-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.
bhoyo
“maybe he just misspoke ?”
I think you know that I am referring to the Bank of the United States. Jefferson opposed it until he understood that it could help finance his administration just as well as any other. Was he in charge of it? There’s no doubt he could have shut it down if he had wanted to. And his original opposition was based on an anti-corporate argument. Yet, somehow, once he had mastery of it, it was acceptable.
pbh
Mespo
“I wonder more about the cult of those who accomplish little in their lifetimes only to criticize and defame those who accomplish so much more. ”
I should stand silent before this God-like creature? This monument?
Moreover, what do you know of my life’s accomplishments, or I of yours?
I think you are treading quite close to ad hominem.
I took you for better than that.
pbh
pbh:
With all due respect you have no idea what you are talking about. Jefferson was never “put in charge of corporations.” He was President not czar. Dumas Malone earned a Pulitzer Prize because he was not a “Southern partisan” but the quintessential historian. Critics of Malone seem to concentrate on his ‘fawning” approach to the Jefferson legacy. That criticism seems to correspond rather well with critics of Jefferson himself who view Malone as an antagonistic. As for Reagan, he was many things but surely not a “toe the line” kind of guy.
bhoyo:
“Pray tell how we should predict the future unless we look long and hard at the wisdom of the past.
THANK YOU FOR MAKING MY POINT.”
**********************
Had you simply said it that way (instead of laden with modifiers and equivocations galore), your point would not have been lost on me.
pbh:
“I have long wondered at the cult of personality that surrounds Jefferson. The man who first advocated secession, created the partisan divide that haunts our politics to this day and whose solution to the issue of slavery was to advocate introducing it into the Western Territories.”
************************
That makes two of us wondering then, though I wonder more about the cult of those who accomplish little in their lifetimes only to criticize and defame those who accomplish so much more. Jefferson was neither perfect nor divine. He was however more than enough to overcome his critics — then and now.
Hi all,
Just thought I would show you a power never delegated by anyone, at any time under our form of government.
at least he was until he was in charge of them.
See the post supra from PBH>>> maybe he just misspoke ?
I realized this is NOT novel. (but then, neither is the “requirement”.)
The debate is increasingly religious in tone and substance. The constitution is the holy scriptures of democracy as the bible is to Christianity. For some believers both are sacrosanct. Each comes from the hand of God – or in the case of the Constitution, the founders with God like capacities of intellect.
To be true every word and passage must be literarily true and absolute. To think otherwise would be to question the infallibility of God, and since each is the foundation upon which all other things have followed, any chink in its perfection would bring the house of cards tumbling down. (how is it do we keep forgetting slavery was a common theme through both)
Such believers find it necessary to divine the meaning and intent of “God’s” words, written hundreds or thousands of years ago in different languages. from today. Many have amassed great riches preaching and explaining the meaning to the unwashed masses. The notion that God – or in the case of the god-like-founders – was too stupid to make their meaning and intent clear and unequivocal to all or needed middlemen to explain themselves seems to have eluded the thinking of the devout literalists.
Others, realizing the great and obvious vagaries, inconsistences and improbabilities within both holy scriptures have come to take a more metaphorical approach. For them it is not so much what was exactly said but rather what was the original intent, which they seek to discern through reading the tea leaves of history and the minds of dead people. Once again we have the notion that God – or in the case of the god-like-founders – was too stupid to make their meaning and intent clear and unequivocal to all, or needed middlemen to explain themselves. To that we add the further notion that God and the God-likes worked in their mysterious ways to give us free will.
As a practical matter both the literalists and the original intenders have found it necessary to treat certain aspects of their holly scriptures as literal while other portions are considered only metaphorical. Both share this obsessive need to find bits and pieces of historical fact to support their propositions as if one single fact that happens to coincide with their position – no matter how remotely – would make all the rest of the 99% that doesn’t somehow irrelevant. Ah ha, we found the place where Jesus was buried ergo the entire bible is the work of god. Or “*”The government proceeds directly from the people; is “ordained and established” ergo, the “mandate” violates the commerce clause. Also common to both groups is the notion the meaning of the bible and the constitution are clear to the true believe who have “come to Jesus” and everyone else will burn in hell.
(this is by no means a scientific observation but it does seem the above views on both holy scriptures are common to many of the same people)
Then, of course there is another group, which I will call the “dreamers”. For them neither holy scripture was from the hand of god or god-likes. Both are works of men – very very smart men to be sure – trying as best they could in the times they lived to make for a better world as they hoped it might be. If they spoke in parables or vagaries it was a requirement of the times. Each broke new ground and overcame great challenges to do so. It seems to me if they knew the people of today were trying to live by the past instead of making a better world for the future they would have thought themselves a failure.
For sure Jesus would be appaled at the riches of the churches that bear his name,and Madison would be wondering how anyone thinks states are enlightened enough to run anything.
Here is another from the same series, this exert discusses the role of parties:
In every political society, parties are unavoidable. A difference of interests, real or supposed, is the most natural and fruitful source of them. The great object should be to combat the evil: 1. By establishing a political equality among all. 2. By withholding unnecessary opportunities from a few, to increase the inequality of property, by an immoderate, and especially an unmerited, accumulation of riches. 3. By the silent operation of laws, which, without violating the rights of property, reduce extreme wealth towards a state of mediocrity, and raise extreme indigence towards a state of comfort. 4. By abstaining from measures which operate differently on different interests, and particularly such as favor one interest at the expence of another. 5. By making one party a check on the other, so far as the existence of parties cannot be prevented, nor their views accommodated. If this is not the language of reason, it is that of republicanism.
Not those who promote unnecessary accumulations of the debt of the Union,
instead of the best means of discharging it as fast as possible; thereby
encreasing the causes of corruption in the government, and the pretexts for
new taxes under its authority, the former undermining the confidence, the
latter alienating the affection of the people.
Not those who study, by arbitrary interpretations and insidious precedents,
to pervert the limited government of the Union, into a government of
unlimited discretion, contrary to the will and subversive of the authority
of the people.
In a series of Articles published by Madison in the Gazette, 1792, Madison published this particular essay, it;s title TheUnion; who are it’s friends.
Bob,
“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.’ ”
Jefferson was implacably opposed to corporations, or at least he was until he was in charge of them.
pbh
Bob,
“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.”
What if the GOP wants a Thunder Dome?
pbh
Mespo.
“Who to believe? You and Katherine Harris or JFK, Dumas Malone and Ronald Reagan? Yep, you’ve got quite an imagination there pbh.”
I have long wondered at the cult of personality that surrounds Jefferson. The man who first advocated secession, created the partisan divide that haunts our politics to this day and whose solution to the issue of slavery was to advocate introducing it into the Western Territories.
Dumas was a Southern partisan, Reagan toed the company line. As for JFK, not the best character witness, imho.
pbh
Tooo bad one of the powers “delegated to the United States” was the power “To regulate Commerce…among the several States,” and the power
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”.
Gee, gosh, the 9th sure cleared everything up. How much clearer can you get!
But of course, you mean to say if we all read it line by line and each and every one of us saw what you saw the world would be all milk and honey. Tooo bad people smarter and more knowledgable then all of us have been doing that since it was signed and most all of them have come up with something different in one way or another from each other.
mespo,
That used to be a compliment but it seems you equate it with “duplicity”
No, as a matter of fact, NO !
PBH is not Bhoyo
One cannot be a devoted Madisonian w/o acquiring a deep appreciation of Jefferson. their letters which I have and love to read, reveal as much if not more about Madison and Jefferson than Dumas Malone’s excellent work, which I have also read, albeit ten years ago or better.
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.
The Preamble to the Bill of Rights
Madison wrote that ninth amendment was to guard against a latitude of construction, the tenth amendment excludes from the national any source of power not specified.
1zb1,
If it were actually done “so successfully 200 years ago” we would not have had continuous debates over every last letter, syllabol, word, and paragraph
It is there, they went throught the Constitution line by line, the History of the Ratification is there, but you ahve to read it.
Wow,
I consider myself scolded, lol. I post Jefferson was a genius prone to democratic eloquence and I imply duplicity. I post Madison wasn’t a lawyer, and I am scolded because it might have implied he was just a farmer. mesbo posts Madison’s speech on the House floor warning about a broad interpretation of the General Welfare Clause, a point I have made a few times, challenging Story’s description, and the findings of Butler and Helvering, and I am hunting fro certainty where there either is none or maybe cant be found.
Pray tell how we should predict the future unless we look long and hard at the wisdom of the past.
THANK YOU FOR MAKING MY POINT.
Do you know what ‘whiggish history’ is and what it references ?
“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.”
If it were actually done “so successfully 200 years ago” we would not have had continuous debates over every last letter, syllabol, word, and paragraph from the very moment the constitution was signed ; a civil war; the need for thousands of USSC decisions, some of which contradict or repudiate previous decision; and the current argument.
Flowery historical quotes on the nature of liberty and the rights of man; commentaries of various and often conflicting views by founders; and sweeping statements on the history, nature, intention related to the constitution and its authorship will not resolve the question.
I suspect if I could bring all the signers before you and they said, “of course we intended health insurance to be considered commerce; and of course the decision to pay or not pay for a service which you are, with near certainty, to use and others will bear the cost if you do is commerce. You may have the right to get sick, but you do not have the right to stick everyone else with the bill”, many of you would continue to disagree.
Who knows, they might even cite the 3rd Amendment: which mandates you must quarter soldiers in time of war in a manner prescribed by law. I suspect they might say, “Dear God, are you crazy, the nation is at war! Its eating itself to death and bankrupting the country in the process Do something about it. Just because we gave you the right to be stupid doesn’t mean you have to exercise it all the time.”
bhoyo:
“The knowledge of Jefferson’s tendency to dramatic eloquence at moments is known to all historains, ”
******************
That used to be a compliment but it seems you equate it with “duplicity” — which is not known to “all historians.” Your prose is awfully dense as if to pass into obscuantism. For example:
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…
This statement isn’t axiomatic. Tell that to the stout folks who migrated West and created a civilization out of little more than desert and hard pan. It’s merely your opinion and based on not much more than the haughty “I said so” defense. We all can cobble together polysyllabic nonsense upon command. Problem is, t doesn’t help in the dialog. Also your lament that:
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.
Pray tell how we should predict the future unless we look long and hard at the wisdom of the past before we say. At the risk of “spatchcocking” I’ll refer you to an author who had quite a good record of predicting the future –especailly the realpolitik of his age:
“The longer you can look back, the farther you can look forward. This is not a philosophical or political argument. —any oculist will tell you this is true.”
~Winston Churchill
You want certainty where there is none and likely never was. You want answers to questions better men have strived to answer for centuries. You want the future without experiencing or knowing the influences upon it of the present.
Good luck.
As to Jefferson … when considering all of his contributions I also consider his actions during the war. Jefferson ran into the woods to evade capture by the British when they invaded Virginia which in and of itself was a wise move, but then he abandoned his leadership as Governor of Virginia by fleeing with his family and remaining gone. When he couldn’t be found, Nelson took over and led the state and its militia till the end of the war. Jefferson then left for France and spent the last few years of the war enjoying the brothels therein. Jefferson was rightly accused of cowardice for the rest of his life. Another reason Martha didn’t allow him to come to her husband’s funeral.
Jefferson’s brilliance will always be colored by his cowardice.