-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,
Austin is the gateway to many and various culturally diverse areas….. Kerrville is a great place…… Wanna get artsy fartsy…. Listen to music….. Drink good beer and get a contact high….. That’s were you need to go…..
Want the feel of new Orleans with out the other stuff, great music,food libations and the prettiest women you’ll ever see…. That’s austin….6th/old pecan street….. Had a few good times there…. Stay at the Driscoll…… They will take real good care of you…..
I saw SRV about 11 times….. 2 of them stand out….. The other 9….. Well that was Austin….. A guaranteed contact high….. Or not…… Your choice , just stay up wind….. Went to one or two willie Nelson jam sessions…. That’s all ill say there….. Saw john prine too…… JD Souther opened for him…. That’s about all I can say about it that……
You have an area east of 35 that has good food and the blues….
You have north austin not like the rest of the city…. And terrytown…. A wonderful area…..
You’ll only have a bad day time in Austin if you want to….
As many have said…. You can’t get much better…. SA I am going in June
… It’s unlike Austin…..but what can you expect from a military grown city….. Riverwalk is an example of FDRs CCC…… At its finest…..
by no accents I meant southern drawl
Bob and SwM (and Gene if he’s lurking),
I was in New Orleans the summer before Katrina. I wanted to buy a small condo in the French Quarter but Tex refused to spend money on property that was below sea level and surrounded by water. Smart man as the following year was Katrina. Haven’t been back since.
As to the people and the culture, yes, a real treasure and unique to American culture. No accents because it’s a port for immigration.
I also like NYC. Spent a “season” there working in How to Succeed. Lived in the Village when the Village was real.
Bob, I see the Deadhead lurking … 😉
Bob,Esq;
“Honestly Mark, do you really think your zeal for unlimited communist like power under Article I is any different from a fascist’s zeal for unlimited presidential power under Article II?”
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I’m simply relating the law to you since you seem to think it is something new. You can characterize it as you see fit. The simple fact is that Jefferson’s narrow view of the “general welfare” clause is not the law of the land and Hamilton’s almost limitless and expansive view is most certainly the law of the land.
We can haggle over McCulloch if you like on the side issue of the implicit power of the sovereign to enforce its democratically created policies by coercion, but the state of the law on that topic is really not up for debate. McCulloch, in my view, is just as important as Marbury v. Madison (probably more) but doesn’t get the same press. It’s a view shared by many. You, of course, make the William Brockenbrough/Spencer Roane counter-arguments on the limits of federal power but that debate has ended long ago between those antagonists and the law has conferred it’s blessing on Marshall’s analysis.
I’m quite content to let the readers decide which of our arguments is best grounded on existing jurisprudence, but I’ll not spend an endless stream of rebuttals on what is a rather obvious (and settled) point of law.
I went to New orleans last year, Bob. Had not been since Katrina. Going again Memorial Day weekend. My daughter took a job there last summer and she is doing a split summer between there and DC this year. I was surprised how much she liked it. I watched Treme but not every episode. Frenchman’s seems to be a good place to hear music now. My daughter tells me all ages go there kind of like they do in Austin. I agree about Las Vegas and have always refused to go to Las Vegas.
Yep, that’s the statue; thanks.
SwM,
New Orleans is so unique and so genuine; it’s a culture unto itself. If you’ve never been there, you can get a taste of it in the HBO series “Treme.”
Sitting on a friend’s front porch at dusk getting a buzz on while other people play “In The Pines” on their various instruments…walking to either Jazz Fest or down town to a Gin & Spin like Check Point Charlies…the cafe’s, the food, the atmosphere… it’s all so …genuine.
It’s the antithesis to Las Vegas; truly an American treasure.
http://www.photohome.com/photos/texas-pictures/austin/stevie-ray-vaughan-1.html
Bob, Deep Ellum is undergoing a revitalization now but it is not Austin by any means. The statue of Stevie is on Town Lake. Why New Orleans?
statue
Blouise, AY, SwM,
I’ve only been to Texas once; Dallas for a Giants Cowboys game in 1991. Aside from finding the place incredibly flat, I had a wonderful time. As the song says “I went down to Deep Elum to have a little fun” and had a blast. Had an incredible dinner at some place called the Butcher Shop where you pick out your steak in a butcher counter in the lobby of the restaurant and they let you cook it at one of two open BBQ pits in the fine dining area. First time I had ‘Texas Toast” too.
I’ve seen Austin City Limits off and on for the past 20 or so years and always wanted to visit that city if I ever got down there again. I’ve always anticipated it would place a close third to my second favorite American city — New Orleans. Number one being reserved for right here at home — New York.
Like I said, I’ve only heard great things about Austin. I think the first thing I’d do would be to visit the statute they have in tribute to Stevie Ray Vaughn.
Mark,
So you’re claiming that McCulloch overruled the basic precept of Constitution, i.e. that the federal government is one of enumerated powers and does not possess a general police power?
Didn’t the McCulloch court say that the enumeration of powers in the constitution limited the number of ends that the government could pursue and advised that it would not add “great substantive and independent powers” to that list? 17 U.S.316 @ 411
Part and parcel to that whole necessary and proper to the effectuation of an enumerated power thingy?
Speaking of the implied powers necessary and proper to the effectuation of an enumerated power, care to tell us what enumerated power gave rise to Federal Criminal laws? After all, if they didn’t evolve with a dubious pedigree out of Tax Acts, I’m sure you can clear this up for us.
And per your Tenth Amendment remark, aren’t you looking over the fact that the Court relied heavily on same from the Civil War to 1937; guarding against the expansion of Federal power? Or are we to ignore that as well?
Honestly Mark, do you really think your zeal for unlimited communist like power under Article I is any different from a fascist’s zeal for unlimited presidential power under Article II?
mespo727272: Good Job!
Blouise, It is the only place worth visiting. If you ever want to visit, I will certainly meet you.. I agree with you about San Antonio. DFW is the worst. I even prefer Houston. The only place i would retire to in Texas would be Austin and the summers are too hot but you can travel in the summer.
SwM,
Austin is the only place in Texas I want to go. I did the Mission Walk in San Antonio one day and really liked it but otherwise … San Antonia, not so much.
Bob, I go down every two or three months and am looking at homes there so if you want restaurant recommendations, I will send them to Blouise. Go before mid June though. I recommend a small old hotel called the Mansion at Judges Hill. It is convenient to campus and downtown.
Bob,Esq:
“… does not give rise to a general power to promulgate and prosecute criminal laws as such power was reserved by the states.”
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No, Marshall says you’re wrong and that the power to prosecute for criminal offenses is implicit in the power to govern under the “necessary and proper” clause of the Constitution. That is the holding in the seminal case of McCulloch v. Maryland as I cited. He specifically rejected your argument that because the states ratified the Constitution they are sovereign* and also rejected your 10th Amendment claim as well.# He said the people ratified the Constitution and that they (and not their political subdivisions) are sovereign.
That was in 1819 when many of the Founders were all alive to criticize it if they saw fit. They didn’t.
You can argue with the foundation of the opinon but not the fact of its holdings.
____________________
*”The government proceeds directly from the people; is “ordained and established” in the name of the people, and is declared to be ordained,
in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.”
“The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived, by the State Governments. The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties.” 17 US at 402
#”Even the 10th Amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word “expressly,” and declares only that the powers “not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people,” thus leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments. A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding.” 17 US at 406-7
Bob,
As a person that lived in Austin during the late 70s to mid 80s the music scene was and is every thing people say about it…… It was the best of times and some I don’t remember times…… The selections of foods is as splendid as the choices of music…… And most of it is reasonably priced….you should go……
http://365thingsaustin.com/ Something to do everyday in Austin.