Einer Elhauge on Early Examples of "Mandates" (and, Why Everyone Should Read Blogs)
In The New Republic, Professor Einer Elhauge (Harvard Law School) argues that the mandate that all persons buy health insurance has precedents from the founding era: a 1790 requirement that ship owners buy medical insurance for their seamen, a 1792 requirement that all able-bodied men buy firearms, and a requirement that "seamen buy hospital insurance for themselves."
The Militia Act argument doesn’t work at all. First, as Elhauge admits, it’s justifiable under the Militia Clause, not the Commerce Clause. The Militia Clause empowers Congress to provide for arming, training, and disciplining the militia, and the cash-strapped first Congress chose to “provide for” arming them by requiring adult males to own guns. This method of arming the miltia existed under the common law and, indeed, in Anglo-Saxon history going back at least as far as the seventh century, so it was hardly a stretch. …
As for the seamen, … the obligation of shipowners to provide “maintenance and cure” for their seamen was a part of Admiralty law and an obligation that also predated the Constitution. There is certainly no question that the Congress and the courts could do things under Admiralty that could not be done via the commerce power. But even under the commerce clause, it seems clear that seamen are already in commerce and so are the owners of the ships they sail on. This doesn’t apply at all to the health-insurance mandate, unless your argument is that everyone in America, just by living, is already in commerce, which of course removes any suggestion that Congress’s powers are limited. This, I believe, is what troubled the Justices at oral argument.
My colleague Tom Smith has a similar reaction, in his own distinctive style, at The Right Coast.
Entirely apart from the merits of the health care controversy, I'm amazed at how sophisticated legal commentary on blogs has become, compared to what were once considered sources of sophisticated commentary like The New Republic. As Professor Barnett points out, these arguments had been examined critically months or even years ago in leading blogs: see this post from Jason Mazzone on the 1792 Militia Act (from October 2011) and this post from David Kopel on the 1798 act -- from April of 2010! It's stunning to see The New Republic, a magazine I once read eagerly for cutting-edge commentary, this far behind. And, within hours of The New Republic publication, at least four leading law professors are out on the blogs pointing out problems with the argument and sending Professor Elhauge scrambling to the blogs himself to respond.
Conclusion: if you aren't getting your legal commentary from legal blogs, you aren't getting the fastest, best commentary. Period.