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Thursday, April 26, 2012

Defending Obamacare, Professor Einer Elhauge of Harvard Law School Reveals His Constitutional Ignorance

By Douglas V. Gibbs

A couple weeks ago The New Republic published an article by Einer Elhauge, a Harvard Law professor, who argues in the piece that Obama's Health Care Law mandate is not only constitutional, but that the founders of this nation backed similar mandates during the early years of this nation. In the article the professor, however, reveals his ignorance of the Constitution by trying to compare apples to oranges and squeezing the Constitution into a little box he has constructed in order to prove the health care agenda is acceptable.  Professor Elhauge's inability to understand the issue of federal jurisdiction as granted by the Constitution is apparent.

Elhauge's argument centers around the nation's ports, where in 1790 Congress passed a law requiring ship owners to buy medical insurance for their seamen. The professor goes on to explain how in 1792, in order to prove his "mandates are constitutional" theory, Congress passed another statute requiring all able-bodied men to buy firearms. Then, in 1798, or so the good professor tells us, Congress returned to the medial insurance realm, and mandated employers to buy medical insurance for seamen that covered drugs and physician services, but not hospital stays. Then, they enacted a federal law requiring the seamen to buy hospital insurance for themselves.

"That’s right," Professor Elhauge triumphantly writes, "Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams."

Professor Elhauge then muddles around about the Commerce Clause, and other federal mandates, with a couple of incoherent arguments he thinks his opposition might present, and then argues that the early mandates that required shippers and seamen to buy health insurance didn't even take into account whether or not the people being ordered to buy medical insurance were even considering buying health insurance or even health care, in the first place.

The article wraps up arguing that apparently mandates by the federal government were just fine, and his historical treatises prove it.  History, according to the professor, provides a precedent, and when it comes to those that thinks the interpretation of the Constitution is all about case law, precedent means everything.

I did not spend the time to verify whether or not Professor Elhauge's account of history is accurate, but for the sake of argument let's just assume he's nailed it, and things happened exactly as he portrays in his article. Let's assume that the federal government did indeed mandate medical insurance for seamen, dictated to ship builders they had to provide insurance, and mandated that every able-bodied male must buy a firearm and have that baby locked, loaded, and at the ready. With all of that, like most liberal left ideologues, he misses the whole point.

Before the ratification of the United States Constitution the States held original authority in regards to all powers. There was no central government they had granted any powers to, yet. Sure, the Articles of Confederation established a national government, of sorts, but it had no real powers, and was really nothing more than a loose-knit union not much unlike the one you see in Europe (European Union). After a number of episodes, including Shays' Rebellion, the minds of the time realized that as much as they feared a strong central government, they needed one. As a friend used to tell me, they realized they needed a lion.

Central governments are the root of tyranny, historically speaking. Like a lion, a strong central government can be dangerous. The problem with lions is they will eat you if not properly restrained. The problem with central governments is that they become tyrannies if not properly limited in their authorities. This is where the Constitution comes into play. The U.S. Constitution serves as the cage, restraining the powers of the federal government to only those granted by the States through the Constitution.

One of the purposes of the creation of the federal government, as stated in the Preamble, and the primary purpose in my opinion, was "in order to form a more perfect union."  The union needed a protector, and the federal government was created to provide that protection. The federal government would also be empowered to handle issues that went beyond the States, and affected the union as a whole. These issues, according to the Constitution, range from treaties, to naturalization, the post (mail), the high seas, and even ensuring that commerce flowed in good order whenever the States began to bicker with each other.

In addition to these granted authorities, the federal government was also given, as per Article I, Section 8, Clause 17, the right to exercise exclusive legislation over federal places. This would also give them the right to exercise authority over the persons in those federal places, especially in the case of persons employed by the federal government.

Professor Elhauge's article specifically refers to the health care mandates of early America being directed at seamen and ship owners.  These persons worked at the ports, and for sea going groups such as the merchant marines. The medical facilities these people used were also normally at the ports. Most ships were under the employ of the federal government, and all ports were federal property. There were no private ports back then, and even the States were not in the financial position to own and operate a port. Therefore, because it was just a necessary part of life, the ports were all federal.

If the federal government has full jurisdiction over federal places, like ports, federal personnel, sailors and ship owners who are employed by the federal government, then it would stand to reason they would be well within their authority to mandate health coverage. . . especially when it was for the purpose of treating disabled veterans from the Revolutionary War, and other conflicts.  In fact, I would say that the mandates the good professor is referring to were quite similar to the same mandates we have for our active duty personnel, and the services provided to our veterans through the Veteran's Administration.

To bring things into a more modern view, in the case of the Affordable Care Act, a.k.a. Obamacare, Congress would be well within their constitutional authorities to impose the law on Washington DC, which is a federal district, falling well within the exclusive legislative powers of the United States Congress.

The problem with Obamacare, and the mandate, is not whether or not the federal government can impose mandates in the first place, as the professor seems to be arguing, but whether or not health care laws, and mandates, can be imposed on person's other than those that fall under federal jurisdiction.  There is no place in the Constitution that authorizes the federal government to be involved in health care outside federal places, or to dictate to States what they have to do in regards to that issue. There is nothing in the Constitution that gives the federal government the authority to mandate a person buy something outside of people who are under federal authority, such as sailors.

Ah, but that brings us back to that mandate about firearms, doesn't it.

The militia was a part of the common defense, at that time, and all able-bodied males were members of the unorganized militia. If the mandate Elhauge refers to did in fact exist, I would venture to say that it was necessary at a time when the small population of the United States needed every fighter they could get to stand up to the enemy if invaded.  The concern of the time period, as revealed by the 2nd Amendment, was not that the federal government would force people to be armed, anyway. The concern was that the federal government would try to infringe upon the right to keep and bear arms. A central government that infringes on the right of the people to keep and bear arms is one that desires the people be unable to defend themselves against tyranny. An armed populace, therefore, keeps the government honest by keeping the leaders fearful of the people.

If a people has a right to be armed, they are citizens. If a people loses the right to be armed, they are subjects.

Professor Einer Elhauge only knows that he likes Obamacare, and he is willing to twist history, and the Constitution, any way he can to prove the health care law is legal. But he misses the whole point. The federal government wasn't created to protect us from ourselves, or to dictate to private industries what they can and can't do, nor was it created to provide us with gifts from the treasury like socialized health care. The role of the federal government is to protect, preserve and promote the union, and nothing more. For if the federal government can provide health care, and destroy the health insurance industry in the process, how long before, in the name of keeping us healthy and keeping their costs down, will be be before the federal government begins to mandate what you eat, how often you exercise, what kind of activities you can partake in, how to raise your children, and ultimately whether or not to provide care to save your life based on your value to them and society as a whole?

Tyranny like the Affordable Care Act was exactly what the Constitution was written to protect us against in the first place.

-- Political Pistachio Conservative News and Commentary

If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them? - The New Republic


Unknown said...

Your assertion that "all ports were federal property" has, as far as I can tell, no basis in fact. The U.S. Constitution does grant the federal government jurisdiction over the navigable waters of the United States, including harbors. But federal jurisdiction stops at the water's edge. In 1790, the extent of onshore federal property at most seaports would have consisted of a customs house and nothing more. In fact, the port authority movement in the 20th century was primarily a response to mismanagement of port infrastructure by private companies. If Congress once exercised ownership over seaports as you state, when did it relinquish its ownership?

Douglas V. Gibbs said...

Remember, this was only a few years after the Constitutional Convention, and the economic difficulties of the nation at the time made it nearly impossible for the States to operate their ports. So, the federal government was largely involved. Also, these ports, in addition to involvement in trade with other countries, also served as bases for the navy and merchant marines, also enabling federal influence and control. The personnel mentioned in the professor's article was sailors, all of which, at the time, were in service to the national security of the nation. Over time, as our navy grew, in line with Article I, Section 8, the federal government erected forts and military bases which moved the military away from the ports. Private interests purchased controlling rights over the ports, eventually, as well. My point of the article is that the professor's assessment that the health bill of 1790 was no different than Obamacare is false. The federal government has authority over federal holdings. For example, if the federal government wanted to impose obamacare over Washington DC, they could. They have jurisdiction. But to force the people in the States to have it? Or to force those same people to buy insurance under threat of penalty? There is absolutely no constitutional authority for that.

Unknown said...

Of course, as we know, this discussion is purely academic since the ACA's individual mandate was upheld not under the Commerce Clause, but as an expression of Congress's taxation power. Dr. Elhauge's article is, in my opinion, a pretty persuasive defense of the law under the Commerce Clause. However, such a defense was ultimately moot. Please recall that the portion of Act for the Relief of Sick & Disabled Seamen (1798) that Elhauge refers to was not addressed to the United States Navy, but to seamen on privately owned and operated vessels. Even if it were true that "most ships were under the employ of the federal government" if the law applies to any which were not you don't have much of a case. Regarding the Militia Acts of 1792, I congratulate you on an impassioned defense of the Second Amendment, but you do not address Elhauge's salient point: i.e. that the government was requiring private citizens to engage in commerce by purchasing guns and ammunition.


Douglas V. Gibbs said...

Regardless of that law the 1790s, as per the Constitution the ACA act is unconstitutional. . . the justices that claim it is are wrong - and besides, they overstepped their authority in many ways as well. Those 26 States should have saved the taxpayer's money by not taking it to court, and just nullifying it. They still may.
And yes, you heard me right, I said the SCOTUS was wrong, and acting out of the authorities granted as well when they took the case.