By Einer Elhauge

Last week, I wrote an article describing several purchase mandates adopted by the framers in early Congresses, including two medical insurance mandates imposed on shipowners and seamen. These examples rebut the claim by challengers to Obamacare that purchase mandates are wholly unprecedented in a way that allows us to infer they are unconstitutional, a claim on which they rely heavily because there is no text, history, or case law that affirmatively supports a ban on purchase mandates.

Not everyone agrees with me. Some comments to my article, here and elsewhere, have suggested that these early medical mandates are distinguishable from Obamacare because they reflect Congress’ power to enact maritime law, not its power to regulate commerce. But the Constitution’s list of congressional powers nowhere includes a maritime law clause. Early Supreme Court cases all held that the Commerce Clause was what gives Congress the power to enact maritime law. For example, in The Daniel Ball, a case decided in 1871, the Court stated that navigable waters form “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…” In The Lottawanna, the Court held 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.” These early medical mandates were thus enacted under the very Commerce Clause at issue in the Obamacare case.

Continue reading “A Response to Critics on the Founding Fathers and Health Insurance Mandates”