the feds force one to join commerce? How is the nexus in one case to an express power more remote than the nexus in the other case? (And I leave in decent obscurity the offhand claim that somehow filling out a 1040EZ firm "go[es] to the heart of American citizenship").

In truth -- and to their credit -- Hans Bader's and Randy's heart was obviously not in this passage. Their role as litigators and stare decisis barred them from declaring what I hope they believe -- which is that the military draft is unconstitutional. Indeed, if Randy had incorporated some attacks on the draft in his Wall Street Journal piece, I'd even think of supporting his position, if only out of respect for his libertarian chutzpah in attacking a favorite conservative sacred cow.

In fact, if you buy Randy's anti-mandate argument, then you really ought to be denouncing the Draft Cases as a travesty, not distinguishing them as the expression of fundamental duties of citizenship.

The draft's invasion of personal liberty is much greater than the individual mandate. Moreover, the framers' suspicion of standing armies was much greater than their suspicion of commercial regulation. Further, there is a long history of distinguished constitutional lawyers' attacking the idea that Congress has the power of conscription, going back at least to Daniel Webster's great speech of 1814 denouncing Monroe's recommendation that the militia be mobilized to fight the War of 1812.

So come on, Randy: Bite the bullet, tick off the AEI and other conservative allies, and attack the draft -- if not in your brief, then in your op-eds. Consistency, I think, demands that libertarians (among whom I count myself) follow through with libertarian federalism in every area and not only when attacking the favorite statutes of the Left like ACA.