Elhauge Replies to Hamburger

Einer Elhauge has kindly written to tell me about his new reply in The New Republic on-line to Philip Hamburger’s critique, which appeared here on the Volokh Conspiracy, of his earlier claim that there were historical precedents for the individual insurance mandate:

Since I wrote last week about the remarkable eighteenth-century precedents for a health insurance mandate, several supporters of the challenge to Obamacare have attempted to downplay the relevance of those early mandates for today’s case. The latest is Professor Phillip Hamburger, who argues that those early statutes imposing health insurance mandates on private commercial shipowners and seamen didn’t arise under the Commerce Clause; instead, he claims, they were justified under the power to provide for the Navy because such health mandates helped ensure “a large supply of healthy seamen” for the Navy to draft in the event of war.

This argument is certainly creative, but the connection between regulating private commercial activities and the Navy power is unconvincing. By that logic, one could equally say that the Obamacare mandate is justified because it helps ensure a large supply of healthy people to draft into the Army in the event of war. Nor does his Navy clause argument seem to fit the eighteenth-century statutes, which were replete with provisions requiring written labor contracts on key terms, regulating when wages had to be paid, and providing hospital care for disabled seamen even if they were no longer able to serve—none of which were relevant to ensuring a supply of healthy seamen to draft for war.

In any event, Hamburger’s claim conflicts with Supreme Court case law, which as I have shown, does indeed hold that federal statutes regulating the duties of shipowners and seamen arose under the Commerce Clause. In contrast, I am unable to find any case holding that Congress’ power to impose duties on private commercial shipowners and seamen arose under the Navy Clause.

Remember the context: The challengers are trying to infer a constitutional ban from purported silence because their theory lacks any affirmative support in the text, history, or case law. The constitutional text does not support the challengers’ argument because, as conservative Judge Silberman held, 1780s dictionary definitions of “regulate” indicate that the plain meaning of the text giving Congress the power to “regulate commerce” does include a power to mandate purchases. Nor did any framer state that they thought the Constitution prohibited purchase mandates or any prior case so hold.

Bereft of such support, the challenge to Obamacare rests on the claim that the unprecedented nature of purchase mandates shows they were so wholly alien to the framers that they obviously would have wanted to ban them. Trying to infer a constitutional ban from a lack of precedent is dubious to begin with, since the Constitution has no anti-innovation clause, and the law presumes Congressional Acts are constitutional. But, if one is going to use that dubious method, one cannot exclude analogous precedents based on strained or technical distinctions.

Even if you do believe that these early mandates were justified under clauses other than the Commerce Clause, they demonstrate that the framers clearly thought purchase mandates were a “proper” means of executing constitutional powers. That’s enough to show that the framers would hardly have been horrified at the notion of mandating purchases—and enough to validate the Obamacare mandate under the Necessary and Proper Clause.

Einer greatly distorts the case against the mandate when he says:  “the challenge to Obamacare rests on the claim that the unprecedented nature of purchase mandates shows they were so wholly alien to the framers that they obviously would have wanted to ban them.”  I have never rested my claim that the individual insurance mandate was unconstitutional on the original meaning of the Constitution, and neither did the parties to the lawsuit.  This entire case was pursued under existing post-New Deal Commerce Clause and Necessary & Proper Clause doctrine.

To oversimplify:  the structure of the argument has always been that, to date, the Court has authorized Congress to go “this far” and the power to impose economic mandates on the people is farther than this.  The absence of any factual or judicial precedent for the exercise of this power makes this a case of first impression in which the Supreme Court has to decide whether this is a permissible expansion of federal power beyond anything the Court has previously upheld.

So who is right?  The challengers who say the mandate goes beyond existing doctrine, or those who claim that the mandate is so overpoweringly justified by existing doctrine that any decision to invalidate the mandate can only be explained as “political”?   Well, here’s a test you can apply if the Supreme Court invalidates any part of the Affordable Care Act:  will its decision overrule or even modify any existing Supreme Court precedent?  Here’s another test:  will a decision invalidating the mandate call into question any other law ever enacted by Congress?  If not, then the mandate was never clearly justified by existing precedent.

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