-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.
Bob,
Here’s a link to Austin City Limits (PBS), the longest-running music series in American television history. I have been watching for years. If you have the Fusion PBS channel, you can DVR it.
Nal,
Since I don’t picture you as a Frank Zappa fan, I’ll venture a guess that you actually live in Austin Texas. And from what I hear about the music scene down there is really just a fantastic state of mind. ; )
All that Marshall said was that the express powers of the constitution necessitate the existence of implied powers for implementing them.
Accordingly, this:
Congress is empowered “to provide for the punishment of counterfeiting the securities and current coin of the United States,” and “to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.”
does not give rise to a general power to promulgate and prosecute criminal laws as such power was reserved by the states.
Bob, Esq.:
I’m listening to stereo oldies and looking for kittehs.
I agree with Prof. Elhauge and his examples of prior case law that suggests that Obamacare is constitutional.
Bob, Esq.:
“There is no general penal power; just like there is no Easter Bunny. Thus the reason it all evolved out of Tax Acts in the early 1900′s.”
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So, with respect to the whole penal code of the United States, whence arises the power to punish in cases not prescribed by the Constitution? All admit that the Government may legitimately punish any violation of its laws, and yet this is not among the enumerated powers of Congress. The right to enforce the observance of law by punishing its infraction might be denied with the more plausibility because it is expressly given in some cases.
Congress is empowered “to provide for the punishment
of counterfeiting the securities and current coin of the United States,” and “to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.” The several powers of Congress may exist in a very imperfect State, to be sure, but they may exist and be carried into execution, although no punishment should be inflicted, in cases where the right to punish is not expressly given.
Take, for example, the power “to establish post-offices and post-roads.” This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post road from one post office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post office, or rob the mail. It may be said with some plausibility that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a Court of the United States, or of perjury in such Court. To punish these offences is certainly conducive to the due administration of justice. But Courts may exist, and may decide the causes brought before them, though such crimes escape punishment.
The baneful influence of this narrow construction on all the operations of the Government, and the absolute impracticability of maintaining it without rendering the Government incompetent to its great objects, might be illustrated by numerous examples drawn from the Constitution and from our laws. The good sense of the public has pronounced without hesitation that the power of punishment appertains to sovereignty, and may be exercised, whenever the sovereign has a right to act, as incidental to his Constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise.
McCulloch v. Maryland, 17 U.S. 316, 416-18 (1819)(Marshall, CJ)
Looks like Chief Justice Marshall beat you to it.
I’m signing off too.
“Goodnight Austin Texas; wherever you are!”
Mark,
There is no general penal power; just like there is no Easter Bunny. Thus the reason it all evolved out of Tax Acts in the early 1900’s.
The History of the Non-Medical Use of Drugs in the United States
by Charles Whitebread, Professor of Law, USC Law School
A Speech to the California Judges Association 1995 annual conference
…
The Harrison Act
The very first criminal law at the Federal level in this country to criminalize the non-medical use of drugs came in 1914. It was called the Harrison Act and there are only three things about the Harrison Act that we need to focus on today.
Number one is the date. Did you hear the date, 1914? Some of you may have come this morning thinking that we have used the criminal law to deal with the non-medical use of drugs since the beginning of the Republic or something. That is not true. The entire experiment of using the criminal sanction to deal with the non-medical use of drugs really began in this country in 1914 with the Harrison Act.
The second interesting thing about the Harrison Act was the drugs to which it applied, because it applied to almost none of the drugs we would be concerned about today. The Harrison Act applied to opium, morphine and its various derivatives, and the derivatives of the coca leaf like cocaine. No mention anywhere there of amphetamines, barbiturates, marijuana, hashish, hallucinogenic drugs of any kind. The Harrison Act applied only to opium, morphine and its various derivatives and derivatives of the coca leaf like cocaine.
The third and most interesting thing for you all as judges about the Harrison Act was its structure, because the structure of this law was very peculiar and became the model for every single piece of Federal legislation from 1914 right straight through 1969. And what was that model?
It was called the Harrison Tax Act. You know, the drafters of the Harrison Act said very clearly on the floor of Congress what it was they wanted to achieve. They had two goals. They wanted to regulate the medical use of these drugs and they wanted to criminalize the non-medical use of these drugs. They had one problem. Look at the date — 1914. 1914 was probably the high water mark of the constitutional doctrine we today call “states’ rights” and, therefore, it was widely thought Congress did not have the power, number one, to regulate a particular profession, and number two, that Congress did not have the power to pass what was, and is still known, as a general criminal law. That’s why there were so few Federal Crimes until very recently.
In the face of possible Constitutional opposition to what they wanted to do, the people in Congress who supported the Harrison Act came up with a novel idea. That is, they would masquerade this whole thing as though it were a tax. To show you how it worked, can I use some hypothetical figures to show you how this alleged tax worked?
There were two taxes. The first (and again, these figures aren’t accurate but they will do to show the idea) tax was paid by doctors. It was a dollar a year and the doctors, in exchange for paying that one dollar tax, got a stamp from the Government that allowed them to prescribe these drugs for their patients so long as they followed the regulations in the statute. Do you see that by the payment of that one dollar tax, we have the doctors regulated? The doctors have to follow the regulations in the statute.
And there was a second tax. (and again, these are hypothetical figures but they will show you how it worked.) was a tax of a thousand dollars of every single non-medical exchange of every one of these drugs. Well, since nobody was going to pay a thousand dollars in tax to exchange something which, in 1914, even in large quantities was worth about five dollars, the second tax wasn’t a tax either, it was a criminal prohibition. Now just to be sure you guys understand this, and I am sure you do, but just to make sure, let’s say that in 1915 somebody was found, let’s say, in possession of an ounce of cocaine out here on the street. What would be the Federal crime? Not possession of cocaine, or possession of a controlled substance. What was the crime? Tax evasion.
And do you see what a wicked web that is going to be? As a quick preview, where then are we going to put the law enforcement arm for the criminalization of drugs for over forty years — in what department? The Treasury Department. Why, we are just out there collecting taxes and I will show you how that works in a minute.
If you understand that taxing scheme then you understand why the national marijuana prohibition of 1937 was called the Marihuana Tax Act.”
http://www.druglibrary.org/schaffer/history/whiteb1.htm
Blouise:
I do see it but you’re operating in the normative world. I’m operating in this one that was shaped by all those sentiments you find disgusting. We move at a snail’s pace to our well-being. That’s the observation from de Tocqueville to Jefferson:
“The ground of liberty is to be gained by inches, [and] we must be contented to secure what we can get from time to time and eternally press forward for what is yet to get. It takes time to persuade men to do even what is for their own good.”
–Thomas Jefferson to Charles Clay, 1790.
Thank you all. I have to go pick up my granddaughter.
SwM,
I was talking about the mandate which would only affect approx. 3% of the population. There is auto-enroll/opt-out and several other alternatives to the mandate.
“AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to. And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage. When the governor, however intitled, makes not the law, but his will, the rule; and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion.”
http://www.constitution.org/jl/2ndtr18.htm
Mark,
Whereas there exists a power to levy a general tax, there does not exist a power to mandate any action predicated on mere existence as a citizen. That’s called unlimited power. Gene also makes a cogent point per the obvious problems with forcing citizens to make payments directly to for-profit corporations. A general tax would be borne in the same equitable manner made possible by the tax code; whereas the same would not be true for citizens forced to pay differing individual bills.
“By the way, on Bush v. Gore I absolutely agree the SCOTUS had to step in and avoid a constitutional crisis. They just made the wrong call by halting the recount for purely political reasons.”
So you agree with Scalia; that the Court could exercise a power beyond right which no one had a right to simply in the name of pragmatism? You’re just upset because the result didn’t turn out your way?
Call me silly, but I was banking on the Court’s fealty to the constitution, i.e the separation of powers and that lil ole 12th amendment.
Who needs rule of law when you can have a pragmatic king; right?
Me either, but see old not-so-silent, Cal Coolidge:
“After all, the chief business of the American people is business.”
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But don’t you see, mespo. That has always been our biggest weakness, our Achilles Heel if you will. From the 3/5’s Rule compromise on forward. If business were our strength we wouldn’t have to spend all our time and money propping it up. It would be able to stand on its own.
Blouise, We will just have to disagree. I bet nearly everyone here purchases insurance from these same companies and the rest are on Medicare with a Plan B insurance supplement. I have seen too many people with pre-existing conditions denied coverage. The state of Texas has a high risk pool but the price is $600 a month. Obamacare will lower the cost for high risk substantially.
Bob, Esq.:
““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?”
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But there is general penal power. Article II, Sec. 3 “… he [the President] shall take care that the laws be faithfully executed,”
How would you expect him to do that in the absence of general penal power? Write letters to the state’s attorneys’ general and ask them to prosecute federal law? Come on, you’re getting way over the top, now.
Blouise:
“I see no reason to coddle a bunch of inept businessmen and women because that is definitely not in the interests of the General Welfare.”
******************
Me either, but see old not-so-silent, Cal Coolidge:
“After all, the chief business of the American people is business.”
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.
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But it is worse than not ideal. It’s selling millions of people down the tubes in order to compensate a few inept businesses.
Bob, Esq.:
You can couch it however you care to, but a government mandate is nothing but a tax especially this one enforced by the IRS.* If it makes you feel better, we could go to single payer in which case we’d pay our premium/tax directly to the single payer. Tell me how that has any practical difference? Seems you concede single payer constitutionality though it involves precisely the drain from your pocket that individual mandate does.
By the way, on Bush v. Gore I absolutely agree the SCOTUS had to step in and avoid a constitutional crisis. They just made the wrong call by halting the recount for purely political reasons.
_______________
Government Brief, p. 52:
,b>The practical operation of the minimum coverage provision is as a tax law. It is fully integrated into the tax system, will raise substantial revenue, and triggers only tax consequences for non-compliance. See Liberty University, Inc. v. Geithner, No. 10-2347, 201153 WL 3962915, at *16-*22 (4th Cir. Sept. 8, 2011) (Wynn, J., concurring), petition for cert. pending, No. 11-438 (filed Oct. 7, 2011).
The Court has never held that a revenue-raising provision bearing so many indicia of taxation was beyond Congress’s taxing power, and it should not do so here. The minimum coverage provision amends the Internal Revenue Code to provide that a non-exempted individual who must file a federal income tax return will owe a monetary penalty, in addition to the income tax itself, for any months in which the taxpayer or dependents lack minimum coverage. 26 U.S.C.A. 5000A.
The amount of the penalty will be calculated as a percentage
of household income for income tax purposes, subject to
a floor and a cap. 26 U.S.C.A. 5000A(c). Individuals who
are not required to file income tax returns for the taxable year are not subject to the penalty. 26 U.S.C.A. 5000A(e)(2). A taxpayer’s responsibility for family members depends on their status as dependents under the Internal Revenue Code, 26 U.S.C.A. 5000A(a) and
(b)(3), and taxpayers filing a joint tax return are jointly
liable for the penalty, 26 U.S.C.A. 5000A(b)(3)(B).
The IRS will assess and collect the penalty in the
same manner as assessable penalties under the Internal
Revenue Code. 26 U.S.C.A. 5000A(b)(2) and (g).
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.
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But that is exactly why it is wrong and no amount of discussion regarding the Commerce Clause or the General Welfare changes that.
It’s been inevitable since the early 90’s and the fact that the insurance companies didn’t prepare themselves sooner is just piss poor business management and I see no reason to coddle a bunch of inept businessmen and women because that is definitely not in the interests of the General Welfare.