-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.
I get the idea of living founders, I get the idea of a living constitution, what I am trying to ascertain is a constitution for the living.
You mention the living constitution but does it not seem at times to you that we also have living founders?
We pick out our favorites, learn about their lives and then defend their views and actions as if they were actual acquaintances. I don’t know if this is the kind of comfortable relationship citizens in other countries have with their historical figures but it is one we seem to enjoy.
I identify strongly with John Adams followed by Hamilton but I know that each of the Founders played an integral role in the creation of this country and their combined effort worked a miracle of sorts. I wouldn’t dismiss any one of them as less important than the other
Blouise,
In the Founding group so many who were necessary to have attained the ends we did, it would be foolish to disregard any of them. Take Washington out of so many secnarios and we surely would have different results than we did. From the Revolutionary War, to the Newbrugh incidents, The very way the CC was viewed by his attendance,makes it hard to even consider him not being there. In recognizing the importance so many had ro the Constitution to disparage one of them, is of course not prudent. In Washngton’s case, he being my stellar example, if he weren’t at the CC the people would have been less prone to accept the Conmstitution. In the recognition of that fact, I also recognize the input he had was not as to the structure of the document, he did not exactly speak alot at the Convention. In recognizing the significance of the contribution, we can also what type of contribution.
I do understand the idea of having a favorite and defending his views. If that were my motive I am not sure which founder I would have as a favortite. I do hold Washington as a favorite in bravery and patriotism, he put his self in harm’s way, and stood is ground there. In heroics and bravery Hamilton gets huge recognition as well, from the incidents at the Brooklun Battery to Yorktown he is a splendid example of bravery. Jefferson not so much. (ahem), although it is virtually impossibe to imagine the resonanace the Declaration atained with the people without his unique contribution.
To have a favorite and and support their views was notmy goal, it was and is to see the Constitution in the clearests possible light, which involves not only paying due recognition to the fact no Washington, maybe no country or Constitution, but going a beyond that point to considering what the People agreed the document meant. I do recognize the contributions the Founders made, but also realize that picking a favorite and defending those positions might distort the prism of my view of the Founding.
trick-or-treaters
bhoyo,
You mention the living constitution but does it not seem at times to you that we also have living founders?
We pick out our favorites, learn about their lives and then defend their views and actions as if they were actual acquaintances. I don’t know if this is the kind of comfortable relationship citizens in other countries have with their historical figures but it is one we seem to enjoy.
I identify strongly with John Adams followed by Hamilton but I know that each of the Founders played an integral role in the creation of this country and their combined effort worked a miracle of sorts. I wouldn’t dismiss any one of them as less important than the other. But neither will I ignore or excuse their flaws. I’m not looking for heroes and I am leery of those who would create heroes out of mere men, extraordinary or not.
When I talk of the Nixon White House, I’m referring to political tactics employed to achieve goals set. I wonder if Nixon even owned a pair of slippers. I know that on Beggar’s Night, after he left office, he would stand at the end of his drive with the gates open and pass out candy to the tick-or-treaters. 😉
blouise,
Too many excuses have to be made to justify his aggrandized reputation and, to tell you the truth, in my opinion, if the Jefferson Memorial didn’t exist and were proposed today, I doubt it would be built. “The dude would have been perfectly at home in the Nixon White House.” is something I have been know to say.
No, what I meant when I wrote that bit about appreciation was I believe he was in touch with many of the popular sentiments of the day and knew how to put those sentiments in their best light.
I am trying to get a picture in my mind of nixon answering the door at the White House wearing slippers, which Jefferson actaully did.
Why was the Jfferson memorial built ? FDR did it. A patriotic works project ? Why are some of the panels in the memorial not his words ?
Jefferson was human, no doubt. Could he sense the zeitgeist and express it better than anyone else ? Yeah, John Adams knew that, he described Jefferson’s felicitous pen.’ Paine wasnt quite as eloquent, but he did a marvelous job as well. In the appreciation of our Declaration is the eloquent wording Jefferson brought to it’s expression. he did a great job there. His work regarding religious freedom another enormous contribution. His foreign service a tremendous contribution. I still regard Madison, although not a brilliant, as more of the statesman and have always fealt his unique abilities and tendencies regarding the Constitution as being in the right place at the right time, in an age when the ancient lawgivers of antiquity would have wnated to live. I am also glad Madison didnt write the DOI, lol.
the phrase a ‘living constitution seems to be sourced to Herbert Croly.His impact on Wlison, Teddy, and FDR are pretty obvious. His goal social justice, a truly admirable desire.
in federalist 51 madison wrote:
‘Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.’
Is it possible the liberty we all cherish can be threatened by a pursuit, although virtuous in one regard, that doesnt seek some form of counsel?
The Constitution is not our idea, we were blessed to inherit it. many of the framers researched long and rigorously to find a design that accomadatenot only the liberty we all cherish, but also the energetic governemt necessary to serve our common purposes.
A ‘living constitution’,
‘ One that achieceves Jeffersonian ends with Hamiltonian means’.
No one, at least in one regard, is a bigger fan of the phrase a ‘living constitution’, than I am. It is the kind of adage that works when a sermon ( or long study ) fails. It has a deomocratic eloquence that is ineluctable. It seems to assuage our knowledge we are not following the Constitutiuon as we might, and dovetails nicely with idea of ‘evolving standards of decency, which mark a maturing society.
Does it have drawbacks ? That is a question that bothers me to degree. A few posters here suggest that I need to count the votes, or that changes to the constitution by either the court or by statutes is justified by changing times. the change that seems so justified if not inevitable by a ‘living constitution’.
What is the impact on our attitude towards organic law, a written constitution ? Does it tend to place derivative law an equal footing with organic law ? The Founders though the ‘will of the people’ was the Constitution. Does the use of a living constitution move the ‘will of the pople; from the Constitution to the Congress ? What changes are exerted on stare decisis under the adage ? how would discern a constitutionally protected opinion from a constitutional opinion, wouldn’t they become coterminous after time ?
This kind of thing has been going on since the New Deal.
For the moment no comment.
Bob,
This kind of thing has been going on since the New Deal.
“By which I trust that you mean that you are beginning to perceive that his mendacious duplicity was entirely self serving?” (pbh)
He was certainly “self-evident.” 😉
His idealistic rhetoric was always at odds with his less than exalted practices and this hypocrisy didn’t go unnoticed in his own time so why should it now? The DNA tests done in the 1990’s confirmed the rumor from the early 1800’s that Jefferson fathered children with his slave, Sally Hemmings. Six kids is the suspected number.
We’ve already mentioned the charge of cowardice well earned and thrown at him during his lifetime.
Jefferson celebrated certain values with words but his life was not lived practicing those values. Too many excuses have to be made to justify his aggrandized reputation and, to tell you the truth, in my opinion, if the Jefferson Memorial didn’t exist and were proposed today, I doubt it would be built. “The dude would have been perfectly at home in the Nixon White House.” is something I have been know to say.
No, what I meant when I wrote that bit about appreciation was I believe he was in touch with many of the popular sentiments of the day and knew how to put those sentiments in their best light.
Pbh: “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.”
Pbh,
We never empowered congress to “[take] away our charters, [abolish] our most valuable laws, and [alter] fundamentally the forms of our governments”.
The individual mandate, on its face, abolishes the entire notion of federalism & specifically enumerated powers. Once congress declares that the mere act of existence within the United States is sufficient to trigger the commerce clause, the great experiment is over and we revert back to unlimited monarchical power held over us as King George III once held.
And let none of us ever forget Daryl Dawkins’ faaaaabulous DUNK!
pbh
bhoyo
“The Quakers had a petition b4 the First Congress to end slavery”
If I wasn’t such a Mets, Jets, Knicks, Rangers fan, I could almost root for the Phillies, Eagles, 76ers or Flyers.
Gotta love Dr. J., the Brown Mound of Rebound and even The Answer.
pbh
Blouise
“I’m developing a better understanding of Jefferson’s position.”
By which I trust that you mean that you are beginning to perceive that his mendacious duplicity was entirely self serving?
pbh
“The Quakers had a petition b4 the First Congress to end slavery” (bhoyo)
Here it is in living color: 🙂
http://www.archives.gov/exhibits/charters/charters_of_freedom_zoom_pages/charters_of_freedom_zoom_5.1.1.html
I’m developing a better understanding of Jefferson’s position.
bhoyo,
“Constitutional design wasn’t part of a ready skill set”.
That is evident especially in some of the states’ ratification debates but also evident is the sincere desire to grasp this novel concept and make it their own. Fear of a too powerful Executive partnered with an “aristocratic” Senate seems to keep repeating itself over and over again in each state.
I find myself, with the benefit of 20/20 hindsight, to be more in agreement with many of the objections raised by George Mason in his letter explaining his reasons for not signing, than I would have imagined.
The Quakers had a petition b4 the First Congress to end slavery
SwM,
The Inner Light. 🙂
Blouise, I have some Quaker heritage. They refused to own slaves in Virginia according to the document I read.