The briefs and the recent oral arguments before the Supreme Court on the provision for an individual mandate in the Affordable Care Act would have benefited from close attention to two opinions by the great Chief Justice John Marshall, which are referred to only in snippets. John Marshall helped to create the original understanding of the Constitution when he stood with James Madison in the Virginia ratifying convention to defend and explain the Constitution. Someone today searching for the original understanding of the Constitution can hardly do better than to consult the opinions -- usually unanimous opinions -- written by Marshall. In two important cases, McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), Marshall stated with elegant simplicity and persuasiveness the power of Congress to implement the enumerated powers granted to it under Article I, section 8, of the Constitution.
In McCulloch, Marshall explained why the creation of the Bank of the United States was an appropriate means to execute the enumerated power to tax, even though the Constitution says nothing about creating a bank. Marshall pointed to the final clause of Article I, section 8, which states that Congress has the power "to make all Laws which shall be necessary and proper for carrying into Execution" the enumerated powers, such as the power to tax. Marshall did not argue that the federal government has unlimited power or that the Bank was constitutional because it was a tax under the tax power. Obviously a bank is not a tax and a tax is not a bank. Rather, Marshall argued that the Bank was constitutional because in the opinion of Congress it was "necessary and proper" to execute the tax power. As he put it cleanly and beautifully and powerfully:
"We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional."
Another enumerated power under Article I, section 8, is the power "to regulate Commerce ..." All of the parties to the arguments before the Court seemed to agree that health insurance is commerce. The next questions should then have been whether the individual mandate to buy insurance is an appropriate means by which to carry into execution the Health Care Act, whether the mandate is prohibited by the Constitution, and whether it is consistent with the letter and spirit of the Constitution. Yet the arguments made against the mandate were different. The lawyers argued: (1) that there is no provision in the Constitution to permit this mandate; and (2) that the failure to buy insurance is not commerce and that the mandate is creating commerce not regulating it. But neither argument is relevant under the tests established in McCulloch. Just as there does not have to be a specific provision in the Constitution authorizing the creation of the Bank to execute the tax power, and the Bank does not have to be a tax, so there does not have to be a provision in the Constitution to justify the mandate, nor does the mandate have to be a regulation of commerce. Again, the only questions should have been, is the mandate an appropriate means to execute the Affordable Care Act, which is a regulation of commerce, is it prohibited by the Constitution, and is it consistent with the letter and spirit of the Constitution?
One other line of inquiry was an astonishing inquiry into whether the mandate is unconstitutional even if it is necessary because it is an exercise of "plenary" power reserved to the states, in which case it violates the sovereignty of the states as provided for in the Constitution (it's not clear where) and is, therefore, not "proper." But in another great case, Gibbons v. Ogden, Chief Justice Marshall addressed that question as well, this time specifically with regard to the commerce clause. The power to regulate commerce, he wrote,
"like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms. ... If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States." [emphasis added]Insofar as most of the states require drivers to purchase automobile insurance, and Massachusetts in particular requires the purchase of health insurance, so too the federal government under Marshall's opinion would have a similar power. So long as Congress conforms to the contours specified in McCulloch and Gibbons, it does in fact have plenary power, and state sovereignty must yield to it. For further guidance, the parties to this case might have looked at James Madison's Federalist 44, first published on Jan. 25, 1788. In his defense of the necessary-and-proper clause, Madison stated that,
"No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorised; wherever a general power to do a thing is given, every particular power necessary for doing it, is included."
And in Federalist 45, published on the following day, Madison made a profound point that goes to the heart of his understanding of federalism:
"Were the plan of the Convention adverse to the public happiness, my voice would be, reject the plan [i.e., the Constitution]. Were the Union itself inconsistent with the public happiness, it would be, abolish the Union. In like manner as far as the sovereignty of the States cannot be reconciled to the happiness of the people. The voice of every good citizen must be, let the former be sacrificed to the latter."
I believe Chief Justice Marshall read The Federalist carefully. Would that the parties to this case had done the same and had also read the opinions of our greatest chief justice.
It is also noteworthy, that during Marshall's 34 years as chief justice, his court was marked by remarkable deference to Congress, what many of us extol as judicial restraint. Only one minor part of one act of Congress (and only that part) ever was struck down as unconstitutional.
The original understanding of the Constitution, which many of us believe is often discernible and should be controlling, and a conviction that the Court should exercise its power to strike down an act of Congress only when it is unambiguously unconstitutional, which is surely not the case here, would have argued persuasively against bringing suit against the individual mandate.
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— Robert Anson Heinlein, The Moon is a Harsh Mistress
http://sentient.wordsof.org/2012/05/30/mandating-your-health-is-tyranny-heinlein/
Please note that auto insurance never requires the purchase of coverage for one's own medical injuries. In no-fault states the liability section drives a mandate - you're obligated to prove you can at least partially compensate for the property and/or bodily injury harm you do to others. In other states, there is no requirement to purchase medical damages coverage for oneself.
as long as the majority of the act can be shown to be cohesive without the "mandate" and other points in question...it can continue to be applied
the US Constitution is clear in it's meaning "Their is no I in We the People"
the commerce clause doesn't apply if any are excluded
However, none of that applies in these cases.
Militia Act: No standing army at the time (in fact the founders were vehemently against a standing army).The whole of the people in the form of the militia were the army. So, requiring some people (men between a certain age) to own firearms was, at the time, observing the Constitutional mandate to protect the nation. Health care is not something in the Constitution and cannot be construed as such.
Seaman insurance mandate? Not quite.
The law was an employer mandate, not a personal mandate. The law required employers of the sailors to pay the tax, not the sailor’s themselves. Nor did this tax fall on people outside the maritime services. This is quite unlike Obamacare. In Obamacare we are all going to pay, not just our employers, not just people in the health care field, and not just the sick alone.
Furthermore, citing the mandates passed by the founders refutes the argument from the right that the founders would never have approved of a mandate. It is not meant to imply that every law ever passed was constitutional. However, you cannot argue for an originalist reading, which often devolves into WWFD (What Would the Founders Do?), and then ignore any of the founders' actions of which you don't approve. The fact is that George Washington, John Adams, and dozens others believed the government had the constitutional power to impose individual mandates. You can argue about the specifics of the gun mandate and the health care mandate, but any originalist argument against them is dead in the water.
Sadly, a national public option couldn't be passed a corporate-controlled Senate filibuster. Even more sadly, a filibuster-bypassing budget reconciliation item to allow people to buy into Medicare couldn't even get a simple majority of 51 Senators when Democrats had 60 in their caucus.
That said, individual states have great latitude in how they create their state's health insurance exchanges and I wish progressives would have spent more energy paying attention to what is happening in their own states. States can put their own public health insurance plans on their state's health insurance exchange.
Californians are likely to have more than one public option on our state's exchange. Several California counties have public health insurance plans, and at least two, San Francisco and Oakland are looking to put theirs on the statewide exchange.
http://blogs.kqed.org/stateofhealth/2012/01/13/health-insurance-public-option-alive-and-well-in-california/
Blue Cross, a for-profit insurer, lobbied hard to get California's legislature to ban any public option on the coming exchange and thankfully they failed. For-profit insurers know that coming competition from public options is the end of their price-gouging and bloated executive pay.
Vermont is heading directly for single-payer health care which will provide a great model for other state's to look at and emulate if they so choose.
Unfortunately, the "Federalist Society" justices were put on the Court with a mission to support Republican political positions, not to understand and articulate Constitutional history. I have written similarly on this subject, and would make an additional point:
The Federalist Paper you cite, as did I, would take the power to tax and conclude that the individual mandate were a lesser degree of compulsion than a tax, and thus well within the Constitutional powers of Congress. Not that Thomas, Roberts, Scalia or Alito care one whit about this, but the illogic of stating that the law would have been constitutional as a tax, but is unconstitutional as a restriction of liberty as a mandate to buy something from a host of private options, would make an intellectually honest person blush.