-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.
Full title:
” ‘The king of the Alley’ William Duer – Politician, Entrepreneur, Speculator ”
“King of the alley” is a phrase Jefferson used to describe Duer
bhoyo,
One of the books in my library, ” ‘The king of the Alley’ William Duer by Robert F Jones, is a fascinating study of that time frame. Duer went into debtors prison in March of 1792 I believe, after the “correction” in the markets during the bankomania bubble of late 1791 to early 1792. As Secy of Treas. Hamilton certainly acted at that time but I don’t believed it was on behalf of Craigie.
If Hamilton acted at all for Craigie in 1788 it might have been for navigation rights up the Mississippi with Spain.
i suppose all that might make sense, bob, except in your world apparently even when the powers of the federal government are enumerated – i.e. commerce and n&p – they don’t actually have any power.
you neglected to mention the 4th branch of government – the people – and their right to vote out and override the other 3 (including the judicial through impeachment by their elected body). it is fair to say the founders were a bit obsessive-compulsive about checks and balances as they were about a stronger fed. they were so successful at it in fact, that now we are completely dysfunctional, though not as dysfunctional as their great failure leading to the civil war and 200 years of arguing over the same issues. boy, were they terrific.
i’m wondering how old you are, bob. the way you quote plato, voltaire, thompson and others to try and prove a point on the constitution and the nature of life as if you just took acid for the first time and saw the flowery rainbow of “Liberty, equality, fraternity’ thinking only you are the first to see them seems a child like diversion from the issues at hand.
one other minor point: a person with a gun has the potential to kill a few people; while a person with a loaded jet plane has the ability to kill thousands; and a person with a nuclear device… well, you get the point.
then again George Bush #2’s solution was pretty clever: shop till you drop, give a tax cut to the rich while sending our young men and woman off to 10 years of war while we invade the wrong country, deregulate everything, run up giant deficits, tank the economy, enrich china, and pat you down. nothing like a little national sacrifice. in fact, it worked so well Romney, Republican/Tparty, and most libertarians want to try doing just about the same thing all over again including that bit about more religion and states rights. isn’t it great.
Mespo: “We were talking about enumerated powers which Bob,Esq seems to hold sacrosanct in spite of McCullough v. Maryland.”
“We start with first principles. The Constitution creates a Federal Government of enumerated powers. See Art. I, § 8. As James Madison wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft, 501 U. S. 452, 458 (1991) (internal quotation marks omitted). “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in anyone branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” United States v. Lopez – 514 U.S. 549 (1995) @552
Mark,
The problem I have with your reasoning is that it betrays your obsession with control masked as a concern for the country.
to wit:
Mespo: “I think where many of us take issue with you is in your absolutist view of civil rights. No Founder, including Jefferson and Madison, ever took that view. Civil rights, and specifically those articulated in the first ten amendments to the US Constitution, were always balanced against the government’s need to maintain order and protect the citizenry from enemies foreign and domestic.”
What the court referred to as ‘first principles’ above you see merely as quaint distractions that interfere with your control paradigm which you constantly justify under the theme of more protection against the threat of terrorism.
Particularly interesting is how you’re always so keen to point out the dangers of terrorism when arguing in favor of permitting the Fed to exercise more power than it was ever delegated; either under Article I or Article II. Yet when we parse out your arguments per the threat of danger as related to a citizen’s need to react accordingly to such danger, e.g. approving of the Executive exercising powers never granted or in direct conflict with the dictates of the constitution, there’s simply no integrity; just caprice.
“The sovereign is called a tyrant who knows no laws but his caprice.” —
Voltaire
According to you Mark, a citizen with a 5 in 100,000 chance of facing an attacker is irrational for desiring to carry a gun while a citizen with a 1 in 20 million chance of being killed by a terrorist has EVERY REASON to forfeit his civil liberties in the name of being protected by the likes of you.
“This and no other is the root from which a tyrant springs; when he first appears he is a protector.” — Plato
And the way you always conclude your arguments with the assurance that somewhere down the line wiser heads will prevail and all will balance out in the end, you remind me of Timothy Leary creating what Hunter S. Thompson called “a generation of permanent cripples.”
H.S. Thompson: “What Leary took down with him was the central illusion of a whole life-style that he helped create… a generation of permanent cripples, failed seekers, who never understood the essential old-mystic fallacy of the Acid Culture: the desperate assumption that somebody… or at least some force – is tending the light at the end of the tunnel.”
So yes Mark, I do hold the separation of powers sacrosanct, as you say, because I’d rather have it protecting me from the likes of you than some empty promise about the powers that be assuring me that all is well because someone down the line will be tending a light at the end of the tunnel.
1zb1:
I agree with your well-founded proviso.
mespo: you won. facts, reason, and sanity have triumphed. too bad that won’t keep people from voting with their butt (or their bible)..
a minor point: i would say an act of congress signed into law by the president is presumed (or at least accepted) as constitutional until some one must first contest it and the supreme court rules otherwise.
bhoyo:
“You have provided a number of non sequiturs, pointed out a number of distinctions that dont make a difference, brought up a lot of quotes from outside the American Constitution, misused Jefferson.”
*****************
Thanks for your opinion and for freeing me from my burden from answering another of your esoteric questions that history and circumstance have already answered. I am happy to let the readers decide who provided the manifest facts and who didn’t.
bhoyo:
“I am not sure what you do for a living, but thank he Common Father of Man you are not an attorney.”
Well, bhoyo your “Sky Daddy” let you down again!
pbh:
““Hamilton did create the Federalist Party as any school boy knows. Here’s the cite since you apparently missed that day”
Congratulations, you actually found some other reductivist who claims that Hamilton founded the “Federalist Party”. Not.”
(…)
“Yeah. They must have done something like that. After Congress enacted laws in support of them. I leave it to you to explain how FDR, Lincoln and Madison acted outside Congressional and/or Constitutional authority subsequent to Congressional Acts in support of their policies.”
******************
Ok, I’ll use your authoritative source Wikipedia — from the article “Federalist Party”:
” The party was formed by Alexander Hamilton, who, during George Washington’s first term, built a network of supporters, largely urban bankers and businessmen, to support his fiscal policies.”
As to your second contention, an act of Congress sanctifying a law doesn’t necessarily confer constitutionality merely congressional authorization. Only the Supreme Court can decide constitutionality. Here’s a list of 158 Acts of Congress signed by the President that were declared unconstitutional in whole or in part. Note the dates.
http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-10.pdf.
You keep asking. I’ll keep answering.
PBH,
I read, although years ago, Adams book on the British Constitution. I know Adams and Hamilton agreed there, yet I dont think Adams was quite as investment savvy, or prone as Hamilton. I do know Abigail bought public securities
Didnt Hamilton work for Craigie ? I though he was the attorney for Craigie regarding the Duer Issues ?? That would have been December 1788 or thereabouts
Hi
Did Hmailton create the party, or did it evolve around him ? Bingham, Craigies that crowd, seemed to instincetively bond together and knew how to use the new government to aid their investments, If I rmember right Morris was out trying to capture the whole of the debt a good year before Ratification. Hamilton liked the Neckar Concepts if memory serves me, and that would have dovetailed with Morris, Bingham, Craigie, Christopher Gore, who were up to their ears trying to keep the market in American securities coem to fruition. I maybe mistaken the loosley assembled finabce group here, sort of just ended up supporting Hmailton, and like most who knew him observed his intellectual prowess, and tendency to trade worked for them. He may have named them, but…. they were there before he assumed the Treasury at the end of the First Session of the First Congress. Craigie was so driven to know how the debt was going to be handled, he took a room in the same rooming house with 6 or 7 (cant remember which ) Congressman. Didnt Hamilton get the job after some one else turned it down ??
mespo
“Hamilton did create the Federalist Party as any school boy knows. Here’s the cite since you apparently missed that day”
Congratulations, you actually found some other reductivist who claims that Hamilton founded the “Federalist Party”. Not.
The “Federalists” were the Government. The Democratic-Republicans were organized by Jefferson and Madison in order to oppose the policies of the Government, of which Jefferson was Secretary of State and Washington the President. There were no political parties, none, until Jefferson and Madison organized the D/Rs in opposition to the Government led by George Washington, the hero of the nation.
“My point was not that the cited Presidents didn’t have Congressional backing; it was simply that they acted clearly outside of the enumerated powers”
Yeah. They must have done something like that. After Congress enacted laws in support of them. I leave it to you to explain how FDR, Lincoln and Madison acted outside Congressional and/or Constitutional authority subsequent to Congressional Acts in support of their policies.
As for Jefferson . . . nuff said.
pbh
Hi all,
Well, so the answer is silence at the ballot box. That is the complicated answer you were to post this evening ? I wonder how people are to know about Governanace ? We dont teach Constiutional History anymore, we dont teach civics.
In the idea of a ‘living constitution’ people are lead to believe it can change without them, no one ever stresses the use of Article V, as the truly unique feature of the American epic. So I am living in the past, well my apologies for offending you, I thought my idea that we should use the Founding as counsel not as explict direction, was a rather good one.
You promised a detailed expalnation as to the question I posed, all things considered, DONT.
You have provided a number of non sequiturs, pointed out a number of distinctions that dont make a difference, brought up a lot of quotes from outside the American Constitution, misused Jefferson. Somehow pointing out the current conditions of Administrative Law, many of which are in Paul Verkuils text, regulation and Deregulaion, have suggested that the idea that states will have to assume some of the usurped powers is carte blanche for the national to handle corporations by assuming more powers. At the moment the National is up their ears in back room poltics, GE is a prime example, yet it is okay because it is the national who has more oppurtuniities to veil the abuse.
I am not sure what you do for a living, but thank he Common Father of Man you are not an attorney.
bhoyo
“ . . . most disturbing is that the people have not given their consent.”
You mean voters don’t vote anymore? Or they don’t count the votes (BvG notwithstanding)? Or don’t “they” let them vote?
Heeeeellllllloooooooooo Wisconsin!!!!!!!!!!
And Georgia. And Indiana. And Michigan. And Alabama.
“The one most divisive issue is abortion”
The cure for which is Lawrence v. Texas.
pbh
bhoyo:
Well pbh and I agree on something. We are becoming a corporate oligarchy. If you think the states can resist corporate money and promises of jobs you are sadly mistaken. You do not fight a mega-power with 50 disjointed, weak and jealous mini-powers. As Teddy Roosevelt proved, it takes a national government to mold a consensus to take on interstate corporations and bring them to heel. You’re living in the past if you think state governments can control multi-nationals. Why do you think the corporations are leading the charge for states rights?
bhoyo:
“In all of this I see an excrescent change in National Power, most disturbing is that the people have not given their consent.”
********************
They give their consent every time they don’t oppose it at the ballot box. The legal maxim is qui tacet consentire videtur ubi loqui debuit ac potuit — He who is silent when he ought to have spoken gives consent.
pbh:
“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.”
***************************
You should be an archery target at the school for the blind since you miss so many points or they sail over your head. We were talking about enumerated powers which Bob,Esq seems to hold sacrosanct in spite of McCullough v. Maryland. My point was not that the cited Presidents didn’t have Congressional backing; it was simply that they acted clearly outside of the enumerated powers and thus according to your crowd, unconstitutionally, the backing of Congress or lack thereof notwithstanding,
The reference to the standing army/navy was a reference to Madison who opposed the idea but relented in view of the War of 1812. And yes, Hamilton did create the Federalist Party as any school boy knows. Here’s the cite since you apparently missed that day:
http://books.google.com/books?id=oyFpDS8p33sC&pg=PA268&lpg=PA268&dq=founder+federalist+party&source=bl&ots=MSz0nyk4hw&sig=FYk8_2AepP6uUHuCgdh3a6gc87I&hl=en&sa=X&ei=20yXT7_dKrP06AGxmMC2Dg&ved=0CFoQ6AEwBjge#v=onepage&q=founder%20federalist%20party&f=false
Do you want to send me tuition installments for Poly-sci 101 or do I have to give you a scholarship. How’s your 40 time?
BTW thanks for the typo correction. Nitpicking is the province of small minds, you know.
bhoyo 1, April 24, 2012 at 8:23 pm
“I still advocate members of Congress wearing NASCAR style jackets with the sponsors on them, and the Republicans are as bad if not worse.”
Oh, they are definitely worse. Infinitely worse. Worse in a superstring, quantum kind of way.
In a metaphysical, super religious, . . . (sorry, nevermind, my bad).
But at least I got you stirred up.
Yeah, there are issues with agnecies and plenary powers. The INS, the FBI, the NSA, Guantanamo and so on. I am not exactly worried about the EPA or Dodd Frank however (talk about a boneless bill). I long for the days of Pecora, Frank (ie: Ferdie).
Ah, those hallowed liberals of yesteryear.
pbh
PBH,
In all of this I see an excrescent change in National Power, most disturbing is that the people have not given their consent. That is at the heart of my question, not whether or not I can google a few quotes and give a good response. I dont subscribe in the Common Law practice of using precdent to justify new, especially very expanded powers to the National. I also know, for example that what stopped the invasive vaginal probes was public opinion in Virginia, and by the way men were especially outraged. Enlightened ideas can be practiced a a state level, and I think the swing will occur that the states will have to assume back so many of the powers the national has usurped. Do I think it will be as poltically correct at the state level, candidly no. The one most divisive issue is abortion, by and large. I have heard the rights arguments, and of course concur with a lot of that idea, but there are a number of people that truly believe killing a baby in the womb is bad. I dont think they are trying to go back to back alley abortions, or to control a woman, too many of them are woman, and they trult believe it is an awful practice, especially late term or the partial birth abortions. When Roe came about it came on the heels od griswold, which did not bother many people, the birth control laws ahd fallen into desuetude long before Griswold. hence no majority was impacted, Roe on the other hand did fly in the face of many states beliefs in that area, it is and remains a durable gripe.