-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’m not alarmed because we can unmake anything we choose to make. If we limit ourselves only to things we know for certain will have no unintended consequences, we have quite a small box indeed.”
Again we come to the crux of “can”, “should” and “will”. mespo, it is not the unintended consequences that bother me, but rather the rewarding of people who have made a lot of money by essentially practicing medicine without a license and sending people to early graves. If their weapon of choice wasn’t paperwork, large parts of the health care insurance industry would be considered prime facie criminal. Propping up their profits to maintain an inefficient systemic parasite that operates for profit is simply offensively venal. First, do no harm. Denying coverage so some executive jackass can meet a quota and get a bonus is inherently harmful.
I agree, mespo, and I just wonder if those that are opposed to giving the working poor with pre-exisitng conditions healthcare insurance because insurance is so evil are willing to protest the insurance companies and forego insurance themselves. I don’t care much for insurance companies, myself, but I certainly purchase it and don’t care to deny that ability to others.
bhoyo:
“And recognizing the amazing new powers the ACA, manadate and all. Why arent liberals alarmed ?”
*******************
I’m not alarmed because we can unmake anything we choose to make. If we limit ourselves only to things we know for certain will have no unintended consequences, we have quite a small box indeed. This is no attack on liberty but on the very real health care cost crisis that could bankrupt the nation. We can gripe about the insurers but they are here for the duration. Regulation won’t work in this polarized environment so what other solution do we have? Do nothing as the Republicans suggest, or try this path, flawed as it may be, to reach a solution. Those are the only choices on the board.
bhoyo:
“I see it as a question of what is actually in the best interests of citizens and to my mind there is no justification for propping up health care insurance profits given their miserable track record to date of sacrificing lives for profits.”
******************
In McCulloch , the Maryland Bank at issue was a private institution that made profits. While the decision naturally affected those profits in a positive way, that fact wasn’t the basis for the decision. Marshall understood, as should we all, what a failure the Articles of Confederation had been and was determined not to have a neutered federal government ever again. As you say, the Founders studied failed systems of government — including the one they initially created.
Madison, Marshall, and Hamilton found out the great truth of governing which is that theory is much cleaner than practice. Thus Madison reversed his strong belief against a standing army and created the Navy; Marshall expanded Federal power in light of and response to the Whiskey Rebellion; and Hamilton came to understand that a nation functions as much on its finances as its reliance on ordered liberty.
All great men who learned from experience tempered with principle.
I am alarmed which is what I have been trying to impart. I know Bob is alarmed because more liberals appear to be not alarmed.
Gene,
I hope bhoyo comes by again
Some liberals are alarmed by the ACA, bhoyo, and around here have said as much from the start. True, we seem to be the minority with most thinking its a step in the right direction or better than nothing, but some of us think its a really bad idea that invites Constitutional challenge on its face when other solutions wouldn’t.
As a newcomer I have used a lot of space, mea culpa. One last question. IN reviewing the Founding and comparing the current status of Adminstrative Law in America, the agencies, their structure, and impacts, the poltical distnce they have from the people. And recognizing the amazing new powers the ACA, manadate and all. Why arent liberals alarmed ?Iam not advocating dirty water, or air, I am wondering why comprehensive reform of a possible if not probable 4th and uncnistitutional branch doesnt alarm every liberal in America ??
Although Hamilton was rejected at the Convention, it is important to remember that Hamilton argued for the expansive interpretation of general welfare after the Constitution had been ratified and that although it has had its ups and downs, the Hamiltonian view does dominate the case law and has since his days in public service. The Hamiltonian view has been especially prominent since Helvering v. Davis, 301 U.S. 619 (1937) conferred upon Congress the plenary power to impose taxes and to spend money for the general welfare subject almost entirely at its own discretion. I see the implications for Federalism and agree they are important, but I don’t think the mandate decision is ultimately going to hinge on the Federalism issue. I see it as a question of what is actually in the best interests of citizens and to my mind there is no justification for propping up health care insurance profits given their miserable track record to date of sacrificing lives for profits.
I spend as much time as possible stdying Constitutional and Administrative Law, my studies in the Founding Era are almost exclusively in primary documents. I have concluded the Founders. especilly Madison, studied the failures of popular government to that time, and in the very structure of the Constitution was designed to assure liberty and self governance would prosper if the symmetry and balance of the Constitution were observed. Deviod of that study, why they did what they did, what Counsel can we avail ourselves of today ? Lincoln urged at Cooper Union that we should not follow the fathers in everything, that would keep us away from the benefits of experince, but we should never proceed where we know they understood the question better than we. Do we know better thsn they, if we dont study and reflect on what they knew ? today we pursue a type of normative social justice, which is proper, but Madison warned, ” Justice is the end of government. It is the end of civil society. I thas ever been and will be pursued until it is obtained or until liberty be lost in the pursuit.
I am not one who believes liberals are all communists, that us hyperbulia of course. i have always thought the amazing change of formula in governanace at the Founding changed the world. The old formula was power would allow liberty, after Constitution was advanced the nnew formula was liberty shall grant power. Men have always aspired to liberty and justice, but how to do it baffled most attempts. The written Constitution granted powers, and organized the architectonics to keep sufficient energy in government, but keep it self in check. Thought became action and it worked. Through my friends ate the US Supreme Court Historical Society I have discovered we dont teach Constitutionl History, Sandra Day O’Connor is running around asking fro civics to be taught, Gordon Woods laments the change to cultural history over the teaching of the Founding era.
I am very curious about the implication that the findings of Helvering, that is the Story/Hamilton concept of the general welfare cluase shall prevail over the Madison concept as expressed in federalist 41. I have seen any number of quotes from Story’s Commentaries, hence I read it. The historical facts are not accurate, and although it was a standard for years at Academia it seems more a tribute to Marshall than an accurate history of the Founding. In Helvering they never explained why they chose Story/Hamilton’s defintion of the General Welfare, why, was it that it fit the objective of the decision, and one was one the stitches in time to save nine ??
My response was to your first post … haven’t read the second one yet.
bhoyo,
That’s what I think but mespo and rafflaw both insist I’m mistaken though Bob insists I’m not mistaken. That’s the beauty of a legal blog.
In particular a number of references are made to Hamilton, suggesting it was his concepts we should follow. I find that troubling in that it is the people, speaking through their highest political capacity who ratified the Constitution. As anyone who has studied Constitutional history, i have a high reagrd for Hamilton, but his concepts were rejected at the Convention, his state pulled the delegates and he left for quite a feew weeks complaining to Washington that even more centralized power was needed to make the Copnstitution effective. Primary documents reveal he, despite his own beliefs, worked diligently for ratification. He did an outstanding job at the New York Ratifying Convention, and the Federal Papers testify for themselves. In both these efforts he worked to assuage the fears that the new Government would increase it’s own powers. Under that auspices ratification occured. He, as Secretary of the Treasury, pursued a well thought out financial path, but by necessity he changed course. He urged ratification under one set of principles, but applied the adminstration i=under different principles.
shano,
Where ever you are … just got this from a friend whose husband brought it home from work:
“99% SPRING TRAINING: Volunteers may attend a 99% Spring Training that will take place at the Union Hall on Day, Date, Time. Training will be in non-violent direct action against social injustices. Everyone is welcome to join.”
Too cool. A bunch of us have signed up. We don’t belong to the Union but we called the Union Hall just to make sure it was okay and the secretary told us it’s a come one, come all and that they’re getting an over-whelming response from members and non-members alike.
Hello all,
I have been reading the posts regrarding the ACA case before the Scotus. On it’s own the Mandate is undoubtedly ultra vires. The references to McCulloch are interesting but they do not seem to do anything but provide a tortured logic to justify its existence
junctiuonshamus:
“he’s been putting up with my crap for a long time.”
************************
Come on junction, who could criticize a man who reminded us of “The Zephyr Window” featuring Lord Frothybottom, and has a schnauzer named Lucy. It’s pleasure.
js, i will have to reserve comment on just how much patience it takes in your case. however, if you think what you have been doing is putting out “crap for a long time” (even if meant only rhetorically and for purposes of quipping), I find nothing in that to be proud of. i can assure you (as if you didn’t already know), there is more then enough “crap” out there and far to little rational, informed, and fact based efforts toward solving problems rather then winning arguments.
The nation has so far managed to survive a revolution, slavery, civil war, depression, dust bowls, a few world wars, Vietnam, the cold war, genocide, impeachment, resignation, judge Thomas, Ronald Regan, the NRA, an obesity pandemic driven by drive through edible cardboard, and 8 years of G.W.Bush. Somehow, I think freedom and individual liberty, or a reasonable facsimile of it given the low level of its actual reality in American History will manage to survive people actually having to contribute to the cost of services/benefits they consume so we all might live just a little better. Freedom as we know it will not come to an end, the sky will not fall, and America will manage to remain just as mindlessly unhealthy and narcissistic as it has been for so long.
Oh, and by the way, behind every liberal is not a communist leaning fascist any more then behind every rightwing religious nut case is there a republican (even if it sure seems that way). And there’s some crap for you.
@1zb1 – He possesses the patience of Job; he’s been putting up with my crap for a long time.
mespo, your really have far more patience then deserved for someone who seems to begin or end every argument with some form of calling others a communist or fascist or both as their chief line of reasoning.