“What If Congress Forced You To Buy A Gun?: George Washington’s Individual Mandates
Eric Spiegelman has an interesting post on how the legal establishment got the individual mandate so wrong. In it, he writes:
How far can the definition of Congress’ enumerated powers be stretched? As Justice Scalia asked during oral arguments: if Congress can force you to buy health insurance, can they also force you to buy broccoli? The question I like to ask is: what if Congress forced you to buy a gun?
But Congress has forced Americans to buy guns. It’s in the Militia Acts of 1792. The relevant section is a bit lengthy, so I’ve bolded the key parts:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this act. And it shall at all times hereafter be the duty of every such captain or commanding officer of a company to enrol every such citizen, as aforesaid, and also those who shall, from time to time, arrive at the age of eighteen years, or being of the age of eighteen years and under the age of forty-five years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrolment, by a proper non-commissioned officer of the company, by whom such notice may be proved. That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
Now, you could argue that this was not done under the Commerce Clause. But as Yale’s Akhil Reid Amar says, “the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a ‘well-regulated’ militia with a mandate, why can’t Congress regulate interstate commerce the same way?”
Incidentally, that’s not the only time an early congress mandated that Americans purchase privately sold products:
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.[…]
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.
That’s from Einer Elhauge, a professor at Harvard Law, who continues, “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.”
Also of note: unlike the mandate to buy muskets, the maritime mandates were exercised under the Commerce Clause.
By: Ezra Klein, The Washington Post Wonkblog, June 26, 2012
“Blame The Supreme Court”: Acting As An Arm Of The Republican Party
Liberals will be tempted to point the finger at themselves if the Affordable Care Act is overturned. They shouldn’t.
It’s a virtual certainty that, if the Supreme Court overturns the individual mandate or the Affordable Care Act wholesale, liberals will find a way to blame each other—or the administration—for its failure to anticipate the constitutional challenge. Yesterday, both The Washington Post and The New York Times ran stories in which critics and observers laid blame on the administration for its tactical strategy, and the bill’s authors for using the mandate to achieve near-universal health-care coverage. Here’s the Times:
With the benefit of hindsight, some advocates said they would have been better off framing the law more explicitly as a tax, although doing so would have been politically explosive. Short of that, some said, strategy alternatives like slowing down the case still might not have made a difference.
This strikes me as misguided. Underlying the assumption that the Court will strike down the individual mandate—or the Affordable Care Act as a whole—is the idea that the current Supreme Court is partisan in a way that’s never been true before. It’s one thing to stack the Court with Justices who are ideologically favorable; it’s something else entirely to stack the Court with fellow partisans, who are primarily loyal to the Republican Party and not any discernible legal principle.
Whether this has happened is an open question, but if it has—as James Fallows argued yesterday—then it’s silly to think that liberals could have avoided disaster by framing the law as a tax, or changing the structure of the mandate. Remember, when the law was being crafted in 2009, or when it was signed in 2010, the spurious distinction between “activity” and “inactivity” hadn’t been devised yet, and no one was concerned the the mandate would violate the Constitution. But eventually, movement conservatives developed a legal principle that would allow them to argue the case.
Likewise, if the mandate were framed as a tax—or even if the Affordable Care Act were shaped as “Medicare-for-all”—movement conservatives would have devised a legal doctrine that challenged its constitutionality.
Because of this, if the Court strikes down the Affordable Care Act, liberals should refrain from turning their guns on each other. Instead, they should take aim at the Supreme Court. A Court that acts as another arm of the Republican Party is one that doesn’t deserve the standing it claims or the respect it demands. Partisan institutions should be treated as such, and liberals should do as much as possible to challenge the legitimacy of the Court.
By: Jamelle Bouie, The American Prospect, June 25, 2012
“Humanity Hanging In The Balance”: Healthcare And Justice Scalia’s Broken Moral Compass
The Supreme Court’s highly anticipated ruling on Obama’s healthcare reforms could come any day now. Whatever the verdict, expect much ado about the hotly debated role of broccoli in healthcare and arcane explanations of the Commerce Clause that is at the center of the legal case against the individual mandate. But buried deep in hearings filled with legalese and judicial sparring was a short exchange that illuminates an American ideal that truly hangs in the balance with this decision—the idea that in a civilized society, we do not sit idly by and watch our neighbors die.
The specific back-and-forth in question occurred on the third day of the hearings between Justice Antonin Scalia and Solicitor General Donald Verilli, the administration official charged with defending the law in court. It went like this:
GENERAL VERRILLI: No. It’s because you’re going—in the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow—that—to which we’ve obligated ourselves so that people get health care.
JUSTICE SCALIA: Well, don’t obligate yourself to that. Why—you know?
GENERAL VERRILLI: Well, I can’t imagine that that—that the Commerce Clause would —would forbid Congress from taking into account this deeply embedded social norm.
JUSTICE SCALIA: You—you could do it.
If you are not a frequent watcher of the Court and therefore not fluent in the cadences of judicial banter, this short, seemingly banal interchange in an exhaustive debate may not have even registered. The “deeply embedded social norm” that Verilli refers to—in fact seems confused that he has to explain to Justice Scalia—is the norm that dictates that people will step in to aid others who are ailing or in danger of death.
Scalia’s statement that “you could do it [defy these norms]” eerily evoked the appalling moment at the September 2011 Republican presidential debate when the audience wildly applauded Wolf Blitzer’s stunned probing of whether candidate Ron Paul would allow a 30-year-old uninsured man in a healthcare emergency to die. “Yes!” shouted unashamed audience members, turning a presidential debate into something reminiscent of the Roman Colosseum. When Justice Scalia argued against the social norms that Verilli was presuming sacrosanct, he was essentially saying, “Let him die!”
While we’ve grown to expect this kind of mob mentality from a radical right wing whipped up in a Tea Party frenzy, this bizarre display of indifference from a Supreme Court Justice breaks new ground in an evolving culture that seems to prize resistance to any and all government over the compassion that is the essence of civilized society. The right screams often and loudly that President Obama has declared war on the Judeo-Christian underpinnings they hold as American as apple pie. But in fact, it is Justice Scalia, from his exalted perch, who appears intent on vacating the Golden Rule and undermining the parable of the Good Samaritan, both core to Christian theology.
Dahlia Lithwick hit the proverbial nail on the head in her description of Justice Scalia when she wrote in Slate in 2003:
Scalia doesn’t come into oral argument all secretive and sphinxlike, feigning indecision on the nuances of the case before him. He comes in like a medieval knight, girded for battle. He knows what the law is. He knows what the opinion should say. And he uses the hour allocated for argument to bludgeon his brethren into agreement.
Scalia, ever the showman, joked during the March hearings that having to read the entire healthcare law in order to rule on it would amount to cruel and unusual punishment, prohibited by the Constitution. At the same time, he displayed an egregious ignorance regarding which provisions in the bill actually passed. And on the final morning of arguments, Scalia laid his cards on the table when he argued that stripping out the individual mandate would cause the whole law to topple.
The mandate, more descriptively titled the “free-rider clause,” fines uninsured individuals who expect taxpayer-supported emergency services to cover calamities that befall them. It is also the component of the reform that allows insurance companies to affordably cover those with pre-existing conditions. Cutting the mandate, Scalia mused, cuts the heart out of the entire reform and would almost certainly kick the whole matter back to a gridlocked Congress, while millions of lives hang in the balance.
A recent Pew poll shows that approximately 83 percent of Americans are affiliated with an organized faith, be it a form of Christianity, Judaism, Muslim, Hinduism or Buddhism. A whopping 78.4 percent of us fall somewhere in the Christian camp. Yet, it is core Christian values that are currently on trial at the Supreme Court.
Perhaps this emotional dissonance is what drives a new poll from the New York Times that shows that only 44 percent of Americans approve of the job the Supreme Court is doing. Once a venerated institution that seemed immune to the partisan squabbles of the other branches of government, the Court has consistently displayed its corporate and right-wing allegiances in decisions that span from 2000’s Bush v Gore when it picked our president and irrevocably altered the course of history (Scalia later told Americans to “get over it!” when asked about the decision) to the 2009 Citizens United decision, the impact of which is being felt acutely this election season. Now, 75 percent of Americans say that the Justices’ political preferences motivate their decision making on the bench.
When healthcare reform passed in 2010, the United States ranked dead last among similar countries in a study comparing cost and quality of healthcare. America consistently spends twice as much for lesser care than its industrialized allies. While the Affordable Care Act left some of the best solutions on the table, it offers real hope to the one in four American adults that go without healthcare each year due to job transitions or other circumstances. So many of our neighbors live in terror that a single unexpected calamity will drive their family into bankruptcy spurred by emergency medical bills. Now, when the verdict comes in, those fellow Americans can add a new fear to their list: that a Conservative Catholic Supreme Court Justice will lead the charge to let them die.
By: Ilyse Hogue, The Nation, June 18, 2012
“Illusions Of Care”: Romney’s Healthcare Plan That Isn’t
If someone asked you to come up with a good reason that Mitt Romney—the boring one-term governor of a state he left with high debt, poor job-creation and low approval ratings—became a credible national candidate, you might have a hard time doing so. The fact that he is wealthy and could self-finance his way into the top tier of Republican presidential contenders helped, as did the fact that he had won in the bluest of states, Massachusetts.
But the main reason, ironically, is that he was associated with a policy achievement—healthcare reform—that he has completely come to oppose. Back in 2007, Republicans still pretended to care about the crisis of 45 million uninsured Americans and costs that keep spiraling upwards. And so they looked to the one Republican who had tackled that problem at the state level and had done so with a program that harnessed the private sector rather than creating a massive new entitlement program. Conservative organs such as National Review, which would later inveigh against the Affordable Care Act (ACA), cited Romney’s experience with reforming the health insurance system as one of his most valuable credentials.
Throughout this campaign Romney has walked a tiny tightrope on healthcare: he attempts to make amends for passing the state level template for the ACA by issuing over the top denunciations of socialist, unconstitutional “Obamacare.” Meanwhile he has studiously avoided saying anything of substance about how he would address the massive market failure that defined the pre-reform American healthcare system.
On Tuesday in Orlando Romney gave a speech intended to create the false impression that he intends to replace the ACA with something that would provide the same benefits through other means. Here is how the Washington Post summarized the speech: “Romney fleshed out a plan he proposed earlier that would apply free-enterprise principles to the nation’s health-care system rather than operate it like a ‘government-managed utility,’ letting competition drive down prices and increase quality.” The “earlier” they refer to is Romney’s big healthcare speech last May that was meant to make it clear how different he is from Obama on the subject.
That was the main thrust again on Tuesday. Romney repeated the usual right-wing shibboleths: that the ACA has hamstrung the economic recovery by placing “unaffordable” cost burdens and new taxes on families and businesses. He has been at this for a while, using misleading anecdotes, such as his blatant misrepresentation of a passage from Noam Scheiber’s book that he claims shows the White House knew healthcare reform would damage the recovery, when it only shows that it knew more stimulus might have been more valuable to the short-term recovery. Of course, had Obama proposed more stimulus spending instead of healthcare reform in the fall of 2009, Romney and other Republicans would have opposed it.
In fact, the Romney campaign appears to disagree with the Post that Romney offered much more substance than he did last May. When I asked for details of what he is proposing, the campaign said he laid it out last year and the program is available on the campaign website.
The healthcare page on Romney’s site does not, in fact, tell you much about what Romney would do. Instead it mostly offers vague, inoffensive sounding principles such as “Ensure flexibility to help the uninsured, including public-private partnerships, exchanges, and subsidies” and “Offer innovation grants to explore non-litigation alternatives to dispute resolution.”
Some of the principles are more blatantly ideological and potentially quite troubling, such as “Limit federal standards and requirements on both private insurance and Medicaid coverage.” Those federal standards and requirements are in place to protect citizens from rapacious companies and miserly state governments that would deprive recipients of necessary treatments. Any given federal requirement might be too costly or unnecessary. But Romney doesn’t specify which federal requirements he would eliminate so as to avoid inviting scrutiny of what his policy would do to the vulnerable.
The few specifics Romney offers could reduce, rather than expand, medical coverage. Romney would turn Medicaid into a block-grant program. That way, if poverty increases the federal government would not be on the hook for covering more Medicaid recipients. It would be the state’s problem. And what would the states do? Reduce the quality of coverage, or tighten eligibility rules to reduce the number of people covered.
The only other major change to the health insurance delivery system Romney offers is this: “End tax discrimination against the individual purchase of insurance.” That’s a euphemism for creating an expensive new tax deduction. That’s pretty hypocritical coming from someone who promises to cut tax rates and somehow magically make up for the lost revenue by eliminating tax expenditures.
Currently employer-provided health insurance is not taxed as income. Consequently, we overspend on health insurance by favoring that compensation over money employers pay to workers and the workers spend on anything else. This is actually not a very good policy for anyone. Employers are stuck with escalating healthcare costs, employees see their wage increases get diverted to healthcare, and the individual insurance market offers inferior, expensive coverage that unfairly disadvantages the self-employed and thus discourages risk taking.
These are all good reasons to get rid of our current system and switch to a universal, single-payer approach, such as making everyone eligible for Medicare. The alternative way to eliminate the current market distortion would be to end the tax deductibility of employer-based health insurance. That’s the program John McCain ran on in 2008. Back then, conservatives made sensible arguments in favor of doing so. For example, the Family Research Council complained in 2007 that employer-sponsored health insurance enjoys the single largest subsidy in our tax code.
But Mitt Romney is not John McCain. He is a coward, who lacks an iota of McCain’s political bravery. Consequently, Romney fears the backlash that would ensue if he took the principled position in favor of removing this inefficiency. So instead he proposes to equalize the treatment by making it also tax-deductible for individuals to buy their own insurance. That’s good for them, but it does nothing for the market. (The advantage to the market of McCain’s proposal was that it would move millions of health working-age Americans into the individual insurance market, much as the individual mandate would.) The ACA creates a flat tax credit for buying insurance. Romney would repeal that and offer a tax credit based on how much you spend on health insurance, so it would disproportionately benefit richer people who can afford more expensive tax plans.
In a similar act of falsely telling voters they can have their cake and eat it too, Romney promises to keep the most popular provision of the ACA, the rule preventing insurers from excluding prior conditions, without explaining how he would prevent the insurance market from a death spiral of cost increases. (The current mechanism for preventing that, the individual mandate, is the core of what Romney promises to repeal if the Supreme Court doesn’t do so first.)
As a freelancer who pays for his own insurance, I stand to benefit. But as American citizens, we all stand to lose.
By: Ben Adler, The Nation, June 12, 2012
“The Fragility Of The 3rd Branch Of Government”: Why The Public’s Growing Disdain For The Supreme Court May Help Obamacare
The public’s growing disdain of the Supreme Court increases the odds that a majority will uphold the constitutionality of Obamacare.
The latest New York Times CBS Poll shows just 44 percent of Americans approve the job the Supreme Court is doing. Fully three-quarters say justices’ decisions are sometimes influenced by their personal political views.
The trend is clearly downward. Approval of the Court reached 66 percent in the late 1980s, and by 2000 had slipped to around 50 percent.
As the Times points out, the decline may stem in part from Americans’ growing distrust in recent years of major institutions in general and the government in particular.
But it’s just as likely to reflect a sense that the Court is more political, especially after it divided in such partisan ways in the 5-4 decisions Bush v. Gore (which decided the 2000 presidential race) and Citizen’s United (which in 2010 opened the floodgates to unlimited campaign spending).
Americans’ diminishing respect for the Court can be heard on the right and left of our increasingly polarized political spectrum.
A few months ago, while a candidate for the Republican presidential nomination, Newt Gingrich stated that the political branches were “not bound” by the Supreme Court. Gingrich is known for making bizarre claims. The remarkable thing about this one was the silence with which it was greeted, not only by other Republican hopefuls but also by Democrats.
Last week I was on a left-leaning radio talk show whose host suddenly went on a riff about how the Constitution doesn’t really give the Supreme Court the power to overturn laws for being unconstitutional, and it shouldn’t have that power.
All this is deeply dangerous for the Court, and for our system of government.
Almost 225 years ago, Alexander Hamilton, writing in the Federalist (Number 78, June 14, 1788) noted the fragility of our third branch of government, whose power rests completely on public respect for its judgement:
The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. [Yet lacking sword or purse, the judiciary] is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
The immediate question is whether the Chief Justice, John Roberts, understands the tenuous position of the Court he now runs. If he does, he’ll do whatever he can to avoid another 5-4 split on the upcoming decision over the constitutionality of the Obama healthcare law.
My guess is he’ll try to get Anthony Kennedy to join with him and with the four Democratic appointees to uphold the law’s constitutionality, relying primarily on an opinion by Judge Laurence Silberman of the Court of Appeals for the District of Columbia – a Republican appointee with impeccable conservative credentials, who found the law to be constitutional.
By: Robert Reich, Robert Reich Blog, June 8, 2012
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