Einer Elhauge Replies

[This was originally posted last night around midnight as an “update” to this reply of mine to Einer Elhauge’s original column in The New Republic.  Since Eugene posted before he had the chance to read my update but his post appears later, and because this update was so long, I thought it would be less confusing to move it here and delete it from my previous post.]

Einer sent along this gracious and thoughtful rely to this post, which I reproduce here in its entirety:

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.

I also reproduce in its entirety Dave Kopel’s VC post analyzing of the 1798 “Act for the Relief of Sick and Disabled Seamen.”  You can read the original statute here:

This 1798 statute (5 Cong. Ch. 77, July 16, 1798, 1 Stat. 605) is currently making the blogospheric rounds as purported proof that the 2010 congressional mandate to purchase health insurance from a private company is based on long-established practice. Incorrect.

Sections 1 and 2 of the act impose a 20 cent per month tax on seamen’s wages, to be withheld by the employer.

Section 3 requires that all the withheld taxes be turned over to the U.S. Treasury on a quarterly basis, and that the revenue shall be expended in the district where it was collected. The revenue shall be spent to support sick and injured seamen.

So the Act is totally dissimilar to the Obamacare mandate. In the 1798 Act, the government imposes a tax, collects all the tax revenue, and spends the revenue as it chooses. This is a good precedent for programs in which the government imposes a tax and then spends the money on medical programs (e.g., Medicare), but it has nothing to do with mandating that individuals purchase a private product.

Under section 4, if there is a surplus in a district, the surplus shall be spent in the construction of marine hospitals; the executive may combine the tax revenue with voluntary private donations of land or money for hospital construction. The President may also receive voluntary private donations for relief of the seamen, or for operation of the hospitals.

Section 5 instructs the President to select the directors of the marine hospitals. The directors shall make quarterly reports to the Secretary of the Treasury. The directors will be reimbursed for expenses, but will not receive other compensation.

Today, the 1798 Act is viewed as the beginning of the creation of the U.S. Public Health Service.

The Act is very strong precedent for the federal government imposing taxes and dedicating the tax revenue to medical care for the taxed class. Further, the government may provide the medical care directly, or may cooperate with private individuals for the providing of that care. The 1798 Act thus shows that Medicare, while vastly broader in scope than anything from the Early Republic, is generally consistent with constitutional practice of that period.

The Act certainly did not order seamen to purchase any form of private insurance, nor did it order them to purchase any other type of private good. The Act is a solid precedent for federal involvement in health care, and no precedent at all for a federal mandate to purchase private products.

Dave’s original post appeared on April 2, 2010, about a week after the Affordable Care Act was passed by the House.  As I said, this example has been around for a while.  The 1790 act, available here, required owners of ships above a certain size to fit the ship with a medicine chest or, failing that, to pay for the medical needs of sailors when in port.

The Militia Act, available here, was cited as a supposed precedent for the individual insurance mandate by Think Progress on March 23, 2010, two days after the ACA passed.  (For an immediate response see here.)  The Act empowered the President to call forth “the militia of the state or states most convenient to the place of danger or scene of action” and mandated that:

That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

As I previously stated, the duty to serve in the militia — and provide one’s own arms — was considered a “supreme and noble duty” of citizenship, which is how the Supreme Court described the military draft into the armed forces of the United States in the Selective Draft Cases.

Offering the militia duty as a precedent for the individual insurance mandate is revealing.  For it highlights the fundamental question posed by this case:  does every citizen of the United States serve at the pleasure of the Congress of the United States in the same manner as a draftee serves in the military?  Put another way, does the Congress have the same power over individual citizens as the Captain or Commanding Officer of a militia company?   As Justice Kennedy observed during oral argument, this would be to fundamentally alter the relation of the citizen to the federal government.  If this claim of Commerce Clause power is upheld, and especially if were upheld using the Militia power as authority, we would no longer be considered citizens, but would instead be more accurately characterized as “subjects.”  And that, in the words of the Vice President, would be a big . . . deal.