As a legal argument against an act of Congress, “it’s unprecedented” does not carry all that much weight. After all, every first use of a legitimate congressional power was obviously without precedent. And there is, in the nature of things, no reason that such a first instance could not occur many years after the power itself was called into being by the Constitution.
So when the individual mandate to purchase health insurance, now at issue in the Obamacare case before the Supreme Court, is denounced as unprecedented, that’s hardly a slam-dunk argument. It’s just the beginning of one. What one must show is that the unprecedented mandate is also improper — an illegitimate claim of authority under the Constitution. “It’s unprecedented” can add some rhetorical oomph to the more important claim of illegitimacy, since a plausible reason why no earlier Congress attempted such a mandate is that it would have been understood to reach too far.
By the same token, the ability to say “but there is a precedent!” is a kind of Holy Grail for Obamacare’s defenders. Historic enactments that can be analogized to the individual mandate are valuable currency in a legal system that is based on precedent. Better still if these historic acts went unchallenged in their day. And best of all if they date from the generation of the Founders themselves — when the earliest Congresses and presidencies were filled by men who had participated in writing, ratifying, or otherwise arguing about the creation and meaning of the brand-new Constitution.
So Harvard law professor Einer Elhauge must feel mighty pleased with himself for having offered three examples of “mandates” from the first decade of the Constitution’s existence. In a New Republic article
, Elhauge sketches these three examples as follows:
“In 1790, the very first Congress — which incidentally included 20 framers — passed a law that included a mandate: namely, a requirement that shipowners buy medical insurance for their seamen.” President George Washington signed the act.
“In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms.” Washington signed this too.
In 1798, Congress “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.” President John Adams signed this act.
You wouldn’t know it from Elhauge’s TNR piece, but these three putative precedents for a “mandate” have been much discussed by legal scholars over the last couple of years, in the blizzard of commentary on Obamacare. When some of the scholars involved in these discussions criticized his retread examples (see comments by Randy Barnett and Philip Hamburger), Elhauge doubled down in TNR responses (here and here).
Barnett and Hamburger, for the most part, mix it up with Elhauge over the finer points of constitutional interpretation: whether the 1798 act came under the Commerce Clause or (as Hamburger argues) was an exercise of Congress’s power to provide for the Navy; whether the 1792 militia act’s “mandate” can really be called a “purchase mandate”; and whether a mandate under the militia power can serve as a precedent for a mandate under the commerce power. But the more damning indictment of Elhauge’s law-office history is that he grossly misdescribes the three statutes he claims as precedents for Obamacare’s mandate.