"If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?"
"In making the legal case against Obamacare’s individual mandate, challengers have argued that the framers of our Constitution would certainly have found such a measure to be unconstitutional. Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases. The framers, challengers have claimed, thought a constitutional ban on purchase mandates was too “obvious” to mention. Their core basis for this claim is that purchase mandates are unprecedented, which they say would not be the case if it was understood this power existed.
But there’s a major problem with this line of argument: It just isn’t true. The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.
That’s not all. In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. Yes, we used to have not only a right to bear arms, but a federal duty to buy them. Four framers voted against this bill, but the others did not, and it was also signed by Washington. Some tried to repeal this gun purchase mandate on the grounds it was too onerous, but only one framer voted to repeal it.
Six years later, in 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.
Not only did most framers support these federal mandates to buy firearms and health insurance, but there is no evidence that any of the few framers who voted against these mandates ever objected on constitutional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were unconstitutional. Moreover, no one thought these past purchase mandates were problematic enough to challenge legally."
The New Republic
This one is even better:
The Irrelevance of the Broccoli Argument against the Insurance Mandate
Einer Elhauge, J.D.
N Engl J Med 2012; 366:e1January 5, 2012
Excerpt:
"The parties who have brought legal challenges to the Affordable Care Act's (ACA's) individual mandate to obtain health insurance claim that the Constitution's Commerce Clause authorizes the regulation of only commercial activity, not inactivity, and thus gives Congress no power to force individuals to buy a product. They argue that if the Supreme Court were to hold otherwise, then Congress could force us all to buy anything, from General Motors cars to broccoli. This claim is a red herring, however, because Congress could force precisely the same purchases even if the Supreme Court were to accept their arguments.
Accepting the challengers' line between activity and inactivity would do nothing to curb Congress's feared power to force purchases, because Congress could easily sidestep that line by rephrasing the law to provide that if we have ever engaged in commercial activity, then we must buy insurance, broccoli, or anything else — just as Congress can and does mandate nondiscrimination by private firms, for instance, simply because those firms engage in commerce. Such a law would regulate activity, but because everyone buys things, it would have the same effect as a simple mandate. One might try to make this line more meaningful by adding a requirement that the obligation be germane to the commercial activity, but such requirements have proven fuzzy in the past — and, in this case, could easily be satisfied in a way that still creates a mandate by providing that anyone who has ever received health care from a paid provider must buy health insurance.
Nor are the challengers correct that Congress can regulate only commercial activity. The Supreme Court has held since 1942 that Congress has Commerce Clause power to limit our ability to grow wheat that we consume ourselves and do not sell, reasoning that it suffices that this noncommercial activity encourages a commercial inactivity that in turn affects commerce — because those who grow their own wheat are not buying wheat from others, which reduces commerce in wheat.1 If Congress can regulate a noncommercial activity that causes commercial inactivity that in turn affects commerce in this relatively minor way, then surely it can directly regulate a commercial inactivity that affects commerce in as major a way as the mandate would.
Some argue that the wheat case is outdated. However, the Supreme Court explicitly reaffirmed it in 2005, in a case holding that Congress had Commerce Clause power to ban the medicinal use of home-grown marijuana.2 The decision in that case held that Congress lacked Commerce Clause power only when the regulation was not “economic” in nature. The health insurance mandate is clearly economic — indeed, much more clearly so than the sustained marijuana ban.
Others argue that the Constitution's framers could not possibly have envisioned a congressional power to force purchases. However, in 1790, the first Congress, which was packed with framers, required all ship owners to provide medical insurance for seamen; in 1798, Congress also required seamen to buy hospital insurance for themselves. In 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm. This history negates any claim that forcing the purchase of insurance or other products is unprecedented or contrary to any possible intention of the framers.
Indeed, we already live under a mandate to buy health insurance, because we have to pay contributions to the Medicare trust fund. Some argue that Medicare contributions are a tax, not a forced purchase. But an obligation to pay money has the same effect whether we call it a tax or not. Indeed, the new mandate actually provides that one has to either buy health insurance or pay a tax. The penalty is similar in nature to, but usually much smaller in monetary value than, the higher taxes we have to pay if we don't get a home mortgage and therefore cannot deduct any mortgage interest from our taxes.
The objectors respond that the new insurance mandate was not called a “tax.” But why should mere phrasing trump substance? Both Medicare and the new mandate entail obligations to pay money for health insurance. That is what matters, not the labels chosen to describe this reality. Because the objectors' tax–nontax distinction turns only on phrasing, like their activity–inactivity distinction, it similarly fails to prevent the feared power to force purchases. Even without Commerce Clause authority, Congress could achieve precisely the same result with its taxing power by requiring us to pay a “tax” whose revenue will go to buy health insurance — or broccoli — for ourselves."
The rest here NEJM
See Politifact's analysis of the above article:
here.
