The Original Individual Mandate, Circa 1792

Regardless 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.]

Virginia, the First State to Challenge the Health Care Law in Court

Effective 2014, as part of the new health care law, most U.S. citizens will be required to obtain some type of health care insurance or be hit with a tax penalty.  This federal mandate is part of an effort by the Obama administration to use the penalty (or tax) to prevent uninsured Americans from shifting their $43 billion in healthcare costs to others.

However, this mandate did not sit well with some states, as many have filed suits seeking to invalidate the law.  Virginia was the first to butt heads with the federal government in court.  In a two-hour hearing, the federal government and Virginia both made their arguments before U.S. District Judge Henry E. Hudson.

The NY Times reports that Judge Hudson, “who was appointed by the first President George Bush, questioned both sides aggressively and said he would rule within 30 days. The judge predicted that the challenges to the health care law ‘will at some point in time define the outer boundaries’ of federal regulatory power.”

Although the hearing primarily concerned the issue of whether Virginia had legal standing to bring this claim, part of that analysis requires the court to look at the likliehood of the party seeking standing to have the injury alleged redressed. The requirements for standing are nicely stated in “The ‘Lectric Law Library“:

Standing. The legal right to initiate a lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992) (Lujan). The party invoking federal jurisdiction bears the burden of establishing each of these elements. Id.

The state here would seem to bear the burden of showing, among other things, that any harm that may or may not be experienced by its individual citizens is a concrete and particularized harm to the state itself. As for the crux of the issues beyond standing, The NY Times reports:

[States'] central argument is that the Commerce Clause of the Constitution cannot be interpreted to allow government penalties on Americans for refusing to buy a product, or as Virginia’s lawsuit puts it for “an absence of commerce.”

“We’re saying you can’t draft someone into activity so you can regulate him,” Virginia’s solicitor general, E. Duncan Getchell Jr., told Judge Hudson.

Mr. Getchell said the Justice Department’s defense of the law “evinces hostility to federalism.” He called the law “a radical, radical claim of power” that, if upheld, would allow the federal government to require citizens to buy most any commercial product in the name of advancing the national interest.

Ian H. Gershengorn, a deputy assistant United States attorney general, countered that the insurance requirement fitted well within the Supreme Court’s parameters for Congressional regulation of interstate commerce. A choice not to obtain coverage, he said, is not inactivity, as Virginia and the other state plaintiffs claim, but an active decision to pay for future medical care out of pocket.  Because many Americans cannot afford the cost of surgeries and hospitalization, their choice to go uninsured shifts the uncompensated cost of their care to hospitals, taxpayers and commercial policyholders.

Despite Virginia’s efforts to protect the interest of the state and its citizens, not everyone in Virginia is pleased with the state’s action to nullify the new health care law.  Some citizens of Virginia seemed more concerned about affordable health care than state’s rights.  As one small business owner puts it, “…seems to me that our attorney general and our current administration are putting politics first and are not taking care of the citizens of the commonwealth of Virginia.”

The Attorney General of Virginia, Ken Cucinelli “said at a news conference after the hearing that the state has “a better than even chance of prevailing” at each step along the way to the lawsuit’s ultimate destination: the U.S. Supreme Court.”

Judge Hudson’s comment, that “the health care law ‘will at some point in time define the outer boundaries’ of federal regulatory power,” is interesting in this context. It seems to denote a question, even if not answered at this time, as to where the line lay.

Professor Mark Hall, in posts here at HRW and later picked up by the Washington Post and New York Times, would beg to differ with Mr. Cucinelli (and perhaps Judge Hudson). Professor Hall’s posts appear below:

Is it Unconstitutional to Mandate Health Insurance?

Are The Attorneys General’s Constitutional Claims Bogus?

photo credit, kjd via Flickr

Huq on Constitutional Challenges to HCR

As constitutional challenges to health care reform mount, many prominent commentators have debunked the legal arguments behind them. Aziz Huq puts them in context:

Highly speculative and doctrinally out-to-sea, these suits cannot be about the law. As their timing shows, they are a continuation of politics by other means. . . .In filing these lawsuits, the attorneys general and their allies have picked up on an emerging current of popular constitutionalism, and ratified it with the dignity of official sanction and a space on the national political stage. Even if these suits fail, the constitutional ideas that animate the complaints and that bubble through tea party rhetoric will be raised again to the attention of a wide public and given new credence.

By contrast, one is hard-pressed to find any such movement linking popular constitutionalism and effective national political actors on the progressive side. These lawsuits should thus be an embarrassment and worry for progressive constitutionalists, who have not articulated a general vision of the Constitution that finds resonance among a wide populace. They should be an embarrassment for the White House, which has generally opted for “safe” and “moderate” picks for the federal bench–not judges with vision. On the right, judges pick up and carry forward popular constitutionalism impulses. On the left, they play a fragmented defense that Obama apparently doesn’t care to improve.

Even progressive commentators like Jay Rosen can’t seem to imagine a “third way” beyond Left and Right other than libertarian. If supporters of health care reform can’t get the debate to turn to real pocketbook issues like insurance rate regulation, they will forever be stuck arguing about “first principles” in a media landscape stacked against the very idea of social insurance.

States Disclaim Own AG’s Suit

Image by James Earle Fraser

A few days ago we published Professor Mark Hall’s post, “Are The Attorneys General’s Constitutional Claims Bogus?” It seems he is not the only asking that question. As noted in The Plum Line, The Governors of four states,  Chris Gregoire of Washington, Bill Ritter of Colorado, Ed Rendell of Pennsylvania, and Jennifer Granholm of Michigan, have expressed their dismay at the prospect of the AG’s suit in a letter to US Attorney Eric Holder:

We believe their legal efforts will fail in court, unnecessarily delay the urgent need to get our citizens access to health care and waste our state tax dollars. As you prepare and deliver your defense of this landmark legislation, you have our commitment to work with you, at your request, to assist in this effort.

Again courtesy of The Plum Line, read the full letter here.

Are The Attorneys General’s Constitutional Claims Bogus?

Professor Mark Hall, Wake Forest University School of Law

Immediately after passage of health care reform, over a dozen state A.G.s sued to declare it unconstitutional, as violating states’ rights.  The Florida complaint is here, and Virginia’s here. Reminiscent of southern governors in the 1960s blocking their state universities’ gates, these legal officers in effect are saying “not on our sovereign soil.”  Since the constitutional issues have already been hashed through so thoroughly, what’s new to talk about?

First, the Florida complaint, which a dozen other states joined (AL, CO, ID, LA, MI, NE, PA,SC, SD, TX, UT, WA), focuses mainly on the financial burdens of expanding Medicaid.  This is challenged under the “commandeering” principle, as requiring states to devote sovereign resources to achieve federal aims.  But, as we know, states are free to withdraw from Medicaid, so the argument seems to fall entirely flat.  The complaint makes a bait-and-switch type of estoppel argument , that states got into Medicaid without any expectation of this expansion, and now it’s too damaging for them to withdraw.  So, in effect, states argue that the Constitution allows them to keep the federal carrot but refuse the federal stick.  Good luck selling that to an appellate court.

Second, these states complain about having to implement the insurance purchasing exchanges and their rules, but here again, states are entirely free to opt out and let their citizens use the federal exchange.  The only reason states have to implement exchanges is that they insisted the legislation give them this option, rather than forcing everyone into a single national exchange.  States can hardly complain about the responsibilities they asked for, especially when they’re still free to duck them.

Third, there are procedural problems.  States probably have no standing to enforce arguments about violation of individual rights (which is the main concern regarding the individual mandate).  Also, consider the remedy if states were to prevail:  It would wreak havoc to overturn the mandate to purchase, but not the mandate for insurers to sell without any medical underwriting.  Doing that would cause massive adverse selection and probably destroy some companies and some portions of the market, so a court would have little option but to strike down most or all of the entire law.  Surely that measure is extreme enough to give even the most activist judge pause, and so will compel most courts to find every possible way to uphold constitutionality, regardless of political persuasion.

Finally, do state nullification statutes like Virginia’s make a difference?  Not according to Harvard’s Charles Fried (who was Reagan’s Solicitor General):

The notion that a state can just choose to opt out is just preposterous…. As long as the federal law is independently constitutional, it doesn’t matter what Virginia says… It’s like Virginia saying we don’t have to pay income tax….One is left speechless by the absurdity of it.

This leaves only the well-worn arguments about exceeding powers to regulate commerce and to tax for the general welfare.  On these, most legal scholars are loud and clear about the merits.  In sum, as Sandy Levinson’s (Univ. Texas) says, “The argument about constitutionality is, if not frivolous, close to it.”

Originally posted at the O’Neill Institute for National and Global Health, Legal Issues in Health Reform.

[Ed. Note: Also Read Professor Hall's prior post on Health Reform Watch, "Is it Unconstitutional to Mandate Health Insurance?"]

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