Phillip Hamburger on the Maritime Acts

Columbia law professor and legal historian Philip Hamburger passes along the following comment on Einer Elhauge’s use of early maritime acts as historical precedent for the individual insurance mandate:

          In defense of the constitutionality of the ACA under the Commerce Clause, Einer Elhauge points to early federal statutes on firearms and seamen.  The relevant provisions of these statutes, however, did not rest on the Commerce Clause.

A 1792 statute cited by Elhauge required citizens enrolled in the militia to purchase their own firearms.  Two other statutes cited by him provided for seamen, and these statutes seem particularly relevant to the question of mandated healthcare and health insurance.  A 1790 enactment required ships venturing outside American waters to maintain a medicine chest (or in default of this, to pay for the care of their sailors).  A 1798 statute required individual seamen to contribute to a hospital fund.  According to Elhauge, these enactments suggest that Congress has long enjoyed authority under the Commerce Clause to mandate healthcare and the purchase of health insurance.

The relevant provisions, however, apparently arose under Congress’s military powers.  Randy Barnett observes that Congress required the purchase of firearms under its power to “provide for calling forth the Militia.”  But what about the forced supplying of medical care and the forced contributions to a hospital fund?  Is Elhauge correct in assuming that these requirements arose under the Commerce Clause?  In fact, the source of constitutional authority was again one of Congress’s military powers–in this instance, its power to “provide and maintain a Navy.”

Although the naval character of the health provisions is not obvious from the statutory texts, it is apparent from the underlying history.  Indeed, the naval objectives would have been obvious to contemporaries, for healthcare and the collection of hospital funds were standard means of ensuring a large supply of healthy seamen.

The provision of healthcare for the navy began in England.  After the destruction of the Spanish Armada in 1588, the English navy established the royal naval hospital at Greenwich and created a fund for the support of disabled seamen.  The fund was known as the “Chatham Chest,” and to fill it, the navy deducted six pence a month from the wages it paid to seamen.  Although all of this was restricted to seamen who served in the navy, it is a hint of what would follow.

Merchant seamen also were subject to the vicissitudes of a rough life, including warfare.  During peacetime they did not fight–other than among themselves–but during any war they supplied the navy with a pool of trained sailors.  In 1696, therefore, during a conflict with France, Parliament enacted that even merchant seamen were to pay the familiar six pence, and that those who registered to be available for naval service could qualify for care at Greenwich.  As Parliament explained, it imposed this system because the “strength and safety” of the realm “do very much depend upon the furnishing and supplying of his majesty’s royal navy with a competent number of able mariners and seamen which may be in a readiness at all times for that service.”

The American states followed a similar policy.  Virginia in 1780 required naval seamen to contribute nine pence a month for the establishment of a hospital.  In 1782, it broadened its approach, requiring a shilling from all seaman whenever their vessels entered or cleared any port, and by 1787 the state finally had raised enough money to establish a hospital for seamen.  North Carolina in 1789 also required payment of “Hospital Money.”  Tellingly, its statute added that a seaman did not have to pay if he could show a receipt for such a payment in another U.S. port within the prior month.  In short, such payments from merchant seamen were conventional.

The federal provision for hospital money came during hostilities with France.  After repeated French attacks on American shipping, Congress in June 1798 abrogated existing treaties with France.  The United States, however, had only a tiny navy, and its merchant vessels could not expect naval protection.  Congress therefore authorized such vessels to resist, even to the point of subduing and capturing attacking French ships.  At this point, all merchant seamen were potentially engaged in the military struggle, and Congress in July 1798 required American merchant seamen to make payments toward their care and the building of seamen’s hospitals.

Against this background, it is odd to suggest that the federal provisions for the health of seamen were adopted under the Commerce Clause.  Medical care for merchant seamen, and the collection of money to support such care, were long-standing means of maintaining the pool of seamen who could serve their country in times of need.  Like the requirement that able-bodied men purchase firearms, the provisions for seamen looked ahead to future military needs.  And just as the one arose under the power to provide for the militia, the other arose under the power to provide for the navy.

It thus is evident that these early federal statutes do not support the constitutionality of congressionally mandated healthcare, whether an employer mandate or an individual mandate.  On the contrary, the early federal mandates to provide healthcare or to purchase health insurance arose under the government’s power to provide for the navy.  This was a military power, and the statutes adopted under it are not precedents for a power to regulate civilians under the Commerce Clause.