Yesterday in the USA, Federal Judge Roger Vinson ruled that the individual mandate was unconstitutional (the whole opinion is here), and so ruled the entire health care law is void:
Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled “The Patient Protection and Affordable Care Act.” (pg. 76)
One thing raised in the ruling is whether the individual mandate is unprecedented:
Congressional Budget Office Memorandum, The Budgetary Treatment of an Individual Mandate to Buy Health Insurance, August 1994 (“A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action.”) (“CBO Analysis”). Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States. (pg. 38)
Judge Roger Vinson rightly notes that the mere fact that a law is unprecedented does not necessarily mean that it is unconstitutional, but, he writes, a lack of previous similar legislation might nevertheless count against the presumption that a law is constitutional:
As I explained in my earlier order, the fact that legislation is unprecedented does not by itself render it unconstitutional. To the contrary, all federal legislation carries with it a “presumption of constitutionality.” Morrison, supra, 529 U.S. at607. However, the presumption is arguably weakened, and an “absence of power” might reasonably be inferred where — as here — “earlier Congresses avoided use of this highly attractive power.” Printz v. United States, 521 U.S. 898, 905, 908,117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997); id. at 907-08 (“the utter lack of statutes imposing obligations [like the one at issue in that case] (notwithstanding the attractiveness of that course to Congress), suggests an assumed absence of such power”) (emphasis in original); id. at 918 (“almost two centuries of apparent congressional avoidance of the practice [at issue] tends to negate the existence of the congressional power asserted here”).
The mere fact that the defendants have tried to analogize the individual mandate to things like jury service, participation in the census, eminent domain proceedings, forced exchange of gold bullion for paper currency under the Gold Clause Cases, and required service in a “posse” under the Judiciary Act of 1789 (all of which are obviously distinguishable) only underscores and highlights its unprecedented nature. (pg. 39)
Does that mean that if there were a previous law that imposed similar obligations, then the presumption that the law is constitutional would be strengthened?
Because Rick Ungar uncovered a precedent from 1798 “An Act for the Relief of Sick and Disabled Seamen.” Ungar writes:
In July of 1798, Congress passed – and President John Adams signed – “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.
During the early years of our union, the nation’s leaders realized that foreign trade would be essential to the young country’s ability to create a viable economy. To make it work, they relied on the nation’s private merchant ships – and the sailors that made them go – to be the instruments of this trade.
The problem was that a merchant mariner’s job was a difficult and dangerous undertaking in those days. Sailors were constantly hurting themselves, picking up weird tropical diseases, etc.
The troublesome reductions in manpower caused by back strains, twisted ankles and strange diseases often left a ship’s captain without enough sailors to get underway – a problem both bad for business and a strain on the nation’s economy.
Realizing that a healthy maritime workforce was essential to the ability of our private merchant ships to engage in foreign trade, Congress and the President resolved to do something about it.
[The law] created the Marine Hospital Service, a series of hospitals built and operated by the federal government to treat injured and ailing privately employed sailors. This government provided healthcare service was to be paid for by a mandatory tax on the maritime sailors (a little more than 1% of a sailor’s wages), the same to be withheld from a sailor’s pay and turned over to the government by the ship’s owner. The payment of this tax for health care was not optional. If a sailor wanted to work, he had to pay up.
The law was not only the first time the United States created a socialized medical program (The Marine Hospital Service) but was also the first to mandate that privately employed citizens be legally required to make payments to pay for health care services. Upon passage of the law, ships were no longer permitted to sail in and out of our ports if the health care tax had not been collected by the ship owners and paid over to the government – thus the creation of the first payroll tax in our nation’s history.
When a sick or injured sailor needed medical assistance, the government would confirm that his payments had been collected and turned over by his employer and would then give the sailor a voucher entitling him to admission to the hospital where he would be treated for whatever ailed him.
While a few of the healthcare facilities accepting the government voucher were privately operated, the majority of the treatment was given out at the federal maritime hospitals that were built and operated by the government in the nation’s largest ports.
As the nation grew and expanded, the system was also expanded to cover sailors working the private vessels sailing the Mississippi and Ohio rivers.
The program eventually became the Public Health Service, a government operated health service that exists to this day under the supervision of the Surgeon General.
Ungar’s whole piece is worth reading and I encourage you to go read it.
Greg Sargent interviewed some historians to test the accuracy of Ungar’s claims. Sargent asked historians whether Ungar’s article demonstrates a precedence for the individual mandate:
Is this true? In some ways it is, according to Adam Rothman, an associated professor of history at Georgetown University. He argues that it’s a “bit of a leap” to compare the 1798 act directly to the individual mandate, because the act taxed sailors to pay for their health care, rather than “requiring that sailors purchase it.”
But Rothman says that it’s perfectly legit to see shades of today’s debate in that early initiative.
“You could argue that it’s precedent for government run health care,” Rothman continues. “This defies a lot of stereotypes about limited government in the early republic.”
Ungar challenges his readers to think of distinctions between the 1798 mandate for sailors to have health insurance and the present individual mandate to purchase health insurance and he offers some rebuttals to the potential distinctions he imagines.
Yes, the law at that time required only merchant sailors to purchase health care coverage. Thus, one could argue that nobody was forcing anyone to become a merchant sailor and, therefore, they were not required to purchase health care coverage unless they chose to pursue a career at sea.
However, this is no different than what we are looking at today.
Each of us has the option to turn down employment that would require us to purchase private health insurance under the health care reform law.
So what do you think? Are the laws distinct, or are they relevantly similar? Perhaps the 1798 law does not support an individual mandate to buy health insurance, but instead supports taxing individuals to pay for health care? Does that mean the law should be redrafted to reflect its earlier incarnation with a public option?
Ungar also claims in several passages that the “Founding Fathers” would have a good grasp on what should count as a constitutional power of the Federal Government:
Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.
And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind.
So much for the claim that “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty….”
As for Congress’ understanding of the limits of the Constitution at the time the Act was passed, it is worth noting that Thomas Jefferson was the President of the Senate during the 5th Congress while Jonathan Dayton, the youngest man to sign the United States Constitution, was the Speaker of the House.
This seems like a bit of a stretch to me. While it is true that those who drafted the Constitution would not have to struggle to determine their own intentions, this does not mean that they would be more likely to perfectly apply and adhere to the requirements of the principles they included in the Constitution. Coming up with a theory, set of principles, or constitution is quite different from applying that theory, set of principles or constitution. Many theoreticians fail to consistently apply their own theories. Philosophers often point out ways that other philosophers were inconsistent in applying their theories. This happens both when extending theoretical principles into new areas and also when applying principles in practice in one’s own life.