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.