When Congress passed the Patient Protection and Affordable Care Act (Obamacare), the law featured a mandate that individuals buy health insurance. People who did not comply would be fined. Obamacare advocates defended the constitutionality of this mandate by arguing that it was an exercise of Congress’s power to “regulate Commerce . . . among the several States.”
(The Supreme Court had earlier held—in defiance of the original understanding and a century and a half of precedent—that insurance was a form of “commerce.”)
Obamacare opponents responded that ordering people to engage in commerce was not part of regulating it. Obamacare advocates claimed that there was no realistic line between regulating commerce and ordering it.
The Supreme Court ultimately agreed with the opponents. It held that the mandate was not justified by Congress’s power to regulate commerce, although the court did uphold the fine as a form of tax.
What almost everyone overlooked at the time is that the legal distinction between forcing and regulating has an honored place in America’s founding. In the 1760s, Great Britain imposed taxes on goods imported into the colonies. Americans therefore organized a Non-Importation Agreement, essentially an embargo on most British goods.
The British argued that the Non-Importation Agreement showed that the Americans were disloyal because almost everyone on both sides of the Atlantic agreed that the King and Parliament had power to regulate commerce among units of the British Empire. Refusing to buy goods, they argued, was an attempt to override parliamentary regulation.
In early 1776, James Wilson, a member of the Continental Congress, wrote “An Address to the Inhabitants of the Colonies.” In it, he defended the Non-Importation Agreement in this way:
“Was the Agreement not to import Merchandise from Great Britain or Ireland; nor after the tenth Day of September last, to export our Produce to those Kingdoms and the West Indies—was this a disrespectful or an hostile Measure? Surely we have a Right to withdraw or to continue our own Commerce. Though the British Parliament have exercised a Power of directing and restraining our Trade; yet, among all their extraordinary Pretensions, we recollect no Instance of their attempting to force it contrary to our Inclinations.” (Emphasis added.)
In other words, refusing to engage in commerce was not a defiance of Parliament’s power to regulate because forcing commerce was not part of regulating it.
What gives Wilson’s comment special importance is that he later became one of the Constitution’s most influential framers and ratifiers. Wilson favored a very strong federal government, but it is highly unlikely that even he would have agreed that Congress’s authority to regulate commerce included authority to compel it.
Congress eventually repealed the mandate. But the issue remains relevant because America is now afflicted by a cohort of federal politicians who think their power has no limit. If they win control of Congress, they may try to re-act the Obamacare mandate or others like it. Founder James Wilson reminds us that such efforts are unconstitutional.