Wednesday, April 18, 2012

The Founding Fathers and Mandates

Did you know that the Founding Fathers had no problem with what today we call "individual mandates?"  In 1790, the first Congress (which included 20 Constitutional framers), passed a law requiring ship owners to buy medical insurance for their sailors.  George Washington signed this piece of legislation into law.

In 1792, Congress (with 17 framers of the Constitution as members) required all able-bodied men to buy guns.

In 1798, Congress required sailors to buy hospital insurance for themselves.  This "individual mandate" was signed into law by John Adams.

Here is a taste of Harvard's Einer Elhauge's piece in the New Republic:

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.

I guess the framers of the Constitutions were socialists after all.

3 comments:

George P. Wood said...

http://volokh.com/2012/04/13/still-unprecedented-recycling-the-same-two-examples-of-supposed-economic-mandates/

micheal clark said...
This comment has been removed by a blog administrator.
Alex Stephen said...

Excellent read, I just passed this onto a colleague who was doing a little research on that. And he actually bought me lunch because I found it for him smile So let me rephrase that: Thanks for lunch!
Health Insurance Malibu