-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,
Congress is a mess trying to ignore this one, why? They have to spend an enormous amount of time campaigning and raising money. Well remember the previous point I made about how and why industries make contributions to polticians ? GE for example gave millions to New York City for the benefit of education, noble ? Well Rangel had a lot of that money applied to his dirtict, at the time he held a powerful position, coincidence ? Is it all the liberal dems, of course not. I still advocate members of Congress wearing NASCAR style jackets with the sponsors on them, and the Republicans are as bad if not worse.
all of us can cite a number of areas where the national is too big and too remote to be involved, Education is certainly one. I was part of the Katrina clean up, we did the work as a sub, guess what we couldnt get paid for 120 days, although the major contractors we subbed from had been paid in 45. Some of the big boys, the Brown and Roots love the idea of increased national response to hurricanes or tornadoes, ever wonder why ?? What I got paid per ton to load and haul debris was less than 58% of what the prime contractor got, and he had two girls in an office checking my invoices, he didnt move a twig, anyhere for any reason.. WOW
PBH,
trying to correct all of this is not new, nor is it always partisan, remember Ted Kennedy and Breyer on the Airline Deregualtion ?
A few years ago in the Chevron decision the Court decided there were justifications for allowing agencies to interpret the authorizing statutes. Then there arrived a two step process for the possibility of Due process if you were caught in this mess, hen cass sunstein came up wih his infamous zero step, ( academia has to chime in), now Sotomayor wrote an artcile advocating it would alright for an Agency head to do so, but not a lesser grade agency employer. For a second put that aside, and my question is, can the Court delgate interpretaion of an authorizing statute to an agency who wrote the rule that came from that statute. 1bz1 thought I am at times humorless, well I can be for the following reason. Two Article 3 ALJ’s were expressing frustration over their capacity to comprhend the ttechnical language of a claim for due process in the middle of case. One siad to the other let’s Chevron the whole thing. LOL ?
each agency has all three powers in House, executive, to enforce, quasi legislative in the formal and informal rule making conversion of authorizing stautes, but also a quasi judicial power in the ALJ’s and AJ’s. All of this has the power of federal law. So we have a combination of all three powers under one roof, which defies the seperation of powers doctrine. We have legislative power where the Constitution clearly states all legislative power is vested in Congress, ALJ’s who are statutorily exempt from review ( really ).
I cant find sven people in a row who know all branches of government and who their Congressman is, never mind asking about Agency Governance. So this enormous power, their are more ALJ’s than Artcile 3 Judges for example, is being conducted by a relatively unknown and largely unnaccoutable 4th Branch.
pbh,
I am no ignoring the powers of major corporations to influence the government, when I posted the Madison article of the Use of Poltical Parties it included the concept tha Madison thought one of the benefits of parties, to stem the power of advancing moneyed interestts over the peoples, not to invite in to the Adminstration. I did that to highlight the idea that the government is to be a neutral arbiter of such disputes. he mentioned it in his leter to Washington a year before the Convention, thinking government should e a disineresed and dispassionate umpire in such disputes. He mentioned the theme often ut really developed it in his Report on the Alien and Sedition Acts. The idea is simple, and one tha shook his relationship with Hamilton. As he saw it, moneyed interests and popular interests were om equal footing. Although i know it will aggrevate your Hamilton side that is what pi__ ed of Madison over Discrimination, and when Madison finally figured out how many holders of Securities were in Congress, and how that would work on the National bank he had a ‘kitten’. When Fisher Ames took the position at the First Bank, Madison went into a slow boil. Christopher Gore be damned LOL.
Now does that mean I advocate bad air, or dirty water ? No, is regualion necessary, yes to a degree. Does it need comprehensive reform, yes it does, why ? Because we have arrived at a stage where Government is changing it’s own power, and by that I dont mean they are diminshing it. The Federal Register and the Code of Federal Regulations testify to that fact. In addition we can take a look at just Dodd frank and the ACA, the authority statutes, are now being converted into Agency Rules. In that process lobbyists are having a field day, and are consulted in that practice as the lobbyists represent the industrys affected. Guess what the results are too often, a tit for tat compromise. In many instances ‘capture’ occurs, that is when the industry concerns are allowed to outweigh the broader pblic concerns the Agency was designed to serve. Is reform necessary at that juncture, yes of course, are we there ?
In the strange and obscure world of rule making as it exists the following has occured. Interest groups bid for recognition, it is not blatant, but it is easily hidden from public view by campaign conributions, often a cartel style combination exerts force that a single industry member could not.
Bhoyo,
“I ask the question again, is the excrescent growth of the national government a cause for alarm. ?”
All of these fears about the growth of the Federal Government seem direly misplaced to me. It is not the government that threatens me, it is the unbridled power of corporate greed that has stolen my livelihood and that threatens my future. These are the facts on the ground, as far as I am concerned.
The sole defense against this massive, concentrated power is the very government that you seem to fear. And I wonder why you fear it so very much. The Government is you. It is me. It is us.
The corporations are the slaveholders. Truely.
And now you are going to tell me, oh no, the corporations are merely the benign result of “job creation”. And I’m gonna say “nuh.” Not benign, not job creators and not the result. They are the purpose. And their purpose is theft. And if you doubt that, if you doubt that, then explain Blackwater. Explain Goldman Sachs. Explain the prison industry.
pbh
Hi all,
The 2009 edition of the Code of Federal Regulations was the largest ever, encompassing 163,333 pages in 226 individual books
Mespo,
“The Greeks were fierce and refined but gave way through their own divisiveness to the Romans.”
God forgive me.
pbh
Mespo,
“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.”
For somebody who “clams” to be so well read, harumph. You appear to know your histrionics better than your history.
FDR had an Act of Congress to engage in Lend Lease. Lincoln had an Act of Congress to defend the Nation. And, seriously, you are “clamming” that some President created both an army and a navy all on his own? By fiat? And the elected, national Congress just sat there?
Please, please give me your reading list.
But, you are right on one count, Jefferson engaged in an unauthorized extension of Executive power when he agreed to the Purchase. He would have called for Hamilton’s head if the first Secretary of the Treasury proposed it. Which proves my point about Jefferson.
pbh
Mespo,
“A & B clam C will occur if D happens.”
Well, I don’t think anybody other than a clam would worry about that.
Further, your appreciation for the alphabet fails after the first two letters.
The Civil War did not occur because the slaves were freed. It occurred precisely because they were *not* freed.
Jefferson and Madison and all of their ilk “feared” that the freed slaves would turn on their former masters. In fact, it was the slavers who attacked the free northern states whose duty it was to defend the nation. The slaves were essentially bystanders at the outset. Sometime later, many of them, as many as 100,000, joined forces with the defenders of the union to repel the Southern usurpers and simultaneously secure their own freedom.
Once freed, the former slaves lived in peace. And do to this day, more or less, the way the rest of us do.
Jefferson, Madison, Monroe, etc. They were all wrong. Very, very wrong.
And thank you so much for your condescension. It makes my day.
Sincerely,
pbh
bhoyo
“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.”
Oh yeah, I really want to throw out the Constitution. Because Jefferson, who did not write it, took unfair and illegal advantage of it.
I repeat: Screw that guy.
pbh
bhoyo:
You raised the Arizona law. I didn’t. I have read excepts of the law and commentaries on it, but not the actual statute. Thus I have no comment on it. As to your first question (“Can we in the pursuit of justice, eradicate the liberty we all cherish?) more time than I have today is required. I’ll reply tonight.
mespo,
Arizona, Alabama, and South Carolina. Critics of these laws call them “racial profiling” laws or, more aptly, “show me your papers” laws because they require all immigrants to carry their documents with them at all times for production on demand by state law enforcement officers.
More aptly, of course ! Is there a way to avoid racially profiling illegal immigration in Arizona from Mexico for instance, without developing a profile that doesnt suggest an exxagerated view of racial profiling ?? This is one baffles me, and hence the point is lost. It also seems you are conceding you havent read the Arizona Law.
Mespo,
I read your posts and do understand some of your points. Yet what is still un responded to, is the question I keep asking. Can we in the pursuit of justice, eradicate the liberty we all cherish? You did carefully avoid the specific idea of saying the national alone is capable of governance, agreed. Yet on oyr current trajectory we are headed there despite your carful wording. Have you digested the rule making that os going on with either Dodd Frank or ACA ? If we carefully ignore massive governement growth by careful wording does that assure liberty ? In the ACA’s huindred of pages of statutes, is the seed for more explicit rule making by agencies, whose pages are going to beyond the hundreds. Are you actually suggesting anyone can monitor all of this ?
Your idea that I assure the answer, with the question, maybe accurate in the regard that it is a threat to l;iberty if we allow the government to change it’s powers without our consent the formula is there for abuse.
mespo,
Forgive me. That last sentence was unnecessary. I was being irritable.
mespo,
“Machiavelli was no advocate, merely a keen observer of the statecraft in play ”
I know. I worded that sentence carefully, purposely choosing the word “view”, considered the word “observations” but chose view because it was shorter. I put the sentence in parenthesis as a “sub” thought which was to be put aside if one thought I was referencing Machiavelli.
Good lord, mespo … this is a bit ridiculous.
bhoyo:
“This vaginal probe stuff is over the top, and you know it when you post it. No one is ever going to reverse Roe calm down, and where are your papers ? mespo I know you know that is over the top, or you have not read the Arizona Law, which is it ?”
******************
It’s not and It’s neither.
Virginia was two votes shy of requiring women who wanted abortions to undergo invasive vaginal ultrasounds. After a national outcry the governor pulled his support.
The US Department of Justice (DOJ) recently filed a lawsuit against South Carolina, challenging the state’s strict immigration law. The DOJ has now challenged the constitutionality of three state immigration laws: Arizona, Alabama, and South Carolina. Critics of these laws call them “racial profiling” laws or, more aptly, “show me your papers” laws because they require all immigrants to carry their documents with them at all times for production on demand by state law enforcement officers.
Maybe you need to get away from just reading original sources and check out the newspaper sometime.
bhoyo:
“I ask the question again, is the excrescent growth of the national government a cause for alarm. ?”
*****************
Certainly it is but you’ve assured that answer in the way you ask the question. Excrescent means superfluous, abnormal or excessive growth. The real question is: Is the national government’s accretion of power excrescent, that is to say, is it’s growth superfluous, abnormal,or excessive ? Most would agree that it is not superfluous given our standing in the world;not abnormal given the examples of history; and the question of whether it’s excessive is a matter of personal preference. When the hurricane or tornado hits my neighborhood, I want the feds at my doorstep in an “excessive” display of power. When the Twin Towers are attacked, i want the national government to track down the killers and bring them to justice in an excessive way. “Excessive” is in the eye of the beholder.
bhoyo:
“I see you believe that only the national is capable of governance.”
*********************
That’s precisely what I carefully didn’t say. I said that a global power is only governable with a strong central government as history has shown. We have the choice to accept or reject that role, but not to escape the consequences of either choice. That’s what I said.
You can be governed by local and state government, but the whole will suffer because of the divergence of interests. As you well know, Madison understood that the problem with democracies is factionalism. That’s the dynamic to overcome in your scenario. The dynamic in my scenario is too much amalgamation of power in a central source with no sensitivity for regional or local differences.
The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. (Madison, Federalist 10)
It’s the age old problem we solved with both a federal and national constitution. I think my analysis very Madisonian. Wouldn’t you agree?
mespo,
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.
I see you believe that only the national is capable of governance. I do not share that view. If i remember right the national is comprised of states, the states of people. This vaginal probe stuff is over the top, and you know it when you post it. No one is ever going to reverse Roe calm down, and where are your papers ? mespo I know you know that is over the top, or you have not read the Arizona Law, which is it ?
,
rightwing/liberterian notion of individual rights: the right to be as ignorant as you want and make everyone else live that way.
Remarkable !
if the partisan zeal could be replaced with a temprament that allowed an honest or candid exchange, the difference here. and nationally would be so much more productive.
I ask the question again, is the excrescent growth of the national government a cause for alarm. ?
Is there a reliable limit to national power under either the Necesaary and Proper Clause, the General Welfare Clause combined with the Commerce Clause if the ACA mandate is allowed. I dont think Lopez is sufficient ammunition based on history.
Stare decisis is a remarkable tool for continuity in law, it counsels previous errors, it does not provide a justification for new ones.
Oops obstruct