-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.
Gene,
I can not get “Creep” out of my head!!!
Bob,
All is well here and I have caught up with the Borgias. I’ll tell you all about it tomorrow.
bhoyo and pbh,
Have thoroughly enjoyed getting to know you and hope we meet again on another thread.
Gene H. 1
“You’ve mistaken me for someone who doesn’t know the difference already.”
My bad. We’ll get it sorted out eventually. If you stick around. 😉
pbh
mespo
“to explain that an ad hominem attack is not the same as insults which have flown about freely.”
You are the one throwing the AH bombs.
“1. directed against a person rather than against his arguments”
Which is to say, You assert that I am not the equal of a lawyer, without knowing anything about my education and/or professional status.
“2. based on or appealing to emotion rather than reason”
In which you assert that I lack intelligence equal to yours.
In opposition, I assert that your arguments lack substance, evidence or credibility.
So, who is getting personal and/or emotional here?
pbh
pbh,
You’ve mistaken me for someone who doesn’t know the difference already.
Gene H. 1
“It’s amazing how many people don’t get that distinction.”
Let me put it this way: I could call you a fool, or I could call your argument foolish. Still can’t see the distinction?
pbh
mespo,
It’s amazing how many people don’t get that distinction.
In contrast I am a fan of checks and balances, not out preference articular to my leanings, but rather because after long reading, I understand why they are there.
1zb1:
I agree. I’ve had to teach poly sci enough here today with very little in the way of rebuttal You’ve got the logic end of the curriculum and had to explain that an ad hominem attack is not the same as insults which have flown about freely. I’ll move on since the match seems over and the grounds crew is turning out the lights.
1zb1
“believe me, i got the distinction.”
No, you didn’t. And you are still missing it. I am offering you the very definition that you quote and you still don’t get it.
“1. directed against a person rather than against his arguments”
Which is to say, asserting someone is less intelligent, which mespo does all day long. I think he does it in his sleep.
“2. based on or appealing to emotion rather than reason”
Which means indulging in invective. Which again, is a theme with you know who.
As for what Bob did, he asserted that an idea, an argument, a political position had similarities, likenesses, and/or parallels to the ideas, arguments and politics of some not very popular, discredited political groups. You have to bend over backward and insert your head in an unlikely place in order to claim that is a personal attack.
pbh
Hi all,
Well a few hours away, and a lot happens. For the record 1bz1 yes I do use that language, and it people like Turley, Rosen, Rakove, and Madison that taught me to employ it. Is it bombastic ? If you think it is offensive, then I regret your offense to it. My poor spelling results from an eye injury, and the want of a spell checker. Combine the two on a screen that uses light blue leters and I am a mess. The one concept I do object to is that I am offering my opinion as a rational to justify using a ‘strict constructionist’ view of the Constitution. I have spent a lot of time, apparently not clarifying the idea that it is not my opinion that matters. The opninions of those that darfted and ratified the document are the sources I am advocating. You seemed to object to the use of checks and balances in the Constitution.
Blouise 1
“Jefferson’s opinion of the Federalists is succinctly expressed in a letter from him to Philip Mazzei: “an Anglican monarchical, and aristocratical party”. ”
Please, I just ate.
Jefferson calling Hamilton “aristocratic”. Jeff, born to elite status, owner of human beings and profiting from their labor all the days of his miserable, delusional life.
Hamilton, born in poverty, without a father to help raise him, educates himself, immigrates to to New York, becomes a lawyer, becomes the confidant of Washington, fights for his adopted country while Jeff is hiding in the woods, helps write the Federalist Papers which turns the tide for the new Constitution, becomes Secretary of the Treasury, saves the national treasury, restores confidence in the dollar, etc., etc., etc.
Did you ever see the movie “The Aristocrats”? That is Jefferson.
pbh
i’m thinking its time to bring this schoolyard brawl to an end. would someone please write a new article on an interesting subject we can shout, scream, and kick about. how about something interesting (or at least diverting) such as what was god’s original intent when he handed the 10 commandments to moses and why did god keep saying the same thing over again according to george carlin? and if jesus was conceived by immaculate conception between god and mary does that make god a rapist under the law? or does god have a speaking disorder such that god needed jerry falwell to explain god?
i’m sure you bright people can come up with something.
.
believe me, i got the distinction. but what you don’t get is there really is no distinction. wrapping insults up in a nice package with a bow on top doesn’t change the fact it still smells.
if you don’t get that saying someones ideas are like a nazi is insulting then your thinking processes – not you, but your thinking proceses – are completely disconnected from reality.
i’m affraid to say in your analysis you neglected (again) to consider the full meaning of ad homeniem. (but just because you keep making the same mistake and your reasoning is faulty please don’t take that as a personal attack on you, only on your way of thinking and what you have to say on the subject.
1. directed against a person rather than against his arguments
2. based on or appealing to emotion rather than reason Compare
mespo
“Pot”
Pee Wee: “I know you are, but what am I?”
pbh
1zb1
“if it is question of hurling insults,”
I think this goes back to our earlier discussion regarding ad hominem remarks. My point to you was that it is not ad hominem to say that someone is using a flawed arguement, but it is ad hominem to say that they themselves are flawed.
And, I don’t think you got the distinction. In response to which, I could call you a questionable name, or I could propose, sometimes with a “bit” of “humor”, that you rethink the question.
pbh
1zb1
“I have to wonder if you, bhoyo, actually speak that way.”
Yeah, he kinda does. His misspellings aside, which are purely accidental, I assure you, he can be a bit of a Constitutional nerd. This is because he spends a lot, I mean a whole freaking lot of time reading original documents from the late 18th Century. Such as the complete correspondence of Madison, of whom he is even more enamoured than I am of Hamilton. His curiosity in this realm is endless, and you will find that he will often defer offering an opinion until he has had the opportunity to fully research the question, which inevitably takes him down multiple paths of diligent, intense study. In other words, it is not enough for him to read Madison, over and over, but he must read the all correspondence of all of those who ever corresponded with him, and, to take it a step further, all the correspondence of all of those who ever corresponded with anyone who ever corresponded with Madison. And he remembers it all! And so he writes and talks in a way that seems a little anachronistic to you or me, because he has all of that 225+ year old correspondence running around in his head all the damn time.
And I may add, he is a very charming guy, very deferential, very helpful to those who wish to learn. You would have to jab a stick in him to get him to say anything unpleasant.
“ps, as to filibuster someone might want to check out Art 1Sec 3 Par 2;”
So, is that a typo? Don’t you really mean Sec. 5? And isn’t that what I already said?
You might want to check out Barney Frank’s interview in last week’s New York Magazine. When he was asked, “Are there structural reforms that you think need to take place?” His answer was: “Get rid of the filibuster in the Senate.” The interviewer, apparently surprised at his moderation, asked: “Is that the only one?” And Barney said: “That’s the only one.”
It’s on page 110.
pbh
pbh:
Pot meet kettle; kettle here’s pot.
if it is question of hurling insults, i submit your mother would ask everyone here to leave the table, you included.