Monday, March 22, 2010


Alan writes:
While I was in the Gulf for the Iraq war and eligible under my contract to retire, a majority of Americans decided to hold me in place through our Commander-in-Chief in a program called "Stop Loss." Many others were held beyond the end of their contracts--after they no longer owed us anything.

And, of course, all of us register through the Selective Service in case our lives are needed in service to our country. This is a follow-on to the draft that required Americans to don a uniform and risk their lives because a majority of their fellow citizens thought we needed to fight a war. Many Americans died through this process.

With that history, those precedents, I find it both laughable and very insulting to suggest that Americans cannot be told to buy health insurance rather than leaving the cost of their emergency care to their fellow taxpayers.

If you seriously think that there is a continuity between selective and military service and a health insurance mandate, then I'm completely flabbergasted. The differences are many and significant, so much so that the comparison is completely ridiculous.


Anonymous said...

I bet the number of American deaths in Obamacare in its first decade will outnumber the ones in Stop Loss since the Civil War.

Mrs. P

Withywindle said...

Note also that the Democrats et al loudly condemned the Stop-Loss program. And I can't recollect anyone on the right ever thinking of it as more than an unpleasant necessity.

Andrew Stevens said...

Mr. Howe's argument appears to be that, because we allow the draft, government has unlimited powers over all its citizens. This is not, actually, an absurd argument. If the government has the power to, effectively, force any man into involuntary servitude, then what powers could it possibly not have?

Fortunately, Mr. Howe is wrong because he hasn't thought this through carefully. I say fortunately, because otherwise we live in a nightmare world in which government's powers are entirely unlimited. The power to compel military service, the Court has ruled, is a subset of Congress's power to declare war. In other words, if Congress believed that it was necessary to compel people to buy health insurance in order to win a war, then they would clearly have the power to do so.

Because that is not the case, it is much less clear whether they do. In fact, I think it's pretty clear that they don't for pretty much the same reason that Mr. Howe thinks that they do. Because if they have the power to compel that, then they have the power to effectively do anything. Mr. Howe believes this is true and they have such power. I believe that they clearly don't have such power, and therefore that it's not true.

FLG said...

"otherwise we live in a nightmare world in which government's powers are entirely unlimited. "

That's why I think the idea is absurd.

Moreover, there are several other differences.

Both selective service and drafts are temporary in nature. A mandate to buy health insurance is a continuous burden.

Going to Congress's power, it's more specific than that. Any government's ultimate function is national defense, and the constitution explicitly lists this power and the mechanisms for exercising it. There's nothing explicitly about health care and indeed the idea that the government ought to provide it is relatively recent.

Lastly, military service isn't the purchase of a good or service.

None of this says that a mandate is unconstitutional, but the comparison to compulsory military service is deeply flawed both constitutionally and logically.

Andrew Stevens said...

The Constitution does not explicitly allow conscription, though. I'd be much more inclined to the argument that the Court erred and that conscription is, in fact, unconstitutional than buy Mr. Howe's argument that because conscription is constitutional, everything is constitutional.

FLG said...


While there is nothing about conscription, the government has the unambiguous constitutional authority to raise an army.

Andrew Stevens said...

Yes, and the Court also ruled that, since conscription was known at the time of the writing, that this included conscription. Nevertheless, Daniel Webster made a pretty compelling case that it did not include conscription back in 1814 and his argument won the day; Madison was not allowed to conscript during the War of 1812. (It was always agreed that states had the power to conscript for their militias, as indeed states pretty clearly have the power to compel individual mandates on health insurance.) His argument lost during the Civil War, of course.

I'm saying that if we buy Mr. Howe's argument - that if the federal government has the power to conscript, then it must have the power to do pretty much anything it wants, then I'd be much more inclined to the view that an error was made in allowing conscription than that the Constitution was meant to give the federal government total power over everything.

Anonymous said...

The best line that has ever been written in this space:

"Fortunately, Mr. Howe is wrong because he hasn't thought this through carefully."

Oh and the feminists have overplayed their hand. Now that they've gotten taxpayers to fund abortion, taxpayers can demand abortion clinics be subject to the same regulations that hospitals are.

No more tossing babies in the garbage cans...

Oh, and the government can tax even more the money abortion clinics make
off the selling of baby parts.

Mrs. P

FLG said...


I understand your point. Mine is that given the extent to which the founders articulated the powers of government and the rights of individuals, it seems self-refuting to follow the argument that because the federal government has the power to conscript, then it must have the power to do pretty much anything it wants.

Andrew Stevens said...

By the way, Stop Loss is a total red herring. The Courts agree with Stop Loss because it's part of the contract that an enlistee signs. The standard Enlistment Contract states: "In the event of war, my enlistment in the Armed Forces continues until six (6) months after the war ends, unless the enlistment is ended sooner by the President of the United States." It's nobody's fault but the soldier's if he didn't read his contract carefully; it's right there in black and white.

Andrew Stevens said...

FLG: I agree. I was just following the hypothetical argument if it was true. In my view, Mr. Howe's argument, if we buy it, is a better argument against the constitutionality of conscription than it is for the constitutionality of an individual mandate.

Anonymous said...

FLG, remember how you got upset about the Detroit DPS guy who didn't know how to write?

Well....Detroit stikes again. Be proud Mr. Howe, be very very proud.

Creative Commons License
This work is licensed under a Creative Commons Attribution-No Derivative Works 3.0 United States License.