If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?

The New Republic ^ | April 13, 2012 | Einer Elhauge

[Kaslin]

In making the legal case against Obamacare’s individual mandate, challengers have argued that the framers of our Constitution would certainly have found such a measure to be unconstitutional. Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases. The framers, challengers have claimed, thought a constitutional ban on purchase mandates was too “obvious” to mention. Their core basis for this claim is that purchase mandates are unprecedented, which they say would not be the case if it was understood this power existed.

But there’s a major problem with this line of argument: It just isn’t true. The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.

That’s not all. In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. Yes, we used to have not only a right to bear arms, but a federal duty to buy them. Four framers voted against this bill, but the others did not, and it was also signed by Washington. Some tried to repeal this gun purchase mandate on the grounds it was too onerous, but only one framer voted to repeal it.

Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.

Not only did most framers support these federal mandates to buy firearms and health insurance, but there is no evidence that any of the few framers who voted against these mandates ever objected on constitutional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were unconstitutional. Moreover, no one thought these past purchase mandates were problematic enough to challenge legally.

True, one could try to distinguish these other federal mandates from the Affordable Care Act mandate. One could argue that the laws for seamen and ship owners mandated purchases from people who were already engaged in some commerce. But that is no less true of everyone subject to the health-insurance mandate: Indeed, virtually all of us get some health care every five years, and the few exceptions could hardly justify invalidating all applications of the statute. One could also argue (as the challengers did) that activity in the health care market isn’t enough to justify a purchase mandate in the separate health insurance market. But the early mandates required shippers and seamen to buy health insurance without showing they were active in any market for health insurance or even health care, which was far more rare back then.

Nor do any of these attempted distinctions explain away the mandate to buy guns, which was not limited to persons engaged in commerce. One might try the different distinction that the gun purchase mandate was adopted under the militia clause rather than the commerce clause. But that misses the point: This precedent (like the others) disproves the challengers’ claim that the framers had some general unspoken understanding against purchase mandates.

In oral arguments before the court two weeks ago, the challengers also argued that the health insurance mandate was not “proper” in a way that allows it to be justified under the Necessary and Proper Clause. These precedents rebut that claim because they indicate that the framers thought not just purchase mandates but medical insurance mandates were perfectly proper indeed.

[zencycler]

States, or in cases of interstate commerce, the feds, CAN impose mandates on CHOICES we make in the marketplace, but perhaps NOT on our right to EXIST! Owning, operating or even working on a ship - like owning and driving a car - is and example of such a choice.

The courts will likely overturn this on the basis of it being an overreach of the Commerce Clause. If that's the case, Obamacare is out, but Romneycare stands, and some other states may choose to follow that example.

On the other hand, if it's overruled on the basis that it violates individual rights - that government cannot impose mandates on a person's right to exist - the Romneycare goes down as well. However, this is unlikely, since the 10th amendment gives states numerous and indefinite powers, which generally means they can mandate just about anything.

Kennedy's (the swing vote) record on three Commerce Clause cases is that he voted to limit federal authority on two, and uphold its authority on one. The 2005 case in which he granted federal authority involved a California law allowing for the growing and medical use of Marijuana, which stood in contradiction, not only to federal law, but to the other states. The reason cited for upholding federal authority under the Commerce Clause is that letting the California law stand would create the likelihood of homegrown Marijuana being transported to other states, and would undercut the ability to prohibit the drugs use in other states. Since this issue is not present with Obamacare, I think we'll see Kennedy voting with the Conservatives on those grounds.

[Stegall Tx]

Thanks for the link. Here's the section in question:

Sec. 8. And be it [further] enacted,Every ship or vessel outward bound, to be furnished with a medicine chest: That every ship or vessel belonging to a citizen or citizens of the United States, of the burthen of one hundred and fifty tons or upwards, navigated by ten or more persons in the whole, and bound on a voyage without the limits of the United States, shall be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled; and in default of having such medicine chest so provided, and kept fit for use,Penalty on the master for default. the master or commander of such ship or vessel shall provide and pay for all such advice, medicine, or attendance of physicians, as any of the crew shall stand in need of in case of sickness, at every port or place where the ship or vessel may touch or trade at during the voyage, without any deduction from the wages of such sick seaman or mariner.

Which essentially says the ship has to have a first aid kit. That's a bit different than saying that everyone has to have their own insurance.

[Red Badger]

It’s essentially saying a ship owner MUST provide for its crews health and safety while at sea. In a previous section it mandated a certain amount of food and water be available for every crewman. By the writer’s reasoning, an employer must give me lunch......

[Stegall Tx]

Thanks for the link. Here's the section in question:

Sec. 8. And be it [further] enacted,Every ship or vessel outward bound, to be furnished with a medicine chest: That every ship or vessel belonging to a citizen or citizens of the United States, of the burthen of one hundred and fifty tons or upwards, navigated by ten or more persons in the whole, and bound on a voyage without the limits of the United States, shall be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled; and in default of having such medicine chest so provided, and kept fit for use,Penalty on the master for default. the master or commander of such ship or vessel shall provide and pay for all such advice, medicine, or attendance of physicians, as any of the crew shall stand in need of in case of sickness, at every port or place where the ship or vessel may touch or trade at during the voyage, without any deduction from the wages of such sick seaman or mariner.

Which essentially says the ship has to have a first aid kit. That's a bit different than saying that everyone must buy their own insurance.

[Red Badger]

It was, in fact, a law passed by Congress #1.
But, it applied only to seamen while at sea, and was essentially a requirement that the ship owners were responsible for the health and safety of their crews. It also mandated a certain amount of food and water be available per crewman. So, by their reasoning, my employer can be mandated to provide my lunch everday....

[chris_bdba]

GEEZ where do they come up with these lies? For real words try this:
“The care of every man’s soul belongs to himself. But what if he neglect the care of it? Well what if he neglect the care of his health or estate, which more nearly relate to the state. Will the magistrate make a law that he shall not be poor or sick? Laws provide against injury from others; but not from ourselves. God himself will not save men against their wills…”Thomas Jefferson 1776

[Oztrich Boy]

Everything Not Forbidden is Mandatory

[Eric in the Ozarks]

Twisted logic 101.

[Kaslin]

I don’t see anything about health insurance in there

[DH]

All insurance is nothing more than robbery on the installment plan.

All laws pertaining to the requirement to buy insurance are nothing more than Congress pandering to the insurance industry for special favors, political donations and votes. Better yet, they are in a position to invest into these businesses and watch their personal investment grow with every additional requirement added to the bills they introduce.

We just gotta get these “lifers” out of Congress now!

[samtheman]

The government does have the right to demand some conditions of a ship using the nations ports. That’s a different thing from requiring all citizens to buy insurance simply because they are alive.

There. Best answer on this thread to the liberal blockhead who wrote the posted article. Good job, muir_redwoods.

[YHAOS]

“Everything Not Forbidden is Mandatory”

Surely, you jest.

”It has been frequently remarked that it seems to have been reserved to the people of this country [speaking of America], by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”
. . . FEDERALIST No. 1 General Introduction (Hamilton)

Clearly, the explicit expectation here is that government is to be established by the people, and not to be imposed upon them by some outside force (a King, an Emperor, a “Protector,” etc). The onus therefore falls upon government to perform only the duties which its charter permits. The Constitution was written to control the activity of government, and it permits government only those powers expressly enumerated. To do otherwise would have necessitated a document thousands of pages in length.