-Submitted by David Drumm (Nal), Guest Blogger
Harvard Law School professor Einer Elhauge writes that the very first Congress, in 1790, passed a law that included a mandate that ship owners buy medical insurance, but not hospital insurance, for their seamen. That Congress included 20 framers and was signed by another framer: President George Washington. In 1792, Washington signed another bill, passed by a Congress with 17 framers, requiring that all able-bodied men buy firearms. In 1798, Congress, with 5 framers, passed a federal law that required seamen to buy hospital insurance for themselves.
Why weren’t these examples cited by the Solicitor General during his oral argument?
Randy Barnett, looks at the example of ship owners required to provide health insurance for their seamen. Barnett sees no substantive difference between the purchase of insurance and a regulation requiring the purchase of life preservers or life boats. Ship owners are in the business of commerce and this law regulates how that commerce is conducted.
However, ship owners are not in the business of shipping seamen. Ship owners are in the business of shipping cargo, which sometimes includes passengers. Life preservers and life boats are directly concerned with the shipping business. A regulation requiring that seamen be able to perform their duties would be tied directly to the shipping business. A regulation benefiting those seamen unable to do their work, is not.
Barnett also looks at the Militia Act that required persons to provide their own firearms and notes that this is not a “purchase mandate” since the guns could be gifts or borrowed or inherited.
However, the insurance mandate doesn’t exclude insurance that comes as a benefit from a employer, or insurance that is provided under a parent’s policy.
Two years ago, David Kopel points out that the 1798 law imposed a 20 cents per month withholding tax on a seaman’s wages. This revenue was to be turned over to the Treasury Department and used to support sick and injured seamen. Kopel notes that the 1798 law is a good precedent for programs such as Medicare.
Although Elhauge’s examples are not without problems, the arguments against the first two examples also have their problems.
While a single-payer system would have circumvented the constitutional issues, it would have never made it through Congress.
UPDATE:
Einer Elhauge Replies
Professor Randy Barnett is a good friend who deserves enormous credit for coming up with a creative constitutional argument that has commanded such attention. But I don’t ultimately find his distinctions persuasive, and it isn’t because I like the health insurance mandate. I am on public record calling it bad policy. But that of course does not make it unconstitutional.
Although Barnett acknowledges that the early medical insurance mandates were exercises of Congress’ commerce clause power, he distinguishes them on the ground that they were imposed on actors who were in commerce, namely on shipowners and (in a third example he omits) seamen. His distinction thus means that he admits that these precedents show that if one is engaged in commerce in market A – here the shipping market or the seamen labor market – then Congress has the power to impose a mandate to purchase in market B – here the medical insurance market – even though markets A and B are totally unrelated. This concession conflicts with the argument of the challengers, which claimed that widespread activity in the health care market did not permit a purchase mandate even in the highly related health insurance market. Indeed, this concession seems to make the whole action/inaction distinction collapse because the fact that no relation between the markets is required means that commercial activity in any market – say, the market for employment or food or housing – would permit the Obamacare mandate. Because the Obamacare mandate applies only to those who have income that subjects them to income tax, it is necessarily limited to people who are active in some commercial market and thus his test would be satisfied.
On the gun mandate, Barnett offers two arguments. First, he says it was different because it did not require individuals to buy guns if they got them from someone else. But the Obamacare mandate similarly just requires you to have health insurance; you don’t have to buy it if someone else provides it for you, which is true for many who get their health insurance from the government or their employer, spouse, or parent. Plus, the gun mandate required the self-provision of consumables like ammunition and gunpowder that required purchasing more than one was already going to use.
Second, Barnett says the gun mandate was different because it was an exercise of the militia power rather than the commerce clause power. But I still think this misses the point. As Judge Silberman held, the text giving Congress the power to “regulate commerce” on its face includes a power to mandate purchases given 1780s dictionary definitions of “regulate.” To rebut this, the challengers have relied heavily on the notion that the unprecedented nature of purchase mandates allows us to infer the framers were against them. This example shows there was no such unspoken understanding. Nor does the text of the militia clause give much basis for a greater power to mandate purchases. To the contrary, the relevant portion of the militia clause gives Congress the power “To provide for… arming ….the Militia,” that is the power to provide the militia with arms, which seems the opposite of forcing individuals to self-provide those arms. If that text can be flexibly read to allow a purchase mandate, then such a reading is even more plausible under the Commerce Clause.
Moreover, even if the challengers do win on the Commerce Clause, the mandate must still be sustained if it is authorized under the necessary and proper clause. Given that the challengers admit the constitutionality of the provisions that ban insurer discrimination against the sick and argue that those provisions cannot be severed from the mandate, it seems undisputed that the mandate was necessary to exercise Congress’ commerce clause power to ban such discrimination. The challengers’ argument on the necessary and proper clause thus boils down to their assertion that purchase mandates are not “proper” – and these historic examples refute the notion that the framers thought there was anything improper about purchase mandates.
Finally, Barnett asserts that these are the only examples of federal purchase mandates. Even if that were the case, they seem pretty telling given their framer involvement and they rebut the claim such mandates were unprecedented. But in fact there are many other examples of federal purchase mandates. One federal mandate requires corporations to hire independent auditors. Another requires that unions buy bonds to insure against officer fraud. Such mandates fit the mold of allowing activity in one market to trigger a mandate in a totally different market, and as noted above, if that is constitutional, then so is Obamacare’s individual mandate.
H/T: LGF, Eugene Volokh.
Pbh: “Let us imagine what could happen should the USSC strike down the mandate, but nothing else. After all, there is nothing that I can see that prevents Congress from requiring national insurance carriers to forego “pre-existing conditions” as an underwriting discipline. Should that survive, and I think it could even if the mandate is disallowed, what then?
Chaos is what. Vaporization of all but a very few, maybe only one, insurance company.
And then, when those very few surviving insurance behemoths understand that they cannot survive merely on the backs of those who can afford their regulated premiums, what do they pay their lobbyists to do?
Single payer anyone?”
Pbh,
I’ve been thinking about this comment of yours today. Are you implying that such an implosion of the insurance market would hasten us down the road to a single payer system? If so, then call me Captain Chaos.
I would reiterate that it was also vague as a matter of necessity to get enough agreement on what was a unquestionably a compromise.
I suspect if you could bring back all 39 of them and asked how they intended the CC to apply to the healthcare law requirement you would have 39 different responses, and about a million more if you asked everyone who voted for adoption.
Parsing the meaning of the word “Commerce”, “Trade” and the like is likely to elicit similar differences, especially when we add in the reality of the 21st century. Though, I do suspect those who are inclined to this intent nonsense actually are living in the 18th century..
bhoyo:
” I am not bound by party or ideology. I view the Constitution as a Social Compact, I also see it as a legal document, In that scenario it seems that in order to change or magnify the powers of the National Government, we are bound to employ Article V.”
******************
Your statement leads one to the inevitable conclusion that you are a strict constructionist. I find the law more adaptable and fluid to fulfill the intended purpose of serving us and not the other way around.
“A strict observance of the written laws is doubtless one of the
high duties of a good citizen, but it is not the highest. The
laws of necessity, of self-preservation, of saving our country
when in danger, are of higher obligation. To lose our country
by a scrupulous adherence to written law would be to lose the law
itself, with life, liberty, property, and all those who are
enjoying them with us; thus absurdly sacrificing the end to the
means.”
–Thomas Jefferson to John Colvin, 1810.
Bhoyo:
Izb1 is undoubted correct that the Constitution was left purposefully vague to permit the kind of flexibility needed to address our modern problems. How could the Founders be expected to know about Internet commerce or patenting life forms? How about weapons of mass destruction in the hands of terrorists? No rational person can surmise that they would know more about our situation that we do ourselves.
These men were lawyers and damn good ones. They understood the formal amendment process would be cumbersome and rightfully so. They also understood after Marbury v. Madison that the court would have final say in legislative enactments as they applied to the Constitution. Judges have “made” law for centuries even as they dressed it up as mere “discovery” of the actual will of the legislature or the ruler. They also knew that Federal Power would grow especially in response to war or other national crisis.
All in all, we have quite a bit of right to apply Jefferson’s interpretation to the purpose of the pliant Constitution. We can also apply no less a legal mind than John Marshall in McCulloch::
[The Constitution is] “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.
The further afield the comments have gone in the argument the sillier they have become (or as some might say, the more fatuous they are). The issue at hand is not the mechanism for modification of the Constitution as in the A3 but what the existing document says and means. If you don’t like the Commerce Clause as it is then by all means go out and seek to Amend it. In the meantime stop complaining it does what “you” complained it would do when it was written and signed.
bhoyo,
Thank God … somebody finally said it!!
Hi all,
I have one issue to emphasize, no other. I am not bound by party or ideology. I view the Constitution as a Social Compact, I also see it as a legal document, In that scenario it seems that in order to change or magnify the powers of the National Government, we are bound to employ Article V. Have we obviated that in the past yes. Is that a prudent course to maintain, I think not. What I find a tad upsetting is that all of us know why !!!!
We may consider each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.
If we applythe quote to one circumstance we seem to be able to change Constitutional powers in an extra constitutional way, that is derivative law, can trump organic law, or at least that seems to be the implication. If that be so, can those born this evening claim exemption from the debt of the two previous adminstrations? Are they compelled to pay an Income tax ? Will they be mandated to purchase the insurance mandated in the ACA ? The issues with Jefferson’s statement go on and on.
We’re technically a corporatist oligarchy declining into corporatist fascism, but we’re working to right that wrong.
I mean, since we’re talking actuals versus aspirationals.
The simple truth of a democracy is that it is a form of government that belongs exclusively to the living — not the dead. It is passed from generation to generation but each may do with it what they will.
We may consider each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.
Hi all,
Quoting Jefferson regarding pliant Constitutional Construction is akin to quoting Maher on piety or decorum. Jefferson did make that comment, and Madison asked all the valid questions ? What of the advancements inherited, when does a generation begin or end. Are we a democracy ? Or are we a compound Constitutional Republic ?
mespo,
Isn’t that the crux of this discussion … what this generation is doing with it?
(referenced “It is passed from generation to generation but each may do with it what they will.” [mespo])
“So did the founders intend plenary powers to the Congress ? Did the founders ratify Judicial Supremacy ? Did the Founders intend we could be mandated to buy anything?”
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The simple truth of a democracy is that it is a form of government that belongs exclusively to the living — not the dead. It is passed from generation to generation but each may do with it what they will.
We may consider each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.
~Thomas Jefferson
Is it Burke who stated that all that is necessary for evil to triumph is for good men to do nothing ?
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Burke never said that. He said:
“When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.”
~Thoughts on the Cause of Present Discontents (1770).
Tolstoy’s narrator said it in a movie adaptation of War & Peace.
Hi all,
Again it seems the secondary histories are driving our current perceptions,as the post supra indicates. I still remember Gordon Wood telling me ‘oroginal meaning’ is a fools errand. Maybe the sequacious will be more able to respond to the question re stated as ‘what didnt the Founders intend ‘? Can we deny Lincoln’s warning that we sould never supplant the Founders logic when we know they understood the question better than we do ?
Reducing the founders to a few a slave owning misogynists sounds pretty ‘cosmopolitan;, but to dismiss the Founding as an anachronism seems fatuous. They, despite the flawed world they lived in changed the formual of governance forever, no longer would power allow liberty, liberty now would grant power. A written constitution in a compound republic, one which provided checks and balances on the energy of government while keeping the essential liberty alive, was their goal. The vagueness of the Constitution is due to our ignoring the History of the time. We do not teach early American History after the 8th grade,one point I am in agreement with Gordon Wood about we do not teach civics, as the efforts of Sandra O;connor testify. law schools do not teach any history of the Constitution, just case law. The architectonics of the Constitution came about in a conscious effort to not only control the people, but also to have government controlled.
So did the founders intend plenary powers to the Congress ? Did the founders ratify Judicial Supremacy ? Did the Founders intend we could be mandated to buy anything?
Our history, extant documents, is there, it is ours. It i s neither vague nor confusing. It is there for all who earnestly wish to view our heritage, and are nor predisposed to contempt prior to investigation. It also requires study.
Is it Burke who stated that all that is necessary for evil to triumph is for good men to do nothing ?
The search for true meaning and original intent is a fools errand for some and a clever diversion for others. The writers and signers were some of the smartest people of the day. if they wanted to be clear in their meaning and intent they were quite capable of doing so (at least to the extent any written word can be unambiguous and beyond debate).
No, rather what they intended was to be as vague as possible so each could see in it enough of what they wanted and not too much of what they did not as needed to get 39 people to agree at least enough on what they thought it said – or could claim it said – to sign it.
The Federalist Papers, while useful were still only the notions of a few out of the whole. The Constitution was only barely ratified and largely due to better marketing and organization. To say there was a clear and singular intent (beyond that described above) is nonsensical.
However, the Anti-Federalists are instructive about the intent by what they feared went too far. In their view there was way way TOOOOO much power vested in the federalism!. If we accept them at their word then should we not also accept the Constitution provided more power then less when trying to draw the lines today? Today, they confuse the world they wanted with the world as it actually came to be.
We do know this much: The Articles were a disaster and nearly everyone agreed something more was needed. Getting States with so profound and deeply run differences – slave holders to non slave, for example – to agree was I suppose the real genius of the authors. But to do so meant taking nearly every problem that vexed the nation then and kicking it down the road. Hence, a vague document open to endless interpretation.
The same arguments over the same issues are still unresolved except by the periodic shifts in views demonstrated by Civil War and the voters. And that was probably exactly what they wanted (excluding the part about the Civil War which demonstrates the obvious failure of their approach).
But, if we must argue over the absurd – meaning the intent of a few slave owning misogynists who gave eloquent speeches on the dignity, rights, and freedom of man — I have to say mespo has won hands down.
The analysis of federal police power always starts with McCulloch and works forward through the case law about the particular enactment in question and whether it can be pigeon-holed in one of the enumerated powers or any implied enabling “necessary and proper” power. There is little support for the concept of plenary police powers.
I was writing so didn’t see mespo’s post till after posting my own questions.
bhoyo,
Are you suggesting “a taking” as in a statute enacted pursuant to the police power? I know that is usually if a state statute is found unconstitutional due to deprivation of life, liberty, or property (under police power). Or is this somehow working towards the Commerce Clause reasoning and “cross-state lines” justification?
bhoyo:
“The hour is late, and I still have one question I would like to pose, Does the National Government have General Police Powers ???”
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From US v. Lopez, 514 U.S. 549 (1995):
But, so long as Congress’ authority is
limited to those powers enumerated in the Constitution, and
so long as those enumerated powers are interpreted as having
judicially enforceable outer limits, congressional legislation
under the Commerce Clause always will engender “legal
uncertainty.” Post, at 630. As Chief Justice Marshall
stated in McCulloch v. Maryland, 4 Wheat. 316 (1819):
“Th[e] [federal] government is acknowledged by all to
be one of enumerated powers. The principle, that it can
exercise only the powers granted to it . . . is now universally
admitted. But the question respecting the extent
of the powers actually granted, is perpetually arising,
and will probably continue to arise, as long as our system
shall exist.” Id., at 405.
See also Gibbons v. Ogden, 9 Wheat., at 195 (“The enumeration
presupposes something not enumerated”). The Constitution
mandates this uncertainty by withholding from Congress
a plenary police power that would authorize enactment
of every type of legislation. See Art. I, § 8. Congress has
operated within this framework of legal uncertainty ever
since this Court determined that it was the Judiciary’s duty
“to say what the law is.” Marbury v. Madison, 1 Cranch
137, 177 (1803) (Marshall, C. J.). Any possible benefit from
eliminating this “legal uncertainty” would be at the expense
of the Constitution’s system of enumerated powers.
So the answer is “it depends.” If you are talking interstate commerce or enumerated powers or the necessary and proper implied powers, the answer is “yes.” Anything else and the answer is probably “no.”
The hour is late, and I still have one question I would like to pose, Does the National Government have General Police Powers ???