Eliot Spitzer argues that originalist opposition to the individual mandate in President Obama’s Affordable Care Act is wrong because the founders passed individual mandates just like ACA’s. But Spitzer’s argument is wrong because the mandates he points to are fundamentally different from ACA’s.
First, let’s look at the argument that Spitzer thinks that he refutes. Everyone agrees that the Constitution gives Congress certain and limited powers. (“Everyone” includes the Solicitor General, who argued the case in the Supreme Court for Obama.) Among Congress’s powers is the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” ACA’s opponents say this grant of power does not let Congress force us to engage in commerce. Instead, this grant only lets Congress regulate us after we choose to engage in commerce. By forcing us to enter commerce—that is, to pay for health care before we seek it—Congress exceeded its powers.
Spitzer says that early historical evidence shows that the Constitution couldn’t have meant that. Let’s look at his evidence. Spitzer points to three mandates passed by early Congresses and says that they prove that members of the founding generation didn’t think that mandates exceeded Congress’s power. He writes
• In 1790, a Congress including 20 Founders passed a law requiring that ship owners buy medical insurance for their seamen. Washington signed it into law.
• In 1792, another law signed by Washington required that all able-bodied men buy a firearm. (So much for the argument that Congress can’t force us to participate in commerce.)
• And in 1798, a Congress with five framers passed a law requiring that all seamen buy hospital insurance for themselves. Adams signed this legislation.
He thinks that the passage of these laws means that “the Founders and the Congress of the time were willing to force all of us to participate in a particular act of commence and were comfortable requiring both the owner of a business and the individual employee to buy insurance in order to assure that health costs would be covered at a societal level” (emphases added). He takes it too far, though.
His examples show that Congress understood that it had the authority to address the health of individuals engaged in international or interstate commerce, and to regulate the military and the militia. But it’s too strong to argue that laws forcing seamen, ship owners, or even able-bodied men to purchase things in commerce activity mean Congress could force everyone to purchase things in commerce.
Let’s deal with each of his examples. First, the seamen (shh—stop tittering, silly immature folk). A seaman, by definition, has already chosen to engage in international or inter-state commerce: he’s working on a ship, the very instrument of international or interstate commerce. Congress can regulate his activities so long as its laws are “necessary and proper” to execute the commerce power. But the second the seaman quit the crew, he was free to purchase or refuse insurance however he liked.
Second, the ship owner. That’s the same as the seaman. The ship is an instrument of international or interstate commerce: Congress can regulate it if its laws are “necessary and proper” to executing the commerce power. (It’s another question whether the ship owner would have to purchase insurance if he were only operating in intrastate commerce. I think he wouldn’t have to, but some might disagree, citing a 1942 Supreme Court case called Wickard v. Fillburn.)
Third, the able-bodied men. That looks different from the ship and crew examples. But that’s because that law relies on other congressional powers: the power to “raise and support armies” and the navy, and to “provide for organizing, arming, and disciplining, the militia.” So Congress can require all able-bodied men to buy firearms to be ready to serve in militias or in the military, and it can even force people to join the military in a draft. But that’s for war purposes. Not commercial purposes.
So Spitzer’s examples fall through. He should know better. At least Einer Elhauge, who Spitzer relies on, acknowledges that these examples are open to debate. But Elhauge’s argument is more refined: he acknowledges that the ship and crew laws applied to people who already chose to engage in commerce. He thinks that the health care market was so far removed from shipping that the insurance mandates effectively forced ship owners and seamen to participate in new markets. Elhauge also argues that the fact that the gun-purchase law arose under the militia power is immaterial: his point is that purchase mandates were approved by early Congresses.
And you know what, I’ll give him that last point. But these laws either applied to people who were already in commerce, or under an entirely different authority. There are no examples of Congress forcing everyone to purchase something under the commerce power. And the gun purchase requirement is simply too far removed from ACA because it’s under the militia power. I’d like to see the Congress that forced everyone to buy health insurance as part of the war effort.
In another post, I’ll take issue with Spitzer another issue: he argues that the five conservative justices on the Supreme Court are wrong to interpret the Constitution according to some supposed “original intent.” His arguments against original intent are right, but they miss the mark, because today serious originalists swear fidelity to the Constitution’s original meaning, not the founder’s intent. And that, friends, is a distinction with a a lot of difference.