Tangential but important

From time to time, one of my housemates and I have… ahem…  ‘robust’ debates on the nature of particular political issues that motivate us.  He is, for the most part, a libertarian, although he is more compassionate and more interested in social justice than most of the libertarians I usually hear from.  Essentially, though he is quite firmly insistent on the defense of his individual and civil rights, he is more willing than most to agree with many of the ‘first generation’ of classical liberals (libertarians) who pointed out that the defense of property rights as a guarantor of individual liberty could also have a problematic hitch, as the control of property by some could and has been used to deny liberty to others.

On the subject of the Patient Protection and Affordable Care Act, un-popularly known (though the White House and liberals seem to have accepted the term to some degree and are in process of reclaiming it) as “Obamacare,” we have often come into rather sharp disagreement.  As with many libertarian thinkers, my housemate takes particular objection to the individual mandate, particularly the idea that a president would invoke the much-maligned “commerce clause” as a justification for that mandate.  Like so many, he is persuaded that the enforcement of a mandate to purchase a product is both inherently unconstitutional and would be rejected as such by the foundersif they had an opportunity to be heard on the subject.  In many cases, the rhetoric which surrounds this assertion that the mandate is on its face unconstitutional is often couched in apocalyptic terms: if the mandate is upheld, it will be yet another of the signs of the American end times and will mean the end of freedom in America.  If you can be required to purchase health insurance to help pay for your health care, what else can the government force you to buy?  Wheat, in one notorious (for those who oppose the mandate) case, and broccoli, according to the fears of Antonin Scalia.

I’ve always attempted to rebut such an argument with discussions of the particulars of the market in question.  This is not a slippery slope, because it is essentially a special case.  This is a market that ‘the government’ has already entered by enacting a mandate that a hospital take and treat anyone who shows up at their doors without asking about payment.  And it’s a market that one has no positive control over to opt out of: you can eat your broccoli and still be hit by a car or catch a virus or develop a disease that you could not have taken steps to prevent, requiring you to get health care whether or not you have the ability to pay for it.  It is also a market for products that have grown so large, complex and expensive, that they are almost out of reach for many (perhaps most) Americans if left to their own devices.  And even those who go through an entire year with only a checkup, are forced to pay more across the board to enable those who don’t have coverage to receive care when they show up at a hospital (not to mention the premium paid for acute care at a hospital which could have been more economically managed at a doctor’s office).

But no matter.  The founders would have rejected such a mandate as contrary to their constitutional intent, so if we try to enact one, no matter now good our intentions and how pressing we find the problem, it will mean the end of freedom almost immediately.

Except maybe not.  It may be that the very first Congress and the very first President, recognizing the provision of health care as a special case, enacted just such a mandate for the provision of health care.  This first came to me from The New Republic, though my own recent struggles with illness have meant that I didn’t have the presence of mind to give it my attention until this morning.  The author’s argument is laid out in more detail in the New England Journal of Medicine.

Of course, I suppose you could take issue with the definition in the case of the first legislation which was essentially a mandate that every ship owned by an American with more than ten people serving aboard be required to provide health care for their employees (free of charge) by requiring the purchase of a chest of medications and instructions for their use or by requiring the owner of the ship to pay for any care needed at whatever port of call the ship might reach.  This is a clear mandate, though it rests on the owner rather than the employee.  It seems that this requirement, simply updated, would require every business to have a clinic on site or to pay for their employee (without charge to that employee) to obtain care at an outside clinic or hospital.

It seems significant to me that this mandate is explicitly not enacted for military vessels: in 1790 the Continental Navy (such as it was) had already been disbanded and therefore this mandate did not come as an outgrowth of the government’s own constitutional responsibility to ensure for the common defense.  This was a mandate enacted by Congress and signed by the President to require private citizens as business owners (owners of merchant ships) to purchase care for their employees.

The later legislation on health care (the gun purchase mandate is beyond today’s scope) created a mandate for the individual to pay into a program which would not only provide care but which could be invested until such time as sufficient funds accumulated to construct more hospitals, expanding the availability of care.  Opponents would argue that this is a horse of a different color, as this legislation achieves its goals by taxing those individuals $0.20 per month to be paid into a fund for the provision of care and the construction of hospitals, though I admit that I don’t quite see the distinction.  Call it a monthly premium instead of a tax, and it seems to me that what changes is that the funds be locked into the health care ‘trust’ created, rather than being definable as tax revenue which could be allocated to general funds in times of economic need.

I’ve seen some arguing that this earlier legislation is not an effective precedent for establishing the constitutionality of the mandate, coming as it does before the establishment of the principle of judicial review which has come to be understood as the guarantor of constitutionality.  I admit to being a bit puzzled by this reasoning, and would suggest that, since many of the individuals involved in the earlier mandates (including the two Presidents who signed the legislation) were themselves framers of the original document, they knew better than we did whether the legislation they enacted was in keeping with their intent in the framing of the Constitution.  I’m not arguing here that the mandates are therefore constitutional by default, but it does seem significant that they were enacted by members of the founding generation and not challenged as being beyond the scope of constitutional powers at the time.

And I would also like to point out that Congress and the President enacted this first set of mandates over two hundred years ago and in the meantime we emphatically have not witnessed the collapse of American freedom (though I suppose that is debatable for some).  Given that we’ve made it to 2012 without being subjected to the constitutionally-mandated purchase of broccoli, perhaps that slope isn’t quite as slippery as was feared?


3 responses to “Tangential but important

  1. Thanks for the link. Doesn’t the Federal government have exclusive right to regulate sea activity and thus requiring various medical supplies would be a regulation of that specific Constitutional duty?

    • Hey, Steven, thanks for stopping by! It’s a good question and I’m glad you posted it. It’s my understanding that the federal government does not in fact have such an exclusive right. Only cases which pertain to maritime property rights (such as piracy, seizure and salvage) are required by Article 3, Section 2 to be brought at the federal level. All other claims can be brought in state or federal court as appropriate. It will be very interesting to follow this question in the days to come.

      • Fair enough. I’m an attorney but didn’t take admiralty law in law school and I frankly don’t know any admiralty lawyers. I had always thought that the Feds controlled the seas while the states control the lakes. But that could be based on post-constitution laws.

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