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Thread: Founding Fathers were in favor of individual health insurance mandates

  1. #1
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    Founding Fathers were in favor of individual health insurance mandates

    In fact, they passed several medical care insurance mandates:

    If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?
    Einer Elhauge April 13, 2012 | 12:00 am

    In making the legal case against Obamacare’s individual mandate, challengers have argued that the framers of our Constitution would certainly have found such a measure to be unconstitutional. Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases. The framers, challengers have claimed, thought a constitutional ban on purchase mandates was too “obvious” to mention. Their core basis for this claim is that purchase mandates are unprecedented, which they say would not be the case if it was understood this power existed.

    But there’s a major problem with this line of argument: It just isn’t true. The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.

    That’s not all. In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. Yes, we used to have not only a right to bear arms, but a federal duty to buy them. Four framers voted against this bill, but the others did not, and it was also signed by Washington. Some tried to repeal this gun purchase mandate on the grounds it was too onerous, but only one framer voted to repeal it.

    Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.

    Not only did most framers support these federal mandates to buy firearms and health insurance, but there is no evidence that any of the few framers who voted against these mandates ever objected on constitutional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were unconstitutional. Moreover, no one thought these past purchase mandates were problematic enough to challenge legally.

    True, one could try to distinguish these other federal mandates from the Affordable Care Act mandate. One could argue that the laws for seamen and ship owners mandated purchases from people who were already engaged in some commerce. But that is no less true of everyone subject to the health-insurance mandate: Indeed, virtually all of us get some health care every five years, and the few exceptions could hardly justify invalidating all applications of the statute. One could also argue (as the challengers did) that activity in the health care market isn’t enough to justify a purchase mandate in the separate health insurance market. But the early mandates required shippers and seamen to buy health insurance without showing they were active in any market for health insurance or even health care, which was far more rare back then.

    Nor do any of these attempted distinctions explain away the mandate to buy guns, which was not limited to persons engaged in commerce. One might try the different distinction that the gun purchase mandate was adopted under the militia clause rather than the commerce clause. But that misses the point: This precedent (like the others) disproves the challengers’ claim that the framers had some general unspoken understanding against purchase mandates.

    In oral arguments before the court two weeks ago, the challengers also argued that the health insurance mandate was not “proper” in a way that allows it to be justified under the Necessary and Proper Clause. These precedents rebut that claim because they indicate that the framers thought not just purchase mandates but medical insurance mandates were perfectly proper indeed.

    Einer Elhauge is a professor at Harvard Law School. He joined an amicus brief supporting the constitutionality of the mandate.
    http://www.tnr.com/article/politics/...dable-care-act

  2. #2
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    They also wore funny wigs and $#@!ed their slaves.

    I mean, if we're gonna follow precedent, let's $#@!ing FOLLOW PRECEDENT.

  3. #3
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    Already argued in the lower courts and rejected. All of the courts have concluded that the requirement to purchase health insurance from private providers is unprecedented.

    http://volokh.com/2012/04/13/still-u...omic-mandates/

    My friend, Harvard law professor Einer Elhauge, has an essay in the New Republic, If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?, in which he breathlessly recycles the same two supposed precedents for economic mandates under the Commerce Clause that have been much discussed over the past two years.

    The first is the requirement that ship owners provide insurance for their sailors. While navigation laws such as this one were an exercise of the commerce power, it is a garden variety regulation of how commerce, in this case the activity of shipping, is to be conducted. To be subjected to this regulation, you first have to engage in the commercial activity of shipping, or what was called, “the carrying trade.” The fact that this particular regulation required ship owners to provide insurance does not distinguish it from, say, regulations providing for life preservers or life boats (which also have to be purchased!).

    The second is the well-trod example of the Militia Act that requires persons to provide their own weapons. Of course, this was an exercise of Congress’s militia power, and the militia duty traditionally required members to provide their own weapons. Contrary to Elhauge’s characterization of this as a “purchase mandate,” guns could be gifts or borrowed or inherited. There was no requirement that they be purchased.

    Challengers to the mandate have never denied that Congress has the power to require persons to do things. I have long listed the draft, jury duty, the filing of a tax return, and service on a posse, as examples of fundamental duties of citizenship that are owed to the government in return to the protection it affords to citizens. This is all explained in my 2010 article, Commandeering the People: Why the Individual Insurance Mandate is Unconstitutional. But just because the federal government has the power to make you fight and die for your country does not entail that it has the totalitarian power to make you do anything less than this.

    Every court that has considered the constitutionality of the insurance mandate, including those judges that upheld its constitutionality, have concluded that this mandate is unprecedented. The fact that these two examples have been so well discussed, debunked, and rejected explains why the Solicitor General cited neither in his oral argument when Justice Kennedy characterized this Commerce Clause mandate as unprecedented. Indeed, the fact that, over two years into this debate, these are the only supposed examples of such mandates on offer by defenders of the Affordable Care Act strongly supports, rather than detracts from, the claim that such mandates are unprecedented.

    One reason why supporters of the mandate were so surprised by the apparent skepticism of some of the Justices towards this claim of Congressional power may simply be that they are not all that familiar with the constitutional arguments that have actually been made by the challengers in their briefs or the analysis presented in the opinions of lower court judges.

  4. #4
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    Quote Originally Posted by Brisketexan View Post
    They also wore funny wigs and $#@!ed their slaves.

    I mean, if we're gonna follow precedent, let's $#@!ing FOLLOW PRECEDENT.
    Fairly easy to follow at this point, gents. Just wear a wig and tell your wife she has to start $#@!in' [you] again.

  5. #5
    Buncha Commies.

  6. #6
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    Yes, the (historical/legal) fail is strong with this one (article and its clueless author).

  7. #7
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    Quote Originally Posted by Brisketexan View Post
    They also wore funny wigs and $#@!ed their slaves.

    I mean, if we're gonna follow precedent, let's $#@!ing FOLLOW PRECEDENT.
    I wouldn't follow Precedent Obama any damned where.

  8. #8
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    The "Constitution as Living, Evolving Document" crowd has gone Strict Constructionist. Everything old, is new again. I'm getting my eight-track player out of the pawn shop and $#@!ing like there's no disease...

  9. #9
    His first paragraph assumes that the feds can do anything they want unless prohibited. That's the opposite of the truth.

  10. #10
    His first paragraph assumes that the feds can do anything they want unless prohibited. That's the opposite of the truth.
    Did somebody let the 9th and 10th amendments out of the crawl space again? Where is the hose?

  11. #11
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  12. #12
    Quote Originally Posted by Basil Your Face View Post
    I'm sensing a joie de vive....

  13. #13
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    Quote Originally Posted by Escriva View Post
    His first paragraph assumes that the feds can do anything they want unless prohibited. That's the opposite of the truth.
    The feds can regulate commerce. The constitution doesn't say that cannot regulate commerce. It says they can.

  14. #14
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    Quote Originally Posted by tantric superman View Post
    The feds can regulate commerce. The constitution doesn't say that cannot regulate commerce. It says they can.
    Cat, scratch, fever crazy.

  15. #15
    Bad analogy. You didn't have to be a ship owner. Just like today you don't have to be a car owner. But if you are, you have to buy insurance.

  16. #16
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    OP, you know how I know you're a moran? Get back in the kiddie pool.

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