History Supports Health Care Mandate

One complaint about President Obama’s Affordable Care Act is that it forces uninsured people to purchase health insurance or pay a penalty, an argument the Supreme Court will have to consider before making a ruling on the law this June. Those opposed to the law tout the Constitution's framers could not possibly have envisioned a congressional power to force purchases. However, history would prove them wrong. Harvard Law School professor Einer Elhauge, has found several examples to the contrary.



In 1790, at the very First Congresses second session, page 134, a law passed called "An Act for the government and regulation of seamen in the merchants service," Section 8, required all ship owners to provide medical insurance for seamen. how's that for a health care mandate?

In 1792, at the Second Congresses first session, page 417, a law passed called The Second Militia Act of 1792 ("An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States.") The law required nearly every "free able-bodied white male citizen" age 18 to 44, within six months, "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," along with balls and gunpowder. A rifle could be substituted. The purpose was to establish a uniform militia.

Finally in 1798, during the fifth Congresses second session, page 77, was passed the Marine Hospital Service Act ("An Act for the relief of sick and disabled Seamen"). The law expanded the 1790 act and required every ship owner or master coming into a port to pay 20 cents per seaman for every month each worker had been employed. The funds, which could be withheld from the seamen, were used "to provide for the temporary relief and maintenance of sick or disabled seamen, in the hospitals or other proper institutions now established" in the port. Leftover funds were used to create hospitals for those mariners.

In regard to the blessing of our founding fathers to such requirements, over 20 of the original 55 framers were involved with this legislation at one time or another. The 1790, and 1792 bills, were signed into law by the father of the country, George Washington. The 1798 act was signed into law by another founder, President John Adams. Professor Elhauge adds "I don’t think anyone objected to any of these laws on constitutional grounds, which presumably someone would have if it was obvious that the original understanding was that such an obligation would be unconstitutional." He continues, "This precedent (like the others) disproves the challengers’ claim that the framers had some general unspoken understanding against purchase mandates. In oral arguments before the court a few weeks ago, the challengers also argued that the health insurance mandate was not “proper” in a way that allows it to be justified under the Necessary and Proper Clause. These precedents rebut that claim because they indicate that the framers thought not just purchase mandates but medical insurance mandates were perfectly proper indeed."

So there you have it. It's to bad Professor Elhauge couldn't be with Solicitor General Donald Verrilli when making the governments case. However, maybe the Justices will happen across this information as we have, lets hope.

NOTE: A special thanks to loyal long time member Richard Bondurant, for bringing this to my attention, way to go Rich!