-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.
Didnt Jefferson get the idea from a Dr ? a Richard Gem ?? Was any of the directed at the perpetuation of the debt ??
Mespo,
Although I am aware of the letter you mentioned in the 18 teens, regarding the Earth Belongs to the Living, if my memory is right Jefferson first wrote of that to Madison in the fall of 1789, I think just prior to his leaving Paris to return home for his daughters wedding, He had no intention at that point of remaining in the Colonies, just a visit, again I think I have the time line correct. Madison reponded to the letter after his return, and I have never seen a response by Jefferson. Madison did seem to disgaree with some aspects, in that we inherit a world with the advnaces provided by the previous generation,
bhoy; at the worst you are the very periphery of some harsh language by word or innuendo as for example, “I am not one who believes liberals are all communists, that us hyperbulia of course.” (only some of them are I suppose.) but i will consider the matter settled by your comment:
“Liberals are not commies, or nazis, nor are their opinions to be used as a catalyst for more invidious discourse, we have enough of that already.”
otherwise, for now we can agree to disagree on many aspects of what the constitution means, was intended, and how it does and should relate to the present.
all the flowery founders prose on the rights of man will not change the fact that for every prose on one side of the proposition there is another prose (often by the same person) on the other side; that the CC and the NP are enumerated powers; the federalists won on the constitution and the anti-feds won on the BR but that does not change the CC and the NP.
ps: might go and see the hunger games tonight (my bi-annual movie)- you might say its a vision of your worst nightmare except your mighmare has been reality since before you were born.
Ooops, make that John (not James) Colvin.
bhoyo:
“I respect Jefferson , as well as PBH’s right to have a different opinion, even if it is wrong. But … and this is where the wheels come off the wagon for some people using Jefferson’s earth belongs to the living idea as a basis for expanded powers leaves about 10 years of his agreement with Madison on strict construction ignored.”
*********************
Now that’s fertile ground for civil discussion. Thank you, bhoyo. Jefferson was like all living things and his sentiments evolved over time. His thoughts about the life belonging to the living were written in 1813-14 after his Presidency (1801-1809). Clearly by then he had seen governance close up and understood that no Constitution can be deemed perfect for all exigencies or sufficient to insure life, liberty and the pursuit of happiness.
Compare Jefferson’s letter to David Humphrey in 1789 where he said:
It is the tendency of all governments to encroach on the rights of the people. Limited constitutions protect those rights, and serve as a line of defense against government intrusion. Rights that are not specifically identified for protection are not assumed to be under the jurisdiction of government, however; they are retained by the people and are
exercised as an element of their individual self-governance. in their sovereign capacity.”
To his remarks in 1810 to James Colvin:
“A strict observation of the written laws is doubtless one of the
high duties of a good citizen, but it is not the highest. The laws
of necessity, of self-preservation, of saving our country when in
danger, are of higher obligation. To lose our country by a
scrupulous adherence to written law, would be to lost the law
itself, with life, liberty, property, and all those who are
enjoying them with us; thus absurdly sacrificing the end to the
means.”[emphasis mine].
That is wisdom based on experience.
Liberal vs Conservative,
AS a benefit I get with certain memberships, I have gone to a number of syposiums. Of my favorites is exchanges between Scalia and Breyer when they have been the speakers. If ever twp people varied in philosophy over certain aspects of the law, it is those two. Scalia almost always stern and straightfaced, his occiasonal attempts at humor few, although notable. Breyer is affable, avuncular, he always makes his comments in a teachers style of clealry drawn syllogisms. I like Breyer, alot. Before and after the talks they show a remarkable admiratiom for each other. Scalia’s close friend on the Court is Ginsberg, opera and food the common bond between their respective households, Scalia had a close relationship with Wiilian Brennan as well.
The people are the fourth branch?
http://www.perkel.com/politics/issues/fourth.htm
Jiust reviewed my last post, man I have to get better glasses, the typos are terrible.
I do not apologize for my studies of the Founding era, nor am I going to. I keep repeating the ideas that can be readily distilled from the extant documents I have studied. I like secondary histories, and to be candid I spend as much time examing the foornotes there in order to see if I have overlooked a letter or document I should be aware of, but a secondary history often contains inferences that migt not have been made if the author was aware of certian other relevant facts. It happens. But despite the respect I might have for an author, and his excellent work, if other information exists I consider that as well.
I mentioned Jefferson’s genius often lead him to some democratic eloquence he might have regretted, Mespo responded althoug that was at one time a compliment, it isnt now >> ? That is PBH Not Me.
I respect Jefferson , as well as PBH’s right to have a different opinion, even if it is wrong. But … and this is where the wheels come off the wagon for some people using Jefferson’s earth belongs to the living idea as a basis for expanded powers leaves about 10 years of his agreement with Madison on strict construction ignored.
Liberals are not commies, or nazis, nor are their opinions to be used as a catalyst for more invidious discourse, we have enough of that already.
‘1BZ1’,
if you mean by civility not calling others (or their ideas) nazis, communists or other pejoratives for disagreeing or having a different view from you i would certainly agree.
I never have made that style comment. I did post here awhile ago I thought that misplaced. Liberalism is not a word I hold in disdain, so to refer to those so inclined as nazis, or communists, etc just to try to degrade them by using such labels. I do tend to ignore those comments, so if you somehow tought I endorsed that it is on you no myself. This iste seemed to infer the question of What the Founders think regarding a helathcare mandate. When I told some people in the mid to late 90s the mandate as proposed by Gingrich was ultra vires the conseravtoves attacked me. in 2012 mu studies bear out the idea that THEY not me, would still be of the same mind the liberals are upset. My oipinion to use a phrase doesnt mean s-it. The question is what did the Founding generation think, my view of that comes from the sources I mentioned, but sepecially Madison.
correction: i should probably have said the people are the 1st branch of government.
fed 10: “The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.”
post ww1 depression era germany is indeed a prime example of people essentially democratically voting in a dictatorship under stress. rome is another.
btw; the checks and balances were not just intended to keep government in check, it was also to keep the people in check (the 4th branch of government)
1zb1,
A friend of mine who now teaches poli sci on the East coast used to argue that the Federation were fascists. 😀
sorry gene, by popular culture i did not mean to suggest it is a model for other creative expressions, but rather it is popular with the public (to put it simply). apparently i was also not clear that beyond the idyllic quality to it you described, i was particularly focusing on the social/political structure. ie semi military, benign dictatorship (you rarely see anyone give orders other then kirk or the doctor demanding a 23rd century scalpel). to put it more succinctly in most aspects startrek it is the antithesis of democracy.
it is more of a reference to the propensity of people under stress to seek out saviors. as in the fed 1:
“It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.
hmmmm, what do you think they meant by that, bhoyo?
“isn’t it ironic that when many people think of an idealized world “startrek’ is at or near the top of popular culture.”
Not really. The Star Trek universe is one of the very few depictions of a eudaemonic society anywhere in science fiction let alone the rest of the arts. Of course, most people gloss over the part about that society being one without scarcity of energy and/or resources (between anti-matter and replicator technologies), but that people find attractive a world where there is no economic pressure upon them and that their goals in life are defined by personal happiness and fulfillment is not surprising. They don’t even have money in the 23rd Century and however they manage their economies (which is always kind of vague) it isn’t by any model we as a species use or have used. In that respect, Star Trek is as much fantasy as it is science fiction.
if you mean by civility not calling others (or their ideas) nazis, communists or other pejoratives for disagreeing or having a different view from you i would certainly agree.
minor note: communist/communisim is the kind of word that has taken on a mostly pejorative meaning in amercia largely due to the concerted efforts of capitalists. the fact that it is associated with the crimes against humanity in russian and china to define it (though having nothing or little to do with actual communisim, and used by rupert murdock, fear mongers on the right, and libertarians to marginalize democrats, liberals, progressives, socialists, unions and just about any group of 2 or more people gathered in room (unless they are there for church service) should remind us the use of fear goes much deeper then a pat down at the air port.
note: this is not an endorsement or preference of the concept. however, to suggest that ‘capitalism won’ or is the best form of economics; or that our form of government and constitution is the end all or be all of how humans can best behave or govern in a civilized, just, and equitable world would be a sorrowful position.
isn’t it ironic that when many people think of an idealized world “startrek’ is at or near the top of popular culture.
pbh, gee wiz, i don’t get your problem… i wasn’t talking about bhoyo being an “idiot savant”, i was only talking about his way of thinking on a particular subject…
ps. I did not say i live in brooklyn… i grew up in brooklyn… i also lived in manhattan… I now live in neither place but i dare say i know more about the wtc then the very very very vast majority of people short of those who were actually there on that day or part of the clean-up. (if you can’t get right what i said a few lines up how can i beleive anything you say about 200 years ago)
in any event your notion that only you have the right to talk about it is absurd on its face.
fear (and greed) are obvious weapons used to gain power (next time tell us something we don’t know). the real issue is distinguishing legitimate reasons to be concerned and arrive at rational, effective methods of protection.
the chance the woman in columbia was a spy may be slim but that doesn’t mean you take her back to your hotel.
sure, having you searched when you get on a plane is an invasion of your rights, but its an invasion of my rights for you not to be search if i;m on the same plane.
stop talking in absolutes. start thinking like a grown up and talk about where lines should be drawn to deal with the real world as it is that protects individual rights AND other peoples rights in a world as it is instead of the fairy tale we all wish it to be.
bhoyo, i don’t believe anyone here should or needs to answer everything others say, but if you are going to bother to answer, at least say something that sounds intelligable. surely in those “225+ year old correspondence running around in [your] head all the damn time.” there was something better then that to say.
Knowing that I have little credence with those assmebled here I have no idea why I am making this plea, but will risk it never the less. I Am asking for at least we attempt some civility here. The mocking snide remarks are certainly not of the type I expected here.
1bz1:
Ever think we are surrounded by a confederacy of dunces? As in Swift’s “… that when a great genius appears in the world the dunces are all in confederacy against him.” Not any genius on our part, of course, but that of men like Jefferson and Lincoln, whom the entire nation reveres except our resident “original sources” guy, an insurance agent/ constitutional law expert who thinks the Senate is definitiely not a part of the Congress and went to great lengths to tell us why Madison wouldn’t join it (and who apparently can’t distinguish between the phrases”I know about 3000+ New Yorkers” from “I know 3000+ New Yorkers”); and Bob, Esq who thinks whenever anyone suggests something opposed to his opinion and provides the historical backup it’s a direct attack on Bob and his democracy and composed of mere “stench” or “idiocy.”
Ah, well at least we’ve leave them pondering the obvious question: If we’re so hopelessly and unalterably wrong, why are they deperately and relentlessly trying to convince us otherwise? Last word, maybe?
Einstein’s definition of insanity is the more likely answer.
ibzi,
I asked you to do better, not longer. Come on, you are way behind the curve here.