-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.
whose
Bob,Esq:
I couldn’t care less who I am arguing against. pbh is the type of commenter who throws out half-truths in an attempt to tarnish someone who can’t defend themselves. That’s the Atwater school of argumentation. To that extent he’s rightist, regardless of his political leanings. I am not arguing from emotion simply the manifest facts of the mans’ life. Unlike pbh and you, I will acknowledge the conflicting evidence. That’s the hallmark of rational argument, not throwing red meat that you may finding intellectually appetizing to prop up nonsense.
Mespo: “Thanks, Bob. I put you down as the moral authority on the blog along with our resident Kant zealot and master of non-sequiturs.”
This coming from a man who’s keen acumen and impeccable reasoning skills led him to believe that an FDR Democrat was following some “rightist agenda?”
Thanks, but I’ll pass.
Hi all,
Again being remote from my research I am being cautious as to certain things I might offfer. If my memory serves the world in the 1790s had somewhere in the neighborhood of 750 million people, those living under arbitrary governance out numbered the freemen by 23 to 1 or thereabouts.
No apologist for slavery can find any solid ground to be on, so the recital of facts is futile.
As far as manumission I know Madison just did not know what do. He thought sale of the Western Territories could be used to free the slaves by compensating the owners. Then where were they to go, their color betrayed theirprevious status and antipathy would be felt on both sides. Many of the Indian Tribes were less than fond of the unfortunate Africans, hence a settlement, even if remote from their previous owners left them at odds.
Re-patrioting them to Africa was attempted as we all know, yet the fear of the voyage, and the uncertainty there, left many offered freedom to reject that idea.
Tis like holding a wolf by both ears, one cannot hold on nor let go.
jefferson also knew enough to Fear the existence of a Just God when considering slavery.
Madison hated the practice, and tried to escape it on a personal level, and a poltical level which in the latter case, by trying to finacially compensate the previous holders was a road packed with frustration.
Slavery was as barbaric as it gets, by 1790 it had become a Gordian Knot denied the sword to loosen itself. The bondsman of justice would exact, as Lincoln suggested, a harsh price for every tear and stroke of the lash. The countless lives denied the very liberty America stood for, and hipocrsy of the all men are created equal principle, would deny any leniency made to that bondsman of justice.
Mespo: “It’s all or nothing in your false dichotomy world and likely by design in service to some rightist agenda.”
Mark,
You’re so blinded by your emotions right now that you have no idea what you’re saying.
You need to take a step back and take stock of your thought process by which you’ve concluded that Pbh is following some “rightist agenda.”
I will tell you you’ll feel quite foolish when you learn the truth of who you’re arguing against.
Bob,Esq.
“Your attacks against Pbh were unprincipled, ill mannered and childish.”
********************
Thanks, Bob. I put you down as the moral authority on the blog along with our resident Kant zealot and master of non-sequiturs. The reason I pointed out pbh’s foolishness is precisely because he is foolish and, in the main, factually wrong. You want to climb up on that bandwagon, hop on. You can be just as irrelevant as he is compared to Jefferson.
1zb1: “And just where does it say the CC can not make you buy something… please show me those words in the CC.”
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?
Nuff said.
pbh:
“Seriously, do I actually have to go toe to toe with you about Jefferson’s advocacy of slavery?
Are you completely unaware of this fact?”
***********************
I am keenly aware that he beat a slave, kept slaves for economic reasons, felt slaves were intellectually inferior to whites, and felt emancipation could only be accomplished with forced deportation. I am also aware that he called slavery, “an abominable crime,” a “moral depravity,” a “hideous blot,” and a “fatal stain” that deformed “what nature had bestowed on us of her fairest gifts.” Jefferson also proposed legislation outlawing the slave trade, banning slavery in the Northwest territories, and permitting gradual emancipation with payment to the owners from government funds.
That’s dictionary definition of ambivalent as I characterized him in my previous posts. Add a dictionary to that book buying list I suggested.
On a stylistic note, arguing with you is like arguing with a child — it’s all black or white. No nuance. No realization of the internal conflicts, both moral and economic, that haunt us all.Not even an acknowledgement of conflicting authority totally disproving your points. It’s all or nothing in your false dichotomy world and likely by design in service to some rightist agenda.
I don’t have time to clean up every spewing torrent of your ignorant or intentional B.S.
Mespo: “Blouise and I have had this discussion before and agree that Adams was a great man, too. We disagree on Jefferson but I know she is no conservative seeking to overturn the separation between church and state as most Jefferson critics try endlessly to do.”
Mark,
Your attacks against Pbh were unprincipled, ill mannered and childish. Pbh called Jefferson duplicitous while backing it up with an argument, i.e. reason giving, and you did nothing but denigrate him including categorizing him as someone “who accomplish[ed] little in their lifetimes only to criticize and defame those who accomplish so much more.”
But when Blouise payed Jefferson the ultimate insult, i.e calling him a coward, you said nothing.
Now I can tell you that Pbh, like Blouise, is also not a “conservative seeking to overturn the separation between church and state.” In fact, there is nothing in his posts to remotely suggest otherwise. Yet you imply he is in your post above to me.
So someone calls Jefferson duplicitous, points out reasons for making that characterization, and your response it to call him an unlettered man who has accomplished little in his lifetime? How much more ad hominem can you get? What’s more, the basis of your attack is wholly unprincipled since an even greater insult to Jefferson’s honor went completely unchallenged. And you call me thin-skinned?
It seems you’re far less interested in defending the honor of Jefferson and more interested in kicking sand in the face of anyone who dare challenge your hold over a particular corner of the sand box.
And one final thought on the issue of duplicity, I’ve got two words for you:
Louisiana Purchase.
Grow up and get over it.
pbh,
“I make a distinction between characterizing thought and/or action versus characterizing a specific person”; “I can assert that a person’s ideas resemble…. without making a personal statement.”; “Therefore, I would not be personally offended if you asserted that my arguments resembled those advanced by Hitler,…I would simply ask you to prove your claim, case by case.”; “There is a difference between insult and dialogue. Call me a “bad thing” and I am offended. Assert that I am proposing a “bad thing” and I will offer to hear your side of the issue.
your argument resembles a narcissistic spock-data from one of those evil altered ego episodes. the proof is in your argument.
the fact that your argument personalized it about YOU rather then the impact on others – the subject of the attack and the observers – points to the type of argument a narcissist would use. the fact your argument ignores the emotional effect – a key component of AH – makes it resemble the kind of argument a cold hearted, emotionless green blooded vulcan or an android without an emotion chip would use.
the fact your argument ignored a key element of AH even after you listed it – “appealing to one’s prejudices, emotions, or special interests rather than to one’s intellect or reason.” – also suggests basic fault in the argument not unlike what Data might experience when his circuits go haywire and he becomes his evil twin.
now, of course I would not expect you to be offended by any of that because I am not attacking you personally but just your arguments and how they resemble certain fictional chrachters.
FYI: AH is both an adj, and adv. current usage now also accepts it as a noun.
In the meantime, I would still prefer we return to the discussion at hand. While I suppose your reasoning for why it has gone adrift might be correct, I think it has more to do with the notion that as arguments are shown to be weaker and weaker – the argument that The Founding Fathers WOULD NOT Back Health Insurance Mandates* (or more relevently, the argument the commerce clause does not permit the “requirement”) – they are compelled to go farther and father afield, and less and less relevant.
To the extent we now debate Jefferson and the differences among the founders only underscores the absurdity of original intent without also asking “the intent of whom”?
*Another reminder: the healthcare law does not mandate health insurance. there is a requirement to either have health insurance or pay a penalty.
Mespo,
“Whither shall the coloured emigrants go?”
Seriously, do I actually have to go toe to toe with you about Jefferson’s advocacy of slavery?
Are you completely unaware of this fact?
pbh
Mespo
“Hamilton created the Federalist Party in 1790.”
Really? Seriously? Do you have a contemporary citation for that?
“Jefferson and Madison disagreed with Hamilton’s strong central government plan so they founded an opposing party, the Democratic-Republicans.”
Well, that is at least semi-factual. Except for the “opposing party” part vis a vis Hamilton and Washington’s non partisan expectations of non partisanship.
pbh
pbh:
“In My Humble Opinion, without Jefferson the Civil War would not have been necessary.”
*********************
“You know my subscription to it’s [Tucker’s pamphlet] doctrines, and as to the mode of emancipation, I am satisfied that that must be a matter of compromise between the passions the prejudices, and the real difficulties which will each have their weight in that operation. Perhaps the first chapter of this history, which has begun in St. Domingo, and the next succeeding ones which will recount how all the whites were driven from all the other islands, may prepare our minds for a peaceable accomodation [sic] between justice, policy and necessity, and furnish an answer to the difficult question Whither shall the coloured emigrants go? And the sooner we put some plan under way, the greater hope there is that it may be permitted to proceed peaceably to it’s ultimate effect. But if something is not done, and soon done, we shall be the murderers of our own children. The Murmura, venturos nautis prodentia ventos has already reached us; the revolutionary storm now sweeping the globe will be upon us, and happy if we make timely provision to give it an easy passage over our land.
~Thos. Jefferson to St. George Tucker, 1797
Quite the lover of war, don’t you think?
You don’t need a blog. You need a history book.
bhoyo:
Jefferson kept the National Bank to aid in reducing the national debt. He limited its scope however.
Mespo
“Jefferson maintained that states could secede but certainly didn’t call for that.”
Eh? The first and former Secretary of State clandestinely publishes this opinion and it is, what, a mere flight of fancy? And his henchman Madison repeates this treason? Just talking?
“He advocated the right of states to declare acts of Congress unconstitutional.”
Yeah, we can cut him some small slack on the basis that the Republic was “young” and that Jefferson had yet to comprehend (ie:command) it.
“Jefferson’s approach was repudiated in the Civil War”
Oh yes, and what a wonderful bequest from the “great man”. In My Humble Opinion, without Jefferson the Civil War would not have been necessary.
“and the question has remained decided since that day.”
By force of arms against tyranny.
As for whether or not I was present for your eariler discussion of theses issues, well, please forgive me.
pbh
Now … is the mandate Constitutional? In other words, what do you all think of the argument put forward by Einer Elhauge that Nal (David Drumm) included in his article that begins this thread.
You assertion that Jefferson was a hypocrite on the issue of the National Bank is not a factual assertion but merely your rather unlettered and simplistic opinion. I have no obligation to educate or correct you on that.
wow,
True, very true. That is one I have not heard before, if I remember correctly the Banks Charter continued through the Jefferson Adminstration, and Jeff did do all he could to reduce the debt..
Bob, Esq:
Blouise and I have had this discussion before and agree that Adams was a great man, too. We disagree on Jefferson but I know she is no conservative seeking to overturn the separation between church and state as most Jefferson critics try endlessly to do.
pbh:
The problem here is that we’ve discussed these issues ad nauseum on the blog and I don’t feel the need retrace old ground. A summary might do, however. Jefferson maintained that states could secede but certainly didn’t call for that. He advocated the right of states to declare acts of Congress unconstitutional. Jefferson’s approach was repudiated in the Civil War and the question has remained decided since that day.
Your second assertion is just not accurate There was no “party” at the time of the founding but most considered themselves Federalists.There were anti-federalist to be sure but it was not a cohesive unit. Hamilton created the Federalist Party in 1790. Jefferson and Madison disagreed with Hamilton’s strong central government plan so they founded an opposing party, the Democratic-Republicans.
Jefferson was ambivalent on slavery considering it an evil that would reap a stern punishment on the nation but refusing to end it and emancipate the slaves.In the 1784 Congress, Jefferson proposed federal legislation banning slavery in the New Territories of the Northwest, but it was not passed. In March 1807, Jefferson signed a bill ending the importation of slaves into the United States. He also criticized the Missouri Compromise and believed northern meddling in Southern economic matters, including slavery, was wrong.
You assertion that Jefferson was a hypocrite on the issue of the National Bank is not a factual assertion but merely your rather unlettered and simplistic opinion. I have no obligation to educate or correct you on that.
1zb1
I make a distinction between characterizing thought and/or action versus characterizing a specific person. This, it seems to me, is the definition of ad hominem. Thus, I can assert that a person’s ideas resemble those that are “Communist”, “Facist”, “Republican” or “Democratic” without making a personal statement.
Therefore, I would not be personally offended if you asserted that my arguments resembled those advanced by Hitler, Mao or Ghengis Khan, I would simply ask you to prove your claim, case by case.
There is a difference between insult and dialogue. Call me a “bad thing” and I am offended. Assert that I am proposing a “bad thing” and I will offer to hear your side of the issue.
I cannot say how this dicussion veered off the original topic, if it indeed has. I can only suppose that we are all getting to know each other.
pbh