-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
“I know about 3000+ New Yorkers who defied the odds of being killed by a terrorist attack and who wished for more alarm bells in the War on Terror.”
Well, you don’t actually know them. You never did. I personally knew about 20 people who died and about 200 who survived. I also “knew” by extension of insuring many of the companies in those buildings, about 500 more. I underwrote Cantor Fitzgerald before and after the disaster. I underwrote Morgan Stanley. I did a lot of business with Aon and Marsh, which together lost about 500 people that day. I used to work for both of those companies. I was on the 100th floor on 9/6/01. I’ve still got that ID card. That could have been me.
I don’t know where you live, but I live two blocks from the WTC. Not that that makes me special. But, one thing I really detest is when someone tries to make an argument based on the lives lost that day. Especially someone who appears to speak casually about “3,000+” and so on.
What I find as a general rule is that those who live further away from the WTC seem to take the event with greater shock than those of us who live here. New Yorkers tend to be a get-over-it-get-on-with-it breed. I really don’t want to hear about this from the hinterlands.
Who knows, you might be a New Yorker. 1zb1 says he lives in Brooklyn, so you could too, possibly. You might even be my neighbor.
But there is no reason, none, to give up civil rights just because a maniac pulled off a stunt that, imho, could have been prevented.
What I most regret about the post 9/11 world is the constant body checks, just going to work in the morning. It is all so unnecessary. Like the Army showing up on 9/12. What possible good did that do?
And now Bloomberg has installed “See Something Say Something” in yellow banners on the very steps of every subway. Fear. Fear. Fear. That’s all they got.
That seems to be all you got.
pbh
1zb1
“like the idiot savant”
I guess you didn’t appreciate me asserting that Mespo was in the leadership role when it came to insults.
You are catching up, I’ll give you that.
pbh
1zb1
“as to filibuster, funny how people are often against it while they are in power and for it when they are our of power… and as for barnie (who I admire for he congressional service), they never do anything about changing it when they have the chance. in any event how can you be against it if you believe in original intent – wasn’t the intent to have lots of checks and balances?”
The issue with the filibuster is the simple fact the the GOP minority has used it relentlessly since 2006 when the Democratic Party gained “control” of the House and Senate. Imagine, a 59% majority being insufficient to pass a piece of legislation. Not quite what the Framers had in mind.
And don’t forget, the Framers built in certain unfair advantages for the Southern States, the 3/5ths rule being the most significant, but the Senate itself grants an advantage to states with smaller populations than those with larger populations. Which is to say that a group of states with less than 30% of the total population can control the Senate. Which is the situation we have today.
And worse, the filibuster can now be employed by a single Senator to block any legitimate Presidential appointment or any single piece of legislation.
This was not always the case. Once upon a time, a filibuster required that the individual Senator get all Jimmy Stewart, take over the floor, and talk like a mad man in order to prevent a given vote. Not anymore. A Senator can filibuster without ever having to take the floor and explain himself and, if he does it within his caucus, without even admitting that he is the problem.
If you simply count the number of filibusters over the previous fifty years, you will see that we have an unprecedented situation.
Do we need the Senate? I don’t think so. If it has to survive, then let it become the House of Lords.
pbh
i don’t know about that. it seemed to fit. according to one it even set a new standard. your divine insight into the knowledge, meaning, intent, application of the constitution and the thoughts of founders to then and now is truly godlike. to paraphrase the immortal words of dirty harry, “you’re a true god in your own delusion.”. i do think anyone as taken with themself as you really is at great risk of doing harm to themself (and others) when they finally wake up to the fact they are mere ordinary fool like everyone else – only a bit more pompous about it then most.
but let me divert a little. i suppose what i find among the most offensive in the gist of your position (and the manner of presenting it) and the rest of your self proclaimed standard bearers of individual rights, liberty, and the American way, is the notion anyone who does not live in the past and sees your view of the constitution (or any scripture) as the spoken word of god is a nazi, communist, heretic, infidel, non-beleiver, and every other totalitarian notion of anti-freedom you can conjure. You fall into that same band of idiotic thinking that goes with the likes of: America, right or wrong; love it or leave it, if you are not for it your against it; if your against the war you’re against our troops. You live in some twisted world of absolutes: as in absolutely your way or no way, no matter how idiotic a way it is.
like the idiot savant with numbers and dates, no matter how much you recite bits and pieces out of history (and usually out of relevancy), your ability to string them together in coherent ways relevant to the subject at hand is non existent. Colloquially we call that connecting the dots, something you might not be familiar with since you live and speak in past lives. by your own reason – ie kennedy’s comments on federalism, where then is the boundary between too much federalism and too little.
you see in the real world where big people and grown ups live the argument isn’t over federalism or anti-federalism. that argument was settled by the constitution itself (or we would still have the articles). The issue is where the line is drawn and should be drawn. I realize that is a distinction difficult for you to grasp (given the position of some on ad homonyms), but do try. except the notion that all here are deeply interested in the rights of man (and for some of us, woman, children, gays, people of color, different, age, religion, and so on and so on, too.) So, the time has come for you to get of your high arse; come back into the 21st century and put some of the history books aside long enough to think with some other parts of your body.
personally, i think if the founders had to contend with your way of thinking back then they would have said, “from off of what plow did that ass escape from.”, and never mind what they would have thought about it coming from someone living in the 21st century.
ps: i trust you will take none of this personal. it was all merely directed at your ideas and way of thinkin and not you personally.
‘1bz1’
The bathtub comment, come on. Try hardrer, that was a bit puerile, you can do better thn that.
Hi,
I just went back and reviewed some of the postings here. I guess I have lost the basic question of this site. Did the Founding Farhers back healthcare mandates. Some how you would think that Founders would have been cited here, what they discussed, and how the ‘people’ viewed the proposed powers of the constitution. I know this is a lawyers site and all, but dang why is it all bad to cite what they said. It has been suggested that I am a ‘Rain man’ kind of guy for using language that is reflected in the time frame, or that studying as much as I have is to be condemned, it is too much about the topic, which the overall subject of this site is supposed to be.. In that it is my field I thought I was being thoroughnd in candor I do love the topic.
When one studies what the Constiution was designed to do, and how the Constitution was designed to fulfill those goals, you end up with a depp ans abiding appreciation of the time. I have never stated tha we should abondon all lights of experience, in stead I believe, as Lincoln said we should follow their lead especially in matters wher we know they understood the question better than we do. Hiow would you know ? It involves research.
1zb1 @ bhoyo — bhoyo, its time for your friends to do an intervention for you. nobody wants to find you in a bathtub.
That’s a sick comment even by 1zb1’s ignoble standards.
Mark,
All the tools necessary to deal with terrorism exist without your need to dismantle the constitution. And the rules of exigent circumstances will always excuse those agencies that needed to go ‘the extra mile’ to accomplish their objective.
Fear mongering and peddling a catastrophe in order to ignore the document that forms our way of life is terrorism par excellance. That is what you do Mark; terrorize your audience with the hope of achieving your aim of dismantling that document that gets in the way of your control paradigm.
1 in 20 million…
You’re more paranoid than the gun toting idiot.
Bob,Esq:
“With you it’s always the same theme; the more control you want the more you sound the alarm bells in your head–somehow justifying your using quotes from great Americans in contrary contexts to hide the stench of your reasoning.”
***************
I know about 3000+ New Yorkers who defied the odds of being killed by a terrorist attack and who wished for more alarm bells in the War on Terror. On that day the odds of being killed the way they were was 100,000 to 1. Guess what there odds were at noon.
You may be willing to risk all of our security in deference to some purist ideal of enumerated powers that even the Founders didn’t subscribe to as evidenced by their actions, but thankfully people in positions of or power aren’t so extravagant or capricious. From Washington and Jefferson to Lincoln and FDR and now to Obama most every President, knew or knows the “organic law” of all nations is The Law of Survival.
Mark,
With you it’s always the same theme; the more control you want the more you sound the alarm bells in your head–somehow justifying your using quotes from great Americans in contrary contexts to hide the stench of your reasoning.
As per the question currently at bar, here’s your swing vote by a Court that will stick with “first principles” as espoused in Lopez:
BOND v. UNITED STATES
No. 09–1227. Argued February 22, 2011—Decided June 16, 2011
Justice Kennedy:
“Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.
But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their ownintegrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” New York v. United States, 505 U. S. 144, 181 (1992) (quoting Coleman v. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)).
Some of these liberties are of a political character. The federal structure allows local policies “more sensitive tothe diverse needs of a heterogeneous society,” permits“innovation and experimentation,” enables greater citizen “involvement in democratic processes,” and makes government “more responsive by putting the States in competition for a mobile citizenry.” Gregory v. Ashcroft, 501
U. S. 452, 458 (1991). Federalism secures the freedom of the individual. It allows States to respond, through theenactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.
Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. See ibid. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawfulpowers, that liberty is at stake.”
http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf
Bob,Esq.:
“You need help Mark.”
******************
Yeah and I usually get it from the case law I cited.
As 1zb1 says, the question really isn’t enumerated powers, is it?
if this was actually about enumerated powers there is simply no question congress has the enumerated power to regulate interstate commerce and to make all laws necessery and proper.
but that isn’t really the question, now is it.
So Mark,
“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 [Lincoln] you attempted to use axiomatically as justification for ignoring the doctrine of enumerated powers when you see fit.
Dejavu?
You’d actually walk into court and attempt to persuade a judge that the nation is now under the same threat of collapse as it was during the time of Lincoln? And that’s why we should ignore the enumerated powers doctrine as well as the separation of powers doctrine?
Mespo: “Your honor, I submit to you this letter from Abraham Lincoln to show why we should ignore the enumerated powers doctrine as well as the separation of powers doctrine. We are at war with terror and our nation is at stake sir.”
Court: “So you’re saying that your alleged war with a tactic wherein an American faces a 1 in 20 million chance of being attacked is on par with the American Civil War?”
Mespo: “Absolutely sir, the name of the game is survival.”
Court: “Seems a tad alarmist; don’t you think?
Mespo: “Not at all your honor.”
Court: “Okay then, perhaps we should convert this proceeding into an Article 81 to determine the mental competency of counsel.”
You need help Mark.
the difference between knowing “stuff” and knowing what the “stuff” actually means:
“…researchers, Ara Norenzayan and Will Gervais of the University of British Columbia in Canada, showed in a series of clever studies, that at least one factor consistently appears to decrease the strength of people’s religious belief: analytic thinking.”
Read more: http://healthland.time.com/2012/04/27/losing-your-religion-analytic-thinking-weakens-religious-belief/#ixzz1tFRksCeO
bhoyo, its time for your friends to do an intervention for you. nobody wants to find you in a bathtub.
Hi,
Well the poor bruised ego of mespo is on display, there is a sadness there one cannot help but pity.
My computer made one of those typos it is noted for – it wasn’t me… i have chastised it appropriately – section 5 it is (obviously)…. i also have a bit of an eye problem that makes it difficult to see the faded keys – not from age but from use.
pbh, its nice you have come to explain the full breath, scope and unprecedented depth of bhoyo’s knowledge on the constitution. my god, “he has all of that 225+ year old correspondence running around in his head all the damn time.” That is absolutely extraordinary.
You know when you put it that way I can’t help but think of those savants who can tell you what happened on any date, or play the piano like Mozart, or calculate numbers better then any accountant. Then, again I can’t help but think not a one of them has any clue what any of it means.
I might say the same for any person of religion who has the bible and every related moment in history committed to memory who then claims they KNOW the will of good.
No I have no reason to believe bhoyo, you or anyone else here is anything other then a fine, decent, honorable, person. (Mistaken, and misguide certainly on many accounts, but not a bad person).
But when someone tells me the garbage coming out of their mouth – and i don’t care if they have read every word ever written in the history of humanity and have it committed to memory that their opinion on what those words – or the events of the times – mean is not his opinion but fact I find that idea to be laughable, idiotic, stupid, naive, silly, noxious, foolish, naive, and you get the rest. (please Note, i am not attacking anyone personally, I’m just calling their ideas stupid). To underscore the point, will bhoyo please show where I “seemed to object to the use of checks and balances in the Constitution.” (I won’t presume to speak for mespo, but find where he suggests that either)
Since others have used reference to popular culture let me do the same: that scene in MIB
“Edwards: Why the big secret? People are smart. They can handle it.
Kay: A person is smart. People are dumb, panicky dangerous animals and you know it. Fifteen hundred years ago everybody knew the Earth was the center of the universe. Five hundred years ago, everybody knew the Earth was flat, and fifteen minutes ago, you knew that humans were alone on this planet. Imagine what you’ll know tomorrow.”
I wonder what bhoyo, you and the rest will know tomorrow in your very small and limited world of absolutes? Anybody for newtonian physcis? how about relativity? Quantum theory? String and Unified, anyone.
as to filibuster, funny how people are often against it while they are in power and for it when they are our of power… and as for barnie (who I admire for he congressional service), they never do anything about changing it when they have the chance. in any event how can you be against it if you believe in original intent – wasn’t the intent to have lots of checks and balances?
one last time: I get YOUR distinction, but clearly you don’t get THE distinction.
pbh:
Blouise,
Likewise, and I share your desire to cross paths again.
Blouise,
Mission accomplished.