Einer Elhauge is a professor at Harvard Law School. He joined an amicus brief supporting the much maligned constitutionality of the individual mandate contained in the Affordable Care Act. In a piece penned for the most recent issue of The New Republic Elhauge
If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?
The so called defenders of our Constitution, in argument before SCOTUS and without any supporting text or historical evidence, made a legal case against the Act’s individual mandate. The rhetoric from the right ranting against the mandate falsely claims that the framers of our Constitution would certainly have found such a measure to be unconstitutional. They argue that nothing exists supporting this claim because a constitutional ban on purchase mandates was too “obvious” to mention. They base the claim that purchase mandates are unprecedented. Not so, says Elhauge…
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.
Congress did not stop there, says Elhauge, because six years later…
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.
Yes, I know Adams was not one of the founders. The editors correct this at the end of the article.
Elhauge next offers a little positive territory for conservatives, albeit still damaging to their effort to kill President Obama’s benchmark legislation.
…in 1792 Congress, including 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.
The lesson we should learn from this piece is just how ignorant the average American has become regarding the history of our country, our Founders and the framers of our Constitution. Attempts to derail this legislation is every bit as misdirected as are Liberal efforts to twist the Second Amendment in justification of anti-gun legislation.
The ACA is a bastard bill only because of its wealth of compromises made necessary by right wing resistance. It can be improved and should be. So called “socialized” medicine works well in countries as varied as Cuba and Canada, Russia and Finland, Germany and Spain. Our own healthcare system contains examples of “social” healthcare. Consider the Veterans Administration and the TRICARE insurance program, not to mention Medicare.
Our Constitution does not prohibit either the employer or the individual mandates contained within the ACA. A simple study of Congressional activity debunks that concept as effectively as it debunks the anti-gun arguments.
If these mandates or the entire bill do not pass SCOTUS muster we should go back to the drawing board and as a nation cobble a bill that works. Of course this would require the Congress learn to conduct itself somewhere north of the kindergarten level.
Good luck with that.
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8 Comments:
"Our Constitution does not prohibit either the employer or the individual mandates contained within the ACA."
Nor does it permit Congress to force people to sign a contract. Which is different.
That's the argument, Mule Breath... "Does Congress have the authority to force the citizens to sign into a legally binding contract, which Congress then gets to regulate?"
Good post, MB.
Jeff B: I didn't know "mandate" and "contract" meant the same thing.
A health insurance policy is a contract, JEG. Would you agree on this?
If the government is forcing me to purchase health insurance (or risk a large financial penalty), they're forcing me into a contract. Would you agree on this?
Now, if you'd be so kind as to point out the legal rights of Congress to force me into a legally binding contract, against my will, for merely having the temerity to EXIST, that'd be swell.
Seems to me, Jeff, that an insurance policy would have been a contract in the 1700's just as it is now.
The article is discussing the Founder's intent, not semantics, and the Founder's obviously had no objection to passing laws requiring employers and individuals alike to enter into a contract with an insurance company.
Actually, no: Shipowners were required to pay a sum of money -- which they could deduct from a sailors pay -- to fund healthcare for disabled or injured sailors. However, no sailor would be fined if they didn't have proof of insurance. In other words, there was no individual mandate. A mandate that a risky business provide for the healthcare of their employees, should those employees get injured on the line of duty? Sure, and we have that now. You've heard of workman's compensation, no?
What you've failed to show, however, is that they were OK with the idea that simply breathing was a sufficient enough activity to require that individuals purchase healthcare. That is, to continue the ridiculous argument that Professor Elhauge is making: A father of a family of four who went fishing in the Chesapeake to catch fish for his family's dinner table was not required to buy an individual policy under the Framer's laws.
Big difference. HUGE.
Further, Prof Elhauge's argument ignores that the commercial fishing operations at whom this law was directed were ALREADY engaged in a particular commerce activity. That is, the law is one that dictates HOW commerce is to be conducted.
It made no stipulation that a citizen be REQUIRED to engage in that commerce, then be subjected to the regulation at hand.
See the difference?
On your second comment, Elhauge did not ignore the commerce involvement and actually mentioned that as Congress' reasoning for the mandate. He further mentioned that the individual mandate of hospitalization insurance had only tenuous connection to commerce, and that the mandate that able bodied men buy (or obtain) firearms had none.
Beside the point. Elhauge's argument is intended to debunk the talking point that such mandates would have been roundly rejected by our Founders. The AHA is an unsound law and needs major revision, but the argument of constitutionality is a red herring.
The "simply breathing" argument merely points to the fact that these are people who on average will participate in the healthcare system every five years or so. The uninsured seem to participate more often than that, and I don't care much about picking up their tab.
As "breathing" taxpayers we already pay for healthcare. There needs to be some sort of system in place that will start reducing that cost. The ACA, while flawed, is a first step.
Now, since I'm currently participating in the healthcare system (I write this from a hospital bed) and will be a bit out of touch for a day or two, I shall make this my closing argument.
Oh, and yes, I *am* insured.
Good post and good points, thanks!
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