-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:
Madison, by the way, never served in the Senate (bhoyo anyone)? He thought the Congreff was the highest calling.
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What are you talking about? The Senate is within the Congress! So did Madison think the Congress, including the Senate, was the highest calling or not? Should I consult Wikipedia? ‘Cause it says we have a bicameral legislature consisting of a Senate and a House of Representatives. That’s what Article 1, Sec 1 says, too, but I’m sure I’ve misstated it in some reductionist way.
bhoyo:
“When for example Marshall took the time to express a rather pliant hermenuetics regarding constitutional powers, the question seems to me, is can the Court, who receives all of it’s authority from the Constitution, modify the source of it’s own powers ?”
****************
What sort of blather is this? I notice you truly enjoy expounding as though you know something about what your talking about, but the words you use prove otherwise.
Can a court modify the Constitution?
Answer: No. A court may interpret a law and determine if it conflicts with the Constitution. It may also interpret the Constitution itself as to the meanings of its terms. That is not “modifying” the Constitution. I don’t see where anyone suggested otherwise. So setting up a straw man argument to proclaim your intelligence proves nothing more to me than you are a literate blowhard who likes to see himself in print.
Here’s another beaut from you: “The Congress, he [Marshall] stated has to follow the Constitution, doesn’t he as well? Isnt he, or the Court, even more obliged ?”
Answer: What? The Congress must adhere to the Constitution and may initiate the process to change the Constitution. Madison himself in Federalist 53 specifically says Congress may not alter the form of government. You quoted his line yourself in your next comment. The Courts have the right to interpret the Constitution and laws challenging it as they see fit since Marbury v. Madison. Pretty basic stuff for most people to understand there , Professor. Where do you get off concluding that a working and workable process enshrined since 1803 as as pillar of our democracy is unconstitutional. In Marshall’s view he was following the Constitution by determining the scope of power accorded to Congress from the great document to fulfill it’s constitutional purposes. Do you really question the concept of judicial review?
And finally this beauty:
The ballot box response is a tortured response, for it is applicable to derivative law, not organic law. Organic Law derives it’s just powers from the consent of the governed.
Pray tell how any law in a representative democracy doesn’t derive from the consent of the governed and hence the ballot box. The Constitution itself was voted on and ratified by representatives elected by the state legislatures. The ballot box is the official will of the people. How else will you measure public will? Opinion polls?
Your questions smack of the arrogance of someone who has read a lot and understands very little. Maybe you should talk to a lawyer before spouting this preposterous sounding nonsense about the Constitution. Courts don’t have the luxury to delve into these strabismic inquiries. They operate in the real world where decisions matter to people not born in the 17th or 18th Century or to governments trying to do their best to govern a population of 300+ million persons. To you “up” may mean “down,” because you say it does and everything quite ordinary may be very mysterious to the rather limited understanding you display, but for those of us who deal with these issues on a regular basis you sound quite silly indeed.
1zb1
“even when the powers of the federal government are enumerated – i.e. commerce and n&p – they don’t actually have any power.”
I get your conceptual position, but the reality is a little different. By way of example, may I suggest one of the final scenes in “The Gangs of New York” when the U.S. Navy fires on the Five Points from the East River. All them violent Irish gangstas gettin’ blown away by some serious Federale hardware. Something like a teaching moment.
“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.”
Uh, no. We are currently dysfunctional as a result of the filibuster. Which is not at all mentioned in the Constitution, but sneaks in by way of the “they can make up their own rules” provision. Mitch (destroy Obama at any and all costs) McDonnell and his cohort of sleazeballs have invoked the filibuster about 900 billion, quadrillion, septillion, google zillion times to 1 compared to the entire history of the Senate before 2008. Including, obviously, the run up to the “War-Between-the-States”.
I am of the belief that we would be better off without the Senate altogether.
I get that the poor, unfortunate super ranchers in Wyoming deserve to be represented in Congress. But, when I look out my window on the corner of Nassau and Beekman, I can immediately see more people than inhabit the arid wastes of John Ford’s back yard. And not all of those fools are German tourists.
So why does Wyoming, with no greater population than what could fill Yankee Stadium for a four day dogfight with the Red Sox, get to have two freaking filibuster ass Senators?
“Splain” that to me, Jeff Sessions.
The fact is that this institution is a hold over from the days of Jefferson and Madison who desperately feared that the more energetic Northern population would overwhelm them (which they did, bitches, and God bless them for it). It served its purpose to bind the nation, as did the 3/5ths rule. But it is high time we got rid of the former as we justly did the latter.
Madison, by the way, never served in the Senate (bhoyo anyone)? He thought the Congreff was the highest calling.
Even after the Presidency was “forced upon” him.
pbh
bhoyo,
Have you ever been to a League of Women Voters meeting? Want to meet a lot of knowledgeable students of history who fervently believe in applying their knowledge to present day events, attend a few. They know the Constitution!
🙂
It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
Some have used McCulloch as grounds for exapnsive reading of national powers, to the precise extent that is true is no the issue at the moment, what is at issue is the organic law, and how it sits in our system. Aboe is Marshall in Marbury, it seems he was in agreement with madison in a decision bearing Madison’s name..
The idea of certain principles which were long and well established is what Marshall is assreting here, is there were many ideas that were not vague, and they were in organic law, not derivative law. He concludes they were designed to be permanent..
What do you think ??
Louise,
wow, thank you for affirming mt belief we are out there, that is to say although many protest, the history is there, an it does so much to inform us when contemplating contemporary problems, you made my day, Thank you.
I agree with many of Hmailton’s ideas, I do. I like Marshall despite his aversion to study, many say he was to convivial, I admit that. I have a depp respect for Jefferson. All of that aside, the real question in our system is what is the consent of the governed ?
The ballot box response is a tortured response, for it is applicable to derivative law, not organic law. Organic Law derives it’s just powers from the consent of the governed. We have modified the system tremendously, and in so doing opened the door for government to change itself. in the fed essays madison wrote
” the important distinction so well understood in America between a Constitution estalished by the prople and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understaood and less observed in any other country.”
This is a fundemental of our Constitutional thinking, and some how it has been lost.
So, what is my point LOL.
The American saga, has been a model to the world, over 3/4s of the Constitutions existing today were written after WW2, the examples of those using ours as reference abound. When Breyer heads to Europe in the Summer time he has stated the idea of the rule of law is gaining tremenous traction in contries where they had never thought of using that government power to the extent that we do.
At the heart of the American system is a written Constitution, defining the powers the people have delgated to government. Britian does not have a written Constitution. Self governance is the goal, and we recognize that he font of the power is the people, the source for us was of course Hobbes and Locke the idea of a social compact. How is the big question, and in the design of the compund American Republic to specify powers, and spread them amongst states and a national government. The partitions of power were well discussed, debated, and altough a variety of opinions were expressed, a conclusion was reached. The Founders knew that the compelling vortex of power lead all governments to want to extend their powers. They also knew that it was up to future generations to perfect and develop the orginal system, and to that end Article V was placed for such purposes.
Artcile V puts new powers up for approval, and the idea is that if the problem is recognized enough, the remedy would find agreement in this process. It compels a definite reconition of the problem and makes us agree as to the remedy. Is there anywhere in the Constitution a source of power granted to the courts to side step this process, and justify interstitial legisaltion, or stating that new powers of government are of the same just source of powers, as the consent of the governed as Article v was determined to be ?
pbh,
As a small assist, which you don’t really need, the Democratic-Republican party was also referred to as the Jeffersonian Republicans party and was formed for many reasons, one being because the members agreed that the Executive branch of the new government was, in the words of Jefferson: “ … already too strong for the republican parts of the Constitution; …” (I won’t even mention the opinions of the Jeffersonians about Washington’s administration favoring the British in foreign policy over the French, and, of course, viewing the establishment of a national bank (BUS) as a usurpation of powers that rightfully belonged to the states.)
bhoyo,
I do have a copy of Power of the Press. My copy is dedicated to Louise (without the B) 🙂
I read it years ago and I believe it was the first time I’d finally understood the term “fiat money”. It seems to me that I remember more about Morris in that book but now that you mention it, I should reread some of the chapters.
Regarding the Mississippi … I was thinking about the English Spain confrontation that was Jefferson’s first big event as Secy of State wherein everyone agreed to a policy of neutrality, but Jefferson wanted Spain to open navigation of the Mississippi as a price for our remaining neutral. I think it was Craigie who told Hamilton that he’d heard Spain had agreed but that would have been more like 1790 than 1788 so my confusion there.
Three years ago an Osprey couple adopted a hammerhead boom tip on a crane for it’s nest. Business was slow so the new family went unnoticed, till it came time to move the crane and the barge. From peronal experience I can tell you it was absolutley silly to watch the state and national agencies who could claim jurisdiction, express themselves. No less than 5 groups, three state and two federal agencies howed up. Each had a differnet idea, all sorts of fines were possible. Bowing to the supremacy clause the Fed’s took the lead. I was involved, and as a member of SOAR, save our american raptors, I wanted compliance as well as doing evrything to recognize the responsibility we all have to the environmant, and it’s amazing members.
The fed group had us rent a huge new man lift and all sorts of people went to save a few eggs, and move the nest. The fed group was about 140 feet of the gorund when the radio went off anouncing they didnt bring a box for either the eggs or the nest \. I wish this was an isolated instance but it is not. The local Audobon group took over and saved the day. The state group had no idea how to do it, but were very ready to try anyhting that suited the interests of the birds and the eggs.
The issue remains, can we an earnest attempt to advance a ‘normative’ social justice destroy the liberty we all cherish in that pursuit ? I fear it is possible, if not probable on the current trajectory. When for example Marshall took the time to express a rather pliant hermenuetics regarding constitutional powers, the question seems to me, is can the Court, who receives all of it’s authority from the Constitution, modify the source of it’s own powers ? The Congress, he stated has to follow the Constitution, doesn’t he as well? Isnt he, or the Court, even more obliged ?
That they we have been quibbling about how to interpret the Constitution since 1789 is true. I am not one to condemn Chemerinsky beacuse I don’t see things his way, a appreciate his work. The same thing can be said about how I feel about Marshall and Hamilton. The over the top, take sides attitude is to me , a distraction.
The founder of the Federalists. In 1788 that was one set of people, while in the spring of 1790, that was a different group. Moneyed interests liked the idea of a Convention, the Annapolis Convention that proceeded the CC, wanted to deal with the debt, it was shameful to be in the spot they were in, they were borrowing money to pay the interest on the debt. At the beginning of the 20th Cnetury Beard wrote ” An economic Interpretaion of the Constitution’, it raised a lot of eyebrows due to it’s implication that moeny trumped the ideals of liberty, democracy. About the same time Croly penned Progressive Democracy. The entire History world had all sorts of fresh topics to write about. The historical treatments are granted enormous relevance when you read the Legal Process by Hart and Sacks who had painstakingly chronicled the cahnges in the Court, while these social issues were being discussed by the people, and the legal academics. It is a great read in combination, and well worth the time. A new era came about with the bicentennial celebrations, and the books that came from that period are tremendous. despite the efforts of many to employ the Whiggish History’ method, that is to say the current undersandings of the Constitution are the natural teleological results of an evolving and maturing society, when the events are closely examined the process is quite different.
Blouise,
I have a copy of King of The Alley, somewhere LOl, just couldnt find it if I had to. As far as Hamilton working for Craigie, I am sure it was not concenrning navigation. I secured a copy of the contract between Hmailton and Craigie, from the American Antiquarian Society in Worcester Mass. The Papers of William Craigie are there, the contract id also on Brant’s work on Madison. A few years ago I read brookhisers book on Hamilton, and in his defense of Hamilton reagrding Duer’s specualting openly in the public securities, Brookhiser mentioned Hmailton probably didnt know the extent of it. remembering the contract I did get a copy. The task Hamilton accpeted was in regard to the finacial dealings of Duer, and others regarding the specualtion in public securities. Duer had a few issues to deal with when Hamilton brought him on board at the Treasury. I dont know if you ever read Power of the Purse, but that is a great read, and very well researched. I went through Ferguson’s footnotes and re read some of his asseertions. He did make MacDonalds defense of Hamilton look pretty unfounded.
mespo:
“Ok, I’ll use your authoritative source Wikipedia.”
I know a little bit about Wikipedia; it is not a perfect tool. So, where was the first “Federalist” meeting? The nominating convention, where was that? Tampa? Miami?
Those who claim that Hamilton created a political party do so from a Jeffersonian perspective. Which is to say, Jefferson claimed that his party was merely a response to one that already existed. But, Jefferson was a liar.
What existed was the government. To a person in 1788, a “Federalist” was a member or supporter of the Federal Government. There was no “party”. That was Jefferson’s invention.
“As to your second contention, an act of Congress sanctifying a law doesn’t necessarily confer constitutionality merely congressional authorization.”
Thank you Justice Marshall. Imagine my surprise: the examples you previously gave of ultra vires acts, Lend Lease, Defense of the Nation, creation of a standing army and navy, are not included in your list of the unConstitutional acts of Congress.
pbh
bhoyo,
“Didnt Hamilton get the job after some one else turned it down ??”
What is this, a catechism? He turned it down because he had his hands full with the talent agency. Oh, wait, that was that other Morris. Not the not Governor, the guy from the cigarettes. Or, wait, was it the guy with the car? I get all confused.
Whatever, I know he immediately recomended my boy, Alex.
Meanwhile, how come you left out the part about the “fast ships”?
pbh
oh my gosh, and here i thought i was paying you a compliment. i guess it was the kind only franklin would understand.
At last, an insult I can treasure as all my own … I may now join the “click”.
too bad you could not take your own advice.
“I read everyone’s response but ignore the pejoratives and go for the kernels of knowledge and insight about the matter being discussed.”
i can not speak to the last 3 years but as to this particular argument (hardly a debate or discussion) it does seem your comments are near universally devoid of any useful insight, purpose, value, meaning, or intent.
however, i did notice there were a few exceptions when you said:
– “I [meaning blousie] was in New Orleans the summer before Katrina.”
– “I rather like the terminology that one of the posters used, “kicked the can down the road”. It’s not exactly elegant and I suspect the only one who would have smiled at that description of their efforts would be Franklin, but there is a large kernel of truth in it.”
Someone once referred to me as a “gadfly” intending it as an insult. Recalling the term was coined by Socrates referring to himself, I took it as a badge of honor, notwithstanding the intention. Likewise anyone who cares an offhanded insult by comparing me to Franklin in even the most remote sense I will take as a badge of honor, notwithstanding the source.
btw: how big is kernel of truth or is that too much of a cliché to say.
(p.s. is this the ROFLOL part?)
Bob,
“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.” (1zb1)
ROFLOL … please Bob, just let that one hang out there blowin’ in the breeze