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 Post subject: Founding Father Mandates
Unread postPosted: April 15th, 2012, 12:07 am 
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Joined: February 4th, 2011, 11:38 pm
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Littlle known factoids on some early "mandates". Looks like the "Founders" proposed some of their own mandates.

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.

True, one could try to distinguish these other federal mandates from the Affordable Care Act mandate. One could argue that the laws for seamen and ship owners mandated purchases from people who were already engaged in some commerce. But that is no less true of everyone subject to the health-insurance mandate: Indeed, virtually all of us get some health care every five years, and the few exceptions could hardly justify invalidating all applications of the statute. One could also argue (as the challengers did) that activity in the health care market isn’t enough to justify a purchase mandate in the separate health insurance market. But the early mandates required shippers and seamen to buy health insurance without showing they were active in any market for health insurance or even health care, which was far more rare back then.

Nor do any of these attempted distinctions explain away the mandate to buy guns, which was not limited to persons engaged in commerce. One might try the different distinction that the gun purchase mandate was adopted under the militia clause rather than the commerce clause. But that misses the point: This precedent (like the others) disproves the challengers’ claim that the framers had some general unspoken understanding against purchase mandates.

In oral arguments before the court two weeks ago, the challengers also argued that the health insurance mandate was not “proper” in a way that allows it to be justified under the Necessary and Proper Clause. These precedents rebut that claim because they indicate that the framers thought not just purchase mandates but medical insurance mandates were perfectly proper indeed.

Einer Elhauge is a professor at Harvard Law School. He joined an amicus brief supporting the constitutionality of the mandate.

Correction: This article originally identified John Adams as a framer. It should have identified him as a founder, since he was not at the constitutional convention. We regret the error.

http://www.tnr.com/article/politics/102 ... e-care-act

Unread postPosted: April 15th, 2012, 10:35 am 

Joined: June 23rd, 2011, 11:41 am
Posts: 511
Location: Saginaw
Nice article! I just started reading the 2400+ page bill again last night. It's good make you sleep medicine. I think that the problem with the bill is the way it was passed. Nobody read the whole thing. Nancy said just pass it and we will get the details later. This bill was no different than the ALEC written legislation being pushed through, the model legislation concept. Bills not written by congresspeople, but by lobbiests and think tanks. I get emails daily about how this program is going to screw us over, now with page numbers and they are inaccurate. The flip side is true too about how we will be better, but their references are not right either.

The devil has always been in the details. Until it is fully implemented, we will have no idea what the true interpretation is going to be. What I've seen so far in the bill is that the HHS Secretary is going to be a powerful position going forward.

In solidarity,
firebug (aka Dave LaBenne, your friendly neighborhood pyro-man)

Unread postPosted: April 15th, 2012, 4:37 pm 
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Joined: May 4th, 2011, 1:19 am
Posts: 414
More liberalization of history lol. I"m pretty sure the 1798 mandate was a tax, which is much more like single payer than a mandate. I think it is interesting in regards to the relationship that the government had with corporations then and now. Not sure about the gun purchase, but back then most people owned guns because they had to, so it's kinda like a mandate of buying a pair of pants, your going to buy them anyway.

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