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.As they say, read the rest...
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).
It's a little known fact, but in WWII there were other restrictions based on ethnic identities in addition to the Japanese internment. In Eureka, California, Italian families were subjected to a curfew, and a travel restriction (they weren't allowed beyond 2nd Street, or two block from the waterfront). Georgia's father, Vincent, came from a large Italian family in Eureka. While he was serving his country in the South Pacific as an airplane mechanic, his mother and brothers were being restricted in their movements. They fared better than some:
Italian Americans who were evacuated and interned under the War Relocation Authority. This authority was based on Executive Order 9066 (issued February 19, 1942) and Executive Order 9102 (issued March 18, 1942). These orders authorized the "removal from designated areas of persons whose removal is necessary in the interests of national security." That authority did not distinguish between native-born Americans and citizens of other nations living in the United States; the orders simply said "persons." This was the same basis upon which Japanese Americans were interned, an effort much larger in scale than Italian American internment. Indeed, both foreign-born and native-born Japanese Americans and both citizens and non-citizens were interned, though the majority (about 60 percent) were in fact native-born U.S. citizens. Italian Americans interned under the War Relocation Authority were not arrested under the Enemy Alien Act, but were simply "persons" removed under the War Relocation Authority.