Search results for "Einer Elhaug"

My Review of Einer Elhauge’s Obamacare on Trial

The Liberty Law Blog recently posted my review of Harvard Law Professor Einer Elhauge’s book Obamacare on Trial, which was possibly the first academic book on the Obamacare litigation published by a legal scholar since the Supreme Court issued its decision in NFIB v. Sebelius. Elhauge is a topnotch scholar, and his book makes some interesting points in defense of the constitutionality of the individual health insurance mandate. But it’s not as strong as it could have been had he been able to address some key issues in greater depth:

Harvard Law Professor Einer Elhauge’s book Obamacare on Trial is a useful and sometimes insightful statement of several arguments in defense of the mandate. It is impressive that Elhauge managed to get the book in print just a couple months after the Court’s decision came down on June 28, 2012. But, perhaps because of the haste with which it was published, the book fails to adequately address some key issues, and likely will not be persuasive to those not already inclined to agree with Elhauge’s conclusions….

Elhauge’s most distinctive contribution to the debate over the mandate was his repeated invocation of two 1790s laws that, he argues, provide precedents for upholding the individual mandate as an exercise of the commerce power: The 1792 Milita Act, which required militia members to possess muskets and other military equipment; and the 1798 Act for the Relief of Disabled and Sick Seamen, which required owners of American ships arriving from foreign ports to a withhold a part of their seamen’s wages and pay the money into a government-administered fund for the “temporary relief of sick and disabled seamen….”

This is an interesting thesis and Elhauge defends it well. But, ultimately, it flounders on the many clear differences between the two 1790s acts

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Einer Elhauge Replies

[This was originally posted last night around midnight as an “update” to this reply of mine to Einer Elhauge’s original column in The New Republic.  Since Eugene posted before he had the chance to read my update but his post appears later, and because this update was so long, I thought it would be less confusing to move it here and delete it from my previous post.]

Einer sent along this gracious and thoughtful rely to this post, which I reproduce here in its entirety:

Professor Randy Barnett is a good friend who deserves enormous credit for coming up with a creative constitutional argument that has commanded such attention.  But I don’t ultimately find his distinctions persuasive, and it isn’t because I like the health insurance mandate.  I am on public record calling it bad policy.  But that of course does not make it unconstitutional.

Although Barnett acknowledges that the early medical insurance mandates were exercises of Congress’ commerce clause power, he distinguishes them on the ground that they were imposed on actors who were in commerce, namely on shipowners and (in a third example he omits) seamen.  His distinction thus means that he admits that these precedents show that if one is engaged in commerce in market A – here the shipping market or the seamen labor market – then Congress has the power to impose a mandate to purchase in market B – here the medical insurance market – even though markets A and B are totally unrelated.  This concession conflicts with the argument of the challengers, which claimed that widespread activity in the health care market did not permit a purchase mandate even in the highly related health insurance market.  Indeed, this concession seems to make the whole action/inaction distinction collapse because the fact that no

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Einer Elhauge, Guest-Blogging:

I’m delighted to say that we’ll be joined this week by Einer Elhauge, Petrie Professor of Law at Harvard Law School and faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics.
Prof. Elhauge teaches Antitrust, Contracts, Corporations, Health Care Law, and Statutory Interpretation, and writes about all these topics plus, among other things, legislative term limits, the 2000 Presidential election, the implications of interest group theory for judicial review, and whether lawyers improve the legal system. His most recent publication are Global Antitrust Law and Economics (Foundation Press 2007) and Global Competition Law and Economics (Hart Publishing 2007); he is also working on the forthcoming Statutory Default Rules for Harvard University Press, books on Contract Theory and Health Law Policy, and articles on re-engineering human biology and other topics.

As befits Prof. Elhauge’s eclectic scholarly tastes, his guest posts will deal with a variety of trends in legal studies, from legal globalization to the teaching market to statutory interpretation. I’m very much looking forward to his contributions this week. [...]

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Hamburger Responds to Elhauge

Columbia law professor Philip Hamburger passes along this response to the latest New Republic post by Harvard law professor Einer Elhauge:

During the past two weeks, Einer Elhauge has attempted to establish the constitutionality of the ACA on the basis of history.  Since then, I and others have pointed out that his historical claim is contradicted by the historical evidence.   Undeterred, he continues to insist on his historical claim, without offering any historical evidence to support it.

His opening claim was that some early congressional mandates–requiring the purchase of firearms, medicine, and health insurance–were based on the Commerce Clause.  In support of this assertion, however, he offered no evidence other than the statutes themselves.

On the firearms statute, Elhauge wrote that Congress passed a statute that “required all able-bodied men to buy firearms.”  When summarized this loosely, the statute may seem to have been based on the Commerce Clause.  The statute, however, actually stated that “every citizen . . . enrolled [in the militia] and notified, shall . . . provide himself with a good musket or firelock,” thus revealing that it was not a mandate aimed at the general population, but rather merely at the militia.  Both the text and the context of this provision clearly point to the Militia Clause as its constitutional foundation.  If Elhauge still claims the contrary, he should supply convincing historical evidence.

On the early statutes regarding seamen, Elhauge noted that Congress required ships to purchase medicines for seamen and required seamen to contribute to a hospital fund.  The texts of these provisions were enough evidence for Elhauge to conclude that they rested on the Commerce Clause.  But statutory requirements for the payment of “hospital money” were old mechanisms for ensuring that the navy, during wartime, could draw on an adequate number of mariners. 

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Elhauge Replies to Hamburger

Einer Elhauge has kindly written to tell me about his new reply in The New Republic on-line to Philip Hamburger’s critique, which appeared here on the Volokh Conspiracy, of his earlier claim that there were historical precedents for the individual insurance mandate:

Since I wrote last week about the remarkable eighteenth-century precedents for a health insurance mandate, several supporters of the challenge to Obamacare have attempted to downplay the relevance of those early mandates for today’s case. The latest is Professor Phillip Hamburger, who argues that those early statutes imposing health insurance mandates on private commercial shipowners and seamen didn’t arise under the Commerce Clause; instead, he claims, they were justified under the power to provide for the Navy because such health mandates helped ensure “a large supply of healthy seamen” for the Navy to draft in the event of war.

This argument is certainly creative, but the connection between regulating private commercial activities and the Navy power is unconvincing. By that logic, one could equally say that the Obamacare mandate is justified because it helps ensure a large supply of healthy people to draft into the Army in the event of war. Nor does his Navy clause argument seem to fit the eighteenth-century statutes, which were replete with provisions requiring written labor contracts on key terms, regulating when wages had to be paid, and providing hospital care for disabled seamen even if they were no longer able to serve—none of which were relevant to ensuring a supply of healthy seamen to draft for war.

In any event, Hamburger’s claim conflicts with Supreme Court case law, which as I have shown, does indeed hold that federal statutes regulating the duties of shipowners and seamen arose under the Commerce Clause. In contrast, I am unable to find any case holding

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Enlisting Coase in Defense of the Individual Mandate

“Poor Ronald Coase.” His famous essay. “The Problem of Social Cost” is the most cited law review article of all time, but it’s also the most mis-cited. “My point of view has not in general commanded assent, nor has my argument, for the most part, been understood,” Coase himself wrote in The Firm, the Market, and the Law. As Robert Ellickson observed, “Coase’s name is consistently attached to propositions that he has explicitly repudiated” or that have little to do with what Coase actually wrote.

A recent essay by Kevin Cave and Einer Elhauge provides a handy example of the misuse of Coase’s work. Cave and Elhauge have sought enlist Coase’s seminal essay in support of the constitutionality of the individual mandate. “A dose of Coase,” they argue, shows that “the issue at stake is not individual liberty, but individual responsibility.” In the process they manage to misapply “The Problem of Social Cost” and misrepresent the law they seek to defend.

Cave and Elhauge start with Coase’s observation that “social costs” are reciprocal. So, for example, where there is a conflict between two neighboring uses, as between ranchers and farmers.

In The Problem of Social Cost, Coase invoked the example of a farmer whose crops are trampled by the neighboring rancher’s cattle. Before Coase, it would have been common to view the rancher as the culprit responsible for imposing costs on the blameless farmer. Coase pointed out that no matter which way the legal rights were allocated, one was imposing costs on the other. If the law forces the rancher to keep his cattle fenced in, the farming imposes fence-building costs on the rancher. If the law gives the rancher the right to let his cattle roam free, then the farmer bears the social cost.

So [...]

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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

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Larry Lessig: If the Republican Justices Do Not Agree With Me They Will Be Acting Politically

Well, that is not exactly what he says.  Instead, in Why Scalia Could Uphold Obamacare, Larry Lessig actually says that if the “conservative” Justices do not accept his reading of their prior decisions, his students and other cynics would think the justices were acting politically, and he would be powerless to defend the Court, which would sadden him greatly.

Most non-lawyers have been bemused by the confidence that constitutional lawyers once had about the Supreme Court’s likely decision in the Patient Protection and Affordable Care Act (aka, the Obamacare) case. The idea that this Republican Court would not give the Republicans their victory seemed silly to most, or at least naive. What possible reason would there be to imagine the Court would hold its punches?

But indeed, there was a confidence, at least among those whose career is focused upon the intricacies of commerce clause jurisprudence, that the Court would uphold the statute. When I read that my colleague Charles Fried — Ronald Reagan’s solicitor general — said that he would eat his hat if the Court struck the statute, I didn’t think Fried was being brave or reckless: the point seemed too obvious to remark. Whether wise or not, Obamacare is plainly constitutional under the Court’s existing precedents. That’s not to say the Court couldn’t make up a new rule by which the law was deemed unconstitutional. But against the history of the repeated embarrassments that the Court has suffered as it has tried to police Congress’ commerce authority, it seemed genuinely unimaginable that it would again make the same mistake.  [My bold added.]

For my pre-argument analysis of why Justice Scalia’s Raich concurrence in no way bound him to uphold the insurance mandate in this case of first impression see Understanding Justice Scalia’s [...]

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A 1798 “Federal Law Requiring the Seamen to Buy Hospital Insurance for Themselves”?

[UPDATE: Prof. Elhauge responds, in an UPDATE added at the end of this post.]

I don’t have a lot to add to the exchange between Einer Elhauge and Randy Barnett on the 1790s laws that Prof. Elhauge identifies as “mandates” that are sufficiently akin to the individual health insurance mandate. But I did want to say something about a particular example Prof. Elhauge gives,

[I]n 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It 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. And this act was signed by another founder, President John Adams

As David Kopel noted two years ago, this law (which I quote below) actually looks a lot like a payroll tax, earmarked for health care, not a mandate to buy health insurance. Ship owners were required to pay a flat sum to the government for each sailor, which they could deduct from the sailor’s wages, and the money would go to fund a local hospital for injured and disabled sailors. But nothing in the statute suggested — as would be the case with a requirement to buy insurance — that the sailor must present some proof of payment when he shows up at a hospital, or that the sailor would be penalized for refusing to pay. (A ship owner could be fined for refusing to pay the money, but that sounds like a normal fine for nonpayment of a tax.)

So, as David mentioned two years ago, I don’t see this as a precedent for a mandate to buy [...]

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Still Unprecedented: Recycling the Same Two Examples of Supposed Economic Mandates

My friend, Harvard law professor Einer Elhauge, has an essay in the New Republic, If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?, in which he breathlessly recycles the same two supposed precedents for economic mandates under the Commerce Clause that have been much discussed over the past two years.  The first is the requirement that ship owners provide insurance for their sailors.  While navigation laws such as this one were an exercise of the commerce power, it is a garden variety regulation of how commerce, in this case the activity of shipping, is to be conducted.  To be subjected to this regulation, you first have to engage in the commercial activity of shipping, or what was called, “the carrying trade.”  The fact that this particular regulation required ship owners to provide insurance does not distinguish it from, say, regulations providing for life preservers or life boats (which also have to be purchased!).

The second is the well-trod example of the Militia Act that requires persons to provide their own weapons.  Of course, this was an exercise of Congress’s militia power, and the militia duty traditionally required members to provide their own weapons.  Contrary to Elhauge’s characterization of this as a “purchase mandate,” guns could be gifts or borrowed or inherited.  There was no requirement that they be purchased.  Challengers to the mandate have never denied that Congress has the power to require persons to do things.  I have long listed the draft, jury duty, the filing of a tax return, and service on a posse, as examples of fundamental duties of citizenship that are owed to the government in return to the protection it affords to citizens.  This is all explained in my 2010 article, Commandeering the People:  Why the Individual Insurance Mandate is [...]

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Some interesting (or at least fun) data on law professor campaign contributions:

So far, people listing their occupation as “law professor” have donated $18,365 to Republicans, and $149,542 to Democrats. Those who list their occupation as “professor of law” have donated $500 to Republicans, and $34,565 to Democrats.

A caution on extrapolating from those data points: on the one hand, the Democratic candidates in general [that is, from the public at large] have raised much more money than have the Republicans; on the other hand, given the much smaller number of Republican law professors, donating to a campaign is more likely to help get a Republican professor a future political appointment, perhaps giving an extra incentive to some Republicans to donate.

Ninety-seven self-described law professors have donated to Barack Obama, only thirty-five to Hillary Clinton. Fred Thompson is the Republican favorite, with seven donors, compared to Giuliani’s five and McCain’s four. Mike Huckabee, Ron Paul, and Dennis Kucinich have none.

Note that this is not even close to the complete universe of law professor donations. Many, perhaps most, law professors list their occupation as professor, not law professor. At Harvard, for example, Dershowitz, Elhauge, and Singer call themselves “law professor,” but Mack, Stone, Tushnet, Wilkins refer to themselves simply as “professors,” Tribe lists his occupation as “attorney,” and Ogletree doesn’t list an occupation. Even more obscure are Michelman and Parker, who don’t use the word “law” in describing either their profession (“professor”) or their employer (“Harvard University”). Nevertheless, the list of “law professor” and “professor of law” donations is likely representative of the greater universe of law professor donations.

A few other items I noticed: Drew Days, Bill Clinton’s Solicitor General, contributed to Tom Vilsack’s [???] campaign, but not to Hillary’s. Professors sometimes considered “conservative,” at least by legal academy standards, such as former Yale dean Tony Kronman, Harvard’s Einer Elhauge, [...]

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Doctrinalism and the Legal Academy:

Both Larry Tribe and Jack Balkin have posted very interesting responses to Einer Elhauge’s guest post on the “death of doctrinalism,” and I wanted to point them out and also offer a few thoughts of my own. In particular:

  1. If you define doctrinalism as meaning scholarship that is 100% descriptive, then that has been dead for a really long time (if it was ever alive). Even the great treatises of old were much more than descriptive works. They generally tried to take a complex and chaotic field of law and impose a normative order that owed much to the author’s worldview. Sure, the treatises dressed up the author’s opinion as if it were “divining the law,” just like many trendy law review articles today dress up the author’s opinion as “legal theory.” (In the case of law review articles, the usual trick is for the author to pick a “theory” that matches his personal opinions; the article then argues that good result A is compelled by an application of grand theory B, which sounds much better than saying the author just kinda likes it.) But despite that, much of the underlying contribution was normative.

  2. If you define doctrinalism as meaning scholarship that takes doctrine seriously on its way to making other points, then I would say that the legal academy has a conflicted attitude towards it. On one hand, doctrine often provides a point of depature. It’s hard to say how the law should change if you don’t actually know what the law is and how it works in practice. Where doctrine is particularly new or unsettled, a really careful doctrinal analysis can make the difference between a thoughtful contribution and a bunch of b.s. On the other hand, there is anxiety in some corners that too much [...]

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We Conservatives Must Be Heavy:

As best I can count, the conservative faculty at Harvard consists of John Manning, Adrian Vermeule, Jack Goldsmith, Charles Fried, plus (probably) Einer Elhauge, Bill Stuntz, Mary Ann Glendon, Kip Viscusi, and a few others, amounting to perhaps 15 members of an 81-member tenure ladder faculty. If Harvard Law School is “listing” (I take in the sense of “leaning”) “right” because of them, then I’m pleased to hear how weighty each of them must be. [...]

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