While the pundits thrive on turning the Supreme Court into a sporting venue, a couple of law scholars point out the obvious constitutionality of Obamacare’s individual mandate.
It’s difficult to imagine what the founding father and framers of the constitution had in mind when they set into motion the creation of the country and the republic more than 200 years ago, but we often seek their guidance in some sort of hindsight game of guessing their intentions. What would the framers think about abortion? Gay marriage? Government mandated healthcare? It’s not an entirely ridiculous practice – the US Constitution is the oldest living document of its kind in the world. This is no small feat for a country that is often regarded as a relatively young one. There are costs and benefits in basing our laws on the values and intentions of men who lived in the late 18th Century, but in the most recent instance of invoking the framer’s intentions, critics are barking up the wrong tree.
After a moment of reflection, it’s remarkable that the debate over the constitutionality of the individual mandate within the Affordable Care Act (ACA, aka Obamacare) has come this far. Yesterday, two remarkable articles were published in the New Republic.
In one, conservative constitutional law professor (Columbia) Henry Paul Monaghan argues that the mandate is obviously constitutional. In a nutshell, Congress has the right to regulate interstate commerce; since most people will, at some point in their lives, require medical care in the form of a service for a fee, it qualifies as a form of commerce that applies to the greater population; Congress has a right to regulate health insurance under the purview of interstate commerce. There may be outliers who live “off the grid” and would be forced to purchase something they may not need, but there is also a decent chance that they too will, at some point, need medical coverage. And besides, we often make sweeping legislation for the greater good at the cost of certain outliers – they ought not be an excuse to hold back society as a whole. The most telling sentence in Monaghan’s article was the last two sentences:
I recognize that many persons believe the health mandate is very bad legislative policy. But the appropriate judicial response to such a complaint has long been clear. The Court was admirably forthright about the point in its ruling in Munn v. Illinois in 1876: “For protection against abuses by the Legislature, the people must resort to the polls, not the courts.”
In the other article, another professor of law (Harvard), Einer Elhauge, gives examples of government mandated health coverage enacted by the founding fathers. They very first Congress, which met in 1790, passed a law mandating all ship owners to purchase medical insurance for their seamen. The bill was signed into law by a man named George Washington. Eight years later, an issue arose over the fact that this law covered drugs and physicians services, but not hospital stays. Congress responded by…wait for it…passing a law requiring all seamen to purchase hospital insurance for themselves.
I’m not a fan of trying to discern the exact intention of the Constitution’s framers. Even if we do pursue their intentions, we must make the right decision even if it conflicts with the framers’ intent. In this hullabaloo over the ACA’s constitutionality, there have been too many critics crying foul that we are violating the principals of the framers. It turns out even the framers were pretty clear in their support of individually mandated health coverage.
sidenote: there have been other, weirder individual mandates too. In 1792, Congress passed a law requiring all “able-bodied men” to buy fire arms. That’s right – not only a right to bear arms, but a law requiring that you must. Perhaps it’s a good thing that we don’t follow everything our framers set down to ink.