The health care insurance mandate and historical analogues: tea, cotton, and manufactured goods
truger at law.upenn.edu
Tue Feb 7 03:46:37 PST 2012
On the subject of early mandates, it's interesting that the very first federal healthcare statute took the form of a mandate-to-purchase private goods, although one applied to shipowners, not all individuals.
By an act of July 20, 1790 Congress under its foreign commerce power required all oceangoing ships with ten or more seamen to provide and maintain "a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled."
The penalty for failing to provide such medicine was that the ship's master was liable for all physician fees and other medical expenses incurred in port by seamen "without any deduction from the wages of such sick seaman or mariner."
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Finkelman, Paul <paul.finkelman at albanylaw.edu> [Paul.Finkelman at albanylaw.edu]
Sent: Monday, February 06, 2012 9:45 PM
To: Scarberry, Mark; Con Law Prof list
Subject: RE: The health care insurance mandate and historical analogues: tea, cotton, and manufactured goods
I think you are really reaching here.
One difference of course -- and it is huge -- is that the colonists did not expect to the government to pay for their beverages if they were thirsty, but in fact we all know that when we run out of money the government picks up the tab -- millions of people our parents age are in nursing homes with medicaid picking up the tab (in addition to medicare) rather than their children doing it.
It is far more like a car insurance mandate -- of other required liability insurance -- than like a tea tax.
There were no tariffs to "force" southerners to buy northern goods. You have been drinking John C. Calhoun's cool aid. And slave state representatives voted for these bills as well and slaveowning presidents signed them.
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208
paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
Sent: Monday, February 06, 2012 8:29 PM
To: Con Law Prof list
Subject: The health care insurance mandate and historical analogues: tea, cotton, and manufactured goods
It doesn’t seem likely, of course, that the current broad reading of the commerce power will be trimmed back. In terms, though, of whether the power should be extended to justify the mandate, I wonder whether it would be useful to consider historical analogues that would have made the founding generation particularly sensitive to mandates. I imagine others have already considered these points, but
1. Wouldn’t the founding generation have been particularly sensitive to mandates due to the British having in a sense forced tea down their throats (with landing of tea backed up by warships)? (No reference to the current tea party movement intended.) I suppose we all are in the market for beverages.
2. Ditto with regard to intersectional disputes over tariffs, imposed to force southerners to buy northern manufactured goods? (Would there also have been a similar concern about forcing northerners to buy southern and western agricultural products?) Or did the tariff disputes arise too late, historically, to be relevant to any sort of original meaning analysis?
I’m not saying that these issues involved mandates, but I think they would have made it particularly unlikely that the commerce power would have been thought to include the power to impose mandates. I think there would have been a visceral reaction against mandates generally.
Perhaps the historians on the list can help us on these points.
Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
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