Why Defeating the Individual Mandate isn’t Much of a Victory for Individual Freedom

April 2, 2012 by · 1 Comment
Filed under: Health Law, Health Reform 

Dear Americans:

bl22A recent poll by the Kaiser Family Foundation suggests that 51% of us believe the Affordable Care Act’s (ACA) minimum coverage requirement — its “individual mandate” — is unconstitutional. By my completely unscientific calculations, if about 41% of us like the ACA as a whole, then at least one in ten Americans likes our new reform law but believes the individual mandate to be unconstitutional.[1] This doesn’t count those who dislike the entire Act despite approving of its various features. In other words, there are a lot of us out there who agree with the ACA’s ends, but do not find them to constitutionally justify its means.

If this describes you, there’s something you should know about this lawsuit that’s been in the news lately. You can’t possibly win.

Yes, the Supreme Court may end up killing the mandate in an exciting 5-4 squeaker. But unless you passionately care about states’ rights in the purest, platonic sense, prepare to be deeply disappointed — win, lose, or draw.

My guess is that, if you support the plaintiffs in HHS v. Florida, you do so because you see the mandate as a threat to your personal freedom. Understandably, you don’t like the idea that your government can tell you to buy something you may not want. Health coverage itself is perfectly fine (a majority of the ACA’s detractors already have it), but coercion gives you the creeps. Me too.

Unfortunately, this lawsuit has little or nothing to do with our individual liberties. No iteration of the word “liberty” was mentioned in the March 27 oral arguments on the mandate’s constitutionality.  Attorney for the private plaintiffs, Michael Carvin, mentioned “individual freedom” once, but only after he said this:

Well I don’t think the test of a law’s constitutionality is whether it more adheres to the libertarian principles of the Cato Institute or the statist principles of someone else. I think the test of a law’s constitutionality is not those policy questions; it’s whether or not the law is regulating things that negatively affect commerce or don’t.

To borrow from Bob Dylan, a favorite of mine and the Chief Justice’s, if you’re looking for someone to protect you and defend you, Carvin just said “It ain’t me, babe.” In a nutshell, his argument was this: Congress cannot regulate inactivity, and not buying health insurance is inactivity. Neither proposition is self-evident, but assume for a moment that the latter argument is true. What is at stake here?

Congress premised the individual mandate on its power to regulate commerce between the states, pursuant to Article I, Section 8 of the Constitution. This power is, in a word, tremendous. The Supreme Court, in a 2005 case about the personal growth of medical marijuana, put it like this:

First, Congress can regulate the channels of interstate commerce.

Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce.

Third, Congress has the power to regulate activities that substantially affect interstate commerce.

Carvin didn’t argue that health insurance does not substantially affect interstate commerce. That would be insane. Rather, he argued that although “free riders,” who don’t buy health insurance until they need it, do have a substantial effect on the cost of insurance, they simply haven’t done anything until they do it. And until they do, the federal government can’t touch them. But their state can.

Why? The 10th Amendment says those “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Among these are your state’s “police powers,” which allow it to regulate your behavior in ways Washington can’t. If the plaintiffs here are fighting for any constitutional right at all, and not simply doing this to screw with the President, it is Florida’s right — not your own.[2]

I doubt this will satisfy you, as you probably care more for your own liberty than the exclusivity of your state’s right to violate it. But if the rest of the ACA is upheld (which remains a good bet) some states may do exactly that, and enact their own mandates to prevent free riders from jacking up already high premiums. As for Congress, although it would no longer be able to regulate interstate commerce with an individual mandate, it was never likely to do something so unpopular again anyway. Congress would, however, remain perfectly free to enact individual mandates under a number of its many other Article I powers. That was one of the first things Congress ever did, in fact.

There are other lawsuits out there which could actually help you, but these are premised on our Fifth Amendment rights. As Sixth Circuit Judge Sutton (Bush 43 appointee) has asked, “Why construe . . . this limitation — that citizens cannot be forced to buy insurance, vegetables, cars and so on — solely in a grant of power to Congress, as opposed to due process limitations on power with respect to all American legislative bodies?” But the plaintiff states have no stake in our liberties, and the private plaintiffs’ liberties have yet to be affected; focused on the fastest and easiest path to the ACA’s total destruction, both deemed the Bill of Rights “a loser” in this context.

This is what I mean when I say you can’t win. I write not to change your mind on any issue, but to warn you. We may disagree on the ACA’s mandate’s constitutionality, or even its necessity. But unlike many of this lawsuit’s political allies, who wax poetic on liberty despite having supported more draconian mandates 20 years ago, I’m willing to tell you what the Washington elite already knows:

You don’t have a dog in this fight, and the only prize is a bowl of kibble.

[1] A roughly equal number supports the ACA as a whole, but is not sure of the mandate’s constitutionality. The same poll found that only 12% of respondents would be angry if the Supreme Court killed the mandate provision.

[2] This is exactly why the Fourth Circuit dismissed a similar lawsuit brought by the state of Virginia: when a state challenges a law that only applies to individuals, its lack of a “personal stake” in the case means that it may misrepresent or even disserve the interests of the people who do.


The Individual Mandate, a Brief History — Part II, The Republican Alternative (1993-1994)

February 16, 2011 by · 5 Comments
Filed under: Health Reform, Proposed Legislation 

bl2When President Clinton announced his “Task Force on National Health Reform” in late January, 1993, Republicans (at least initially) felt the need to offer voters a conservative counterpoint. Their primary concern was countering the “employer mandate” proposals, which the right has long opposed as a job-killer. The stakes were raised when, for various reasons, the Task Force’s activities became a political liability for the new President. (The PBS Newshour’s website provides a useful timeline for the entire “Hillarycare” fiasco.)

Politicians on both sides recognized many of the same problems with American health insurance. But without employer mandates or government-run plans at their disposal, Republicans needed a more direct means of containing the cost of health coverage and protecting the insured from “free riders.”

Solutions from the Pauly and Heritage plans soon found their way into Republican- and Democrat-sponsored health bills-including the individual mandate that was vital to both. Lately, liberal pundits have been pushing this fact as some great dramatic irony: Republicans, some of whom are still in office today, loved the mandate back when it was an alternative to President Clinton’s proposals.

That’s a bit of an exaggeration. However much Republicans liked it, conservative legislators wanted to focus on how their bills would enable individuals to choose the insurance they wanted, rather than the consequences for failing to do so.

The “Health Equity and Access Reform Today Act of 1993,” sponsored by Republican Senator John Chafee, was probably the most thorough proposal of the bunch, and even enjoyed some bipartisan support. As has been noted, the bill shared several common elements with the ACA, and would have required all citizens and resident aliens to possess qualifying health coverage by 2005. (This is also the only bill I know of to call this requirement an “individual mandate.”)

Like the ACA, but unlike the think-tank plans or competing Republican proposals, the Chafee bill excludes those with religious objections from the mandate. This proposal didn’t so much enforce the mandate as attempt to make compliance financially attractive-only by possessing qualifying coverage could one take advantage of increased tax credits.

One rejoinder to this history lesson is that two bills without mandates, Representative Rick Santorum and Senator Phil Gramm’s “Comprehensive Family Health Access And Savings Act” and Representative Cliff Stearns and Senator Don Nickels’s “Consumer Choice Health Security Act”, were both more popular among Republicans than the Chafee bill. This is true insofar as neither bill contained a specific provision requiring Americans possess health coverage, but untrue in every other respect.

Based on the Heritage plan, the Stearns-Nickels bill terminated the employer health plan exclusion, and the medical expense and self-employed health insurance deductions. The tax credits and other benefits designed to defray the cost of health care expenses were withheld from those who failed to possess “federally qualified” coverage, as were both itemized health care deductions and even standardized deductions. The Consumer Choice Act would also have followed through with a version of the think tank proposals’ enforcement mechanism, creating state programs to provide coverage “to any individual who . . . who refuses to voluntarily purchase such insurance coverage privately.”[1]

As with other 1990s reform bills, the Consumer Choice Act didn’t devote a specific provision to spelling out an individual mandate; yet no less an authority than the Heritage Foundation considered the bill to possess an individual mandate as per their own design. Soon after the introduction of Nickels-Stearns, Heritage scholar and conservative health care guru Robert E. Moffitt delivered an eloquent and  detailed apologetic in its support. Moffitt’s reasoning would be echoed, years later, in the Government’s own defense of ACA § 1501(b).

The Santorum-Gramm bill was, at once, more draconian and less detailed than any competing proposal. Title VI of that bill stated that “Any individual with family income exceeding [100%] of the official poverty line[2] . . . but who fails to purchase [the required] coverage . . . within 1 year of the date of the enactment of this Act, shall not be eligible for the insurance pool program under title V of this Act.” Title V established subsidized insurance pools for those with pre-existing conditions. In addition, “No provision of Federal, State, or local law shall apply that prohibits the use of any statutory procedure for the collection of unpaid debts for medical expenses incurred by [these] individuals . . . .”

In other words, under Senator Gramm’s plan, not only would you suffer the same tax disadvantages in the similarly-structured Stearns bill, but noncompliance at any point apparently nullifies whatever bankruptcy protections that would help relieve medical debt. The uninsured and underinsured would also risk the possibility that a health condition would price you out of health coverage for either a year or until you aged into Medicare (the bill is unclear as to which). That may be a valid exercise of the commerce power, but it’s also begging a closer look at the Eighth Amendment’s use of the phrase “cruel and unusual.”

There were a few conservative and libertarian criticisms of these mandate proposals, but they were comparatively tame to what we hear now. Nobody seemed to consider the individual mandate a constitutional problem of any kind.[3] The main concern about Stearns-Nickels, it seems, was not that it required states to forcibly insure hold-outs, but that it permitted (but did not require) this by way of state-run plans. At a March, 1994, Heritage Foundation meeting, Senator Nickels promised to delete the provision. But neither Nickels nor Representative Stearns ever altered it.[4]

This disinterest continued even after Democrats reintroduced the “Health Security Act” in July, 1994. That bill had an express individual mandate, was authored by liberal superhero Ted Kennedy, and would have issued Americans spooky-sounding “Health Security Cards.” Amazingly, at the height of Newt Gingrich’s revolution against government overreach, not a constitutional concern seems to have been raised.

At any rate, all Republican bills were left for dead by the end of 1994. Various forces (including Bill Kristol’s infamous memo) convinced the party that any compromise on health care reform would be good for President Clinton and thus bad for them. Colorado senator Hank Brown went so far as to rescind his co-sponsorship of the Chafee bill a month before the midterm election. The problem wasn’t the individual mandate, itself, but its incompatibility with the new message: there wasn’t a health care crisis in America to begin with.

[Read "The Individual Mandate a Brief History--Part I, Conservative Origins"]
[1] Stearns-Nickels § 131(b).

[2] Note, the original text reads “exceeding 200 percent of the income official poverty line . . . or who is eligible for a partial or full credit to purchase a catastrophic health insurance plan under such section.”  Said tax credits are calculated as “100 percent reduced (but not below zero percent) by 1 percentage point for each 1 percentage point (or portion thereof) the qualified individual’s family income exceeds 100 percent of the income official poverty line . . . .”  Thus, if your income is 101% or greater, you’re subject to the bill’s penalties.

[3] William Saffire, Let’s Make a Deal on Health, N.Y. Times (May 23, 1994) (available online at http://select.nytimes.com/gst/abstract.html?res=F00713FC355C0C708EDDAC0894DC494D81&scp=10&sq=safire%20health%20care%20let’s%20make%20a%20deal&st=cse); Michael D. Tanner, Health Care Reform: The Good, the Bad, and the Ugly, Cato Institute Policy Analysis No. 184 (Nov. 24, 1992) (available online at http://www.cato.org/pubs/pas/pa184.pdf); Miller, supra.

[4] Tom Miller, Nickles-Stearns Is Not the Market Choice for Health Care Reform, Cato Institute Policy Analysis No. 210 (June 13, 1994) (available online at http://www.cato.org/pubs/pas/pa210.pdf).


The Individual Mandate, a Brief History — Part I, Conservative Origins

February 14, 2011 by · 6 Comments
Filed under: Health Reform 

bl2In recent years, politicians of every stripe have eaten their words about the wisdom of requiring all Americans to possess health coverage. This hasn’t been real news since the 2007 Democratic primary debates, when candidate Obama claimed his reasons for opposing the mandate were similar to those expressed by Hillary some 15 years ago.

A few years later it was President Obama’s turn. And by 2010, the entire Republican party performed a synchronized heel-face turn, virulently opposing the solution they advocated decades earlier. All of this culminated with the recent passage of the “Repealing the Job-Killing Health Care Law Act” in the House, by which point the mandate had become a 21st century Intolerable Act.

The media have dutifully reported each foible as if such strategic backpedaling were something new under the sun. But the 22-year path to ACA § 1501(b) is a story in its own right, a sort of philosophical history of American health reform policy.

The think-tank solutions (1989 – 1992)

Back in the late 1980s, the individual mandate wasn’t controversial at all–just another idea being kicked around in conservative think tanks. Although economist Mark V. Pauly, an adviser to the first Bush administration, is often cited as the mandate’s creator, conservative thinkers Stuart M. Butler and Edmund F. Haislmaier were dreaming up similar proposals at the Heritage Foundation as early as 1989.

While Democrats debated the choice between employer mandates and single-payer, Pauly and other conservatives looked for market-based remedies to what all agreed was a national “health care crisis.”  The problem with the health insurance market was that it operated more or less like normal accident insurance. As Butler once framed it:

If a young man wrecks his Porsche and has not had the foresight to obtain insurance . . . society feels no obligation to repair his car. But health care is different. If a man is struck down by a heart attack in the street, Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services . . . .

A mandate on individuals recognizes this implicit contract. . . . [E]ach household has the obligation, to the extent it is able, to avoid placing demands on society by protecting itself.[1]

Like the ACA, Butler’s proposed mandate operated through the tax code, using tax credits to make individual insurance more affordable for those who needed the help. Butler’s idea was to replace the tax exclusion for “company-based” plans with above-the-line tax credits: Butler’s plan gave a 20% tax credit to anyone with a health plan meeting basic coverage requirements, along with a “steeply rising” credit for out-of-pocket expenses in relation to household income.[2]

Later versions of the Heritage plan went further and actively discouraged employer-run plans by turning them into normal health plans, subject to the same proposed federal requirements–including the requirement to accept any applicant, employee or not.[3] Butler disliked the income exclusion because it was, first of all, unfair to those who had to purchase their own plans; the exclusion also perpetuated what he felt was an arbitrary emphasis on health insurance as an employment benefit. So long as insurers could deny applicants with preexisting conditions, the employer-centric status quo also discouraged workers from switching jobs–a concern eventually answered by HIPAA in 1996.

Butler predicted that people would gradually leave their employer plans for small groups, such as union-administered plans, Farm Bureau plans, and local HMOs. The small groups, bolstered by the formerly uninsured now required by law to join, would gain bargaining power with size. The higher premiums of those with preexisting conditions were answered with larger tax credits and state-operated subsidized high-risk pools, while low risk individuals enjoyed the benefits of fierce competition between plans intended for their lucrative demographic.[4]

Mark Pauly’s individual mandate operated much like the Heritage plan’s, but served a slightly different reform scheme. Pauly, too, would cease exempting the value of employer-provided health benefits from taxable income, although self-insured employers could otherwise continue to operate much as they do now. There were other differences, such as the Pauly plan’s less generous tax credit system; but the individual mandate played essentially the same market-stuffing role in both proposals.[5]

The primary difference between these conservative think tank mandates and the ACA is how they are enforced. Under the Pauly and Heritage proposals, you simply would possess whatever minimum coverage the federal government required. The 1992 version tasked state programs with randomly assigning the voluntarily uninsured to existing plans.[6] This is considerably more invasive than the ACA:  following the lapse of the three-month grace period, failure to comply with the mandate results in a “personal responsibility payment,” but no actual health coverage.

In 2011, the Pauly and Heritage plans seem surprisingly bold. Such an abrupt shift from the employer-provided model would likely have been more difficult and costly than either Heritage or Pauly let on. For example, the CBO predicted doing so would slow future wage growth for many workers.[7] But, at least in theory, the shift would benefit many low-income households, which would receive the same insurance tax credit everyone else did. And for the young invincibles, the proposed out-of-pocket deductions would make the lower-premium, higher out-of-pocket plans less risky.

These proposals met with few questions about government power, federalism, or individual liberties. Years later, Heritage scholar Robert E. Moffitt hammered libertarian critics for ignoring the disastrous economic effects of “free riders” on responsible citizens by focusing on “metaphysical abstractions.”

“An individual mandate for insurance, then, is not simply to assure other people protection from the ravages of a serious illness, however socially desirable that may be; it is also to protect ourselves. Such self protection is justified within the context of individual freedom; the precedent for this view can be traced to none other than John Stuart Mill. It does not necessarily follow, however, that we would have a right to prescribe anything beyond our own self-protection.”[8]

Still, any legislation adopting the think tank mandates would need to smooth out their harsher aspects-e.g., they’d need exclusions for religious objectors and extreme hardships. But these proposals were realistic, enforceable, and rooted in a genuinely conservative emphasis on personal responsibility.

[1] Start M. Butler, Assuring Affordable Health Care for All Americans, Heritage Lectures 218, p. 8(1989).

[2] Butler, supra, at 4, 6.

[3] A Qualitative Analysis of the Heritage Foundation and Pauly Group Proposals to Restructure the Health Insurance System (“CBO Analysis”), CBO Memorandum, p. 4 (April 1994) (available online at http://www.cbo.gov/ftpdocs/48xx/doc4896/doc23.pdf).

[4] Butler, supra, at 5-7.

[5] CBO Analysis, supra, at 17-23.

[6] Stuart M. Butler, A Policy Maker’s Guide to the Health Care Crisis Part II: The Heritage Consumer Plan (“Guide Part II”), Heritage Talking Points, p. 12 (1992) (available online at http://s3.amazonaws.com/thf_media/1992/pdf/APolicyMakers%20GuidetoTheHealthCareCrisisPart2-S%20Butler.pdf).

[7] CBO Analysis, supra, at 22.

[8] Robert E. Moffit, Perspectives: Personal Freedom, Respnsibility, and Mandates, 13 Health Affairs 101, 103-4 (1994) (available online at http://content.healthaffairs.org/content/13/2/101.full.pdf+html).


Medical Loss Ratios

November 9, 2010 by · Leave a Comment
Filed under: Uncategorized 

spotlight-bradley-latino_1Beginning January 1, 2011, the Patient Protection and Affordable Care Act (PPACA) requires all health insurance plans to spend a set percentage of their aggregate premium income on medical claims and “quality improvement expenses”–85% for large group plans, 80% for individual and small group plans.  This set aside provision is known as a “medical loss ratio” or “minimum loss ratio” (MLR).  Should a health plan spend even slightly less than the required MLR, it must reimburse its customers, pro rata.

Many states already have MLR-based insurance rate regulations, often around 50% to 60%.  Other states have ratios much closer–or in New Jersey’s case, equal–to what PPACA will soon require.  The big difference will be how those MLRs are calculated.  For that, Congress turned to the National Association of Insurance Commissioners (NAIC).

The NAIC submitted its final recommendations to HHS on October 14, after months of conference calls and minor revisions. PPACA actually calls for NAIC to define terms and methodologies to implement the MLR requirement under the law, subject only to certification by HHS.

  • The NAIC excludes federal and state taxes from premium revenues, despite being told by the congressional committee chairs responsible for PPACA that the reform law intended only to exclude new federal premium taxes. Taxes paid on investment income would still be counted as revenue under the NAIC’s recommendations.
  • For smaller carriers, the NAIC recommends a “credibility adjustment” of up to 8.3% added to actual claim and QI expenses, should their loss ratios be sub-regulation. This is meant to account for the increased difficulty of predicting future claims for smaller risk pools. Plans covering 75,000 lives or more would not be eligible for credibility adjustments. (The commissioners declined a “last-minute” proposal to allow adjustments for larger carriers.)
  • In 2011, the NAIC does not think the super-small carriers–those covering fewer than a thousand lives–should pay rebates at all.
  • Medical spending must be calculated state-by-state, and not nationally. Some large insurers pushed hard to have it the other way.

Obviously, the state commissioners are wary of the adverse effects uniform MLR requirements might have on small insurers.

As Timothy Jost, a consumer representative to the NAIC has noted, allowing smaller carriers some elbow room on the MLR calculations doesn’t run counter to the reform statute’s legislative purpose.  PPACA already allows HHS to temporarily “adjust” MLRs for individual plans to account for carriers in states with higher administrative costs.  The purpose of MLR regulations isn’t to mail rebate checks to consumers, but to ensure that the lions share of premium revenue is spent on actual medical care.

Oh, and quality improvement.

In states like New Jersey, determining the actual loss ratio for a plan is a matter of simple math, dividing the total amount of claims paid by the total amount of premium revenue collected.  Under the NAIC’s pre-reform rubric, the loss equals incurred claims plus the amount the carrier sets aside to pay future claims (the “contract reserves”).

The PPACA loss ratio, however, can include more than just claims paid in the numerator-namely, “activities that improve health care quality” or quality improvement (QI) expenses.

The commissioners settled on this basic definition for QI expenses:

“[E]xpenses, other than those billed or allocated by a provider for care delivery (i.e., clinical or claims costs), for all plan activities that are designed to improve health care quality and increase the likelihood of desired health outcomes in ways that are capable of being objectively measured and of producing verifiable results and achievements.”

The NAIC reigns in this fairly broad definition with four basic qualifications:

  • QI expenses “must be directed toward individual enrollees or may be incurred for the benefit of specified segments of enrollees. . . . [S]uch activities may provide health improvements to the population beyond those enrolled in coverage as long as no additional costs are incurred due to the non-enrollees other than allowable QI expenses associated with self insured plans.”
  • “QI expenses should be grounded in evidence-based medicine, widely accepted best clinical practice, or criteria issued by recognized professional medical societies, accreditation bodies, government agencies or other nationally recognized health care quality organizations.”
  • QI expenses “should not be designed primarily to control or contain cost, although they may have cost reducing or cost neutral benefits as long as the primary focus is to improve quality.”
  • QI activities must be “primarily designed to achieve the following goals set out in Section 2717 of the PHSA and Section 1311 of the PPACA:

✓”Improve health outcomes including increasing the likelihood of desired outcomes compared to a baseline and reducing health disparities among specified populations;

✓”Prevent hospital readmissions;

✓”Improve patient safety and reduce medical errors, lower infection and mortality rates;

✓”Increase wellness and promote health activities; or

✓”Enhance the use of health care data to improve quality, transparency, and outcomes.”

The proposal goes on to explain, in detail, what it considers to be the parameters of those five requirements.  Some ambitious examples include various “[a]ctivities to identify and encourage evidence based medicine . . . .”  Such expenditures, aimed at improving the quality of care received by patients, are welcomed by most consumer advocates.

Other expenses are of less obvious value to the consumer.  Nurse hotlines, for example, are often criticized as being administrative, cost-cutting expenditures dressed up to seem more beneficial to consumers than they are.  The NAIC’s recommendations include “face-to-face, telephonic or web-based interactions” as QI expenses, so long as they accomplish one of the goals listed under the “Improve health outcomes” or “Increase wellness” categories.

The problem with nurse hotlines isn’t that they can’t benefit consumers, but that it will be difficult for state and federal regulators to be sure that they are.

For instance, last summer, our family doctor told my wife she might need some minor hand surgery; baffled by what kind of person did such a thing, I called our insurer’s nurse hotline and learned that--of course–hand surgeons do hand surgery.  The nurse then gave us the numbers and addresses of the nearest hand surgeons who accepted our insurance.  This saved us time, no question. But it’s also information we could have gotten by, say, calling a hospital or calling back our general practitioner.

Having happened in 2010, my insurer most likely has to recognize the hotline as an administrative expense, inapplicable to its medical loss percentage.  In 2011, if HHS adopts/certifies the NAIC’s recommendations whole cloth, the hotline may or may not be counted in the MLR depending on whether its “primary focus” is determined to actually improve quality or merely reduce the insurer’s expenses.

But how can regulatory agencies know for sure?  The line is seemingly somewhat open to interpretation. And this, of course, is only one example. If this is the new landscape of health care finance, you can bet that insurers will be hard at work attempting to “re-cast” administrative roles into “quality improvement” functions. It would seem as though someone, somewhere, has to be monitoring QI expenses very carefully.  At least half of the states have made their disinterest pretty clear.


The Original Individual Mandate, Circa 1792

July 20, 2010 by · 5 Comments
Filed under: Health Law 

minute_manRegardless of one’s opinion on the Patient Protection and Affordable Care Act’s constitutionality, most commentators–and no less an authority than the Congressional Budget Office–agree (or concede, as the case may be) that Congress has never required Americans to purchase a good or service from a private entity as a condition of citizenship.  But, importantly,  they are wrong. The ongoing debate over the mandate’s constitutionality has uncovered an unlikely precedent to the PPACA’s individual mandate to possess health coverage. I recently wrote about this overlooked original individual mandate in an article, “The First Individual Mandate: What the Uniform Militia Act of 1792 Tells Us about Fifth Amendment Challenges to Healthcare Reform.”

The Militia Acts of 1792, passed by the Second Congress and signed into law by President Washington, required every able-bodied white male citizen to enroll in his state’s militia and mandated that he “provide himself” with various goods for the common weal:

[E]ach and every free able-bodied white male citizen of the respective States . . . shall severally and respectively be enrolled in the militia . . . .provid[ing] himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein . . . and shall appear so armed, accoutred and provided, when called out to exercise or into service

This was the law of the land until the establishment of the National Guard in 1903.  For many American families, compliance meant purchasing-and eventually re-purchasing-multiple muskets from a private party.

This was no small thing.  Although anywhere from 40 to 79% of American households owned a firearm of some kind, the Militia Act specifically required a military-grade musket.  That particular kind of gun was useful for traditional, line-up-and-shoot 18th century warfare, but clumsy and inaccurate compared to the single-barrel shotguns and rifles Americans were using to hunt game.  A new musket, alone, could cost anywhere from $250 to $500 in today’s money.  Some congressmen estimated it would cost £20 to completely outfit a man for militia service-about $2,000 today.

Perhaps the most surprising aspect of the militia mandate is how uncontroversial it was.  For instance, although the recently-ratified Bill of Rights was certainly fresh on Congress’ mind, not one of militia reform’s many opponents thought to argue the mandate was a government taking of property for public use. Nor did anyone argue it to be contrary to States’ rights under the Tenth Amendment. Rather, the mandate was criticized as an unfair burden upon the poor, who were asked to pay the same amount to arm themselves as the rich.  Indeed, the Militia Acts did nothing to defray costs, although a few years later Congress did appropriate funds to pay militia members for the use of their time and goods-in effect subsidizing the purchases.

All this history is potentially important to the health insurance mandate’s upcoming legal challenges, such as those recently filed by the Thomas More Law Center and the citizens of Mississippi.  Both lawsuits assert Fifth Amendment-based rights the Supreme Court has, up to this point, never recognized.  The Court could change its position on these issues, but only if context permits.  These are the situations where historical precedent, or the lack thereof, can make or break a constitutional argument.

For example, one interesting complaint in the Mississippi class action asserts that the plaintiffs “have the constitutional right to be free from entering a private contract or an involuntary association.”  The complaint considers such a right as an element of “substantive due process,” a set of constitutionally-protected “fundamental rights” that may not be expressly mentioned in the   the Constitution itself, but are read as expressed through the word “Liberty” and are held to be  “deeply rooted in the history and traditions of the United States.”  Many healthcare issues fall under the substantive banner.  Through this doctrine, for example, the Fifth and Fourteenth Amendment due process guarantees have been read to protect privacy and reproductive choices.

The 1792 mandate directly contradicts the notion that longstanding American values somehow establish a freedom from government-mandated purchases.   If such rights truly are deeply rooted in our history and traditions, Americans throughout the several states saw little need for legal recourse:   in fact, many states updated their militia laws in the early 19th century specifically to conform with the federal statutory requirements. The Militia Acts’ roots reach back to colonial New England, where it seems Massachusetts lead the way again in 1632 with its own firearm mandate.

The Militia Acts may be less applicable to other constitutional issues.  Both of the aforementioned class actions, as well as Florida Attorney General Bill McCollum’s suit, also argue that Congress simply cannot regulate interstate commerce by requiring Americans to participate in it. Of course, the procurement of supplies under the Militia Acts did require Americans to engage in commerce, and, perhaps, Interstate Commerce. But it is not particularly tenable to cite the Commerce Clause as the power under which Congress and President Washington moved. More apt would be the Militia Clause, wherein Congress may “call forth the Militia” coupled with the Necessary and Proper Clause:  “Let the end be legitimate, let it be within the scope of the constitution,” as Justice Marshall famously wrote in McCulloch v. Maryland “and all means which are appropriate, which are plainly adapted to that end . . . are constitutional.”   Importantly, McCulloch is still good law (for some idea of the breadth of the Necessary and Proper Clause power, See U.S. v. Comstock, recently decided by the Supreme Court). And yes, the Necessary and Proper Clause may work in tandem with the Commerce Clause.

What is “Necessary and Proper” to the execution of one power (Militia Clause), however, may not be ultimately determined by the Court to be constitutionally so for another (Commerce Clause). But as Constitutional Law Professor Edward Hartnett of Seton Hall Law has pointedly queried, “At least so long as McCulloch v. Maryland is good law, why would the necessary and proper clause in aid of the militia power allow for an individual mandate, while the necessary and proper clause in aid of the commerce power would not?”

Either way, however, it is simply wrong to say that Congress has never required Americans to purchase a good or service from a private entity as a condition of citizenship. In fact, in light of the Militia Acts, the individual mandate to purchase goods or services to protect oneself and one’s neighbors can readily be described as “deeply rooted in the history and traditions of the United States.”  The debate needs to be altered to accommodate this history.

As I continue researching the Militia Acts and the militia system, what surprises me most, and what seems most relevant to the current populist arguments against healthcare reform in general, is how invested Americans once were in the idea of personal sacrifice.  My favorite quotation comes from James “Left Eye” Jackson, an antifederalist-leaning congressmen who was no friend of the Washington Administration:

“Though it may prove burthensome to some individuals to be obliged to arm themselves, yet it would not be so considered when the advantages were justly estimated . . . . [A]s this nation is rising fast in manufactures, the arts and sciences, and from her fertile soil may expect great affluence, she ought to protect that and her liberties from within herself.”

[Bradley Latino is a third-year student at Seton Hall Law School and a guest blogger at Health Reform Watch. He graduated cum laude from Butler University in 2005, where he majored in literature.  He is currently working with the New Jersey Appleseed Public Interest Law Center on an overview of potential conflicts between New Jersey private health insurance regulation and the newly-passed federal law.]