-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.
pgh: by what other means but “tortured logic” could you arrive at the notion:
“Honestly Mark, do you really think your zeal for unlimited communist like power under Article I is any different from a fascist’s zeal for unlimited presidential power under Article II?” is not an AH attack (ie., appealing to one’s prejudices, emotions, or special interests rather than to one’s intellect or reason. and 2. attacking an opponent’s character rather than answering his argument.
but,
“That makes two of us wondering then, though I wonder more about….” arises to what you call “very nearly lumped …to a near infraction.” is an AH
and, of course by your reasoning of…
“There is a substantial difference between asserting that a person’s arguments or beliefs resemble or might tend toward “X” and asserting that a person is “X”.”
…you would not be the least offened if I said your arguments resemble the same ones put forth by hitler in mein kampf (I am not in any way suggesting they do but merely underscoring the tortured nature of your logic).
I personally thought saying “tortured logic” was a much more polite and respectful way of saying “full of crap”.
But more important, let me say, the discussion of “Did The Founding Fathers Back Health Insurance Mandates?” has become so attenuated from the issue it is now painfully more absurd then even the notion of deciphering the “original intent” of a document signed by 39 individuals who disagreed on most everything, not to mention those who left without signing.
Then again, I have harped enough on that subject.
Bob, Esq.
Mespo,
Exactly why are Pbh’s comments about Jefferson worthy of your scolding but not Blouise’s?
======================================
Stop trying to get me in trouble. Mespo knows I am a great admirer of Adams and he is waiting for old age to come unto me thus ensuring an acceptance, even friendship with Jefferson.
If only John Adams had had President Franklin Roosevelt on his side ..
I am in awe of Madison. Always have been, always will be.
1zb1
“talk about tortured logic.”
ad ho·mi·nem [ad hom-uh-nuhm ‐nem] adjective
1. appealing to one’s prejudices, emotions, or special interests rather than to one’s intellect or reason.
2. attacking an opponent’s character rather than answering his argument.
There is a substantial difference between asserting that a person’s arguments or beliefs resemble or might tend toward “X” and asserting that a person is “X”.
Nothing tortured about it.
pbh
Bob,
“Putting your disdain for Jefferson aside, do you really think he or Madison or even Hamilton would have accepted the holding in Citizen’s United?”
First of all, Citizens United doesn’t work without Santa Clara v. Union Pacific and that doesn’t work without the 14th Amendment and that doesn’t happen without the Civil War. So, I kinda think the whole thing would have been a stretch for any of them to contemplate.
That said, I think Jefferson would have opposed it until he learned to use it to his advantage. Madison would have opposed it, even as he may have had to learn to live with it. Hamilton would probably have been willing to accept corporate speech subject to regulation of some kind. Adams, one you did not mention, might well have moved to impeach the Court (I’m thinking Alien & Sedition here).
I think the notion of corporate “personhood” would have been out of bounds for all of them. Excepting always Jefferson, who would oppose anything until he figured out how to use it to advance his interests.
pbh
talk about tortured logic.
Bob,
“1zb1 is referring to two posts of mine.”
With all due respect to 1zb1, your comments did not cross the ad hominem line as they did not make a personal attack, merely characterized behavior or potential behavior.
On the other hand, when my criticism of Jefferson causes me to be very nearly lumped into “the cult of those who accomplish little in their lifetimes”, then I feel it is fair to point out the danger of a near infraction.
pbh
Mespo
“Your disagreement doesn’t make you wrong, of course, just decidedly outside the main stream and thus requiring of substantial proof to to ground your rather unorthodox assertion.”
I have made four factual assertions which you have yet to contest:
1. That Jefferson was the first to call for secession;
2. That Jefferson was the first in U.S. history to create a partisan political party to oppose the standing, elected, government , of which he himself was a part;
3. That Jefferson advocated spreading slavery into the Western Territories;
4. That Jefferson was a total hypocrite when it came to the Bank of the United States.
Rather than contest these facts, you spend all your time telling me that I should kneel in front hallowed opinion.
I don’t see you offering “substantial proof”. I don’t see you dealing with the substantial, historic and factual issues I have raised. Instead, you appear to wallow in hero worship, received wisdom and hagiography. I am hoping for something more substantial from you.
Perhaps you don’t think me worthy of the effort. But then, why the persistent posts asserting my lack of orthodoxy? Is that the best you can do?
pbh
Mespo,
Exactly why are Pbh’s comments about Jefferson worthy of your scolding but not Blouise’s?
Pbh: “Jefferson was implacably opposed to corporations, or at least he was until he was in charge of them.”
Pbh,
Putting your disdain for Jefferson aside, do you really think he or Madison or even Hamilton would have accepted the holding in Citizen’s United?
pbh:
“Appeals to higher authority (Pulitzer, etc.) don’t quite cut it for me.”
*******************************
As I tire of explaining on the blog,the logical fallacy of an appeal to authority only applies if the cited source isn’t an authority on the topic in the first place or if there is no consensus on the assertion. Dumas Malone is undoubtedly a recognized authority on Jefferson and the Pulitzer Prize Committee is undoubtedly a recognized “authority” on achievement in historical literature. There is more than a consensus for both propositions. Maybe you should consider the opinions of authorities — not me of course — just those generally recognized as such. Your disagreement doesn’t make you wrong, of course, just decidedly outside the main stream and thus requiring of substantial proof to to ground your rather unorthodox assertion.
Pbh: “What if the GOP wants a Thunder Dome?”
Then there will be plenty of votes available to defeat any philibuster after the next election.
Pbh,
1zb1 is referring to two posts of mine.
Here they are in their gruesome entirety with the allegedly ad hominem remarks emphasized…
Bob, Esq. 1, April 15, 2012 at 11:51 am
1zb1: “And just where does it say the CC can not make you buy something… please show me those words in the CC.”
And there it is; the dark side of liberal thinking rears its ugly head yet again.
So now we go from a system of specifically enumerated powers to the exact opposite–according to you, the Fed has unlimited powers explicitly excluded.
Didn’t Hamilton warn about people like you in Fed 84?
From a previous post:
Simply because a person receives health care it does not necessarily follow that it is also part of commerce. A person may come into this world with the free help of a midwife and leave this world with the aid of a charitable hospice.
The fact remains that the health care legislation commandeers the individual by forcing him to purchase a service as a condition precedent for merely residing lawfully in the United States.
Let’s be clear, the activity here is not health care, it’s the participation in an insurance pool that profits corporations; rather than simply reimbursing the government.
I grew up believing that liberals were the good guys; that so long as your intentions are good you can’t be wrong. How wrong I was. The road to hell is paved with good intentions. The dark side of liberal thinking comes into play when the liberal deludes himself into believing that so long as the intention is good, then the rules MUST bend to provide the means. This type of thinking left unchecked would leave us without an exclusionary rule or rules of criminal procedure since the liberal will always ‘know’ in a vigilante way who the guilty really are. Taken to the extreme, this type of thinking leads us down the path to communism and Stalinist like regimes.
The law is not a search for truth, but a search for process. Contrary to liberal thinking here, we do not treat the constitution like a urinal puck simply because we feel we’re on the side of the angels.
Congress has all the power it needs to achieve the same ends for health care reform by adjusting the tax rolls and medicare/medicaid rules toward a single payer system.
The word is federalism! Please make a note of it and adjust your thinking accordingly.
=====
And this:
Bob, Esq. 1, April 17, 2012 at 5:24 pm
Mark,
So you’re claiming that McCulloch overruled the basic precept of Constitution, i.e. that the federal government is one of enumerated powers and does not possess a general police power?
Didn’t the McCulloch court say that the enumeration of powers in the constitution limited the number of ends that the government could pursue and advised that it would not add “great substantive and independent powers” to that list? 17 U.S.316 @ 411
Part and parcel to that whole necessary and proper to the effectuation of an enumerated power thingy?
Speaking of the implied powers necessary and proper to the effectuation of an enumerated power, care to tell us what enumerated power gave rise to Federal Criminal laws? After all, if they didn’t evolve with a dubious pedigree out of Tax Acts, I’m sure you can clear this up for us.
And per your Tenth Amendment remark, aren’t you looking over the fact that the Court relied heavily on same from the Civil War to 1937; guarding against the expansion of Federal power? Or are we to ignore that as well?
Honestly Mark, do you really think your zeal for unlimited communist like power under Article I is any different from a fascist’s zeal for unlimited presidential power under Article II?
pbh, my apology to you. I was not meaning to suggest YOU, but they are terms others here have routinely brandished here and I do not recall you suggesting they were inappropriate. The comments you suggested were verging on ad hominem paled in comparison at best (actually I considered it not at all) .
1zb1
“And Ad hominem? What does that make calling disagreers fascists and communists? (unless the person was intending to talk about themself)”
I don’t recall doing any of that. If I did, I will immediately apologize.
pbh
Izb1,
bhoyo, If you are trying to prove there was considerable disagreement among the parties and therefore arriving at a clear meaning and intent is a fools errand, you have succeeded. Thanks!
Lol
remarkable, a captious scientist.
I am a Madisonian Scholar, not a Jefferson Scholar, but I do aprreciate Jefferson. I read Dumas Malone, then who hasn’t in the field, that is 101 stuff. I spent enpough time reading Jefferson to remember his being resipiscent about his writings concerning the enslaved Africans, in his Notes on Virginia, when he received a book, ‘The Literature of the Negro’, from Henty Degregiore ( I am not sure on the title or the friend who sent it to Jeff ), his response telling.
What I don’t know about Jefferson is a very long list as well, but what I can say with assurity is when the Progressives ( herbert croly ?) adopted the mantra to “achieve Jeffersonian ends with Hamiltonian means’, he rolled over twice in his grave.
Mespo
“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.”
Count me among the critics. Appeals to higher authority (Pulitzer, etc.) don’t quite cut it for me. As for any correspondence between antagonism toward Jefferson and criticism of Malone, I imagine that is in no way remarkable. You insist that he is not partisan and then defend him in the most partisan way.
“As for Reagan, he was many things but surely not a “toe the line” kind of guy.”
Well, let’s put it this way, he wasn’t my kind of guy either.
pbh
bhoyo, If you are trying to prove there was considerable disagreement among the parties and therefore arriving at a clear meaning and intent is a fools errand, you have succeeded. Thanks!
An amusing game of amature ping-pong, but just how attenuated a link do you want to go from the question at hand to prove or disprove the point? this has gone way beyond the school yard.
And Ad hominem? What does that make calling disagreers fascists and communists? (unless the person was intending to talk about themself)
mespo,
Had you simply said it that way (instead of laden with modifiers and equivocations galore), your point would not have been lost on me.
The point was not lost among modifiers, nor was it equivoval. I expressed the idea that extant documents, or what are designated primary documents, are the best source of establishing the ideas that were accfepted as the powers granted to the national government at ratifying. You, in your apparent devotion to Jefferson posted a justification for a pliant reading of constitutional authority is to be found in Jeffersons idea of the Earth Belongs to the Living concept.. Which is fine. You are entiled to that opinion. I still believe that Madison, is the source for fully comprehending the design of the Constitution, why because he was there, while Jefferson was in Paris for the Constitutional Convention, the defense of the Constitution ( the Fed Essays which Jefferson praised often, and unequivovally by the way ), the Rtafication in the States, the Convening of the First Congress, which included Madison writing and ushering the Bill of Rights through a reticent Congress. Altough I am remote from my libraries and research at the moment I can think of two times Jefferson urged Madison to take up his pen, and combat the Hamiltonian view, once if memory serves me specified that Madison alone could exchange lists with Hamilton. If my readings of their communications is accurate, and I have the three part series of their letters in house, they despised the pliant view of Constitutional powers advocated by Hamilton. Those letters are extant documents by the way, as are what are referred to as Farrands Records, which by the way the major contributor is madison and his notes from the Convention.