Can the Feds Make You Shop?

I was on “The Colbert Report” the other night to talk about the constitutional challenges to health-care reform. At one point, Stephen Colbert asked me, “Can the government force you to do something? When has that ever happened?” I said the government forces you to do things all the time. “But they don’t make you buy things,” he said. Sure it does, I replied.

“When?” Colbert asked.

I responded with a terrible, puzzled silence, followed by certain bleating sounds that resembled English words. I was, obviously, stumped. Helpfully, the Huffington Post has preserved my humiliation for approximately forever:

So I wondered, in the dawn of a new day, what the answer was. Has the government ever required you to buy something?

I called Neal Katyal, who recently stepped down as acting Solicitor General, after representing the Obama Administration in all of the health-care cases on the circuit courts. (He has returned to being a law professor at Georgetown and is in private practice at Hogan Lovells.)

“Governments force you to buy things all the time,” Katyal told me, “State governments force you to buy car insurance.”

But what about the federal government? How can the feds, under the Commerce Clause, which says Congress may regulate “Commerce … among the several States,” force you to buy a product? (“Force” financially, that is; no one holds a gun to you.) Has that ever happened?

Katyal reminded me about the Militia Act, which President Washington signed in 1792. “It required men to buy a knapsack, a rifle, and gunpowder,” he said. Besides, he went on, “We are all now forced to pay for everyone who goes to the hospital without health insurance. That’s a hidden purchase we are all forced to make. The law, in effect, makes it an open purchase.”

Still, wasn’t it fairly novel to impose this burden on people?

“Any landmark law has an element of novelty to it,” Katyal said. “NASA was novel, the Social Security Act was novel. It’s important to remember there is not an anti-novelty provision in the Constitution.”

Whatever you think of Katyal’s argument, it’s a lot better than my answer was. But that, as they say, is a pretty low bar.