-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.
Blouise
Mespo and 1zb1 both exhibited oddly confrontational and ultimately ineffective behavior. Neither of them handled close questioning very well. They were both fond of making broad, unsubstantiated assertions which, when parsed, they quickly abandoned in favor of invective.
Mespo claimed to be a lawyer. Boasted about it all d*mn day. He actually presumed to separate the world into two camps, the licensed prevaricators and everybody else. And yet, of all the lawyers I have ever known, he was the least lawyer like. For instance, every lawyer I have ever encountered has this incredibly annoying habit of answering a question with a question. They are trained to do this. And by trained, I mean that their drill instructors beat it into them in their first semester. They always want the other person to declare himself and then will attempt to use those same declarations as ammunition. This is their purpose. Any lawyer worth his paycheck does this without even thinking about it.
Not so Mespo. He just spit venom. A lot of people would characterize lawyers as snakes, but then a lot of people who are not lawyers could be characterized the same way. But Mespo seemed to be entirely unaware of the Socratic method. Maybe he really is a lawyer, but I would not be likely to hire him. Seriously, if he can’t trip me up, who can he confuse?
As for 1zb1, what a disappointment. He claims to know more about 9/11 than all but a very, very few Americans. And, when asked, wherefore, howso, what? He’s got nothing.
I, on the other hand, make no such claims, but I have read the transcripts of the several Silverman v “Various” Insurance Company trials and I can explain to you what the issues were in those trials. I have spoken to, and personally know, dozens of survivors of that day. I have read as many of the relevant books that I could find and I have read the reports of various engineers explaining why the towers imploded instead of toppling over onto the rest of lower Manhattan (in fact, Bob and I spent about two years arguing over this and, while I am sure he remains unconvinced of my assessment, he is unfortunately wrong). I have pictures of the site from my office window, year after year, for the period from August 2003 to April 2008. I have countless tales from fellow Manhattanites of their experiences from that terrible day. And I watched tower # 7 collapse outside my window after I walked all the way downtown from my midtown office to return to my home.
I probably have been more obssessed with 9/11 than the average Joe in Huntsville, Scottsdale or Stockton. Even so, I don’t go around making a big noise about it and then refuse to back up my meaningless claims.
And this is why, when Mespo tries to use that event as some kind of trump card in an argument advocating the suspension of civil rights, I am thoroughly disgusted.
In summation, not emotional, purely intellectual.
pbh
“but I have promised to behave” (pbh)
Was that an emotional or intellectual commitment? 😉
Blouise
“mespo once told me”
Gotta say, I would love to free lance on that, but I have promised to behave.
pbh
pbh,
Another “vantage view’ which I would like to consider but am too damn tired. There’s always tomorrow. 😉 good night
Blouise
“Bob and bhoyo … I gotta tell you, it makes sense.”
Well, hooray for my side!
Of course, neither Bob nor bhoyo will agree, but I can live with that.
Whenever people start talking about defending individuals from the government, I always ask whether or not they have considered from what the government can defend them.
There is always immeadiate agreement on defense from foreign aggressors. But, what about domestic aggressors? Such as slave holders (which everyone naturally abhors, except for five of the thirteen orginal states). Or such as market manipulators? Or such as predatory lenders?
I am daily amazed that the heirs of those who fought against the Bank of the United States consistently fight against any regulation of modern banking activities which, in my view, are strip mining our republic.
pbh
mespo once told me, in relation to this subject, that I was operating in the normative world and I think there is some truth to that. Enough truth that I should try to look outside the normative view.
“He has an idealized view of all things Constitutional that is arrested as soon as Hamilton is invited to dinner with Madison at Jefferson’s apartment.” (pbh on bhoyo) I fear I may have a touch of the same affliction.
“In effect, the insurance companies prey on the strong and punish the weak in order to maximize profits. The best way to undermine this practice is to require the insurance companies to insure everyone. That is the mandate. And it fals heavier on the insurance companies than on any individual.” (pbh)
Okay, that is the first explanation of the mandate that I have read which makes sense. Perhaps it is the wording or perhaps, pbh might say, my mind has opened a crack. (Not to be confused with a mind on crack.)
“14th amendment empowered corporate person that is an insurance company” … even that makes some sense when one reads what follows that suggestion. pbh has flipped it a bit but only slightly thus providing a different point from which to view the question.
Bob and bhoyo … I gotta tell you, it makes sense.
Bob, Esq.
“To say that the health care law is constitutional under the commerce clause is to state that it is a form of commercial activity covered under such.”
Yes, but the question is under what circumstances does this commerce commence?
In most cases, commerce is voluntary. When it comes to health care, however, commerce is involuntary.
You are looking at this question from the point of view of an individual actor. I suggest that you look at it from the perspective of the 14th amendment empowered corporate person that is an insurance company.
First and foremost, insurance companies select those with whom they desire to do business. And their business is only profitable to the degree that they can exclude the less healthy. They observe a given population and agree to take money only from those that they believe, on the whole, will not take it back.
From this perspective, both the buyers of insurance and those who cannot buy insurance and even those who can but choose not to buy insurance are all part of a single commercial environment. But, it is the insurance companies, not the purchasers, who set the rules. In effect, the insurance companies prey on the strong and punish the weak in order to maximize profits.
The best way to undermine this practice is to require the insurance companies to insure everyone. That is the mandate. And it fals heavier on the insurance companies than on any individual.
What is the penalty for those who cannot afford insurance? The government will buy it for them.
So, if you want to draw a bright line between health care and other forms of commerce, you merely have to note that health care is ubiquitous and unavoidable. That is not so of any other form of commerce.
pbh
Pbh: “First of all, to my knowledge, you have not tackled the issue of whether or not there is a difference between health care and other commercial activity. And I think this is a salient point. In my view, there is a very reasonable separation here. One that the Court can draw.”
Pbh,
What exactly do you mean? To say that the health care law is constitutional under the commerce clause is to state that it is a form of commercial activity covered under such. The admission is made within the appeal to the power. Attempting to distinguish health care from other commercial activity is irrelevant per the commerce clause so long as health care is a form of commerce.
The problem here is using a mere life in being as a triggering event for said commercial activity and coverage under the commerce clause; which, as previously stated, destroys the notion of specifically enumerated powers and federalism.
Bob, Esq.
“It’s not a separate argument, it IS THE ARGUMENT. Logically, you know that the mandate is unconstitutional since we can’t amend the constitution with the power of ‘good intentions.’ The arguments you present above are not legal but wishful pragmatic thinking.”
First of all, to my knowledge, you have not tackled the issue of whether or not there is a difference between health care and other commercial activity. And I think this is a salient point. In my view, there is a very reasonable separation here. One that the Court can draw.
pbh
bhoyo
“My point goes to the concept that in changing Constitutional powers as much as we have in the last 70 years, we can and probably will at some point end up with an all powerful congress, a congress whose powers extend to any issue they feel inclined to control.”
If we ask ourselves which branch of our tripartate government has been most egregious in the last seventy years, my vote would not veer toward Congress.
Considering the manifest excesses of the Bush V. Gore generation and the even more horrible reinsitution of slavery, excuse me, torture by way of the Bush mis-administration, I find even the excesses of the Boehner Congress miniscule. After all, they have done nothing. Literally nothing.
Except attack women, of course.
And doing nothing is surely preferable to upending Congressional responsibility for Electoral College disputes, overriding Congressional responsibility to declare war, and undermining Congressional responsibility to hold the other two branches accountable.
An “all powerful Congress”? You wish. I wish.
Meanwhile, Citizens United. Bhoyo, defend that.
pbh
Pbh: “And I don’t see that the mere existence in the U.S. would trigger the Commerce Clause outside of the mandate. That is really a separate argument.”
It’s not a separate argument, it IS THE ARGUMENT. Logically, you know that the mandate is unconstitutional since we can’t amend the constitution with the power of ‘good intentions.’ The arguments you present above are not legal but wishful pragmatic thinking.
To wit:
Pbh: “Perhaps the USSC could approve it on the same basis they concluded B v G? One time only, get out of jail, no precedent here kind of thing. Just kidding.”
You say you’re kidding, but your argument isn’t that far from Mespo’s.
Here’s how he put it and my reply ==
Mespo: “You’re a purist Bob and the only sin in that approach is not realizing it and condemning those who aren’t. I’m a pragmatist. If we need it then we need it, and that should carry the day. Congress has the discretion and exercised it here. The Constitution is neither a suicide pact…”
Me: “I’m not the one holding a knife to the throat of the constitution; you are. This is the same nonsense spouted by Scalia after issuing that Stay in Bush V. Gore. How did he put it? The Court had to step in so as to avoid a constitutional crisis; separation of powers and the 12th Amendment (among other laws) notwithstanding?
Scalia and cadre, the pragmatic five, saw that we needed to decide who would be president, and in their pragmatic discretion exercised a non-existent power to do so for the country. After all, if we needed it, we needed it and thus they carried the day. Ain’t that right Mark?”
Pbh,
Ever consider that in your despising Jefferson for his hypocrisy you’re projecting your own shadow on him? Approving the Health Care law for the reasons you stated would be no better than what Scalia and cadre did in BvG. Mandate comes in under commerce clause (for just this one case).
It doesn’t work.
Hi,
Well as much as I appreciate the compliments PBH paid to me, I must decline accepting them. I am advocating a system that was designed and constructed way out my control or input.
My point goes to the concept that in changing Constitutional powers as much as we have in the last 70 years, we can and probably will at some point end up with an all powerful congress, a congress whose powers extend to any issue they feel inclined to control. Plenary powers exist in the British system due to the lack of a written constitution there, eventually we can end up with the sane scenario here, not for a lack of a written constitution, but by obviating the one we have.
Blouise
“Boom”
“(that’s supposed to be celebratory fireworks)”
Obviously, the Founders did not approve the ACA. It was never submitted to them.
They approved similar things, however, and that is the point.
bhoyo argues limited powers all day and night, but when he is called to account for the excesses of his referenced authorities, he forever switches back to a moment before power had to be exercised and policy had consequences. He has an idealized view of all things Constitutional that is arrested as soon as Hamilton is invited to dinner with Madison at Jefferson’s apartment.
Yes, his intelligence is without pareil, and his knowledge surpasses all within his quotient. That said, I submit most respectfully that he has a blind spot, no pun intended.
pbh
Bob, Esq.
“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.”
I understand your argument as an appeal against unintended consequences. This is Kennedy’s question. But there is a counter argument to be made that health care is different and that all living citizens participate in the system, willingly or unwillingly, and that they deserve protection from the exploitation engineered by the corporations that have rigged everything to their benefit, even the life and death of the nation’s citizens.
And, let us not ignore the underlying ethnic aspects to the opposition to the ACA. All those lowlifes getting free health care? Anathema.
The irony is that a vote against the only possible system of health care reform that we are likely to see ever in the next ten generations (which is to say, ever) will be a vote to ratify the superiority of corporate personhood over human life. Literally.
To me, Santa Clara has proved much more consequential and dangerous than the Seaman’s mandate or the National Bank.
And I don’t see that the mere existence in the U.S. would trigger the Commerce Clause outside of the mandate. That is really a separate argument.
Perhaps the USSC could approve it on the same basis they concluded B v G? One time only, get out of jail, no precedent here kind of thing.
Just kidding.
pbh
bhoyo,
I agree!
“*^*^*^
!!!!!!!
Boom”
(that’s supposed to be celebratory fireworks)
No they didnt, LOL
That could bring us full circle back to the original subject of this thread, Did The Founding Fathers Back Health Insurance Mandates?
bhoyo,
Up thread I suggested in a comment to Bob and you responded to that comment thusly:
“This kind of thing has been going on since the New Deal. (me)
For the moment no comment. (you)”
Perhaps, if we want to discuss a constitution for the living, we might want to address much that has taken place from the New Deal forward.
bhoyo,
As to your points regarding Washington I give you Gouverneur Morris in his letter to Washington dated Oct. 30, 1787 (Halloween!):
“I have observed that your name to the new Constitution has been of infinite service. Indeed, I am convinced that, if you had not attended that Convention, and the same paper had been handed out to the world, it would have met with a colder reception, with fewer and weaker advocates, and with more, and more strenuous, opponents. As it is, should the idea prevail that you will not accept the Presidency, it would prove fatal in many parts. The truth is, that your great and decided superiority leads men willingly to put you in a place which will not add to your personal dignity, nor raise you higher than you already stand. But they would not readily put any other person in the same situation, because they feel the elevation of others as operating, by comparison, the degradation of themselves; and, however absurd this idea may be, yet you will agree with me, that men must be treated as men, and not as machines, much less as philosophers, and least of all things as reasonable creatures, seeing that, in effect, they reason not to direct, but to excuse their conduct. Thus much for the public opinion on these subjects, which is not to be neglected in a country where opinion is every thing.”
(Now you have no one but yourself to blame for my proclivity to quote, quote, quote, as you, yourself, ever so gently, set me upon this path of searching the papers. 😉 )
What do you think of that last line: “Thus much for the public opinion on these subjects, which is not to be neglected in a country where opinion is every thing.”? That brought a smile to my face as I thought … the more things change, the more they stay the same.