Einer Replies to Philip and Me

Einer replies to the two previous posts:

The responses by Randy Barnett and Phillip Hamburger to my New Republic article contradict each other in an interesting way.  Barnett argues that the Obamacare challengers’ claim is decidedly not historical because it was never based “on the original meaning of the Constitution,” but instead rests on an “absence of any factual or judicial precedent for the exercise of this power.”  Hamburger argues his claim is purely historical, so that we should ignore the evidence that the early statutes I collected constitute factual precedent of health insurance mandates and that judicial precedents “hold that federal statutes regulating the duties of shipowners and seamen arose under the Commerce Clause.”  But if Barnett is right about the challengers’ claim, that is precisely what we should not ignore.

Moreover, Hamburger does not actually offer any historical evidence that any framer understood the Navy clause to include a power to mandate insurance.  Instead, what he claims is that England enacted a provision similar to the 1798 hospital insurance act, and that part of England’s purpose in doing so ensure a supply of seamen for the Navy.  But England has plenary sovereign power rather than enumerated powers, and thus his claim provides no basis to think England believed it was exercising a Naval power when it imposed this hospital insurance mandate.  Nations can, and often do, exercise their powers to regulate commerce in order to aid their military efforts.  Nixon imposed wage and price controls to restrain inflation, clearly an exercise of the commerce power, but often wage and price controls have been used to aid war efforts.  Likewise, sometimes Congress imposes taxes or tariffs to aid military efforts.  Such a purpose does not mean the basis for such powers are the military clauses.

England had no occasion to sort out which power it was exercising, and thus Hamburger’s historical example provides no help in telling us how England might have settled that issue had it been presented.  The Supreme Court cases that Hamburger wishes to ignore, on the other hand, did have to sort out the issue, and they stated that such maritime regulations were adopted under the Commerce Clause, not the Navy clause.

Moreover, Hamburger’s historical analogy goes only to the 1798 hospital insurance act.  He cites no historical predecessor for the 1790 act requiring ship owners to buy medical insurance.  These statutes also contained many provisions irrelevant to aiding the Navy, which he dismisses on the ground that this does not mean the hospital provisions were not enacted under the Navy power.  This strikes me as strained, and it also fails to come to grips with my point that the hospital provisions themselves were overbroad if the goal were limited to ensuring seamen for the Navy, because they aided disabled seamen even if they were no longer able to serve.

Finally, Hamburger tries to create a straw man by asserting that I claimed that the gun purchase mandate was based on the Commerce Clause.  This claim is simply false.  I said from the outset that for this mandate: “One might try the different distinction that the gun purchase mandate was adopted under the militia clause rather than the commerce clause.”  My response to that was that this misses the point because what the gun purchase mandate shows was that the framers thought that purchase mandates were a perfectly proper way of executing a constitutional power, and this suffices to establish that the Obamacare mandate was “proper” under the Necessary and Proper Clause.  This suffices to validate the Obamacare mandate (even if it were not directly authorized by the Commerce Clause) because it is clearly is necessary for the undisputedly constitutional provisions that prohibit insurer discrimination against the sick.  Likewise, even if you buy Hamburger’s effort to stuff all these maritime regulations under the Navy clause, the maritime insurance mandates would still prove that Congress thought purchase mandates – and in particular medical insurance mandates — were a “proper” means of executing constitutional powers.

There is no contradiction.  It was Einer who made the historical claim to which Philip is responding.  That is entirely fair.  I merely noted that Einer’s characterization of the theory of the lawsuit (“the challenge to Obamacare rests on the claim that the unprecedented nature of purchase mandates shows they were so wholly alien to the framers that they obviously would have wanted to ban them.”) is entirely inaccurate.  So too is his persistent characterization of these maritime acts as requiring “insurance,” which none of them did, or his adoption of the term “hospital insurance act,” which is entirely anachronistic.

In case readers have lost track of where this all began, in my 2010 NYU Law and Liberty article, Commandeering the People, and my very first brief reply to his historical claim (here), I have readily acknowledged that the federal government has imposed mandates on the people such as  compelled military service, jury duty, and service on a posse enforcing federal law.  All of these are considered to be fundamental duties of citizenship, or as the Supreme Court called military service, “the supreme and noble duty of citizenship.”  But just because the federal government has the power to make you fight and die for your country does not entail that it has the totalitarian power to make you do anything less than this.  The questions posed by the ACA are whether the supreme and noble duty of citizenship includes purchasing any product that Congress deems in its discretion to be essential to ameliorate the consequences of one of its regulatory schemes, or whether Congress can command the citizenry the way a militia captain can command a member of the militia.  Given their focus on the militia and the merchant marine, Einer’s historical examples — such as they are — only serve to highlight the fact that, as Justice Kennedy observed during oral argument, allowing Congress this new and unprecedented Commerce Clause power would be to fundamentally change the relationship of the citizen to the federal government.