A few liberal writers have suggested that the Seamen Mandate of 1798 provides some sort of constitutional precedent for the Affordable Care Act. Avik Roy helpfully demolishes that myth here.
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on The Mandate That Wasn’t
Yup it is an , at best, imperfect analogy. The ACA and the Seaman bill are different in significant ways. However it does suggest dealing with health care is not foreign to the federal gov, the sainted founders were just fine with telling people what to do and there are times when the state has to step in to deal with things.Report
What Greg said. I don’t have bones with the whole article but two points:
> 1. The 1798 act was about national security, not health
> care policy
I’m not sure why this matters. Particularly since his very next point is that it’s about commerce. So, if universal health care could be demonstrated to have national security implications, it would pass that test? Okay, there are pandemic diseases. Overruled!
> 3. The 1798 act was an employer mandate, not an
> individual mandate
This sorta implies that an employer mandate isn’t unconstitutional?Report
As the article points out, the nation at the time derived most of its income from trade, and trade security was indeed a matter of national security. The modern equivalent would be requiring the Navy to provide health care for sailors (as opposed to paying them more and expecting them to handle it themselves.) And this is in fact what the Navy does.
“…if universal health care could be demonstrated to have national security implications, it would pass that test?”
Hey, yeah, or maybe we could show that health care was a matter of Interstate Commerce. Don’t we have some kind of Clause about that?
“This sorta implies that an employer mandate isn’t unconstitutional?”
And–again, as the article points out–the employer mandate in Obamacare is not being challenged.Report
But it is a mandate. The Constitution says nothing about mandates being any better or worse than any other type of regulation. Likewise if mandating employers was OK 300 years ago why wouldn’t mandating people be ok today?Report
Nothing in the Constitution says point blank that there’s a difference between Congress passing a law saying you can’t buy X versus a law saying you must buy X. All arguments to the contrary assume that there’s a huge difference in terms of infringing upon liberty and while the former types of laws are ok 90% of the time the latter must be unconstitutional unless you can show some exceptional support for such a law.
The alternative, I think, is more correct. There’s nothing inherently worse about a ‘must buy X’ law versus a ‘can’t buy X’. Infringement on liberty depends entirely on context. For example, consider the case of prohibition which is a ‘can’t buy X’ type of law versus a law saying taxpayers must mail in their tax forms (imagine this is the pre-internet age). The latter law is a ‘mandate’ to buy a stamp since there’s no way to legally get your tax form in if Congress specifically prohibits handing it in by private messenger or in person. But it seems pretty silly to say such a ‘stamp mandate’ is somehow so unusual and so hard on liberty that it’s worse than prohibition….which people felt was so big a deal that they got an amendment to support it.
The Seaman Mandate and militia bill cited then are important not because they are exact analogies to the health bill mandate (or I should say alleged mandate since it’s actually an income tax that pundits just call a mandate). They are important because they demonstrate that early Congresses were not shy about passing mandate type bills. They didn’t see them as requiring exceptional justification or support Constitutionally. Mandates simply turn out to be rare for practical reasons rather than exceptionally high Constitutional barriers.Report
Nothing in the Constitution says point blank that there’s a difference between Congress passing a law saying you can’t buy X versus a law saying you must buy X.
Ahem:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Sounds to me like you’re denying or disparaging rights retained by the people because of certain rights enumerated in the Constitution…Report
Jay isn’t your question really aimed at those dufuses who clearly did not understand the Constitution or the founders intent when they passed the Seamans bill.Report
They owned slaves at the exact same time that they wrote “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”.
Very few people would use the above sentence in an argument to justify owning slaves in 2011.Report
Where does it say in the Constitution that Congress can pass a law saying you can’t buy X?Report
There’s the 18th Amendment, for one.Report
Side note:
Jaybird, do you believe, as a philosophical principle, that there is a difference between these two types of legislative commands (do by this, don’t buy that), or is this a strictly a legal argument, in your case?
To me, they seem to be equally capable of infringing upon liberty. Do you see it differently? I’m curious, because I’m getting muddled between those people who are just arguing as a strict matter of law that the mandate is wrong and those who are arguing as a matter of principle that the mandate infringes upon liberty in some way that is different from other things the government does.Report
Do you see a philosophical difference between:
“You must buy a Bible” and “you must not buy a Bible”?
“You must buy beer or wine” and “you must not buy beer or wine”?
“You must buy a television” and “you must not buy a television”?
They all strike me as different kinds of infringements on Liberty… but, at the same time, I also know that there are people who would see the one as tyranny and the other as just common sense (and, indeed, there are governments that have tried at least one of those for each pair).Report
A philosophical difference? We are discussing a Constitutional one and the question is where do you derive your ‘philosophical difference’ from the actual constitution itself?
All these examples raise different Constitutional issues but the premise raised is that the first Type of law have a higher set of Constitutional hurdles to leap. Hence the fact that there’s few examples (but hardly zero and being that we have examples from very early in our history that’s a strike against this premise). How does this counter the alternative view that ‘mandate type’ laws are simply rare because they are usually awkward policy solutions that also are hard to enforce.
The problem you have is that the Constitution gives Congress the power to pass all laws ‘necessary and proper’ to carry out its powers. Hence today to carry out the power to provide for a ‘common defense’, Congress can pass a law to award a contract to deliever M16’s to the Department of Defense. But Congress could also opt to approach the problem from the other side and require individuals to buy their own rifles, which is what it did over two hundred years ago.
Likewise if you think Congress has a valid Constitutional power to provide for health coverage for Americans, there’s no Constitutional differnece between taxing everyone an average of $5K and then buying coverage, taxing $5K and giving everyone vouchers to buy coverage, or simply mandating everyone buy coverage worth about $5k.Report
Boonton, you may wish to read the questions that I was answering if you wish to better understand why my answers used the terms they did.
HTH
HANDReport
Sorry, it’s been a long day and you may have to spell things out for me a bit…..
Look at the militia example more deeply. Why did Congress choose to make everyone buy a rifle in the 1790’s but in the 1910’s it had the gov’t buy the rifles to give to troops? It was pure practicality. The gov’t didn’t have a purchasing organization in 1790, couldn’t do quality control, couldn’t do distribution etc. It was just easier to make everyone in the militia buy their own rifles. In 1910 things were different, you had too many different types of rifles on the market and the military needed standardization and had the ability to do it.
At no point though, does it seem like anyone cared about the liberty issues of the original mandate method versus the later non-mandate method. Both are essentially the same in that they are policies that are ‘necessary and proper’ to carrying out a clear power of Congress. At no point did anyone seem to think the Constitution meant that ‘mandate policies’ had some higher hurdle or test they had to meet.Report
Pat wrote:
Jaybird, do you believe, as a philosophical principle, that there is a difference between these two types of legislative commands (do by this, don’t buy that), or is this a strictly a legal argument, in your case?
To me, they seem to be equally capable of infringing upon liberty. Do you see it differently? I’m curious, because I’m getting muddled between those people who are just arguing as a strict matter of law that the mandate is wrong and those who are arguing as a matter of principle that the mandate infringes upon liberty in some way that is different from other things the government does.
That’s the post I was responding to with my comment.
When I was discussing philosophical differences between “you must buy X” and “you must not buy X”, it was that post that you responded with “A philosophical difference? We are discussing a Constitutional one and the question is where do you derive your ‘philosophical difference’ from the actual constitution itself?”
I was asked specifically about philosophical differences and went into them.
If anything, I ought be chastised for assuming that the differences between “you must buy a Bible” and “you must not buy a Bible” are self-evidently different infringements on Liberty… but certainly *NOT* for failing to discuss what you wanted to discuss in my response to Pat’s question to me.Report
I don’t think the word that’s important is so much “different” as “symetrical”. You’re coming up with hypotheticals and asking, I think, are they symetrical in their infringements on liberty. For example:
1. You must buy a Bible
2. You may not buy a Bible.
#1 is the ‘mandate’ type bill and #2 is your more traditional prohibition type bill. I don’t think they are equal, though, in terms of infringements. In fact, #2 seems like a bigger infringement. If I must buy a Bible I’m out $5 maybe but I’m not being asked to believe in the Bible. On the other hand, if I do believe in the Bible #2 is a big problem for me, a big infringement on my liberty.
What’s revealing here is that there’s nothing inherent about ‘mandate type’ laws that are clearly worse than ‘prohibition type’ laws. For example, it’s quite possible to see how #1 could be a valid law. Consider public schooling where parents are expected to buy books (as you do in college). You very well may end up having to buy a Bible if world literature is one of the classes.
You may object that states, not the Fed. gov’t runs public schools. OK, but Congress has power to act as state gov’t in territories of the US so if we aquired a new terroritory that isn’t yet admitted as a state Congress may be running public schools there. If that’s the case why is requiring parents to buy books for their kids fundamentally different than Congress buying the books and giving them tot he kids?Report
And….if the reason that mandate policies are relatively rare is that they are often just not very practical (in many, not all times and places) then I think that implies your aversion to them isn’t based on anything in the Constitution only that they ‘seem strange’ to you so you figure there must be something in the Constitution against them. Your argument then reduces to just emotions whose proper place isn’t in the courts but in elections.Report
Not really sure what you mean. The hypothetical law that would mandate buying at least one stamp a year would seem to disparage anyone’s rights but be necessary and proper to Congress’s enumerated power to establish an income tax.
What you quoted just says that the Constitution itself is not an exhaustive list of all rights retained by the people, that’s it. It doesn’t say ‘mandate’ type laws are inherently more disparaging of individual rights than ‘prohibition’ type laws.Report
Yes, no better way to convince people than by titling a glib dismissal of a serious argument about precedent a “history seminar.” ironically, he’s totally getting schooled in the comments over there.Report
“YOUR FUCKIN WRONG U FUCKIN MORAN GROW A BRAIN” is hardly “schooled”.Report
When did “demolish” come to mean “disagree with, in a fairly unconvincing fashion”?Report
See “schooled”.Report
Depends on what school you went to.Report