-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.
Has our society, technology, infrastructure, and general education level evolved to the point that medical care (healthcare) is one of the rights that should be included in the Constitution? Is it something the government should be charged with making possible for all the citizens as medicare is for citizens 65 years and older?
I’m simply trying to get back to the basics here that were presented at the beginning of this thread “Did the Founding Fathers Back …”
Understanding intent, purpose etc. is important when deciding whether or not such a huge task should be allotted to the government. But just as important is the manner in which we give government that sort of control and responsibility. Understanding how it was done so successfully 200 years ago is a help in guiding us today if this is the path we have chosen.
We are a nation firmly established on a legal document, the Constitution. Whether or not the mandate rests comfortably with the bounds of that legal document is the matter up for discussion.
Henry Sumner Maine
Didnt he define a fiction of the law as to conceal or attempt to conceal the fact that altough the letter of the law is unchanged the effect of the law has been profoundly changed?
Soon we may all be like the lead characters in Fiddler on the Roof, imparting our eisegesis under the cover of the, “as the Bible ( constitution on our part ), says”
Mespo:
“How could the Founders be expected to know about Internet commerce or patenting life forms?”
They didnt need to. Roads, Canals, Highways or the Internet commerce is commerce. Magazine, Book or Internet speech is speech. A patent for a screwdriver or a new species of corn is the same principle.
The founders were using principles because they could not predict the future and wanted a way to deal with all instances of a particular problem.
For example I am an engineer and to design a beam I use certain principles of mechanics. They are general principles which apply to every beam ever made or yet to be made of any material or any length of beam.
That is what the Constitution is to be used for. You apply a specific set of principles to an existing condition. You dont change the principles to match the condition. That would be chaos in engineering and as we are seeing it is also chaos in society when you try and modify principles to match specific cases.
The principles of our founding were limited government and individual rights, the 2 are complimentary. That is what all law should devolve to in a free society. Are the rights of the individual maintained and is government being limited. If the answer is no, then something is wrong with the law.
Gee, I wonder if Thomas Jefferson would have bought into extending the legal fiction of endowing corporations with the right to alter the outcome of elections with their money being categorized as ‘speech.’
Rights retained by the people vs. legal fictions bestowed upon corporations…
Hmm…
bhoyo,
It almost sounds like Mespo is lining himself up to be the next Neversleep in the Pbh mythology.
Remember the Smoot Hawley/WWII debates?
Pbh,
I didn’t mean bad chaos; I meant good chaos as in having the threat of impending financial doom light a fire under congress to pass single payer reform before a financial collapse and the institution of a Thunder Dome.
mepso,
“Demi-lawyer”. I like that. 😀
Wow,
The diversity of the partisanship still astounds me. Alas
The knowledge of Jefferson’s tendency to dramatic eloquence at moments is known to all historains, Madison is the perfect counterpart to Jefferson, their 50 years friendship a testimony to the workability of profound genius, in the latter, and studied critical thinking statesman in the former. Hence using Jeffersonian expressions to describe or explain Madisonian constitutional constructions is a better description of disengenous than Mesbo offered us above. meesbo did adaquately decribe Madison’s curriculum vitae as of the most profound of the Framers, and his capacity for critcal thinking, aided by long experience as a legislator at the State and National levels, placed Madison in his unique role as of being of the major forces behind the Constitution and the Bill of Rights.
Throughout history men have aspired to liberty and freedom, the issue was how to convert that idea into a workable government of self governance. The constitution is that achievement. In it’s design are partitions of power, checks and balnces, they were placed there by design not chance. There presence assured all the liberty desired with enough energy in government to attain efficacy and liberty. When I ask questions about defying the partitions of power, or the balance and symmetry of constitional checks and balances the retorts are always general. when the question is specific.
I do not ascribe the ‘whiggish’ interpretation of history, the profound changes to Constitutional power are not teleological, but rather the product of multi layered compromises, the idea that increases of national power are the result of obstacles, breakthough, and apotheosis is puerile, if the focus does not ask what are the impacts to our Constitution. Spatchcocking reasons or out of context quotes to explain such changes are poltically soothing, but dont answer the question of what will be the impacts on future governance.
pbh51:
“Jefferson was duplicitous in the extreme. He said and wrote a lot of crap that was directly intended to deceive, deflect and delude the Congress and public, not to mention historians.”
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Well, that’s a novel idea. Most folks think him one of the greatest Founders and his likeness was carved into Mount Rushmore. President Kennedy once said to a group of Nobel Prize winners assembled at the White House: “I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.”
Dumas Malone, who spent a lifetime studying Jefferson and writing : “Jefferson and His Times”, said “The boldness of his mind was sheathed in a scabbard of politeness.” His work earned him a Presidential Medal of Freedom form conservative darling, Ronald Reagan.
Well you do have Katherine Harris in your camp. The Republican of Florida who presided over the Bush-Gore recount says Jefferson was a liar, too. Course Kathy had her own problems with the truth in the MZM affair, lying about political contributions, and even about her own inheritance.
Who to believe? You and Katherine Harris or JFK, Dumas Malone and Ronald Reagan? Yep, you’ve got quite an imagination there 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.”
Bob, The market is the market. Water finds it’s own level.
Insurance companies exist to SELECT PREFERRED CLIENTS from the riff raff. They will undersell each other in order to gain market share on the assumption that monopoly over those PREFERRED CLIENTS will guarantee profits. Healthcare insurance cannot work within this paradigm once Redlining, ie: pre-exisiting conditions, is outlawed unless everyone plays by the same rules.
So, go ahead, disallow the mandate, which ALONE (and by which I mean, no other solution is imaginable) could afford the income necessary to pay for the requirement to cover pre-existing conditions, which requirement is entirely Constitutional.
AND watch those regulated companies desert the resulting Hugely UNProfitable market.
As for “Captain Chaos”, I hope you have a house in Maine, with a well stocked larder and several thousand rounds. The Insurance business is 1/6th of the entire economy, 2nd only to the U.S. Gov (including the military) and is growing all the time.
Go ahead, shut it down. That’s a plan.
pbh
“We may consider each generation as a distinct nation” [Jefferson]
“The issues with Jefferson’s statement go on and on.” [bhoyo]
Jefferson was duplicitous in the extreme. He said and wrote a lot of crap that was directly intended to deceive, deflect and delude the Congress and public, not to mention historians.
pbh
PS: What’s with that tag, b/t/w?
Bhoyo:
“The idea that the Constitution is vague is niether novel nor accurate.”
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How’s this for precision and comprehensive language.
“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
bhoyo:
“The architect of the Constitution, the Randolph Plan, namely Madison was not a lawyer.”
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That’s a tad disingenuous as if to suggest he was mere planter or gentleman. Madison read the law and suggested a list of readings in the law that would have easily qualified him for admission to the bar. He never opted to join the profession but he was well versed in areas like torts, modes of government, and suits. There was no institutional approach to the practice of law then. Patrick Henry read law for just six weeks before being admitted to the bar. Chief Justice John Marshall spent only three months in legal studies with George Wythe before his admission. Madison read law for at least two years. Madison never sought admission to the bar, but his writings evince a lawyer’s attention to detail and a logical analysis identical to legal analysis. Madison was what Professor Mary Bilder of Boston University calls a “demi-lawyer.”
bhoyo,
Thank you for the suggestion for in doing so I also was reminded of George Mason and able to refresh my memory on his contributions especially his authorship of the Virginia Declaration of Rights and his objection to the Constitution … “It has no declaration of rights,”. A view which prevailed.
He was not a lawyer.
These men were lawyers and damn good ones.
Izb1 is undoubted correct that the Constitution was left purposefully vague to permit the kind of flexibility needed to address our modern problems.
Hi all,
The architect of the Constitution, the Randolph Plan, namely Madison was not a lawyer. The auhor of the Bill of Rights, who also singlehandedly ushered it through a recalictrant First Session of the First Congress was Madison as well.
I have read most of the Bio’s of Marshall, the extent of his legal education in all of them is measured in weeks not months. He once commented that if he spent his time studying, he would be as ignorant as those who do. If I am not mistaken his law practice was in real estate.
The idea that the Constitution is vague is niether novel nor accurate. If my reading of the plethora of Federlaist and Anti Federalist writings, the Resolutions that accompanied the ratification of the States, and the papers of those were either directly or indirectly involved, indicates they explored every power. There were those uncomfortable with the Constituion even after ratification. What they appreneded is a loose construction of the powers,
I WONT POST IT BUT, IF YOU ARE CURIOUS GOOGLE THE PREAMBLE TO THE BILL OF RIGHTS. IT IS INFORMATIVE.
1zb1:
” Though, I do suspect those who are inclined to this intent nonsense actually are living in the 18th century..”
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If one expects to find the true “original intent” of the writers and enactors of the US Constitution, to bastardize Jefferson, he expects to find “what never was and never will be.”
Fizbin, what a perfect metaphor for the hollowness of those arguments. Jumping back and forth through the make believe time of a fictional world playing a pointless non exitent game in search of absolute truths that never existed in the first place.
Captain Chaos,
😉
Appealing to the immediacy of the present as justification for treating the constitution as so fluid and adaptable so as to remove all restrictions is tantamount to turning constitutional law into a game of Fizzbin.
To wit:
bhoyo,
I too think that any increases in enumerated power require amendment by ARticle V else the article, and the structure of the document is rendered meaningless.
One need not be an epistemic whiz to appreciate that the exigenceis of the present will always seem greater to those of the past. Accordingly appealing to the immediacty of the present is bereft of any guiding legal principle whatsoever and is merely an invitation to reactionary lawlessness.