-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.
pbh,
I take it that you are demanding a little more honesty when it comes to the flaws of the framers and by framers I mean the whole kit and caboodle … Declaration, War, Constitution.
Are you also asking for something more? (I generalized so as not to be guilty of putting words into your mouth.)
“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>>>>” (bhoyo)
Ah, you are suggesting I should write a good book. I have the required interest but not, I fear, the discipline.
“On second thought … let’s not go to Camelot.” (Monty Python and the Holy Grail) 🙂
bhoyo
“Actually they were right on all counts.”
What the? Jefferson and Madison believed that the two races could not live in freedom together. They wrote about this continuously. This fiction was in their blood.
They also “foresaw” that freeing the slaves would result in conflagration. Which is to say that there would be some kind of war between the freedmen and their former owners.
Neither of which happened. Jesus. Bald Headed. Keyrist.
“madison borrowed against the future payments he migh receive from the Continental Congress.”
Madison’s wife had to sell slaves in order to pay his debts. Same with that so and so Jefferson. These are facts. Why do you temporize and prevaricate?
pbh
1bz1,
a fine is a penalty but a penalty is not always a fine. of course fine may not always be a penalty either
Alright you did get A CHUCKLE OUT OF ME on that one.
I remember the Popeye Movie where the tax guy just invented a reason as he ran into you.
1zb1
“I should be saying that not only are we NOT forced to eat the broccoli, many of us for one reason or another – including poverty and conscience – don’t have to pay for it either.”
I am not going to go so far as to suggest that those of us who don’t eat broccoli necessarily imperil those of us who do. Healthcare, on the other hand is a slightly different matter. This is because we have both a vegetable act (ie: Medicare) and a bowl of rice act (ie: Social Security).
Justice Thomas is on record as hoping to dispose of both the bowl of rice and the vegetables.
The sole question is whether or not the other carnivores on the Court are prepared to join him in tossing out the baby, the bath water, the bassinet, reproductive rights and whatever else anyone could ever somehow imagine “forces” them to eat broccoli.
pbh
Pbh,
In fact, they were indisputably wrong on both counts.
Actually they were right on all counts.
madison borrowed against the future payments he migh receive from the Continental Congress.
1zb1,
in this click ??
bhoyo,
I just want to make myself clear. To say, as Madison and Jefferson did, that freeing the slaves would lead to terrible consequences (my paraphrase for their unending equivocations) is small beans to the actual event (ie: the civil war) and hyperbolic excess over the result, ie: Civil Rights.
In fact, they were indisputably wrong on both counts.
And when you say that Madison borrowed to support himself, may I ask what equity he offered as collateral?
pbh
a fine is a penalty but a penalty is not always a fine. of course fine may not always be a penalty either
bhoyo: you maybe missing the laugh chip… of course i knew it was no spelling error. however, if you don’t like what the law says you are free to try and change it.
pbh: i thought stating the exceptions and exemptions – including others in addition to those you mentioned – was stating the obvious given I posted the whole of the relevant provisions above. (can it really be that with all the opinions given here on the law that few have actually read the law? hmmmm)
but in this crowd you are right for me not to presume. i should be saying that not only are we NOT forced to eat the broccoli, many of us for one reason or another – including poverty and conscience – don’t have to pay for it either.
let me restate the question a bit more completely:
whether the “requirement-to-have-insurance-or-pay-a-penalty-except-for-those-exempted” is constitutional
“fine” is very close in meaning to “penalty” but I should have used the term of the provision. I stand corrected.
PBH,
Going backwards from Jim Crow history shows you wrong, they suffered tremendously, there was incrediable antipathy they and the previous owners felt, and held on to for decades, some remains today. re patriotiate was tried, and you are aware of that. Although Madison did inherit his fathers estate after Ambrose died, he managed to support himself outside of slavery, borrowing money at times to make ends meet.
1zb1
“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).”
First, there is no “fine”. There is no “penalty”. For those who cannot afford it, it will be provided. For those whose employers provide it, there is no change. For those in between, ie: those with no job and with no insurance but who can afford it, the mandate takes a deduction. That group could be fairly described as the 1%.
Second, yes it is constitutional. The 1790 Congress confirmed that.
pbh
bhoyo
“So now we can add the post civil war era to the histories PBH has not read, this list is getting long………….”
Uh, well, I lived part of it, but hey. My point was that the “terrors” that your boy Madison and my good friend Jefferson claimed to fear from “manumission” were entirely, forgive me for using this word in their hallowed presence, STUPID.
And/Or CRIMINAL.
And MAYBE just a little self serving.
Being that their entire careers were funded by slaves.
pbh
Bob
“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.”
The fact is that the GOP wants to erect the Thunder Dome ASAP.
They hate the New Deal. They hate Social Security. They hate Medicare. They hate unions. They hate homosexuals. They hate freedom of choice. They hate pigment.
They worship wealth. Period.
How do insurance companies survive after the mandate is repudiated? They withdraw. They wait it out. They lobby for complete repeal. They prevaricate. They subjigate. They enslave.
It’s all good.
pbh
1bz1,
bhoyo, you seem to have had a bit of a misspelling there: intra vires
Well I meant and stated ultra vires. it the libs who believe inter is intra, or public use and public purpose are all part of the coterminous language of progressive ‘fictions of the law’.
Oh yeah, we’ve had such a terrible time dealing with “them” ever since they’ve been freed. All of the arguments put forth by slaveholders are, pardon my french, merde.
So now we can add the post civil war era to the histories PBH has not read, this list is getting long………….
mespo
“Unlike many folks today, Jefferson was no zealot . . . ”
Jefferson was no zealot? Are you kidding? His purge of the Federalists notwithstanding?
“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.”
OMG. OMG. This is a pimer for tyranny. OMG.
If the ends are big enough they justify the means? Wha? Yo, I need to have a hole in the ground dug out for my cistern. Could you please spend your time doing that rather than on the very deep grave you are currently digging?
pbh
bhoyo
“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. . . .
Tis like holding a wolf by both ears, one cannot hold on nor let go.”
Oh yeah, we’ve had such a terrible time dealing with “them” ever since they’ve been freed. All of the arguments put forth by slaveholders are, pardon my french, merde.
pbh
Mespo
“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.”
I am so chastised.
“Jefferson claimed in 1777 and 1778 to have authored bills that would have emancipated slaves, liberated the children of slaves, and deported them from the colonies. Jefferson claimed to have withdrawn the legislation and said the “public mind” would not be able to accept emancipation at this time. But, there is no evidence from Jefferson’s collective writings that he authored such legislation.”
http://en.wikipedia.org/wiki/Thomas_Jefferson_and_slavery#Challenges_to_Jefferson_as_anti-slavery_advocate
“I don’t have time to clean up every spewing torrent of your ignorant or intentional B.S.”
There you go again (my favorite Reagan quote).
I made four specific charges against Jefferson and your single response is a demonstrable falsehood. And then you go Ad Hominem all over again.
pbh
bhoyo, you seem to have had a bit of a misspelling there: intra vires
as for Blouise, i have seen enough that god help me if i should ever be considered a regular in this click, but thank you for reminding me of that. (there are, of course, a few exceptions).
as for something of interest, Randy Barnett and his “The Original Meaning of the Commerce Clause” http://www.bu.edu/rbarnett/Original.htm#IIA4
is a true work of irony considering how absolute HIS meaning suggested by the title; and his long list of supposed contextual references to support his claim but which are matched only by the number of linquistic qualifiers he uses. so much for certainty.