Oh, Really, O’Reilly?

March 30, 2012

by John Schachter

Who would have thought a 220-year-old law would be relevant in the health care reform debate that dominated the Supreme Court this week? Yet there it is – the Militia Act of 1792 – standing firmly as an answer to an oft-asked question in this debate. Is there an example of anything that Congress has mandated that people buy?

Let’s put aside for the moment that the requirement that we pay our taxes “mandates” that we all “buy” Social Security and Medicare, highways, medical and scientific research, tanks and weapons, and anything else the government pays for through its revenues. How about the narrower question of Congress specifically mandating that citizens actually purchase a good or service?

When ACS President Caroline Fredrickson appeared on Fox News’ “The O’Reilly Factor” on March 27, the show’s eponymous host appeared genuinely miffed when Caroline mentioned the Militia Act. “What act was that?” he asked. O’Reilly had insisted on hearing an example of Congress requiring citizens to purchase something – or as he so politely put it, “[Name] one thing that the federal government compels you to buy, one thing. One thing.”

And when given the oldest and most relevant answer, he balked. It’s pretty clear he didn’t expect there to be an answer. While it’s often difficult to divine what our Founders may have intended with various constitutional prerogatives, in this case we have actual hard evidence.

The following day (presumably after firing the intern who failed to brief him properly), O’Reilly had to justify his erroneous skepticism. Easy for him – he changed the question.

The Militia Act, O’Reilly noted, “was basically a mandate by the federal government to the 14 existing states at the time to raise a standing militia so the new nation could defend itself if invaded as it was in 1812. The Militia Act had nothing to do with commerce. So Ms. Fredrickson with all due respect was misleading you.”

While I am sure Caroline appreciates his “due respect,” it is – shockingly! – O’Reilly doing the misleading and the massive spinning in his so-called no-spin zone. O’Reilly hadn’t asked about commerce. He had asked for an example – “one thing, one thing” – that Congress mandated that people buy. And Caroline provided exactly that.

"Bill, why were you so dismissive of Caroline Fredrickson's attempts to correct you?" a viewer wrote in the following night. “Because she was stating her opinion as fact,” said O’Reilly. “And she wasn't answering direct questions. Both of those things are not allowed in the no-spin zone.” Of course, Caroline was actually using facts to support her opinions. And she was answering direct questions, just not how O’Reilly wanted them answered. Nice try, Mr. O’Reilly.

As for the Militia Acts, let’s take a deeper look at what some of our most respected legal minds have written on the subject.

In an op-ed in the Cleveland Plain Dealer two years ago, former Ohio Attorney General Cordray wrote, “The claim is also made that Congress has never required anyone to purchase a product or service. That is factually wrong. The Second Militia Act of 1792, signed by President George Washington, explicitly required many Americans to make an economic purchase: of a gun, ammunition, gunpowder, and a knapsack to be properly prepared for military service. In 1798, President John Adams signed ‘An Act for the Relief of Sick and Disabled Seamen,’ which required privately employed sailors to purchase insurance to support the newly created marine hospital service.”

UCLA Law Professor Adam Winkler has made a similar case over the years as well. On the Huffington Post in April 2012, Winkler noted, “But the individual mandate is not really so unprecedented. In fact the founding fathers adopted the first ‘individual mandate’ back in 1792. It required individuals to outfit themselves with guns and ammunition, even if they had to buy those items from private sellers. The mandate was included in a series of laws known as the Militia Acts.”

For good measure, Winkler added, “Of course, opponents say, the Framers never imagined national health care legislation. Or did they? The Militia Acts also provided that ‘if any person whether officer or soldier... be wounded or disabled, while in actual service, he shall be taken care of and provided for at the public expense.’” Those Founders knew a thing or two, didn’t they?

If you’d like to see the wording of the actual Militia Acts themselves, take a look.