-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,
I have no problem with wickard. In fact it emphasizes one of the fundamental libertarian fallacies that we exist in isolation from each other. Everything we have is in whole or part the result of actions, and sacrifices by others – whether the collective acts of people through government or the individual acts of others past and present. as long as we get to share the highway of life with others our speeding, reckless driving, or even going too slow impacts on others. this is not open to debate. what we can debate is how many levels removed from direct impacts are we going to accept as proximate cause so as to allow a distinction between individual freedoms and consideration of their impacts on others. (if wickard was pumping out pollutants for his own consumption of energy instead of corn would that be okay)
but let us not pretend if a person grows corn for his own consumption it does not alter the amount of corn in the total market either individually or in the aggregate of many growing corn for their own consumption. likewise that if a person does not buy insurance for a service he is all but guaranteed to use, it does not alter the entire market either individually or in the aggregate of many who do not buy insurance for service they are all but guaranteed to use.
I have been on this blog for approx. 3 years and have gotten used to lawyers’ and academic’s love of argument.
I read everyone’s response but ignore the pejoratives and go for the kernels of knowledge and insight about the matter being discussed.
I admire Adams for many reasons but I don’t ignore the Alien and Sedition Acts and to myself wonder, “What in the world were you thinking?” When I say that I am assuming that students of history know that the threat of war from France played a role.
Jefferson defended his actions in abandoning his position of leadership when the British invaded Virginia and his explanation was accepted. I suspect the “movement” did not want to lose his obvious skills and sent him to France where he would be out of the public eye at home and over time would be rehabilitated. To a certain extent that worked though the charge of cowardice dogged him the rest of his life much as the Alien and Sedition Acts dogged Adams.
Madison’s scholarship is undeniable and his practical application of that scholarship in the creation of the Constitution is beyond remarkable. Yet I have read that he spent his later years rewriting many of his papers as he realized that he was now a great figure of history and would himself be studied for centuries to come. Ah, vanity.
I rather like the terminology that one of the posters used, “kicked the can down the road”. It’s not exactly elegant and I suspect the only one who would have smiled at that description of their efforts would be Franklin, but there is a large kernel of truth in it.
Now, please, for just a bit, can we get around to our very own Gordian Knot … Medical Coverage/Healthcare. How does one solve this problem using the legal document that is our supreme law, the Constitution? Surely we are not going to have to fight another Civil War.
mespo.
At least my admiration takes into full account all of his warts. Does the opposition make any concession to his manifest greatness?
I could not fill his or Madison’s shoes. I may well be spelling the name wrong, but Annette Gordon Reid ( ? )
wrote a book on the Sally Hemmings issue, I read the book one weekend, but also watched her on CSPAN, She is an African American woman, so she could justify antipathy on the grounds of misoginyand slavery. Instead he studies lead her to a recognition of his greatness while recognizing his flaws, flaws which are the burden of all men and women. I admired her for her stance it revealed a spirit of moderation which lead her to an admirable expression of discretion. As one noted person stated discretion is the first of virtues.
1bz1,
Your posts concerning the interstate commerce clause are accurate. In that you are a scientist I know that long hours of study are required in that field, it is a rigorous discipline. I am asking that we collectively review the reasons for the architectonics of the Constitution, coupled with a candid examination of what the Ratifiers of the Constitution agreed upon. By admission I know the subject is tedious for some. I am aware as anyone times have changed. it boils down to the idea Francis Bacon posed when asking why does one read? is to confute and make argument, or is to take for granted, or the latter reason, to which he asserted his whole life, to weigh and consider ?
My entire drive is the latter, to weigh and consider. No one can deny the excrescent nature of the national powers in the last 60 years or maybe longer, coupled with that growth is an entire new field of law, namely Adminstrative Law. Within the agencies formed under the ACA, all three powers of government are included in each agency formed. The executive power to enforce and fine, the lgislative to make formal and informal rules, and lastly the Judicial power, which is separate from Article 3 power. I am advocating dirty water or air, but I do believe the time has arrived for comprehensive review of these new powers.
Under the Articles each state was a svoeriegn, hence a state could and did impose taxes on goods moving through their boundaries that had arrived at a port outside of their jurisdiction. The state that had the port also exacted a tax on the goods. That was the incentive to regulalte interstate commerce. That power now includes intra state commerce as well, under Wickard any commerce activity that can in the aggregate have an impact on interstate commerce is granted by the Court. if you read Wickard and look at his position, what he did on his own land, the implications are of the type I always believed a classic liberal would be alarmed at.
Mespo: “Like I said, “master of non-sequiturs.”
Actually, the Radar comment follows directly, as illustration, from the observation per your childish habit of hero worship.
One of the few episodes of MASH worth remembering:
“Fallen Idol” September 27, 1977
Radar is wounded while traveling to Seoul on Hawkeye’s advice. Col. Potter has to check Radar over, since Hawkeye is shocked to see that it is Radar. Hawkeye, feeling guilty, insists on operating on Radar. He follows the operating session with an all-night drinking binge and shows up to surgery the next day hung over and having to step away. Radar is shocked that Hawkeye, who he idolized, could have such a failing. The two have a major argument, but eventually reconcile, realizing that they both are only human.
bhoyo:
At least my admiration takes into full account all of his warts. Does the opposition make any concession to his manifest greatness?
People can say many good things as well as awful things about Jefferson….. But one particular his legacy lives today and that is the automatic stay in bankruptcy initial filings…..
It seems that Jefferson was quite the land speculator, a note came due…. He couldn’t perform and Monticello was seized as a collateralized loan…. The note holder would not turn Monticello back over to the family even though others agreed to pay the note and extra demand….. If I recall correctly Jefferson died shortly after….. This important legacy still lives today and is one of the most important aspects of bankruptcy filings that creditors must obey…..
“Dear Radar,
It’s time to grow up. Hawkeye, like Jefferson, is just a man; not an idol. And you’re too old for a Teddy Bear as well.’
*******************
Like I said, “master of non-sequiturs.”
Hi all,
The ongoing dispute about Jefferson is amusing, one side stressing the flaws, the other his massive qualities, and accomplisments.In exagerating either, we lose the truth history offers all of us.
Mespo: “Bob is trying to prop up pbh’s argument by suggesting Bob knows more than anyone else — with the possible exception of pbh. It’s argument by the “I’ve got a secret” method.”
Mark,
That is an intentionally false statement. I am neither part of the argument nor I do I care about the argument between you and Pbh. I have only remarked on the unprincipled and childish manner in which you’ve been acting; evidenced by your ad hominems directed towards Pbh for calling Jefferson ‘duplicitous’ while remaining silent when Blouise called him a coward.
Furthermore, lashing out at someone who dare voice their opinion of Jefferson, as if you’d been personally affronted, smacks of childish behavior known as hero worship.
Dear Radar,
It’s time to grow up. Hawkeye, like Jefferson, is just a man; not an idol. And you’re too old for a Teddy Bear as well.
bhoyo:
“Again being remote from my research I am being cautious as to certain things I might offfer.”
****************
Why so cautious? What you are saying is solid historical fact and applies with as much force to Jefferson as it does to Madison. Both “kicked the can down the road” in an effort to get passage of the US Constitution.
AY:
You’re right of course. Bob is trying to prop up pbh’s argument by suggesting Bob knows more than anyone else — with the possible exception of pbh. It’s argument by the “I’ve got a secret” method.
pbh is obviously correct and not a “rightist” despite his tactics ’cause he’s a FDR democrat according to Bob, or so the argument goes.
Bob,Esq.:
That laughter you always seem to hear isn’t directed towards me.
Bob,Esq,:
Unlike many folks today, Jefferson was no zealot since he didn’t have the luxury they enjoy of having absolutely no responsibility for the good of the nation. He tolerated both the National Bank and approved the Louisiana Purchase despite his doubts about their constitutionality. That, of course, precisely proves my original point that governing is much messier than philosophy and won’t fit into the rigid boxes that the “enumerated powers” crowd wants to put it in.
The paramount constitutional requirement is serving the nation’s well-being and that trumps all. Do the ends justify the means? If the ends are big enough, they do. That’s the lesson of Jefferson.
Mespo,
I must have missed that because I thought that was why FDR suggested expanding the number appointed on the Sct…… Because he could not get social policy through…..
Mark,
So in order to be an FDR Democrat, one must admire Jefferson to the same degree that FDR did?
Wow, so don’t you dare applaud or support the policies and principles of the FDR administration unless you also show your unquestioned love for Jefferson as well?
You’re funny. Unprincipled and ridiculous; but funny.
AY:
Bob, Esq did, or rather said I implied it for criticizing his buddy’s argumentation style.
Bob,Esq.:
“that an FDR Democrat was following some “rightist agenda?”
********************
Have no idea if any of that is true about pbh. He could be a member of the Khmer Rouge for all I know. He’s got a funny way of mimicking Roosevelt though. FDR was an unabashed admirer of Jefferson and commissioned his memorial in DC during his Administration. Maybe FDR was ambivalent, too.
You guys are like Laurel and Hardy. Is there any history you know? Let’s try Greco-Roman next.
bob. esq
its a beautiful day. going to run a few miles. and then have a great healthy breakfast. at 65 i can tell you for a long time my health insurance premiums have been going to subsidize a lot of obese people who can’t control what goes into their mouth any more then what comes out of it (think newt, rush, darth vader who just got a heart transplant, Santorum, Christie, and a lot of other obese anti healthcare hypocrites – and let me include the Romney’s who are now the poster child for woman’s issues for the republican party).
but I don’t mind at all.
what does bug me are rich fat people giving themselves tax cuts while sending others off to war and telling other people to pay for it.
may not have much to do with CC but I’ll get back to you on 84 aft wards.
ps: cc A1-S8 enumerates the regulation of interstate commerce and enumerates “all Laws which shall be necessary and proper …. I looked and looked but did not see the qualifier in there… did they change the meaning of “all” when I wasn’t looking? maybe they intended it to mean “not all”. maybe they intended to mean just fishing but not grain when they said commerce, maybe the meant horse and buggy but not jet planes.
Who said FDR was passing right wing agendas…..
Mespo: “Unlike pbh and you, I will acknowledge the conflicting evidence.”
Seems to me that implying I’m part of this argument constitutes a ‘half-truth’ — seeing all I did was direct your attention to a little land purchase universally acknowledged as, how shall we say, philosophically conflicting.