January 25, 2011

Did the Founders support a national health care mandate?

By Did the Founders support a national health care mandate?

Author: Joshua Thompson

While I was looking through my Facebook account last night, I stumbled upon a post from a law school friend of mine that suggested that the Founders supported a health care mandate.  His post revolved around a law passed (and signed by President John Adams) in 1798, titled, "An Act for the Relief of Sick and Disabled Seamen."  True enough, the statute authorized the President to to provide hospital services to sick and disabled seamen, and even authorized creation of a "Marine Hospital of the United States."  So what does this mean?  Did the Founders support an individual mandate?  Well, no, of course not.  There a number of problems with this argument.  I tackle a couple after the jump. 


1. The disabled seamen statute is clearly authorized under Article I, section 8, cl. 1, "Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises."  The disabled seamen statute is, primarily, a taxing statute that collects money from the "master or owner of every ship."  Indeed, the hospital and medical care authorized under the statute is only done so at the President's discretion.  The Act "authorizes" the President to provide for the disabled seamen out of the funds collected.  (Contrast this with the "shall" language requiring the collection of monies from ship owners.) 

However, it is also probably authorized under the infamous Article I, section 8, cl. 3, "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."  This, of course, is also the purported justification for the individual mandate. I think it is fair to say that laying duties on ships and providing for the health of seamen falls within this grant of congressional power.  I doubt my friend would dispute that point.  However, what distinction can be drawn between this statute and the individual mandate?

Well, the distinction.  Whereas the disabled seamen statute imposes obligations only on those ships that are "arriving from a foreign port," the individual mandate imposes an obligation on every American.  Undoubtedly, those ships that have left foreign ports, and arrived in America, have engaged in commerce.  Furthermore, the authorization (not requirement) for the President to provide health services to seamen is: (a) provided for through the exact same revenue collected by the taxes on arriving ships (donations are also allowed); and (b) only authorized for seamen (those on whose behalf the tax was collected — those who have chosen to engage in commerce). Clearly, the line between the disabled seamen act, and the individual mandate is very thick.

2.  There is no state authority to do what the Act prescribes.  ObamaCare is an attempt to regulate that over which states have supreme authority, the health and welfare of its citizenry.  In contrast, the disabled seamen statute regulates that for which there is absolutely no state authority.  Indeed Article I, section 10 of the constitution specifically prohibits states from "lay[ing] any Imposts or Duties on Imports or Exports." 

Why is this relevant?  In the lawsuits challenging the individual mandate, the government argues that it has authority under the commerce power to regulate the health insurance market (broadly speaking, this point is uncontested).  The government then argues that the individual mandate is necessary and proper to carrying out the regulation of the insurance industry. 

In Comstock, the Supreme Court held that the Necessary and Proper Clause (Art. I, sec. 8, cl. 18) allowed Congress to enact so long as the provision "is rationally related to the implementation of a constitutionally enumerated power."   While this is indeed a broad grant of power, in concurrence, Justice Kennedy recognized the import of federalism principles when the Necessary and Proper Clause is invoked.  In citing to Lopez and Morrison, Justice Kennedy distinguished the the law at issue in Comstock:

It is not a case in which the National Government relieves the States of their own primary responsibility to enact laws and policies for the safety and well being of their citizens. [citation omitted]. Nor is it a case in which the exercise of national power intrudes upon functions and duties traditionally committed to the State.

Similarly, the individual mandate does deprive states of the ability to enact laws and policies for the safety and well being of its citizens.  By forcing individuals into buying health insurance, states no longer have the ability determine how to regulate their citizens health insurance decisions.  Furthermore, since health care has traditionally been handled at the state level, the individual mandate severely intrudes on this state function.  Contrast this with the seaman statute, where states are flatly prohibited from regulating in this arena.

3. Ultimately, the question of whether the Founders allowed unconstitutional acts to go forward is wholly irrelevant. I doubt my friend would argue that the Alien and Sedition Acts (also passed in 1798 and signed by John Adams) are constitutional.  The Constitution only grants Congress certain enumerated powers. If those are exceeded in 1798 (which, as the above analysis shows, they weren't), or if they are exceeded now (which they are), the Supreme Court should strike the law down.

In Federalist 84, Alexander Hamilton argued against a Bill of Rights, because the Constitution only granted certain limited powers.

Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.

If the individual mandate is an extension of the Commerce Clause, there is no limit to what Congress can do.   Supreme Court Justice Kagan, for example refused to answer whether Congress, under the auspices of the Commerce Clause, could force individuals to eat fruits and vegetables.  Her reason for refusing is obvious: if Congress can force individuals to buy health insurance, it can force individuals to eat fruits and vegetables.  The logic extends to both. 

Such was not the intent of the Founders with the Commerce Clause, and it is a concept that liberals, like my friend, should find equally as appalling.

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