-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.
bhoyo,
Well, we know for sure they didn’t agree to “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” and it took over 200 years to get it ratified. 😉
You wrote: “In the Resoultions of a number of the States which accompanied ratification it is clear that was not the terms they accepted.”
By terms did you mean as defined by the Federalist or Antifederalists?
Is it safe, from a historical standpoint, to opine that the framers and ratifiers expected the Constitution to be amended frequently?
I still go back to the Ratifying Conventions and what was the agreement rteached. Broad Constitutional interpretation of powers certainly was a topic, the Federalist group denied the idea credence, the anti’s stressed it could be used. In the Resoultions of a number of the States which accompanied ratification it is clear that was not the terms they accepted. So I keep returning to tat idea, what did the People agree to ?
Hello,
In quoting Jefferson in his letter to Washington regarding the Bank I was highlighting the agreement between Jeff and Jemmy on the topic of construction of Constitutional Powers. After reading the coorespondence between the two, I dont really see Madison following Jeff’s lead except in the fact it was a doyian system. I know when Hamilton started using the press, Jefferson more than once urged Madison o pick up his pen, and with good reason, Jefferson once commened that Madison was only one who could exchange lists with him. Jefferson was the genius of the pair, no doubt, Madison had to engage in study, which he was prone to anyway. As far as Marshall channeling Hamilton, i do remember a refernce to Marshall stating his admiration for Hamilton, he is a noon day sun to our rush tapers.
I see a lot founders having opinions that may lead us to believe they would support the ACA, true. As far as the mandate for the seaman insurance I have to admit that there I am lacking the background. I know of the rigors for a crew, and they were tough. I had began a study of the impact of impressment, and the size of the Navy we had at different times. I was then and remain curious as to the extent the National had to employ independent ships due to the size of the Navy, but I havent found all the sources I thought necessary, or the time. I was astonished to find out how much we paid to the rascals like the Barbary Pirates for a number of years, which we had to because we didnt have British size fleet to protec our shipping..
pbh:
“You have no idea whether or not I am a lawyer.”
**********************
I know lawyers. Known them all my life. I may not know your credentials, but I know you’re no lawyer — at least not one worth knowing.
Regards. Like 1zb1 I’m tiring of stroking your little ego.
bhoyo
“So I take it the civilty reques is tabled for the moment, maybe tomorrow ?”
Jane, you ignorant slut.
pbh
bhoyo
“If such a latitude of construction be allowed to this phrase as to give
any non enumerated power, it will go to every one; for there is not one, which ingenuity may not torture into a convenience, in some way or other, to some one of so long a list of enumerated powers: it would swallow up all the delegated powers, and reduce the whole to one phrase, as before observed.”
And the response to this very self serving argument of Jefferson’s was finally McCulloch, with Marshall channelling Hamilton. You might wish to assert that Marshall was equally self serving, but he was writing from the bench with a unanimous decision, while Jefferson was arguing a political position against Hamilton.
Which brings us back to the original question, “Would the Framers have supported the ACA?” And that goes to straight to Article 1., Section 8., p. 1 & 19.
And I guess we can argue the interpretation of these clauses all day long, but quoting Jefferson in one context without recognizing his behavior in a separate context seems to me to do less than support your argument.
You could throw Madison out there, I suppose, but he followed in Jefferson’s footsteps more often than not post ratification.
Which is to say that, in my opinion, there certainly were Framers and/or Founders who could have supported the ACA, and they may have been in the majority if they understood the need. Their support for the Shipowner’s mandate suggests as much.
pbh
Of the traits PBH mentioned i have one is accurate. All the compliments he implied, altough I am thankful, I probably dont deserve most of them, but that i have absorbed maybe too much of the 18th Century use of language. I used the word tortured, which in the context used, describes a distortion of language, or pervert a meaning.
Mespo,
In that same letter to Washington mentioned above, he did deal with the necessary and proper clause as well. He did of course object to the idea that necessary also included convenient or needful, but after that he went on to explain.
“If such a latitude of construction be allowed to this phrase as to give
any non enumerated power, it will go to every one; for there is not one, which ingenuity
may not torture into a convenience, in some way or other, to some one of so long a list of enumerated powers: it would swallow up all the delegated powers, and reduce the whole to one phrase, as before observed. Therefore it was that the constitution restrained them to the necessary means; that is to say, to those means, without which the grant of the power would be nugatory.
Mespo,
Keeping in mind I admittedy have not spent enough time studying Jefferson, amongst a number of refernces I have of his agreement with Madison regarding strict constitutional construction, the one regarding Jefferson’s objection to the Bank Bill, is one I have given a lot of weight to.
“It is an established rule of construction, where a phrase
will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which will render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lacethem up straitly within the enumerated powers; and those without which, as means, those powers could not be carried into effect ”
The quote above deals with his objecion to the latitude of construction needed for the general welfare clause to be a justification the Bank Bill. I have always thought this in line with the ideas that dominated peoples understandings of the clause itself. It lt dove tails with Madison’s explanation in Federalist 41, and his expressed concern of how the phrase could be distorted when he discussed it in reference to the Cod Bounty issue.
As Jefferson pointed out if the General Welfare Clause received a level of authority necessary to justify the bank bill for example, it would defy the limits of the context it was in. To enumerate certain powers, and then negate the limting aspect of the list by using the clause that way isnt consistent with the idea of limited powers, as the old phrase those not delegated were retained demonstrated. The latter idea codified in The Tenth Amendment.
Hi,
So I take it the civilty reques is tabled for the moment, maybe tomorrow ?
you are more pathetic a person then i imagined. good night.
mespo
“You are more insecure than I thought. Why don’t you get some coverage for that and brag to your friends about it. It’ll salve that immense, but oh so tender, ego of yours.
“I hate arguing with non-lawyers. it’s always so personal.”
Everything you said in the above post is a direct, personal attack.
What I said about your 3000+ was not personal, it was a response to something you said that I found offensive.
You have no idea whether or not I am a lawyer. There are lots and lots of people working in the insurance business, doing what I used to do, who are lawyers. They work for insurance companies because they get paid better and don’t have to work as hard.
But, I have to say, of all the other lawyers with whom I’ve ever corresponded, you write the least like a lawyer.
pbh
1zb1
“Lets just say in this simple way, every person has a right to speak of those events. I know you understand that in your heart and soul even if at the moment your words speak otherwise.”
A very pretty sermon. Meanwhile, you continue to talk past me, not to me.
I never said Mespo does not have a right to speak on the subject of 9/11, I said that I “detested” what he had to say. That is me exercising my free speech in reponse to his.
And, I further gave my reason, which I will reiterate, that I believe he was making an unjustifiable and ultimately crass appeal to emotion in order to advance his argument for suspending civil rights.
And, as usual, you attempt to put words in my mouth and then go off on some sermon in response to something I did not say.
But, I would like to go back to my last question? What makes you think you know so much more than the average Joe about 9/11?
pbh
pbh:
Last night when I came home from another “why did I waste my time and money on that” movie and saw your comments on 911 I penned a reply. As luck or divine intervention would have it my computer completely hung just before I was about to post it. Rather then a restart of both the computer or the reply I went to sleep which gave the benefit of a few hours reflection.
911 is one of those rare events in life shared by everyone to some degree. Everyone alive at the time knows where they were when they heard the news of the attack on Pearl Harbor; everyone knows where they were when Kennedy was shot; everyone knows where they were when mankind landed on the moon; and everyone knows where they were on 911.
Nearly every American watched it unfold in real time – over 300 million people; almost every person around the world who could also watched it happen. The images are seared in our collective minds like perhaps no other event in our life time or even history.
No one can know the horror of that day who was not directly present; no one can know first hand what it is to jump to their death from a high tower because the alternative is so much worse; no one can know the fear of walking down nearly a hundred stories in the dark; no one can know what it is to be enveloped in a cloud of debris so thick it chokes the life out of you unless they were there; and no one can know the minds of the heroic men charging into those buildings while everyone else is running out.
None of us can know those things first hand unless we were physically the ones there just as certainly as we can not know the heart or mind of soldiers on the battlefield or those involved in any tragic event, whether they live or not.
But more then perhaps any event effecting this nation or the world, 911 stands unique in the fact it was seen by so many in real time; effected so many so deep and profoundly whether as participant, witness, or in its consequences.
911 is deep in its effects, profound in its emotional impact; widespread in its aftermath, and lasting in its consequences as much or more as any event in our lifetime. Personally, I believe the nation and its people suffered a collective form of PTSD. Perhaps as a reflection of excatly that George W Bushes finest hour was when he stood on the rubble of the WTC to rally the nation; but his worst moment was when he told us to shop in response and gave tax cuts to the wealthy as he sent soldiers off to war.
I could go on about 911 and the deep emotional impacts but we should leave that for another time. Lets just say in this simple way, every person has a right to speak of those events. I know you understand that in your heart and soul even if at the moment your words speak otherwise.
I trust upon reflection you will see this in a different light.
Wow, pbh! You are more insecure than I thought. Why don’t you get some coverage for that and brag to your friends about it. It’ll salve that immense, but oh so tender, ego of yours.
I hate arguing with non-lawyers. it’s always so personal.
mespo
“I know about 3000+ New Yorkers” from “I know 3000+ New Yorkers”
Sure, you meant to say “I know “of” “approximately” 3000, instead of “I know “approximately” 3000.”
And that disctinction was clear from your very careful use of the language.
Either way, the claim is crass.
pbh
1zb1
“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.”
Now, that is a bold claim. Because, I was there that day and I don’t make any such claim. As for the clean up, I wasn’t actually out there sweeping up the dust, as I had a regular job, but I have friends who did. I know a little bit about what went on myself.
How is it that you, who evidently cannot claim to have been there that day know so much more than the rest of the hoi polloi?
“in any event your notion that only you have the right to talk about it is absurd on its face.”
That’s not quite what I said. I said that I “detest” it “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.”
Unlike yourself, I do not claim to be an authority on that part of recent history. I merely resent the appropriation of that history to advance a flawed argument.
pbh
When the Federalist Essays were written Madison admitted that there were people who were predisposed to censure and predetermined to condemn ( the Constitution ) as there were others of betrays an opposite predetermination….
In that same paragraph that the papers ( the Fed Essays ) were not aimed at either.. they solicit the attention of those only, who add to sincere zeal for a happiness of their country, a temper favorable to a just means of promoting it.
After 200 plus years one can hope, all though in vain I guess, that we might have evolved into the last group madison spoke of, and to whom he adressed in the Essays. I am not pointing dircetly to anyone here, but to the larger national discusiion on poltics, Limbaugh to Mr Ed.
bhoyo:
Jefferson uses the French Debt to describe the problem and the doctor you refer to was indeed English radical, Dr. Richard Gem, who “taught” Jefferson. Jefferson was wrong about the topic never being raised however. Thomas Paine has discussed the issue in Dissertations on Government, the Affairs of the Bank, and Paper-Money.
Paine said:
“As we are not to live forever ourselves, and other generations are to follow us, we have neither the power nor the right to govern them, or to say how they shall govern themselves. It is the summit of human vanity, and shews a covetousness of power beyond the grave, to be dictating to the world to come.”
bhoyo:
There is a letter to Madison to that effect. September 6, 1789 to be exact. It seems to be Jefferson’s first inquiry into the topic. It begins:
“I sit down to write to you without knowing by what occasion I shall send my letter. I do it because a subject comes into my head which I would wish to develope a little more than is practicable in the hurry of the moment of making up general despatches.
The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government.”