Question:        In 220 years, has Congress ever before imposed an individual mandate?

Answer:          Yes, in the 1850 Fugitive Slave Act.

According to the Daily Report’s account of the oral argument before the 11^th Circuit in the health care suit, there was a contention that, for 220 years, Congress has not seen fit to use its power to impose an individual mandate. “No clear answers in health care suit,” Daily Report (June 9, 2011). There is a counter-example, however, from 1850.

The story starts in 1791. In that year, a dispute developed between Pennsylvania and Virginia over slavery. Pennsylvania accused three persons of kidnapping a fugitive slave on Pennsylvania territory and transporting him to Virginia. Pennsylvania demanded Virginia surrender the three as fugitives from justice. Virginia refused. The matter was referred to President Washington, who took it up with Congress. In the 1793 Act that followed, the tiny national government enlisted State magistrates in the mechanics of capturing and returning fugitive slaves to their masters.

            Nearly 50 years later, in the 1842 Prigg case, the U.S. Supreme Court in an opinion authored by Justice Story upheld the fugitive slave provisions of the 1793 Act. But the opinion put in doubt, under the Court’s developing dual sovereignties doctrine, the ability of Congress to impose duties upon State officers. Chief Justice Taney, and others, complained that the national government, left to its own devices, was still much too small even in 1842 to be able to effectuate a slaveholder’s claim to a fugitive slave found in a Free State.

            In 1850, Congress solved this problem by imposing what we might today call an individual mandate. The Second Fugitive Slave Act left State officers alone, but enlisted individuals instead in the mechanics of capturing and returning fugitive slaves to their owners. In the 1850 Act, mere “bystanders” and, indeed, “all good citizens [were] commanded to aid and assist in,” Second Fugitive Slave Act § 5, the capture and return of fugitive slaves.

            In 1858, in the Ableman case, a unanimous Court in an opinion authored by Chief Justice Taney reached out to uphold the Second Fugitive Slave Law, “in all of its provisions” and thus including the Congressional imposition of an individual affirmative duty directly upon all good citizens, as “fully authorized by the Constitution of the United States.” For a fuller account, see the attached paper:

History of Individual Mandate in 1850 Second Fugitive Slave Law