-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.
mespo
“Extravagant language is the mark of someone seeking attention and often used to mask not knowing a damn thing about what you’re talking about.”
Of all the people on this board, you spend the most time hurling insults. I would venture to say that it has become the rare post from you that does not offer to insult someone.
While I have expressed some justifiable astonishment at this behavior, and have rewarded it with a fair amount of well earned mockery, even I have not gone so far as to belittle your intelligence, which is something that you do regularly to every other correspondent here.
Which is to say that you demonstrate very poor manners. My mother would ask you to leave the table.
I hope that you do not imagine that this attitude bolsters any of your arguments. In my view, it undermines them almost immediately.
pbh
Bob, Esq.:
Survival is the first principle or hadn’t you noticed.Here’s one guy who understood that and was actually burdened with the duty to preserve the nation with some un- or extra- constitutional means:
Executive Mansion,
Washington, April 4, 1864.
A.G. Hodges, Esq
Frankfort, Ky.
My dear Sir: You ask me to put in writing the substance of what I verbally said the other day, in your presence, to Governor Bramlette and Senator Dixon. It was about as follows:
“I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. I can not remember when I did not so think, and feel. And yet I have never understood that the Presidency conferred upon me an unrestricted right to act officially upon this judgment and feeling. It was in the oath I took that I would, to the best of my ability, preserve, protect, and defend the Constitution of the United States. I could not take the office without taking the oath. Nor was it my view that I might take an oath to get power, and break the oath in using the power. I understood, too, that in ordinary civil administration this oath even forbade me to practically indulge my primary abstract judgment on the moral question of slavery. I had publicly declared this many times, and in many ways. And I aver that, to this day, I have done no official act in mere deference to my abstract judgment and feeling on slavery. I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensabale means, that government — that nation — of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it. I could not feel that, to the best of my ability, I had even tried to preserve the constitution, if, to save slavery, or any minor matter, I should permit the wreck of government, country, and Constitution all together. When, early in the war, Gen. Fremont attempted military emancipation, I forbade it, because I did not then think it an indispensable necessity. When a little later, Gen. Cameron, then Secretary of War, suggested the arming of the blacks, I objected, because I did not yet think it an indispensable necessity. When, still later, Gen. Hunter attempted military emancipation, I again forbade it, because I did not yet think the indispensable necessity had come. When, in March, and May, and July 1862 I made earnest, and successive appeals to the border states to favor compensated emancipation, I believed the indispensable necessity for military emancipation, and arming the blacks would come, unless averted by that measure. They declined the proposition; and I was, in my best judgment, driven to the alternative of either surrendering the Union, and with it, the Constitution, or of laying strong hand upon the colored element. I chose the latter. In choosing it, I hoped for greater gain than loss; but of this, I was not entirely confident. More than a year of trial now shows no loss by it in our foreign relations, none in our home popular sentiment, none in our white military force, — no loss by it any how or any where. On the contrary, it shows a gain of quite a hundred and thirty thousand soldiers, seamen, and laborers. These are palpable facts, about which, as facts, there can be no cavilling. We have the men; and we could not have had them without the measure.
[“]And now let any Union man who complains of the measure, test himself by writing down in one line that he is for subduing the rebellion by force of arms; and in the next, that he is for taking these hundred and thirty thousand men from the Union side, and placing them where they would be but for the measure he condemns. If he can not face his case so stated, it is only because he can not face the truth.[“]
I add a word which was not in the verbal conversation. In telling this tale I attempt no compliment to my own sagacity. I claim not to have controlled events, but confess plainly that events have controlled me. Now, at the end of three years struggle the nation’s condition is not what either party, or any man devised, or expected. God alone can claim it. Whither it is tending seems plain. If God now wills the removal of a great wrong, and wills also that we of the North as well as you of the South, shall pay fairly for our complicity in that wrong, impartial history will find therein new cause to attest and revere the justice and goodness of God. Yours truly,
~A. Lincoln
You and bhoyo woould do well together in the pristine world you’ve created. Sadly it doesn’t exist.
Mark:
This is a lawyer’s blog, eh? “Your honor, I submit to you Mt. Rushmore.” LOL What’s next, letters addressed to Santa care of Macy’s?
Anyway, so, according to you, Jackson’s dissent in Terminiello is all the license you need to ignore “first principles.”
How did the Court in Lopez put it?
“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
Now, Terminiello, that was a free speech case, right? Hmm, now what was it that Douglas wrote that could put a control freak’s panties in a twist?
Something like this?
“Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to roduce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262 , 193, 159 A.L.R. 1346; Craig v. Harney, 331 U.S. 367, 373 , 1253. There is no room under our Constitution for a more restrictive view. For the alternative would lead to STANDARDIZATION OF IDEAS [337 U.S. 1 , 5] either by legislatures, courts, or dominant political or community groups. (emphasis mine)
The ‘practical wisdom’ at work here, Mark, is that liberty should be sacrificed to satiate yours, and Jackson’s, desire for control. The standardization of ideas is all fine and well so long as they’re yours.
And once again you’ve betrayed your obsession with control masked with your alleged concern for the country by the lack of integrity in your reasoning.
Mespo: “The goal is to preserve the nation, not let it go to ruin based [on] blind [adherence] to a dogma.”
Is it Mark? How is it that you, a supporter of the Citizens United decision, could quote a man like Jackson in a Free Speech case when he wrote:
“There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
I have a “doctrinaire approach to governance”? Gee, what would your buddy Jackson say about your support for Citizens United?
Perhaps the reason there’s so little integrity to your thought process can be found in your over reliance on quotes taken out of context and presented as axioms. Like that quote from Jackson you attempted to use axiomatically as justification for ignoring the doctrine of enumerated powers when you see fit. Yet you know that within the same 1st Amendment context, Jackson would be screaming for your head for even suggesting that corporations have an equal say in the franchise as citizens and that ‘practical wisdom’ would dictate the opposite outcome in Citizens United.
Where else do we find lack of integrity in your arguments?
Here’s a good argument by you against carrying a concealed weapon
Matt: “Criminals are everywhere, and I’m sorry that I don’t want to be one of their statistics.”
*****************
Mespo: “According to Ohio crime stats for 2008 (the most recent I could find), your chances of being subjected to deadly force by an unlawful attacker in Ohio is 5 in 100,000. That’s a blistering .00005% chance overall. Assuming you are Caucasian your chances of being a victim fall to a mere 34% of that figure or a scary .000017%. That’s 1.7 in 100,000. According to the National Safety Council, your odds of dying from exposure to smoke, fi[1]re, and fumes are 1 in 1,344 AWAY from your job. I suggest you leave your gun at home and keep your fire suit on all the time to really be safe. Also avoid getting charged with capital murder too since your odds for execution are just slightly worse than for getting shot by an attacker — 1 in 111,779. So what is it Matt? It sure isn’t rational fear of homicide in Ohio. So, yes my uncle and I think carrying a gun doesn’t make you a man; it makes you a paranoid.”
Now, as a gun owner, I happen to agree with you. If you can’t venture out into the world with a 5 in 100,000 chance of facing an attacker without a hand gun, you’re a sad paranoid man with no grasp of the concept of risk.
But here comes your lack of integrity again, because while you argue that a citizen with a 5 in 100,000 chance of facing an attacker is irrational for desiring to carry you ALSO argue that 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.
It bears repeating to a control freak…
“This and no other is the root from which a tyrant springs; when he first appears he is a protector.” — Plato
Lack of integrity in one’s reasoning is no reasoning at all, it’s just whim and caprice focused by a particular pathology; in your case control. Quoting all the greats in American history may serve to mask your intent and the stench of your arguments, but to convince yourself that those greats would agree with your insatiable desire for control is simply delusional.
Bob,Esq.:
“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.”
Bob,Esq.: Accordingly, I hereby affirm under penalty of perjury that you’re as full of crap as a Christmas goose.”
***************************
The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
337 U.S. at 36.
~Justice Robert Jackson, Terminiello v. City of Chicago, 337 U.S. 1 (in dissent, 1949)
Well, I’m in good company with the chief US prosecutor at the Nuremberg Trials and Associate Justice of the SCOTUS. You recognize no limits on your doctrinaire approach to governance even in event of national emergency. The goal is to preserve the nation, not let it go to ruin based blind adhereance to a dogma. Lincoln said much the same thing as Jackson. Like Jefferson, he’s on Mt. Rushmore, too. Full of crap? Maybe? But towering over us all literally and figuratively.
Mespo: “Nothing personal but this is a lawyer’s blog, in the main. You have to support your contentions with more than OMG,OMFG, et seq.”
Oh, it’s a lawyer’s blog is it?
So you were being ‘lawyerly’ when you wrote:
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.”
And Pbh spoke out of turn when he wrote:
“OMG. OMG. This is a pimer for tyranny. OMG.”
Again, what the Lopez Court referred to as ‘first principles’ you see merely as quaint distractions that interfere with your control paradigm.
Accordingly, I hereby affirm under penalty of perjury that you’re as full of crap as a Christmas goose.
Thanks, mespo. I needed a good chuckle.
Jefferson was embarrassed by the publication of that letter but not to the point that he decided to stop his attacks on the President. Instead he decided to go “stealth”, working well behind the scenes for the rest of his term as Vice-President towards the goal of winning the Presidency for himself. He succeeded … barely.
Interestingly enough, he went all “monarchical” on us when, as President, he decided to do the Louisianan purchase. I’m not criticizing the purchase, just chuckling at the irony.
pbh,
Egging you on is better than egging you. 😉
Your total irreverence towards Jefferson is refreshing. I have spent more than a few evenings in discussions with friends and/or acquaintances concerning Jefferson’s actions that began so soon after Washington took office. After all, the Jeffersonian-Republican party was fully operational by 1793 when Jefferson handed it over to Madison and “retired”.
The Federalist party was up and going in time for the 1796 elections. with John Adams as the de facto presidential candidate.
Jefferson’s opinion of the Federalists is succinctly expressed in a letter from him to Philip Mazzei: “an Anglican monarchical, and aristocratical party”. The letter was published in a May 1797 edition of the New York Minerva. Federalists offered the letter as evidence of the vice president’s demagoguery. (remember that at that time Adams was President having beaten Jefferson who was serving as Vice-President.)
pbh:
I’m sure we could be fast friends but we’d have to agree not to argue about the Constitution. Nothing personal but this is a lawyer’s blog, in the main. You have to support your contentions with more than OMG,OMFG, et seq.
1zb1:
Please don’t trifle our purple prose spewing friend with anything like logic, history, or direct cites to the Constitution. Extravagant language is the mark of someone seeking attention and often used to mask not knowing a damn thing about what you’re talking about. I’m sure he’d respond to your observations, but in his words, “but.. why ?”
bhoyo:
Please return to your constitutional Never-Never Land where you and your three constitutional lawyers friends can amuse yourselves with half-baked questions (Such as this Yoda-ish classic: ““The Congress, he [Marshall] stated has to follow the Constitution, doesn’t he as well? Isnt he, or the Court, even more obliged?”) and lament the power of the federal government.They may find you an authority. I don’t.
BTW I’ll post to whomever I please. Nothing makes you read or respond, except maybe that bruised ego of yours looking for cover.
Tootles.
I have a pretty obvious brooklyn accent – which probably comes through in how i write… (you can take the boy out of brooklyn but not brooklyn out of the boy) so I know its usually not nice to make fun of how people speak. Still I have to wonder if you, bhoyo, actually speak that way. I’ve always felt such bombastic grandiosity is a sure sign of someone who doesn’t have a clue what they are actually talking about.
So, after all the quips, barbs, and insults on madison, hamilton, jefferson, the constitution, meaning, intention, each other, and all the rest, what have we arrived at besides if this was an actual debate all would have lost (though some clearly more then others)?
Here’s a few things I got: There was a lot of disagreement; our godlike founders didn’t like each other and weren’t so godlike; there were many conflicting interests; no one will admit anything, and no one can definitively agree or prove anything except there was a lot of disagreement on everything (which actually proves exactly my point).
But I have to say its nice to know, according to some, the root of all evil is the filibuster (which was to them created out of thin air), matched only by the right to vote and the senate as the source of the nations wows.
Anyone still for original intent?
ps, as to filibuster someone might want to check out Art 1Sec 3 Par 2;
mespo
“Your questions smack of the arrogance of someone who has read a lot and understands very little.”
OMG. OMFG. OMMFG. OMMFNEG.
What is the point of these calumnies?
pbh
mespo,
At any rate my freind, you have provided an excellent example of one of Holmes funniest quips, the capacity of Lawyers to shovel smoke. Be well, but dont post to me any longer, 1bz1, is your kind of guy, post to him, OK ?
mespo,
Lol wow. I should talk to a Constitutional Lawyer. That was so cute I copied and pasted that to three I deal with. Tey got a big charge out of that one, thanks for the chuckle.
I was tempted to respond to the rest of your post, but.. why ? lets face it, this just isnt your field, you google well, that I concede. The truly comical response to the ballot box post I made is the best one of yours so far. Maybe because the ongoing Constitutional Convention you imply with voting in Constitutional power changes is so far off base
Hi,,
Still having issues with my network locally. I am hoping three posts dont show up saying that Madison was dneied a senate seat by Patrick Henry, who was then governor.
Blouise,
You egg me on. You should be ashamed.
“formed for many reasons”?
No. Formed for one reason.
Jefferson.
The most despicable and hypocritical person in the history of the nation.
Jefferson loved the French because he had such a good time over there. As far as he was concerned, Paris was the original Fun City. He hated the English because he hated Hamilton, who wanted to make peace with and trade with them, and who was his superior in every imaginable way.
pbh
mespo
“The Senate is within the Congress!”
You know, you are just trying to pick a fight or win some very small point, regardless of substance.
Maybe we could learn to be friends. But, you gotta show me more than this.
pbh
bhoyo
“Three years ago an Osprey couple adopted a hammerhead boom tip on a crane for it’s nest.”
Y’know, everybody has got some story about how the Fed f****up. It’s a frickin cottage industry.
“An Osprey couple”? Are you trying to talk some USAF stuff? Because that gets in my backyard, bhoyo.
Millions are educated, the Nation is defended, Social Security keeps Gandma in her house, Medicare treats her cancer/heart disease/whatever, and you still gotta complain.
Oh yeah, and the Roads, and the Dams and the Bridges and the what?
You want to have all that privatized? The Government is the enemy, so let’s just hand over everything that your taxes made free for you to the corporate lovers of “you”? Who will thereafter charge you HBO rates to watch TV?
Jesus.
pbh
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 ?”
Yeah, tha’s a good one.
On the other hand, Jus Chase comes to mind.
And there’s that MoFo Jeff again. That chump just don’t quit.
pbh