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.
Take the 1790 and 1798 acts governing the merchant marine. The first one, enacted July 20, 1790 (“1 Stat. 131” is the citation in the U.S. Statutes at Large), Elhauge describes as requiring “that ship owners buy medical insurance for their seamen.” He refers to section 8 of the act. It requires that every American ship over a certain tonnage, going to sea in international commerce, “be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same.” It further requires that the medicines be annually inspected and freshly supplied when depleted or spoiled, and
in default of such medicine chest so provided and kept fit for use, the master or commander of such ship or vessel shall provide and pay for all such advice, medicine, or attendance of physicians, as any of the crew shall stand in need of in case of sickness, at every port or place where the ship or vessel may touch or trade at during the voyage, without any deduction from the wages of such sick seaman or mariner.
Before you say, “Wow, no deductible or co-pay for the sick seaman,” notice two things. First, this provision is a regulation of commerce in which someone is already engaged (the ships’ owners and masters, and the seamen), as many commentators have long since noted. (And Elhauge’s unpersuasive retort that everyone is also “in” the commerce of our health-care system was thoroughly covered in the Supreme Court argument.)
But second, the requirement that ships’ masters pay for medicines and physicians’ bills when sick sailors seek health care at ports of call is completely suspended if they simply keep a well-stocked medicine chest aboard ship. It takes a pretty wild flight of the imagination to describe this act as “mandating” the purchase of “health insurance” for sailors by their employers. If that’s so, then FAA requirements that a first-aid kit be kept amply stocked on all commercial passenger aircraft could be redescribed as a “mandate” that airlines “buy medical insurance for their passengers.”
Elhauge describes the second act concerning merchant seamen, enacted July 16, 1798 (1 Stat. 605), as “requiring the seamen to buy hospital insurance for themselves.” Wrong again. The act provides that the owner or master of an American ship, when his vessel puts into port from an overseas voyage, shall give the port “collector” (the federal tax man who collected tariffs) an accurate headcount of his crew, and for each month away from American shores pay the collector 20 cents a head, which he was “authorized to retain out of the wages” of the sailors. The funds so collected being sent to the U.S. treasury, the act authorized the president to direct the disbursement of the funds to hospitals in American port cities “for the temporary relief and maintenance of sick or disabled seamen.” Any surplus funds not used for such immediate health-care needs were to be invested for the future building of “hospitals for the accommodation of sick and disabled seamen.”
This was surely a benign and compassionate act, and might serve as a useful reminder that “welfare” and federal spending on health care have a long history. But in no sense can this act be described as an “individual mandate” that merchant seamen “buy hospital insurance.” It’s a payroll tax collected by shipowners from seamen’s wages for purposes of a federal spending program on caring for sick sailors. Elhauge may hope no one looks up this old statute, but the Obamacare mandate couldn’t be further from it — a requirement that individuals enter into a contractual, commercial arrangement with a private health-insurance provider. Only Elhauge’s slippery half-truth can conceal how far the cases are from being analogous.
Now to the final example, the Militia Act of May 8, 1792 (1 Stat. 271). This act famously required “each and every free able-bodied white male citizen” in each state, from 18 to 45 years of age, to “be enrolled in the militia” of his state. Each militiaman so enrolled was required “within six months” to “provide himself with a good musket or firelock” and other quite specific accoutrements of combat equipment. Was this a “purchase mandate” for every adult white male to buy a gun? Not necessarily, since one might own one already, borrow one from an exempted person, receive one as a gift, or even have one provided from a state armory.
And what about those persons “exempted from militia duty” (see Section 2 of the act)? In addition to specific categories of exempted status (such as government officials, postal workers, harbor pilots, and merchant seamen), the act further excluded from its requirements “all persons who now are or may hereafter be exempted by the laws of the respective states . . . notwithstanding their being” otherwise squarely within the demographic previously described.
This provision, along with the fact that the Militia Act carries no penalty for failure to arm oneself as it putatively requires, reveals the true intent of the legislation. It is an act for regularizing the formation of a nationally uniform militia system that remained under the control of the states, unless called into national service. (This intent is plain on the face of virtually every other provision of the act as well.) You were in the militia if you were free, white, male, 18 to 45, and your state said you were in the militia. If it said you weren’t, you weren’t. And since the act carried no criminal penalties, there was literally no way for it to be enforced by federal authorities, civilian or military.
Some “mandate” that is. If one credits Einer Elhauge, the federal government in 1792 was requiring — one would presume on pain of some penalty — “all able-bodied men to buy firearms.” A little care in reading the act demonstrates that once again, Elhauge just can’t describe his “precedent” accurately.
— Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, N.J.