-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.
Hi all,
Although I do plea for responses not tinctured with partisanship,I still get that type of response. As someone once said public measures are rarely discussed with the spirit of moderation necessary to obtain a just estimate of their capacity to advance or obsrhcg the public good.
mespo: well said.
states rights: the right to enslave. when it comes to abuse and corruption states make the feds look like saints.
right to work states: right to exploit workers.
right to assemble: not if you are in a union.
lincoln: “government of the people by the people for the people,”
regan: “Government is not a solution to our problem, government is the problem.” and republicans have been doing their very best ever since to make that so and then complaining when they succeed at it.
bush2: go shop till you drop and give tax cuts for the wealthy while sending young men and woman off to war. can anything be more reprehensible.
romney (another republican draft dodging chicken hawk): more tax cuts for the wealthy and corporations (apparently his 15% is not low enough) while beating the drums to send more young men and woman off to war.
rightwing banner: one nation under god and corporations.
rightwing/liberterian notion of individual rights: the right to be as ignorant as you want and make everyone else live that way.
Blouise:
“Marchiavelli’s view on power of the state aside.”
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Machiavelli was no advocate, merely a keen observer of the statecraft in play both then and now. The first law is survival.
“I deem it is best to stick to practical truth of things rather than to fancies. Many men have imagined republics and principalities that never existed at all. Yet the way men live is so far removed from the way they ought to live that anyone who abandons what is for what should be pursues his downfall rather than his preservation.” [emphasis mine].
(Donno, 7)
bhoyo:
“The growth of the National Powers in the last 70 years should alarm those who claim the liberal mantra, yet it doesn’t seem to bother them. The Federal gov’t is invloved in so many areas they Dont belong in, Agnecies are a mess, even Obama conceded that recently, yet we keep granting more and more power.”
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Do you think your liberty moire secure with more power accorded to the individual states? Are you happy with the hodgepodge of differing laws on abortion (vaginal probes and all), self-defense (stand your ground) or immigration policy (show me your papers). We have as much to fear from right-wing extremism in small venues as we do in larger ones, but the larger ones contain more moderating influences.
We are a nation thrust by WW2 into the status of a global power and a strong central government is a prerequisite. There are no counter-examples from history where a loose confederation of states survived in a leadership role. The Greeks were fierce and refined but gave way through their own divisiveness to the Romans. Now if we want to abdicate our role as leader of the Western democracies we can retreat from the world into isolationism, regain our small government roots, and watch our standard of living recede along with our security to the aggressively nationalistic nations of the world like China and Iran. It’s really our choice, but I think I know where most Americans would come down.
No, had your view held sway Louisiana would belong to France
Throghout all of our discussions one element is ignored, and I think it is a key one to examine. When is enough, enough ??
The growth of the National Powers in the last 70 years should alarm those who claim the liberal mantra, yet it doesn’t seem to bother them. The Federal gov’t is invloved in so many areas they Dont belong in, Agnecies are a mess, even Obama conceded that recently, yet we keep granting more and more power.I know it is the pursuit og mormative social justice, but if we lose liberty in that pursuit, then what ?
Bob, Esq:
“So if bhoyo and I said that it’s this type of thinking that the doctrine of specifically enumerated powers keeps in check, would you finally understand the reasons for our objections?”
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No, had your view held sway Louisiana would belong to France. Slavery would exist from the Virginia to Texas if they were states at all and Hitler would have won the war. You’re a purist Bob, Esq., and every instance I cited contains a clear example where a President exceeded the founder’s notions of enumerated powers to buy land, oppose secession, and engage in Lend-Lease or even maintian a standing army and navy. In each case, the President’s decision kept us free or secure or together as a nation. Damn those compromisers.
Bob,
Thank you. And I would like to add:
It is always wise to look closely at the means when attempting to reach a satisfactory end. ( Marchiavelli’s view on power of the state aside.)
And Blouise of course.
Mespo: “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.”
Pbh: “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,
So if bhoyo and I said that it’s this type of thinking that the doctrine of specifically enumerated powers keeps in check, would you finally understand the reasons for our objections?
Gene: “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,
Yes I do; at least Kennedy and Scalia..
bhoy: as usual, you offer profound insight into the human condition. the world awaits your every post.
i now some will point to the adaptability provided by the amendment process but for reasons i will address later this does not resolve the ambiguities or provide what they would have considered adequate means.
I am anxiously waiting, and will alert the media. LOL
i now some will point to the adaptability provided by the amendment process but for reasons i will address later this does not resolve the ambiguities or provide what they would have considered adequate means.
one other point: even if “commerce” was in those days used to indicate part of the subset rather then the whole, it would be impossible to engage in any of the other activities – ie agriculture, manufacturing, or arts, – without also engaging in commerce.
barnett goes through a lengthy investigation of meaning and intent to dissect the word “commerce” in the constitution. his thesis generally is courts have used the term wider then intended based on meaning on the actual meaning and usage of the time. the correct interpretation according to barnett is much narrower and in support of thomas.
according to him, “commerce” is a subset rather then all encompassing as generally used today, and he sites many examples of its usage next to words such as agriculture, manufacture, and art as proof. (note, while he does an exhaustive review of appearances of the word ‘commerce’ used throughout the convention – over 80 examples – his own work includes too many equivocating modifiers to bother counting)
it is thus a tacit admission by barnett the precedent of the court widely supports upholding the health law while the original meaning and intent (according to him and thomas) should overturn it. so the choice for barnett is which will prevail: the meaning and intent of the word “commerce” in the constitution at the time based on his analysis to overturn or Stare Decisis to uphold it.
now it occurs to me the founders were about as knowledgeable a group of their day as any. well read and versed in history. it seems to me they would have a good sense that over time the meaning of words change and the intent is subject to interpretation. also, clear is their sense of both the past , present, and future (“…secure the Blessings of Liberty to ourselves and our Posterity”).
with this in mind how is it they did not present a clear, and precise meaning to their words for future generations to know both the meaning and intent? why did they not say – on so fundamental issue – we expect this constitution and the meaning of these words to be construed for all time in a particular manner with a particular meaning and intent? how is it they gave so little guidance? were in the constitution does it enumerate the constitution should be interpreted in the future by the meaning and intentions of the day.
the federalists, while providing ample opportunity to expound in detail and with clarity on these questions is really of little help. sure, it gives some general flavor in broad strokes, but the problem of meaning and intent – especially for future generations can not be resolved by broad strokes.
i submit all of this was done with intentional vagueness, both for the necessity of passage and the imperative to adapt to future generations (to suggest these men who reinvented their world wanted the future to be bound entirely by their world seems absurd on its face).
i find nothing in the constitution or the dialogue of the day that supports the notion we should slavishly attempt to divine original meaning, intention, and from that, solely base our actions based on the pas without regard for the present and the future.
pbh:
“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.”
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Contradict yourself much:
A & B clam C will occur if D happens.
D happens.
C occurs in spades.
pbh says A & B are wrong.
Well with such authoritative sources as Wikipedia at your disposal, your assertion must be true. I suggest you read more before you get into arguments with folks who demonstrably know quite a bit more than you do..
bhoyo,
So then, I will read the Madison papers, write a pamphlet, and bring it to you in Camelot. Bob can bring the mead. You need the break. 😉
pbh: i think we are in general agreement if the folks in black robes overturned the health care law it would be a monstorous thing. it would be wrong as to the constituion; wrong in the spirit of politics on which it would be almost certainly decided; and wrong as a matter of humanity.
it was my expressed wish all those who vote to overturn should suffer in ways similar to those who loose their healthcare as a result which caused such offense to prof barnett in our exchange. however, i stood by that sentiment just as I do toward any judicial body that hides behind the veneer of law to destroy people’s lives. when mindless politicians speak of death panels it will be those in black robes they should be speaking of.
blouise,
Ah, you are suggesting I should write a good book. I have the required interest but not, I fear, the discipline.
My original plan to write a book concerning Madison and the Founding involved a 5 year plan, that deadline came and went 12 years ago. More extant documents surfaced, easier access, huge changes in law, both in Constitutional law and Adminstrative Law created a two year digression just for those two topics alone, a year of study in Con law made a year of studying Adminstrative law necessary. While I have been studying topics related to Madison and Constitutional law we have had an Impeachment, BVG, the Patriot Act, Tenth Amedment resolution efforts by the States, and the election of the most iconic figure to hit the White House since washington himself. Just when i think i have it all figured out the mail arrives and The Legal process by Hart and Sacks arrives, and the thought process of breyer is handed to me in a neat compact 1300 page book, which lead me to Breyers book. Obama appoints Paul verkuil to head the re establsihed ACUS, and his works need review, including Regulation and De regualtion which he co authored has to be studied, and wouldnt you know it he references breyer, who then decided to write Active Liberty, which piised me off beacuse I like him so much but dont agree with him.
All I have to do is condense all this into 320 pages after editing and revisions… LOL
Not discipline, a tendency towards self inflicted bondage is necessary. By the way I love it all, and wouldnt trade a minute.
PBH,
Why do you temporize and prevaricate?
I dont, and your implication that I do is chimerical as they would have said. Tension and fighting between previous slaves is part of our history, madison and Jefferson’s descendants did have to sell slaves and acreage to survive, true, Jefferson sold his library, Madison the records of the Constitutional Convention.
I was not of the generation that inherited slavery, and all of it’s ineluctable consequences, postponable yes, aviodable no. As far as the races living together Lincoln felt the same way, he was errant as well. It is easy to project our contemporary feelings on to previous generations, that we all know. Slavery is a blight, Toqueville described the disgustng and obvious visible distinctions on either side of a river, if the Cotton Gin failed maybe slavery would have died before the war.
It is obvious you have read some history or a fairly well written secondary history, maybe Wills or MacDonald. I applaud that effort, and your revulsion for slavery is admirable indeed. By the time our Founders got to writing a Constitution the barbaric practice was so imbedded it needed a war to remove it. The southern states refused to let it go, they meant it. The whole thing is a mess, true. Nothing runs a chill up my spine as much as having a young African American ask me, during a presentation of the federalist papers, to discuss slavery. And that i mean from my soul, it is a legacy that even resipiscence is inadaquate to resolve.
i am not willing to throw out the baby with the bath water, I lament slavery is part of the Constitution, but in that it was the most significant change in the formula of governance changing the formula of, power allowing liberty, to liberty granting power, I dont think it prudent. That you dont like jefferson is fine, it is your right, and I support that. was he flawed yes he was flawed. because he was flawed should we reject the Constituion ? That is not a tough question.