HARVARD LAWPROF EINER ELHAUGE EMAILS A LINK TO HIS PIECE IN THE NEW REPUBLIC: If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them? But I don’t find it as convincing has he does. He cites two “mandates” — the Militia Act of 1792 and a requirement that ship owners insure their seamen’s health.

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.

At any rate, Elhauge sets up something of a straw man here: “This precedent (like the others) disproves the challengers’ claim that the framers had some general unspoken understanding against purchase mandates.” I don’t think the Framers had so much a general unspoken understanding against purchase mandates, as a general — spoken — understanding that Congress’s powers should be “few and defined.”

As for the seamen, I’m not sure — but I seem to recall Charlie Black rooting that in the Admiralty power, and that would make sense, as 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.

Anyway, read the whole thing and make up your own mind, but this does not seem to me to be nearly as strong an argument as Elhauge thinks it is.

UPDATE: Reader Andrew Simpson writes:

While I agree with you about the Admiralty grounds as the source of constitutional authority for Congress’s treatment of merchant seamen, there is a more fundamental flaw in Professor Elhauge’s analysis. You would think (well actually, you probably know better) that The New Republic would have exercised some editorial fact checking before they printed the claims made by Professor Elhauge. The fact that he does not provide a citation for the statutes he is referencing should have been a huge red flag for any competent editor.

The 1790 Act required ships of 150 or more tons belonging to US citizens to be equipped with a medicine chest. So, it did not require ship owners to “buy medical insurance for their seamen” as Professor Elhauge claims. You can find the Act here.

The 1798 Act did not require “seamen to buy hospital insurance for themselves” as Professor Elhauge claims. It taxed seamen, required ship owners to collect the tax, and then gave seamen access to medical programs that the tax funded. You can read that Act here.

Eugene Volokh fisked the 1798 Act claim pretty thoroughly here.

One last comment: Between Harvard Law graduate Obama’s knowledge of constitutional law and Harvard Law professor Elhauge’s poor legal research/analytical skills, I’m beginning to really doubt the value of a Harvard Law education.

Well, it’s advocacy, not scholarship, and presented as such. Meanwhile, Randy Barnett is also less than impressed with Elhauge’s argument.

ANOTHER UPDATE: Eugene Volokh emails to note that the Fisking above is by Dave Kopel, not by him.

MORE: Elhauge emails:

Some have suggested that federal medical insurance mandates are distinguishable because they reflect Congress’ power to enact maritime law rather than to regulate commerce. However, Article I of the Constitution has no maritime clause that gives Congress the power to enact maritime statutes. Instead, the early Supreme Court cases all held that Congress had power to enact maritime law because of the Commerce Clause, and that further stated that it was under this commerce clause power that Congress had enacted statutes that determined “the rights and duties of seamen” and “the limitations of the responsibility of shipowners.” The Lottawanna, 88 U.S. 558, 577 (1875); see also The Daniel Ball, 77 U.S. 557, 564 (1871)(the fact that waters are navigable means “it forms a continued highway for commerce, both with other States and with foreign countries, and is thus brought under the direct control of Congress in the exercise of its commercial power. That power authorizes all appropriate legislation for the protection or advancement of either interstate or foreign commerce …”); Gilman v. Philadelphia, 70 U.S. 713, 717 (1865); Providence & N.Y. S.S. Co. v. Hill Mfg. Co., 109 U.S. 578, 589 (1883).

Later cases held that, in addition to Congress’s power to enact maritime law under the commerce clause, Congress also had power to go beyond this to modify any judicial maritime common law, on the notion that such Congressional power is necessary and proper to regulate judge’s Article III power to decide maritime cases. See In re Garnett, 141 U.S. 1, 12, 14 (1891); Southern Pacific Co. v. Jensen, 244 U.S. 205, 214-215 (1917); Crowell v. Benson, 285 U.S. 22, 55 n.18 (1932). But these later cases do not alter the fact that the early federal maritime statutes were based on the Commerce Clause and that this commerce clause power was understood to be what allowed Congress to determine the duties of shipowners and seamen. Further, while these later cases allow Congress to also modify judicial maritime common law, that common law power was to adjudicate maritime disputes and thus do not seem to fit statutes that imposed affirmative regulatory duties to provide insurance, which has nothing to do with maritime common law. In any event, even if one thought these early federal insurance mandates could also be based on the necessary and proper clause, these early insurance mandates still show these laws were “proper” and thus rebut the challenger’s claim that the current insurance mandate fails the “proper” part of the necessary and proper clause.

I’m still not persuaded, because — as mentioned above — ships (and seamen?) are instrumentalities of commerce, and I don’t think you can translate this to ordinary citizens without violating the “non-infinity principle.”

STILL MORE: Einer Elhauge emails:

I have responded to Randy Barnett’s critique, and my analysis also rebuts your similar claim that the ships and seamen examples are different because they are in commerce. See Link.

Andrew Simpson claims the statutes did not provide what I stated. My claims have already been vetted and confirmed to be accurate by the independent PolitiFact, which quote the relevant provisions.

My response to the Volokh critique that my third example involved a tax rather than a mandate can be found at the end of this post.

Noted. I have to say, though, that the PolitFact rendering isn’t at all persuasive. But there’s a reason why PolitiFact’s brand has suffered. In this case, PolitiFact merely reiterates the statutes and says they sound like mandatory health insurance to it.