Yesterday, the Washington Post’s Ezra Klein argued ObamaCare (2010) has legal precedent in supposed purchase-of-product mandates Congress passed in the late 1700s. Similar to ObamaCare’s individual mandate to purchase health insurance, early Congresses passed such mandates to groups or individuals as the following:
- 1790’s mandate to then-pharmacists [“of known reputation”] to “provide every ship…of ten or more persons [and other qualifications]…a chest of medicines…”
- 1792’s mandate to buy guns: “Every free able-bodied white male citizen…[shall] provide himself with a good musket…”
- 1798’s mandate that “for the relief of sick and disabled Seamen…the master or owner of every ship…shall…render…twenty cents per month for every [S]eaman…”
Without presenting evidence, Klein said Congress based 1790’s medicine chests and 1798’s 20¢ mandates on Congress’ enumerated power “[t]o regulate commerce…among the several states,” the power on which Congress based ObamaCare’s individual mandate. Klein was surely relying on Harvard law professor Einer Elhaug’s recent argument that, because the Supreme Court ruled in the late 1800s that Congress’ power to pass maritime/seamen laws originates from the Commerce power, earlier Congresses must have based 1790’s medicine chests and 1798’s 20¢ mandates on the Commerce Clause. For 1792’s guns, Klein said “you could argue…[the gun mandate] was not under the Commerce Clause” as the law clearly stated the gun mandate was under Congress’s military powers.
Contrary to Klein’s claim the Commerce Clause supports 1790’s medicine chests and 1798’s 20¢ mandates, Columbia Law School’s Professor Philip Hamburger recently argued Congress passed the 1790’s medicine chests and 1798’s 20¢ mandates under Congress’ enumerated power to “provide and maintain a Navy.” For instance, as Congress passed 1790’s medicine chests and 1798’s 20¢, the following was true:
[H]ealthcare and the collection of hospital funds were standard means of ensuring a large supply of healthy seamen…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…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 [military] 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 [1792’s guns] arose under the power to provide for the militia, the other [1798’s 20¢] arose under the power to provide for the navy.
However, according to Elhaug: “By that [Hamburger’s] logic, one could equally say that the ObamaCare mandate [as a necessary and proper law to provide and maintain a Navy] is justified because it helps ensure a large supply of healthy people to draft into the Army in the event of war.” Article 1, Section 8, of the Constitution, which lists Congress’s few enumerated powers, such as the commerce and Navy powers, also grants Congress the power to “make all laws which shall be necessary and proper for carrying into execution the…[enumerated] powers.” But Elhaug’s confused: According to the Supreme Court, Congress’ power to draft Americans into war originates from Congress’ enumerated powers to “raise and support Armies” and “declare war,” not Congress’ power to “provide and maintain a Navy.”
Regardless, as I argued in a previous ObamaCare post, a “necessary and proper” law can’t be a greater or equal exertion of congressional power than the enumerated power to which the “necessary and proper” law applies. ObamaCare’s individual mandate to purchase health insurance, which affects all U.S. citizens and not simply pharmacists or ship owners, is certainly a greater or equal exertion of congressional power than commerce regulation or the providing and maintaining of a Navy. Thus, ObamaCare’s individual mandate is unconstitutional vis-à-vis the Commerce Clause and Navy powers.
Contrary to Klein’s article, the 1700s’ mandates are no legal precedents for ObamaCare’s individual mandate because the 1700s’ mandates involve Congress’ military and not commerce power. Even if the 1700s’ mandates (minus 1792’s gun mandate) involved Congress’ commerce power, the 1700s’ mandates, as “necessary and proper” laws to regulate commerce, were, unlike ObamaCare’s individual mandate, lesser exertions of congressional power than commerce regulation.