-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, It is not ideal but it is better than emergency room care. The emergency room does not provide chemo therapy and the uninsured person is left to die.
P.S.
Had you said “Bob, given there is no general penal power provided for in the constitution, now do you explain the existence of Federal Criminal laws and such institutions ans the FBI?”
That would be an appropriate counter example which would lead us through the history of using Federal Tax laws as criminal statutes (e.g. the Harrison Tax Act) leading to the evolution of Fed Criminal laws and agencies.
And yes, as a purisit, I would prefer a ‘nunc pro tunc’ amendment ratifying it all.
Mespo,
Believe it or not…. This same type of law was upheld in Michigan…. Which had more specific language where men could be held criminally responsible for swearing in front of women and minor children….. I kid you not….
SwM,
I know and I stayed out of it because the increment theory is not at all to my liking because I view it as largely incrementing insurance company profits with minimally incrementing coverage for the General Welfare. (forgive the madeup word)
Blouise:
I spoke to a friend of mine in the insurance business. Five years ago he attended an industry seminar in which he was expressly told that “single payer” was coming and probably in the next ten years, It’s inevitable but the companies get to make their profits first.
Mark,
“it is precisely the type of cost to be borne by mandate or tax.”
Problem #1: Equating an individual mandate with a general tax.
They are not equivalent in any sense. Raising revenue through a general tax and spending it for the general welfare of the nation is NOTthe same as appealing to a non-existent power in the constitution so as to mandate the citizen act in a certain way or be deemed an outlaw simply by virtue of doing nothing.
Not that it’s relevant to my argument, but you should know that I’m not only in favor of a single payer health care reform but I also consider this country to be morally reprehensible for not already having one in place like most of the other nations of the earth. Accordingly, you may keep your conservative flag-sucking allegations to yourself.
Not one of your counter-examples addresses the problem of an individual mandate since (nearly) all of them deal with simple taxing and spending for the general welfare. And what does Helvering say if not that the justifications for Social Security are equally applicable to a single payer (Medicare for all) system of health care?
In your zeal to defend the Health Care law you’re making my case for a single payer system.
Mark: “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…”
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?
“There’s a flip side of this that you see on the left, and that many people thought they saw in my column: If the individual mandate is overturned, it will essentially wipe out the only plausible path to a sustainable private health-care system and single payer will be the eventual result. So: Yippee?
Not in my view. I think that path would look something like this: With health-care reform either repealed or overturned, both Democrats and Republicans shy away from proposing any big changes to the health-care system for the next decade or so. But with continued increases in the cost of health insurance and a steady erosion in employer-based coverage, Democrats begin dipping their toes in the water with a strategy based around incremental expansions of Medicare, Medicaid, and the Children’s Health Insurance Program. They move these policies through budget reconciliation, where they can be passed with 51 votes in the Senate, and, over time, this leads to more and more Americans being covered through public insurance. Eventually, we end up with something close to a single-payer system, as a majority of Americans — and particularly a majority of Americans who have significant health risks — are covered by the government.
The key word there is “eventually.” This is a long, ugly process that ensures a very large uninsured population for decades. It’s also a process that ensures there won’t be a coordinated effort to control costs for sometime. Yes, it might end up with a system that’s tilted further towards public insurance than what’s envisioned in the Affordable Care Act. But it’s not at all obvious it would be a good system, and, in the decades between here and there, there will be a lot of unnecessary suffering and deaths among the uninsured. That’s the real cost of losing this opportunity to insure 30 million people. And it’s a cost that too often gets swept under the rug in Washington’s handicapping of the political fallout.” Ezra Klein Washington Post.
Gene H:
Ooops … probably no “west answer” either. 😀
Make the word “easy.”
AY:
I’ve never seen it used in my practice or heard of it being used either.
Blouise, Theere were never 60 votes in the Senate for single payer. Already went through this on another thread. There are even less now. Not one republican is for single payer so it is this or nothing.
Blouise:
You call it a band aid, I call it an increment.
Gene H:
I have concerns about the prudence of the plan, too, but no qualms about its constitutionality. I don’t like giving the insurers a windfall but usually with windfalls comes regulations. Bob, Esq is taking an all-or-nothing approach which seems a bit extreme to me. His thin-skin is perturbing. It’s not an easy call and is a topic as old as he Republic itself as I tried to demonstrate. There is no east answer here.
Gene,
STOP DOING THAT! You can not keep saying what I’m saying when I’m saying it but saying it much better than I’m saying it at exactly the same time I am saying it.
(sigh) mespo … and what Gene said.
Mespo,
Has that law been used in a while? The reason I ask is it seems to violate the equal protection clause….. But then again…. With a law as broad as that it seems that it could cover the telecommunications act as well…..
mespo,
As you know, I have no issue with the expansive interpretation of the general welfare, but my objection to the mandate being an overreach is that the general welfare doesn’t include insurance company private profits. I also don’t think such profits are neccessary or proper. I agree health care insurance for all is an important priority under the ruberic of promoting the general welfare. The mandate is simply the wrong way to do it, especially given how the piecemeal state regulation of insurance is already maximum gamed to boost insurance company profits. I’d be better with it if the mandate came with a Federal controls of the insurance industry that included a profit cap because without one, denial of coverage is still going to be used to boost the bottom line whenever they can justify it. That’s not in the interest of promoting the general welfare either.
But mespo, it’s a band aide that neither cleans nor sutures the wound. And to liken it to auto insurance just doesn’t clear any of it up for me. For instance, here in Ohio collision is required but there is no such thing as no fault like there is in say, California. It’s a mess, nationally, even when auto is used as the example.
Why apply a band aid, twisting and turning the various interpretations of the Constitution to fit a half-assed solution when one could be twisting and turning a little less to apply a solution already well in place like single payer medicare?
Because it’s too hard?
AY:
Here’s the original act:
http://books.google.com/books?id=JxdEAAAAYAAJ&pg=PA583&lpg=PA583&dq=dueling+act+of+1810&source=bl&ots=iJgQplasPr&sig=bAeiND7FqLD7N6LTHHBFqRF1ZKM&hl=en&sa=X&ei=5cGMT9WlJsfq0gGr2vHSCQ&ved=0CFMQ6AEwBg#v=onepage&q=dueling%20act%20of%201810&f=false
Still on the books, too. It was in response to famous duel among the sons of two influential families in Winchester, I think.
§ 18.2-416. Punishment for using abusive language to another.
If any person shall, in the presence or hearing of another, curse or abuse such other person, or use any violent abusive language to such person concerning himself or any of his relations, or otherwise use such language, under circumstances reasonably calculated to provoke a breach of the peace, he shall be guilty of a Class 3 misdemeanor.
(Code 1950, § 18.1-255; 1960, c. 358; 1975, cc. 14, 15.)
Sir,
I knew you’d know that answer…..m
AY:
1810
Mespo,
When was dueling made a criminal offense in your state….. I know DC banned it after Hamilton didn’t fare so well….