-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.
1bz1,
the real question, if i may remind you, began with is the “requirement-to-have-insurance-or-pay-a-fine constitutional’ (my more accurate rephrasing of the original question).
Ok, No !!!! It is ultra vires> Next
“But the best source remains the Papers of James Madison.” (bhoyo)
Then I could write my own book!
Lol,
Well you have to read what he wrote, then read what he read. Then you have to go through American memory and get all the inputs, then study the ratifying conventions, and after that the resolutions the states wrote. The papers of the others have to be read….
It is a good first step though>>>>
1zb1,
On the other hand, Bron is also a regular. 😉
“Yep. But given the current composition of SCOTUS, do you really think this will the hook upon which they hang their reasoning? I agree, it should be in part or in whole, but I suspect it won’t be.” (Gene)
And sadly, we all know why.
Bron, either you unintentionally took the comment out of context or you are willfully being dishonest.
“Mespo:
“Bob knows more than anyone else”
From what I can tell, that is a pretty accurate statement within the cofines of the regulars on this blog.”
In either case a correction is in order. thanks
“But the best source remains the Papers of James Madison.” (bhoyo)
Then I could write my own book! 😉
bhoyo “is there not a un constitutional conditions doctrine ?”
its seems we have been through all this and now chasing our tail.
the real question, if i may remind you, began with is the “requirement-to-have-insurance-or-pay-a-fine constitutional’ (my more accurate rephrasing of the original question).
we might argue whether it was good policy, or the best methods of achieving a particular goal, or whether it was the only means given political and other realities.
but those are really other arguments.
you have taken the barnett, end of the world as we know it approach (which I usually reserve for the notion of Romney and the republicans getting elected): if they can make us buy insurance they can make us eat broccoli. at the very least making you buy a product is not the same as making you use it. In too many countless ways we are already made to buy and pay for products we might not like but are forced to do anyway. and we are already even forced to use many of them (or denied the opportunity to use others).
the bounds of CC have been drawn in lopez so to say there are no bounds misstates the facts. and there is always the simple fact that if the day comes when they try and pass a law that makes you buy broccoli AND actually eat it there will be some case on it to decide how closely related to interstate commerce it is and how necessary and proper.
besides that we seem to be going around in circles.
btw: if we take Fed 84 at its argument in opposition to the BR (more particularly the need for the BR),
“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”
we must conclude that is an argument clearly lost by virtue of the presence of the BR as amendments. it then it stands to reason, there being no provision granting individuals the right to not have insurance or pay a fine and given CC is an enumerated power i see nothing that helps by 84 for the opposition to the healthcare law.
“Per the mandate, making mere existence as a citizen a condition precedent for invoking the commerce clause power renders the clause and the doctrine of specifically enumerated powers completely meaningless.
Forcing an individual to purchase a service as a condition precedent for merely residing lawfully in the United States is not what the founders had in mind when they ratified the constitution.”
Yep. But given the current composition of SCOTUS, do you really think this will the hook upon which they hang their reasoning? I agree, it should be in part or in whole, but I suspect it won’t be.
Mespo:
“Bob knows more than anyone else”
From what I can tell, that is a pretty accurate statement within the cofines of the regulars on this blog.
One of my favorites is “James Madison: A Biography” by Ralph Louis Ketcham
it is the best single volume Bio available,for a multi Volume irving Brant’s work is the best, Drew McCoy did excellent work, as did Lance Banning, Gary Rosen. But the best source remains the Papers of James Madison.
bhoyo,
I believe I picked up that bit of opinion on Madison’s editing efforts from one of the recently published “all-inclusive foundings” books but bow to your greater knowledge of the man. I remember it simply because the opinion seemed so far removed from other material I had read about Madison.
One of my favorites is “James Madison: A Biography” by Ralph Louis Ketcham
To do that, they’ll have to strike down the entire health care act, or as Pbh illustrated, we’d be headed for Thunder Dome.
I think the mandate is stricken, and the unfunded medicaid Mandates to the States as well.
Blouise,
Aside from the scenario that Pbh raised, i.e. having to fund policies with the no pre-existing condition law still in place without a mandate, I see no problem with letting the insurance companies adjust their businesses accordingly.
To do that, they’ll have to strike down the entire health care act, or as Pbh illustrated, we’d be headed for Thunder Dome.
Bob,
I hope I’m not being too simplistic here but the discussion seems to veer of course when the subject of how to protect the insurance industry is introduced.
Do you recall the break up of AT&T?
Bob,
Exactly!
Blouise: “I agree in that to do so would require an amendment to that legal document otherwise it ceases to be the legal document upon which we base our existence as a federal constitutional republic.”
Exactly. And besides, the Federal government has all the power and precedent it needs to implement single payer health care reform through the general tax rolls and a simple expansion of Medicare/Medicaid.
“I was merely pointing out that Mespo’s behavior was over the top and wholly uncalled for.” (Bob)
I know 🙂
“Per the mandate, making mere existence as a citizen a condition precedent for invoking the commerce clause power renders the clause and the doctrine of specifically enumerated powers completely meaningless.
Forcing an individual to purchase a service as a condition precedent for merely residing lawfully in the United States is not what the founders had in mind when they ratified the constitution.” (Bob)
I agree in that to do so would require an amendment to that legal document otherwise it ceases to be the legal document upon which we base our existence as a federal constitutional republic.
1bz1
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)
I of course can agree that the no man is island theme you offer is valid. And that you have no problem with Wickard is your right, of course. I still have not seen a distinction in your offerings, which highlight the diference between a constitutionally protected opinion, and an opinion that is constitutional. You did develop a pretty good syllogism, that I concede, and in that I do not agree with all libertarian ideas we are in agreement there. I do not think it Constitutionally sound to condemn evry idea that seems to have found even a tiny resonance, within a group I dont agree.
is it your proposition that we are stuck with the melancholy choice of deciding that if we are to escape the state of nature, and form a society, even a Constitutional republic with a written Constittion, that we concede all of our individual autonomy that can be dteremined to even remot;ey threaten the recognition of our inter dependence ? Did we not agree that there certain rights we do not surrender under the Social Compact ? is there not a un constituional conditions doctrine ? The issue remains unanswered in your post, how do you propose to insure individual liberty if you dont limit the powers of the National government ?
Blouise,
I was merely pointing out that Mespo’s behavior was over the top and wholly uncalled for.
Per the mandate, making mere existence as a citizen a condition precedent for invoking the commerce clause power renders the clause and the doctrine of specifically enumerated powers completely meaningless.
Forcing an individual to purchase a service as a condition precedent for merely residing lawfully in the United States is not what the founders had in mind when they ratified the constitution.
Blouise,
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.
My reading of the Madison Papers does not seem to concede the point you made. In the years Madison took to review his Papers he reached out to many and asked for verification. His recordings of the Constitutional Convention were not published till after his death, but others had published their recollections. One of the topics was the authorship of certain of the Federalist Essays which became a point of controversy for years, finally solved by Doug Adair. Of the traits Madison exhibited was humility, he was not vain in the common defintion. What he was was a stickler for accuracy, and one idea that was imbedded in his mind was the consent of the governed, he more than any other founder believed in the capacity of self governance, while having a prudent caution about the passions man always exhibits. As he stated there are characteristics we have that require circumspection, but also man has the opposite capacities as well. hence the design of the Constitution, it’s checks and balances, and the ability of people to change the organic powers with Article V. This was a design to keep liberty and energy in the proper balance and symmetry, it was intentional not accidental.
When hsorians visited madison in his retirement it prompted one vistor to state he never saw so much mind in so little matter. of all the Founders, it can be said of madison that the Constitution became his life for so many years. If you get a chance google Drew McCoy and his excellent book on Madison’s retirement.
One idea that I hve never seen fully developed to date, although I know one is in the works, is Madison’s hunt for the ‘Consent of the Governed’, in the quodlibets he initiated that point was always considered as a prime value. When Ingersoll called Madison the Father of the Constitution, ( which included the Bill of Rights of course ) Madison’s humble nature denied the title, and went to mention many heads and many hands.