Health care law's defenders look to George Washington

WASHINGTON -- The father of our country could play a key role in defending what opponents of President Obama's health care law call the mother of all mandates.

Seeking precedents for the law's requirement that Americans buy health insurance, some constitutional scholars are reaching back 220 years to a law signed by George Washington: the Militia Act of 1792.

There were two laws, actually, that empowered the president to call up state militias for the purpose of defending the new nation. Those conscripted were required within six months to arm themselves with "a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball." Rifles could be substituted for muskets.

It's not clear that the Supreme Court will hearken back to the days of knickers and wigs during three days of oral arguments on the health care law next week. Administration lawyers haven't cited the Militia Act in their briefs.

Others who defend the law's constitutionality, however, say it could play a critical role in the case.

"This is the gold standard. You've got George Washington vouching for this law," says Akhil Reed Amar, a professor of constitutional law at Yale Law School. "In my view, it's huge and key."

Going back to the generation that wrote the Constitution makes the precedent even better, adherents say; it shows that the nation's founders had no problem requiring citizens to enter into commerce.

"George Washington thought that a purchase mandate was OK," says Ira Millhiser, a legal policy analyst at the liberal Center for American Progress.

Opponents contend the Militia Act provides no defense for the health care law. In the Constitution, Congress was given the power to raise armies and separately to regulate them. Raising them was controversial, argues Paul Clement, a solicitor general under President George W. Bush who will represent the states challenging the law before the Supreme Court. Arming them, he says, was just a necessary component.

Others argue that the Militia Act applied only to men ages 18 to 45 and that they weren't compelled to purchase their equipment. "It is possible that a man could have inherited a musket, bartered for a knapsack or made his own bullets, and still be in compliance with the act," the Heritage Foundation's Julia Shaw wrote.

For some opponents, the fallacy of the argument is best exemplified by the need to reach back 220 years to find it. "Look where they have to go to try to find a precedent," says Randy Barnett, professor of legal theory at Georgetown University Law Center and one of the lawyers representing the National Federation of Independent Business.

The military draft is one example of compulsory service the health care law's proponents mention to defang the argument that the individual mandate is unprecedented. Government also can impose taxes and require jury duty, they note. If the Militia Act seems too ancient, there are more modern precedents, they argue: Medicare and Social Security. To fund those programs, younger workers are taxed to pay for benefits they won't receive until retirement.