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).