-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.
PBH,
I was hoping for a specific response to the posts I had made. I get the count the votes idea in both ratification and legislation. But in that there was a lot written about the topic of ratification, to ask what they ratified is a valid question. How would you know, well to just cite the opposing views certainly isnt the way. In that they did publish resolutions. reading and studying them in conjunction with the discussions in the convnetions doesn’t appear a poor way to proceed. The objections that centered around how the wording of the Constitution was to be construed is rather a valid question. We continue that deabte today, without ever taking a rigorous look at what they intended then.
There were some minor potentates who wanted to protect their turf, that is true, but that certainly was not the majority of the voices that asked, what does this mean ?
Bob, Esq.
“I disagree since I don’t think any of the Framers would have approved of a monarchical like decree that commandeers the individual by forcing him to purchase a service as a condition precedent for merely residing lawfully in the United States. It’s precisely that flavor of legislation that all the framers detested.”
I am not so sanguine as to assert that any act of Congress would be perceived by its own members as “monarchical”. They voted for the Bank, they voted for Assumption, they voted for the Seaman’s Insurance Mandate, they voted to require gun purchases by individual citizens. For Heaven’s sake, they vote for Alien and Sedition.
Meanwhile, those who complained most about “monarchical” powers, were themselves minor potentates who mostly feared having to give up their privileges.
All I ever say is “count the votes”. Then, in 2000, and in the future.
pbh
bhoyo
“The anti’s of course opposed the Constittion, but one of the objections was a loose interpretation that would expand national powers without Article v. The Federalists prevailed by assuring a liberal construction would not be applied.”
And so, I guess we need a definition of “Liberal”, although I don’t think that was the term at the time. Perhaps “Necessary and Proper” would suffice?
I/O/W, how to pay for the new Nation’s debt, which was more crushing to its future then that it is even now.
Or, how to provide life insurance for merchant seamen?
At the end of the day, thanks to Jefferson, the anti-Federalists and Brutus, to name but a few, the fears of those who opposed a strong National government were fully aired. No one should have had any doubt about the issues involved. Madison and Hamilton carried the day, not by lying, but by responding to the fears and objections with solid arguments.
And then The Constitution was approved. And then it was amended to further limit the Enumerated Powers.
And Congress went to work.
And all of this was done Democratically and out in the open. And the fact that even today there are people who want to dispute the result, does not mean that it wasn’t fair.
pbh
bhoyo
“So I keep returning to tat idea, what did the People agree to ?”
May I suggest that you simply count the votes?
Was the Bank Bill approved by Congress? Despite all of Jefferson’s objections? Despite the 3/5s tilt? Following that Assumption?
Now, you can say that it was Hamilton’s rigging of the vote by virtue of a few fast boats, and I can say that it really came down to the moment that Jefferson decided to trade principle for a Capitol but, as the man said, elections matter.
Not to mention that Hamilton was proven right by posterity. Even Madison undertook Hamilton’s expansive view when it was his turn to run the show.
pbh
Pbh: “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.”
I disagree since I don’t think any of the Framers would have approved of a monarchical like decree that commandeers the individual by forcing him to purchase a service as a condition precedent for merely residing lawfully in the United States. It’s precisely that flavor of legislation that all the framers detested.
Pbh: “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.”
Indeed he did.
may read
bhoyo,
I’m not the least ADD but I was momentarily distracted by a poster, Malisha, whom I much admire, on another thread. She mentioned evil in a context I agree with so I simply had to comment. 😉
I’m going to sign off now so that I can read without further distractions.
Blouise,
Henry at one point realized the federalists were prevailing in Virginia. At one point he wrote of implicartions and interpretations.
” Implcation in England has been a source of dissnetion… The people inisted that their rights were implied, the Monrarch denied the doctrine. Their Bill of Rights insome degree terminated the dispute… Thirteen or fourteen years ago, the most important thing that could be, was to exclude the possiblilty of of construction ( interpretation) or implication. The frst thing thought of, was a Billof Rights, we were not satisfied wwith your constructive argumentative rights.” Hnenry was pointing directly at the fear the national could expand it’s powers, and of course he was re-enforcing the call for a Bill of Rights.
Here is the part of the Preamble to the Bill of Rights that also expresses a fear of pliant construction of powers that didnt limit the scope of the National Powers.
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution
Blouise,
Well if remember rigt the extent of the Federalist Essays wasnt intended tto be quite so long. Yates, who was a fellow delagate of Hamilton’s a the CC started writng under the pen name “Brutus”. He specifically went after construction or interpretation of the general welfare clause or necessary and proper clause as an anti federalist stance. The reponses were quick, so as to nip it in the bud so to speak. In October james Wilson spoke of the idea of delagted and retained powers, a scant few weeks after the CC was disbanded. So the debate began as soon as the Constitution was revealed, it had been long awaited, and since the proceedings were behind closed doors people were anxious to see and comment.
Perhaps it waws beltway syndrome
LOL
bhoyo,
After reading some of these letters, especially from reps in N Y, one begins to more fully appreciate the need for, and haste in producing the Federalist Papers.
bhoyo,
“I have always wondered why Hamilton and Marshall could not be aware of the disteiiled ideas of what even their own home states believed and agreed were the limits of interpretive methods that the Constitution contained.” … Perhaps a bit of the “beltway” syndrome?
For instance, I will be spending much of my day reading about 1787-88. This evening friends are coming over for drinks and conversation. I know, for it has happened many times before, that I will be somewhat disconcerted that they’ll arrive in automobiles rather than carriages and none of them will be thinking about Hamilton let alone interested in discussing Madison. I will have to move outside the “beltway” in order to communicate with them. Perhaps Hamilton and Marshall were a bit too insulated.
bhoyo,
The Ratifications and Resolutions of Seven State Conventions – Found it on google books
Blouise,
As you know Hamilton was the leading voice in Ratifying in New York, Mrashall was a speaker at the Virginia Ratification. Of course we will find opposition and agreement in such a setting. The Resolutions give us a better idea as to what was agreed upon. The excerpt I provided which was included in both Va., and NY, demonsrates the overall idea that was distilled from the quodlibet that occured. Loose or pliant construction was discussed.When they ratified they took the time to explain whay they agreed to. I have always wondered why Hamilton and Marshall could not be aware of the disteiiled ideas of what even their own home states believed and agreed were the limits of interpretive methods that the Constitution contained.
Blouise,
There should be a title ” The Ratifications and Resolutions of Seven State Conventions ( it was printed in September 1788. Another heading which is very descriptive is Henry in the Virginia Convnetion on Implication and Construction.
In the Virginia Convention Resolutionsas well as the new York Convention was inlcuded the following idea, I mentioned it supra.
“That those powers which declare that congress shall not exercise certain powers be not interpreted in any manner whatsoever, to extend tthe powers of Congress, but that they maybe construed either as making exceptions to the specified powers, where this shall be the case or inserted merley for greater caution.”
Both Virginia and New York expressed the idea of the limited powers, and the exegetical tool to be used. Contrast that to the Marshall idea, of all powers not denied, of a certian mantra are constitutional, and of course Hamiltons agreement if not prediction of Marshall’s dictum.
The interesing part is the wording above is what Madison proposed orginally as what we now know is the Ninth Amendment.
bhoyo,
I have read some of Bailyn’s writings on the 9th but have not looked at the book you mentioned. Will do so
bhoyo,
I spent some time on line over the last few days reading letters from “Elliot’s Debates – The Debates in the Several State Conventions on the Adoption of the Federal Constitution”. Initially I have tackled the letters from those who were unhappy with the Constitution such as Gerry, Mason etc.
Almost all of them mention the Senate and President as creating an Executive Branch with far too much power.
Mason’s letter entitled “OBJECTIONS OF THE HON. GEORGE MASON, ONE OF THE DELEGATES FROM VIRGINIA IN THE LATE CONTINENTAL CONVENTION, TO THE PROPOSED FEDERAL CONSTITUTION; ASSIGNED AS HIS REASONS FOR NOT SIGNING THE SAME.” is most interesting as in it he clearly states: “This government will commence in a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy or a corrupt oppressive aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.”
Having only just started this research I have to be careful that “a little knowledge” doesn’t take me off course towards erroneous assumptions, but it seems to me that Mason and the others represent a real concern at the time over an Executive with too much power. I can only imagine what they would have to say about today’s “Executive Power”
Blouise,
The records indicate that the Federalists idea prevailed. By the way Hamilton and Madison were both described as Federalists during ratification. Post ratification as the parys developed Hamilton adopted he Federalist name for his party, and Madison Democratic Republicans. Both Hamilton and Madison participated in the Ratification in their respective States, and one of the issues was would a broad construction of delegated powers allow the National to increase it’s own powers, both Madison and Hamilton diligently opposed tthe idea. In the Resolutions of New York, Hamilton’s home state they included the following phrase,
” and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not goven by the siad Constitution, but such clauses are to be construed either s exceptions to certain specified powers or inserted merely for greater caution.”
Eventually this was the seed of the ninth amendment.
The anti’s of course opposed the Constittion, but one of the objections was a loose interpretation that would expand national powers without Article v. The Federalists prevailed by assuring a liberal construction would not be applied.
he Library of America has a two volume book “The Debate on the Constitution” it has the Resoluutions of 7 States included in Volume two. A great read overall.
bhoyo, i took the liberty below of changing a few words around for fun (hint, turn on laugh chip). it seems to me by the same line of reasoning you offered it is just as easy to torture out of it no enumerated powers, which is pretty much what those on the other side (of the intentionally or even unintentionally vague view) would have us believe, and which by the rules of construction does not permit.
you also mention:
“So I keep returning to t[h]at idea, what did the People agree to ?” Gee whizzzz, isn’t that the point of why it is nonsensical to divine intent? At what point do we stop chasing the proverbial tale (homonym intened).
“If such a NARROWNESS of construction be allowed to this phrase as to give NO 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 SHORT a list of enumerated powers: it would OPEN up all the delegated powers, and reduce the whole to one phrase, as before observed. Therefore it was that the constitution UN-restrained them to the necessary means; that is to say, to those means, without which the grant of the power would be MEANINGLESS.